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“Do not go gentle into that good night … Rage, rage against the dying of the light.” Dylan Thomas was contemplating death, old age, and human stagnation when he wrote that famous line. Yet the words are also applicable to twenty-something law students. Because a lot of us are dying.

Because law school is killing us.

Hear me out. We Harvard Law students are all quite good at narrowing our focus—at being funneled. We are funneled into the same narrow slate of extracurriculars during high school. We are funneled into one specific major in college. And finally, we are funneled into law school. This funneling process only narrows as time goes on. Our goals grow more uniform. Some students convince themselves they crave a prestigious clerkship purely because everyone else also craves that prestigious clerkship; others fall prey to the false notion, too popular on this campus, that if they want to be appointed a judge they must also become a boring automaton who holds no controversial opinions and who is driven by nothing but legal ambition; and so on.

A particularly intense professor of mine likened this process to boot camp. Law school breaks you down, and then it builds you up again in the image that it sees fit. Yet if you are not careful, the process risks taking more than it gives. In my opinion, that would be a shame, and you should resist it—you should “not go gentle into that good night.”

That doesn’t mean you shouldn’t approach your profession with verve and skill. We all want to be attorneys or else we wouldn’t be tackling this grueling and expensive three-year process. It does mean, however, that in the course of becoming an attorney, you shouldn’t lose all your other defining features. Don’t squander what makes you, you. Before coming to law school, you were probably driven by legal ambition, sure, but also by a desire to learn, to love, to render the world a better place, to make friends, and to be—simply—happy. As you go through law school, don’t lose these desires so that they are replaced with only one: The desire to be an excellent attorney. You are a human, not a machine. In the immortal words of Walt Whitman, you are large. You contain multitudes.

So when others pressure you to participate in this legal journal because “everyone” does, to apply for that extracurricular because “everyone” applies, to attempt to work at this law firm because “everyone” knows it’s the best one, remember: There are many paths to becoming a successful attorney, and not all of them involve only concerning yourself with the law per se. The most creative lawyers—the most successful ones—are the ones who are also the most interesting human beings.

If you played guitar before, read fiction before, expressed your political opinions (liberal or conservative) vigorously and often before, played video games before, loved sitting outside and drawing before, enjoyed playing online chess before, whatever you loved, maintain that love. Be a person, one who would be judged interesting by all sorts of people, even those who know absolutely nothing about the legal profession.

Resist the tide. Leave Harvard Law School not as an attorney, but as a human being who happens to be an attorney. Graduate as a more interesting person than you were when you first started your law school application. It’s easy to become complacent, to follow the tide, but too much of value is lost if you surrender to law school’s various conforming pressures. If you wish to judge real people in the future, if you wish to help real people, then you must be a real person—not a mechanical legal automaton.

The best way to resist the tide of conformity is to start here in law school. And (here it comes) no organization at HLS is such a great outlet for this as the Harvard Law Record—your student newspaper, your dashboard for every debate, every uncertainty, every piece of news shaking this campus. Write for us. Write opinion pieces, write news pieces, engage in open and vigorous discussion with other students. Write regularly or write occasionally, submitting your pieces to editor@hlrecord.org. There is room for everyone here at the oldest law school student newspaper in the country.

Because we are studying the law not for the law’s sake, but for the sake of the law’s impact on the real world. And because that world is worth discussing.

Do not go gentle into that good night.

What HLS Students Should Know About the Law Firms Recruiting Them…and What the Law Firms Won’t Disclose

In the movie The Firm, there’s a moment when Tom Cruise realizes the job he accepted fresh out of Harvard Law School (“HLS”), with the apparently staid tax law firm of Bendini, Lambert & Locke, has one major drawback: the Morolto crime family is the firm’s biggest client, and most of its lawyers are heavily involved in money laundering and tax fraud. This raises a question. Could that really happen? John Grisham thrillers are best enjoyed when such doubts are set aside, of course, but the question is a serious one nonetheless, because the plot of The Firm springs from the very real imbalance of power that exists between law students and the law firms that hire them. When law students graduate, they are in the position of apprentices, with little or no experience in the actual practice of their profession. At the same time, the average “apprentice” now starts a career in the law with more than $100,000 in student debt.[1] This combination of inexperience and financial need creates a powerful incentive for law students to seek employment with large corporate law firms, which may pay double or triple the starting salary of a job in government or the non-profit sector. Suppose, then, that such a firm violates the law or rules of professional conduct. Would it be required to disclose that fact as a condition of its participation in the On-Campus Interview (“OCI”) program at HLS? And if not, what safeguards are in place to ensure that students don’t wind up like Tom Cruise, inadvertently agreeing to work for a firm that engages in unethical or even criminal conduct?

I started pondering these questions as a result of my work representing Ralph Nader (HLS ‘58) in a matter arising from his 2004 independent presidential campaign. During that election, the Democratic Party and its allies filed a total of 29 complaints against Nader’s campaign in 19 different jurisdictions nationwide. Their stated goal was to remove Nader’s name from state ballots or, failing that, to drain his campaign of resources. At least 52 law firms represented or materially supported the various plaintiffs in these cases, including several that regularly participate in the OCI program at HLS. And while I would not suggest that all 52 of those firms necessarily violated the law or rules of professional conduct, I believe that one of them almost certainly did. In fact, based on undisputed evidence in the public record, it appears that this firm not only committed serious ethical violations, but also engaged in conduct which – knowingly or not – enabled a criminal conspiracy to succeed and evade detection. Neither the firm nor its lawyers were charged with any crime, however, and it continues to participate in HLS’s OCI program. According to Assistant Dean for Career Services Mark Weber, the firm is expected to return to HLS this fall, when it will resume recruiting students who likely have no inkling of the relevant facts.

Pittsburgh-based behemoth Reed Smith, LLP was one of the few law firms that succeeded in removing Nader from the ballot in 2004. It did so by convincing a Pennsylvania state court to invalidate more than 30,000 signatures on his nomination petitions based on technicalities – because signers used a nickname like “Bill” instead of the formal name “William,” for example, or because their current and registered addresses didn’t match.[2] All the while, the Reed Smith attorneys claimed to have found “pervasive fraud” in the petitions, even though, as Pennsylvania Supreme Court Justice Thomas Saylor observed, there was “no evidence” to support that claim.[3] A majority of the state’s high court nonetheless cited the alleged “fraud” as justification for affirming an unprecedented trial court judgment awarding Reed Smith $81,102.19 in litigation costs.[4] In a cogent dissent, now-Chief Justice Saylor demonstrated that the majority had misread the plain language of the applicable statute, which did not authorize the imposition of such costs against a defending candidate, but the majority simply disregarded his opinion.[5] Nader thus became the first candidate in American history to be penalized financially by a state for attempting to run for public office – an outcome rendering the majority’s novel misconstruction of the statute “most certainly unconstitutional,” according to constitutional law professor Mark Brown.[6]

Here is where the story takes an almost Grisham-esque twist. In May 2007, seeking to enforce its judgment, Reed Smith initiated attachment proceedings against Nader in the District of Columbia Superior Court, freezing his personal bank accounts. I had been working for Nader since graduating law school in 2005, and he enlisted me to research his legal options. Looming over my investigation was the mystery of why a majority of the Pennsylvania Supreme Court would affirm an unprecedented judgment imposing a draconian penalty on a candidate’s protected First Amendment activity, without any apparent basis in law or fact. What I would discover seemed shocking at the time, although now it pales in comparison to the revelations that later emerged from a criminal investigation by the state attorney general.

In November 2005, while Nader’s appeal of its judgment was pending before the Pennsylvania Supreme Court, Reed Smith began representing then-Chief Justice Ralph Cappy (who joined the majority) as his defense counsel in a state ethics investigation. Reed Smith and its co-counsel from another firm also gave a combined $10,000 in campaign contributions to Justice Sandra Schultz Newman, who authored the majority opinion. In total, these two firms and their lawyers had given at least $67,900 in past and present contributions to five of the six justices in the majority. And finally, yet another member of the majority, Justice Ronald Castille, was of counsel at Reed Smith immediately before joining the bench. Neither Reed Smith nor the justices themselves disclosed any of these facts on the record of the proceedings.

Based on this newly-discovered evidence, we asked the District of Columbia Superior Court to vacate Reed Smith’s judgment, on the ground that the firm’s undisclosed ties with the Pennsylvania Supreme Court justices created an appearance of impropriety and destroyed any semblance of due process. It was a long shot – final judgments are rarely disturbed – but it was our only option. Then, while that motion was pending, Pennsylvania Attorney General Tom Corbett dropped a bombshell.

In a 75-page Grand Jury indictment filed in July 2008, Corbett alleged that the state House Democratic caucus had orchestrated a massive criminal conspiracy to misappropriate millions of dollars in taxpayer funds and resources for private political purposes. One of the most “outstanding examples” of such crimes, the Grand Jury found, was the illegal preparation, at taxpayer expense, of the challenge that Reed Smith filed to Nader’s 2004 nomination petitions. Reed Smith had filed the challenge in the names of several private citizens it claimed to be representing,[7] but the Grand Jury found that state House Democrats were behind the effort. Specifically, the Grand Jury found that “a veritable army” of state employees, totaling as many as 50, had illegally worked “a staggering number of man-hours” to prepare the challenge at taxpayer expense.[8] Trial testimony later revealed that the state employees delivered their completed work-product to Reed Smith’s Pittsburgh offices, where partner Efrem Grail accepted it and gave them more materials to prepare.[9] Grail was responsible for “coordinating” the state employees’ effort, according to the testimony, and he “definitely knew” that they worked for the state House Democratic leadership.[10]

Neither Grail (who has since left the firm) nor any one of the other 15 Reed Smith attorneys who litigated the Nader petition challenge has ever disputed the foregoing facts.[11] Instead, the firm issued a terse statement insisting it had “been assured” the state employees who worked on the challenge were “volunteers”[12] – an assertion at odds with the trial testimony, as well as the attorneys’ duty to know who prepared their litigation, how they did it, and who paid for it.[13] Rather than addressing this discrepancy, however, Reed Smith and its attorneys have remained silent.

In sharp contrast with their current reticence, the Reed Smith attorneys were happy to comment on – and take credit for – the challenge while it was ongoing. In one media report, for example, the attorneys were portrayed as the “workhorses” behind the effort, who claimed to have worked “thousands of hours” to prepare the challenge, which their firm undertook as a “pro bono” matter.[14] “We had the resources to do a statewide review,” partner Daniel Booker claimed.[15] Another report estimated that “about a dozen Reed Smith attorneys, including seven partners, spent 1,300 nonbillable hours reviewing signatures.”[16] Reed Smith’s then-managing partner, Gregory B. Jordan, said that the firm’s pro bono committee approved the project. “We were satisfied it was a worthwhile thing for our people to do,” Jordan said.[17] Efrem Grail also chimed in, telling the New York Times that his firm was protecting the “sacred process” by which candidates gain ballot access.[18]

If these statements now seem disingenuous, it’s not only because there’s nothing sacred about misappropriating taxpayer funds and resources. Campaign finance reports filed with the Federal Election Commission after the election revealed that the Democratic National Committee had retained Reed Smith during the Nader petition challenge, and paid the firm $136,142 for “political consulting” and “legal consulting” services. Reed Smith has also long represented the business and philanthropic interests of Teresa Heinz Kerry, wife of 2004 Democratic presidential nominee John Kerry – the man the Grand Jury identified as the primary intended beneficiary of the challenge.[19] And so, while Reed Smith held itself out as a defender of the public good, the services it provided actually benefited two important clients, one of whom hoped to be residing in the White House when the case concluded.

One might think the revelation that a lawsuit had been prepared illegally, at taxpayer expense, would be grounds for vacating a judgment awarding $81,102.19 in litigation costs to the law firm that filed it. Not in Pennsylvania. In violation of their own rules of civil procedure, the state courts refused to allow Nader to present evidence arising from Attorney General Corbett’s investigation and prosecution of the conspiracy, and then ruled as a matter of law that Reed Smith had done nothing wrong.[20] And what of Corbett, the hard-charging prosecutor whose anti-corruption probe rattled the Capitol in Harrisburg to its foundations? Despite obtaining felony convictions or guilty pleas from 11 of the 12 defendants charged – almost all of them low-level state employees – he took no action against the 16 Reed Smith attorneys who litigated the challenge. Here, too, campaign finance reports may shed light on the vagaries of justice, Pennsylvania-style: in August 2008, not six weeks after Corbett charged the state employees, Reed Smith and its attorneys contributed $15,900 toward his reelection as the state’s top prosecutor.[21] And despite pledging not to accept money from parties involved in his ongoing investigation, Corbett declined Nader’s request that he return the funds.[22]

The upshot of all of this is that Reed Smith remains free to pursue enforcement of its judgment, which it is doing in the District of Columbia courts, where Nader’s bank accounts have now been frozen for eight years.[23] Meanwhile, Reed Smith has taken the position that it has “no duty” to address the evidence of criminality associated with its challenge to Nader’s nomination petitions.[24] And like the Pennsylvania courts, the District of Columbia courts have obligingly disregarded that evidence.[25] The result is a perfect inversion of the courts’ basic function: they are punishing an innocent party for engaging in First Amendment protected conduct, while rewarding another for filing a lawsuit that was prepared illegally, at taxpayer expense. This Alice-in-Wonderland outcome was made possible only because the courts used procedural rulings to avoid addressing the merits of Nader’s defense. If law professor and civil procedure expert Arthur R. Miller is correct that a “deformation of procedure” is transforming our system of justice, such that courts increasingly invoke dubious procedural grounds to deny litigants a meaningful day in court, then this case must be a textbook example.[26]

Presumably, few law firms bear much resemblance to Grisham’s fictional Bendini, Lambert & Locke. But since Reed Smith first initiated action against Nader more than a decade ago, it appears to have violated its ethical obligations, and possibly the law, on multiple occasions. The firm’s failure to disclose its representation of Pennsylvania Supreme Court Chief Justice Ralph Cappy, for instance, seems to be a clear case of “professional misconduct” as defined by the American Bar Association.[27] Reed Smith’s campaign contributions to a presiding justice and a prosecutor engaged in a criminal investigation of a matter in which it was involved also raise serious questions. As law professor and white collar crime expert Robert Fellmeth (HLS ‘70) concluded:

if the law firm of Reed Smith is (a) benefiting from the violations of law properly prosecuted by the Attorney General vis-a-vis legislators and legislative staff (e.g., the firm is attracting business from the political enemies of Nader in a manner attributable to the improper expenditure of public monies alleged), or (b) knew or should have known of the violations alleged by the Attorney General in its capacity as counsel for the violators during the conduct of the violations, it is unethical for him to accept campaign contributions from that firm. In my opinion, it is a violation appropriate for inquiry by the U.S. Attorney with Pennsylvania jurisdiction for the proffering of “dishonest services.”[28]

Most serious of all, however, is Reed Smith’s conduct relating to the criminal conspiracy. Pennsylvania House Democrats couldn’t file the Nader petition challenge themselves, or take credit for their illegal effort to prepare it, without running the risk that their entire criminal enterprise would be exposed. That problem was solved, whether by accident or by design, when Reed Smith publicly presented the challenge as the product of its own “pro bono” efforts, aided by state employees it incorrectly portrayed as “volunteers”. By accepting the state employees’ work product, Reed Smith thus appears to have received services stolen from the taxpayers of Pennsylvania. To the extent that Reed Smith knew or should have known that, it also appears to have aided and abetted the conspiracy, in violation of both the law and its duty of candor to the court and other ethical obligations.

It’s possible that Reed Smith’s apparent misconduct in the Nader matter is an aberration, of course, but there seems to be no shortage of cases in which the firm has been accused of wrongdoing.[29] Since I became acquainted with Reed Smith, for example, one of its former clients, a Christian charity, sued the firm for charging nearly $1 million in legal fees based on an initial estimate of $50,000 – even though Reed Smith lost the “run-of-the-mill” employment discrimination case, and the charity reportedly had to pay the plaintiff an additional $463,000 in damages and attorneys’ fees.[30] In another case, a former client sued Reed Smith for engaging in “a frenzy of self-dealing, fee-churning and malpractice, in order to enrich [itself]” after he suffered a “widow-maker” heart attack.[31] Then there was the former Reed Smith partner who sued the firm, alleging that her colleagues in the corporate securities group doled out desirable assignments in exchange for sexual favors.[32] Each of these cases quietly settled.

One thing is certain: the consequences of Reed Smith’s actions in the Nader matter have reverberated far beyond its persecution of a single candidate. In July 2014, the Third Circuit Court of Appeals concluded that the judgment Reed Smith obtained against Nader, and the precedent it set, has created “a chilling effect on protected First Amendment activity.”[33] People in Pennsylvania are simply afraid to run for statewide public office without the consent of the two major parties. As a result, in the last decade, Pennsylvanians have usually had no choice in such elections but to vote for the Republican or Democrat.[34] That should change, finally, following a ruling by District Court Judge Lawrence Stengel in July 2015, which struck down the statute Reed Smith relied on to obtain its judgment. In holding the statute unconstitutional, Judge Stengel observed (quoting the Court of Appeals) that Republicans and Democrats had used the Reed Smith precedent “as a cudgel against non-major parties and their candidates.”

If there is some good that can come from telling this story, our hope is that it will spur Harvard Law School – and other law schools nationwide – to take an active role in determining whether law firms are eligible to participate in on-campus recruiting. Currently, Assistant Dean Weber confirmed, HLS does not even require law firms participating in its OCI program to disclose violations of the law or rules of professional conduct. Instead, students are simply advised to “conduct their due diligence” before accepting any job offer. But it would take students a great deal of time and effort to do so, and they likely would have limited success. Large corporate law firms like Reed Smith are experts at concealment – note Reed Smith’s practice of settling cases that threaten to expose its alleged wrongdoing – and it’s unrealistic to expect that students with limited time and resources will pierce their veil of secrecy. Here again Reed Smith provides an illustrative example: in 2007, before Attorney General Corbett exposed the criminality associated with its Nader petition challenge, the firm was touting the effort in the Vault Guide to Law Firm Pro Bono Programs as a case where it received “special recognition” for its “pro bono” work.[35] Since then, Reed Smith has removed similar language from its own website.

So what are students to do? For a start, take Assistant Dean Weber’s advice seriously, and seek out independent information about the law firms recruiting you. Consult the materials available from the Office of Career Services, but don’t stop there. Talk with those who know the firms best – not only firm insiders and their colleagues, but also non-profit citizen groups that have experience with the firms, as well as adverse parties, and even the firms’ own clients. You may be surprised at what you can learn when you start digging.

But law schools, including HLS, can and must do more. When they invite law firms to recruit on campus, they provide the firms with an implicit, if not explicit, imprimatur on which students inevitably rely. Law schools therefore have an obligation to conduct their own due diligence. At a minimum, they should require law firms and other potential employers to disclose recent violations of the law or rules of professional conduct. After all, according to HLS Director of Admissions Tom Robinson, students are required to disclose their own disciplinary infractions – both academic and behavioral – when they apply for admission. Law firms participating in OCI should be subject to the same standard.

There is precedent for this proposal. In 2009, Fordham Law Dean William Treanor banned a law firm from on-campus recruiting for five years, citing its “unprofessionalism” for canceling interviews with students after they had already committed.[36] If that relatively minor infraction merits disciplinary action, then surely more serious legal or ethical violations do too. The firm that raised Dean Treanor’s ire, incidentally, was Reed Smith.


 

[1]   See American Bar Association, Average Amount Borrowed 2001-2012, available at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/avg_amnt_brwd.authcheckdam.pdf (last visited July 10, 2015).

[2]   See In Re Nomination Paper of Ralph Nader, 865 A.2d 8, 18 (Pa. Commw. 2004).

[3]   See In Re Nomination Paper of Ralph Nader, 860 A.2d 1, 8 n.13 (Pa. 2004) (Saylor, J., dissenting). The trial court had suggested, in dicta contradicted by its own factual findings, that Nader’s nomination petitions were “fraudulent” and contained “thousands of names that were created at random.” See In Re Nomination Paper of Ralph Nader, 865 A.2d at 18. As Justice Saylor explained, however, the trial court’s findings demonstrate that only a small number of signatures – 687 or 1.3 percent of the total – were designated as “forged,” see In Re Nomination Paper of Ralph Nader, 860 A.2d at 8 n.13, and this category included obviously fictitious names that suggest not fraud but pranks or sabotage. Moreover, Reed Smith itself conceded that the trial court “did not reach” its allegations of “pervasive fraud”. See Brief of Appellee at 5 n.3, In Re Nomination Paper of Ralph Nader, 905 A.2d 450 (Pa. 2006).

[4]   See In Re Nomination Paper of Ralph Nader, 905 A.2d 450 (Pa. 2006).

[5]   See In Re Nomination Paper of Ralph Nader, 905 A.2d at 461 (Saylor, J., dissenting).

[6]   See Mark Brown, Political Peril in Pennsylvania: Ballot Access Penalties Create Chilling Effect, Green Institute Publications (February 17, 2007) (Disclosure: Professor Brown has represented Nader in other matters). The Supreme Court of the United States declined to hear Nader’s appeal. See Nader v. Serody, 127 S.Ct. 995 (2007). In a constitutional challenge to the statute now pending in federal court, however, the Third Circuit Court of Appeals concluded, without reaching the merits, that the statute imposes an “intolerable” burden on minor political parties’ First Amendment rights. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 364 (3rd. Cir. 2014).

[7]   Formally known as the “objectors,” Reed Smith’s nominal clients are Pennsylvania residents Linda S. Serody, Roderick J. Sweets, Ronald Bergman, Richard Trinclisti, Terry Trinclisti, Bernie Cohen-Scott, Donald G. Brown and Julia A. O’Connell.

[8]   See 28th Statewide Investigating Grand Jury Presentment at 55-56 (filed July 10, 2008).

[9]   See Transcript of Proceedings at 46-47, Commonwealth v. Ramaley, et al., No. 1207 M.D. 08/4664 (Ct. Comm. Pl., Dauphin Cty., October 7-8, 2008).

[10] See Transcript of Proceedings at 28, 48, Commonwealth v. Ramaley, et al., No. 1207 M.D. 08/4664 (Ct. Comm. Pl., Dauphin Cty., October 7-8, 2008).

[11] The docket lists the following Reed Smith attorneys as counsel to the nominal challengers: Mark Lawrence Tamburri; John M. McIntyre; Cynthia E. Kernick; James Michael Doerfler; Andrea Beth Simonson; Jeremy David Feinstein; Milind Madhukar Shah; Barbara Kiely; Jeffrey John Bresch; Christopher K. Walters; Daniel I. Booker; Ira Steven Lefton; Melissa Joy Oretsky; Kim M. Watterson; Lisa M. Campoli; James P. Williamson; Efrem M. Grail. See In Re Nomination Paper of Ralph Nader, 865 A.2d 8 (Pa. Commw. 2004).

[12] See Ralph Nader Chimes in on Bonusgate, Pittsburgh Post-Gazette (March 9, 2010).

[13] See Pa. R. Civ. P. 1023.1 (requiring attorneys to conduct “an inquiry reasonable under the circumstances” into the law and facts relating to every “pleading, motion, or other paper” filed with court).

[14] See Melissa Nann Burke, Foiling the Spoiler, The Legal Intelligencer (Nov. 2, 2004).

[15] See Burke, supra n.14.

[16] See Carlyn Kolker, Anti-Nader Raiders, American Lawyer (October 1, 2004).

[17] See Burke, supra n.14.

[18] See Kate Zernike, Nader Ballot Petitions Present a Phone Book Full of Problems, New York Times (October 8, 2004).

[19] See 28th Statewide Investigating Grand Jury Presentment at 55 (filed July 10, 2008).

[20] See In Re Nomination Paper of Ralph Nader, No. 568 M.D. 2004 (December 4, 2008) (unpublished opinion). The Supreme Court of Pennsylvania denied Nader’s request for oral argument and affirmed without opinion. See In Re Nomination Paper of Ralph Nader, No. 94 MAP 2008 (October 23, 2009).

[21] See Editorial, Bonusgate’s Coattails, Philadelphia Inquirer (March 11, 2010). Corbett went on to be elected Governor in 2010, running as a tough-on-crime candidate, then became the first incumbent chief executive to lose his bid for reelection in the 40 years since Pennsylvania permitted a second term. See Associated Press, What Will History Say of Gov. Tom Corbett’s Tenure in Pennsylvania?, Harrisburg Patriot-News (December 25, 2014).

[22] See supra n.21, Bonusgate’s Coattails.

[23] Reed Smith prematurely seized the funds from Nader’s PNC Bank accounts in violation of the automatic 10-day stay imposed by D.C. Civil Rule 62(a), thus denying him his right to oppose enforcement of its judgment – another violation of the rules facilitated, perhaps, by Reed Smith’s failure to disclose yet another conflict of interest. This time, Reed Smith named PNC Bank as a garnishee-defendant in the proceeding, but failed to disclose its long-standing attorney-client relationship with the bank. See Tracie Mauriello, Nader Retaliates for PNC Bank’s Handling of Court Order, Pittsburgh Post-Gazette (January 4, 2014). The District of Columbia Court of Appeals excused this violation on the ground that “Nader has not been harmed.” See Nader v. Serody, 43 A.3d 327, 337 (D.C. 2012).

[24] See Brief of Appellee at 18, Nader v. Serody, 43 A.3d 327 (D.C. 2012).

[25] See Nader v. Serody, supra n.17. As the D.C. Court of Appeals has elsewhere observed, however, in a precedent it declined to apply to Reed Smith, the basis for drawing an adverse inference “is at its zenith when the party who remains silent has been accused of fraud or like conduct,” and consequently, “the failure to deny charges of fraud is tantamount to an admission of the truth of those charges.” Murphy v. McCloud, 650 A.2d 202, 217 (D.C. 1994) (citation omitted).

[26] See Arthur R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. REV. 286 (2013). Professor Miller focused on federal courts, but it would appear that the same phenomenon is occurring in state courts.

[27] See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 07-449, 3 (2007) (failure to ensure proper disclosure of representation of presiding judge by lawyer or another lawyer in same firm is “professional misconduct”).

[28] See Formal Opinion of University of San Diego School of Law Professor Robert Fellmeth (June 29, 2009) (on file with author) (Disclosure: Professor Fellmeth worked with Nader 40 years ago and has served on the Board of Directors of Public Citizen, a group Nader founded). For example, the Grand Jury indictment that Corbett filed on July 10, 2008 conspicuously fails to identify Reed Smith by name, despite its extensive detail about the state employees’ illegal activity, and their coordination with a “law firm” – an extraordinary and unwarranted grant of anonymity in the context of a criminal indictment that otherwise names the individuals and entities involved.

[29] For a study of the larger impact of misconduct by large corporate law firms, see Ralph Nader and Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (Random House 1996).

[30] See Bair Foundation, Inc. v. Reed Smith, No. 11782-07 (Comm. Pl. Ct. Pa., Lawrence Cty.) (Complaint filed November 20, 2007); see also Julie Triedman, Reed Smith Loses Round One of Overbilling Lawsuit, The AmLaw Daily (August 6, 2008).

[31] See West v. Reed Smith, No. L-2911-11 (Sup. Ct. N.J.) (Complaint filed June 8, 2011).

[32] See Dillon v. Reed Smith, No. 2:10-cv-01618-NBF (W.D. Pa.) (Complaint filed December 6, 2010).

[33] See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 363 (3rd. Cir. 2014).

[34] See Constitution Party of Pa., 757 F.3d at 363-34; see also Oliver Hall, Some Political Parties Remain Outlaws in Pa., Philadelphia Inquirer (October 18, 2010).

[35] See Vault Guide to Law Firm Pro Bono Programs 2007 Edition (3d. ed.), 578 (Vault, Inc. 2007).

[36] See News Editor, Fordham Law Bans Firm From On-Campus Interviews for Five Years, The National Jurist (September 3, 2009).

An Afternoon With Madeleine Albright

Every semester, the Future of Diplomacy Project and the Program on Negotiation brings former U.S. Secretaries of States to Harvard University. Its mission is to connect students and faculty with the Secretaries’ philosophies and to discuss the most vital of negotiations that they conducted while they were in office. Last semester, Harvard hosted former Secretary of State Henry Kissinger at the Harvard Law School. This semester former Secretary of State Madeleine K. Albright was invited.

Albright, the 64th U.S. Secretary of State, became the first female and the second immigrant to fill this position. Albright has an impressive record. In 2012, she received the Presidential Medal of Freedom from President Obama. She is a graduate from Wellesley College and Columbia University, author of five New York Times bestsellers, and chair of her own strategy and investment advisory firm.

During her talk, she shared her own unique expertise on the topic of negotiations in a manner that was more concrete than diplomatic. The proud immigrant often invoked her childhood in Europe to engage the audience. “Personal relationships do ease things a lot,” she said. “But you can’t let that personal relationship get in the way.” It was obvious that Albright loved her work as Secretary of State.

Albright stressed that when negotiating, all parties need to be on the same level. If one person can access the negotiations from a higher level, they will negotiate on that level. The key in all conversations is to pay attention to what you say and how you say it.

She recommended not to set deadlines in any negotiation. “Setting deadlines was a mistake,” she described from her experience. Albright explained that as a diplomat you have to feel and act as if you have all the facts, even when you don’t. She recalled a phone call she once had with former President Bill Clinton, who asked her if they were doing the right thing, to which she re-assured him with, “Yes, we are.”

Albright’s challenges taught her you need to understand the context and what is going on. “You need to know the history,” she emphasized. “When you start out, you don’t know anyone in the department. You have to trust that people give you the right information.” To challenge her views, she would often choose to be surrounded by outsiders.

“Leadership is about listening,” she added, “The basis of any successful negotiation is to understand what the other person needs. You don’t have to like everybody, but you do have to know what makes them tick.” One time when she was at the UN, and noted that China barely participated in conversations. On one occasion, she directly addressed the Chinese foreign minister and asked if they could swap out talking points, so they could talk about the hard topics.

Further on in the discussion, Albright presented her views on U.S.-China relations. She joked that, “whenever we can’t figure out relationships, we say they are multi-faceted.” Her political experience show her that the Chinese are resource hungry and are feeling expansive, but that it is important that the two countries understand that they depend on each other.

Toward the end of her talk, she explained how upon becoming a naturalized citizen, Kissinger called her and complained that she had taken away his one unique characteristic. But Albright told him that she had not for she did not take his accent. It was this anecdote that encapsulates her strength as a stateswoman. It is her nuanced understanding of other people that helps her to be a great negotiator and diplomat.

 

 

Letter to the Editor: Further in Defense of Dershowitz

To the Harvard Law Record:

I see that the controversy swirling around HLS Professor Emeritus Alan Dershowitz, and the sensational allegations made in legal papers filed in federal court in Miami, continue unabated, nationally and in the pages and the on-line site of the Harvard Law Record. I had hoped that my comments (published in your print edition of March 12th) would be the last that I would have to say on the matter, but I feel compelled now to make two additional points which must be borne in mind by those who are demanding that Dershowitz disclose the documentary evidence that he has said he possesses that would put the lie to the allegations of his involvement in abuse of an underage girl (now a 31-year old adult).

I have known Professor Dershowitz since his and my arrival at HLS in 1964 – he as professor, I as student. I believe Dershowitz when he says that he has documentary evidence to demonstrate that he was not, and could not have been, present at certain locations at times when the complaint alleges sexual abuse in which Dershowitz participated. I also know that Dershowitz is not dumb nor gullible enough to turn that evidence over to anyone, including his critics and the news media, unless and until his accuser and her lawyers have specified, under oath, the times and places of the alleged abuse. Why? Because, as any litigator knows, it is par-for-the-course for an accuser to make his or her accusations under oath in the first instance, and for the accused to follow with his own under-oath defenses, so that the accuser is not given the luxury of seeing the defense documents first and thus being enabled to construct detailed accusations around those documents. I have checked this with Professor Dershowitz, and he assures me that he will produce his documentation as soon as his accuser and her lawyers have been pinned down as to the times and places of the alleged abuse. I’ve known and worked with Professor Dershowitz long enough to know that he can account for his activities and his presence for virtually every day of his professional life. I used to laugh at what I considered his obsessive recording of his life, but now it’s no laughing matter, and quite fortunate that he did so.

I suggest that those who have chosen to credit the allegations against Professor Dershowitz hold their fire until the record has been made. Law students and lawyers, in particular, should be sensitive not only to the demands of Due Process of Law, but also to the aphorism, familiar to most practicing lawyers, that facts are stubborn things. As the late Harvard professor (and later United States Senator) Daniel Patrick Moynihan reminded us, everyone is entitled to his or her opinions, but not to his or her facts.

Sincerely,

Harvey A. Silverglate

Editor’s Note: Harvey A. Silverglate graduated from Harvard Law School in 1967. He is co-founder of the Foundation for Individual Rights in Education and is a prolific author and legal scholar.

Confrontation

The Supreme Court has confused the right to confrontation with the right to cross-examination. Our constitution’s fundamental right to confrontation is now lost in a swamp of common-law hearsay. In Ohio v. Clark, presently pending decision in the Supreme Court, the Court has an opportunity to set matters right.

Confrontation and cross-examination are distinct rights. The right to confrontation speaks to the quality and legitimacy of the prosecution’s case in chief. The right to cross-examination protects the defendant’s right to defend.

The confrontation entitlement for which Sir Walter Raleigh fought was for the prosecution to prove his guilt by producing live sworn witnesses testifying from personal knowledge to his jury. This is the right to be confronted with the witnesses against you. This right, if contravened, is enforced by dismissing the charges against you at the close of the prosecution’s case-in-chief. It is a rule of production, not a rule of admissibility. It prevents the prosecution from basing its case on hearsay, whether it is ‘admissible’ hearsay or not. Hearsay declarants are not “the witnesses against” to whom our Confrontation Clause refers. Hearsay declarants are not trial witnesses since they never appear at trial; their reports, if admissible at all, may be used only to corroborate the testimony of the “witnesses against” the defendant but may not supplant the need for them. Hearsay may not serve as the foundation of the prosecution’s case.

The right to confrontation began in a god-fearing English shire coming together to try a defendant accused of the crime. Evolving from trial by battle or other forms of physical contest to public trial by jury, English jurisprudence settled upon a method for determining the defendant’s culpability that required the defendant’s accusers, upon oath before god to accuse him to his face. This act of confrontation occurred under the eye of the jury and community (who were, at first, the same body), who were charged with assessing and judging whether the witness’s oath was genuine: did he appear to fear god’s damnation for the sin of perjury? The presence at trial and taking of an oath by the witness was essential. Jurors must see the witness swear and testify in order to determine the truth — their ‘verdict’.

Raleigh’s call at his trial — “Bring Cobham before my face!” — was for just that procedural and basic right. Without Cobham to swear under oath and accuse him to his face before the jury, the jury could not judge the truth, and thus could not render valid verdict: “If you proceed to condemn me by bare inferences, without an oath, without a subscription, without witnesses, upon a paper accusation, you try me by the Spanish inquisition.” (Jardine 419) Reaction to the injustice of Raleigh’s conviction and execution in the absence of sworn live testimony crystallized ‘confrontation’ as a fundamental concept of fair trial.

In Raleigh’s time, fair defense had not yet emerged as a concept. Raleigh had no right call witnesses in his defense, or to testify himself. Nor did he have any right to cross-examine the prosecution’s witnesses. Hearsay admissibility rules which protect the defendant’s right to cross-examine emerged only later on with the development of the right to defend. But, with the emergence of hearsay rules came confusion as to the meaning of confrontation.

Although the high point of a trial comes when defense counsel cross examines the defendant’s accuser, it is wrong in both history and substance to think of the our constitutional ‘right to confrontation’ as a right of cross-examination. Distinct from the right of confrontation, a defendant’s right to cross-examine is protected by common law hearsay rules. The hearsay rule and its myriad exceptions seek to balance the probative value of a hearsay report without cross-examination against its potential for confusion and waste of time. Some hearsay is excluded, some is not. If admitted, the infirmities of the hearsay in the absence of cross-examination may be brought to the jury’s attention. Improper admission of hearsay at trial is not of constitutional moment unless it is essential to the prosecution’s case in chief. This use of hearsay denies the defendant his constitutional right of confrontation.

In 1895, the Supreme Court confused ‘confrontation’ with ‘cross-examination’ in a way that has left the law in shambles ever since. Treating confrontation as cross-examination transformed the legal focus of ‘confrontation’ from prosecution to defense. The justices misconceived the purpose of confrontation to be a rule of evidence designed to protect the right of cross-examination by requiring the exclusion of particular kinds of hearsay, rather than as a rule of production requiring the prosecution to prove its case-in-chief with live sworn testimony before the jury. The justices misread the text of the Confrontation Clause in three ways to accomplish that result, and they continue blindly to do so even today: (1) they transposed the right “to be confronted with” witnesses into a right “to confront” witnesses; (2) they interpreted “witnesses” to include people who are not present in court, e.g., hearsay declarants who do not testify before the jury; (3) they equated past cross-examination with present confrontation. With these three steps they transformed “the accused shall enjoy the right . . . to be confronted with the witnesses against him” to say “the accused shall enjoy the right to cross-examine the declarants of some subset of hearsay accusations reported against him.” Whether the Court defines the subset in terms of ‘guarantees of trustworthiness’ (Roberts), or as “testimonial” (Crawford), misses the point; each of these interpretations ignores confrontation’s procedural requirement of live sworn testimony to ensure the quality and legitimacy of the prosecution’s total case.

Crawford ‘testimonial’ formulation of a confrontation standard was misconceived from its inception, its vulnerability on clear display in Ohio v. Clark, now pending decision by the Court. Clark’s conviction and 28-year sentence for felonious assault rests on reported statements by a three-year old child made in response to his teacher asking who hit him. The child did not testify. Crawford has no answer for this case. As several of the justices recognized at oral argument, there is no way to determine the three-year-old’s testimonial intent. (Nor, for that matter, could he be adequately cross-examined even if he were to be produced.)

Whether a state may base its case solely on the absent child’s accusation is the real confrontation issue that Clark presents. This is not an issue of ‘admissibility.’ It has nothing to do with whether the child’s teacher is a ‘mandated reporter’ or whether the child’s hearsay is ‘testimonial’, which is how the case was framed by the ‘Questions Presented’ and argued by counsel. Approaching the Clark case from the perspective of Crawford reveals the bankruptcy and irrelevance of the Court’s current approach. The Supreme Court would do best to set Ohio v. Clark for re-briefing and re-argument on the issue that is actually in play: whether to overrule Crawford and re-establish the Confrontation Clause as a constitutional guarantee worthy of Sir Walter Raleigh.

 

What Harvard Law Students Should Know About the Recent Supreme Court NC Dental Case: Arguably the Most Important New Precedent for Public Interest, Administrative, Antitrust, and State Government Law Since 1943

Is that title the product of ubiquitous attorney hyperbole? Or accurate? I believe the decision maybe the seminal example of the “King Wears No Clothes” lesson. Indeed, it has spawned no recognition within the popular press, and is apparently not comprehended by any editorial board from the Wall Street Journal to USA Today.

The U.S. Supreme Court case of North Carolina Dental Board v. FTC last month is, for antitrust and state regulatory law, the equivalent of Brown v. Board of Education for education and civil rights. To explain, in 1943 the same Court decided the seminal case of Parker v. Brown. It held that federal antitrust law applies, as a matter of supremacy, to matters affecting interstate commerce (pretty much everything). But an exemption was made for what is termed “state action.” That is, a state regulatory agency could arrange what would otherwise be an antitrust offense. Such a protective status require two conditions: it must be a restraint that was affirmatively articulated by the sovereign state — and it must be subject to “ adequate state supervision.” That second prong is critical. The state may not delegate sovereign power to restrain trade without that independent review. Another subsequent case (Midcal) by the Court made clear that this “supervision” may not be a general or pro forma review. It must be specific and real, and examine the anticompetitive implications of each public decision before implementation.

Since this 1943 decision, much has happened to the political reality of our “democracy.”

We have seen the rise of special interest influence as never before, especially for legislatures and other elective positions. Political process reformers, including Public Citizen and Common Cause, have been calling attention to this corruptive threat to democracy for decades. We have seen our political process become dominated by “horizontal associations” of trades and professions and businesses: insurance companies, real estate brokers, doctors, you name it – associations of persons normally prohibited from conspiring to restrain trade are allowed, via the Noerr-Pennington doctrine under the First Amendment, to form groups. But for that constitutionally-based exemption, they would be walking per se antitrust felonies. They now dominate our political landscape both federally and at the state level. But here is the rub: What has happened in the executive branches of our 50 states has been far worse. There, over these last 72 years, legislators and other officials have ignored the second prong of the Parker test for “state action” status and immunity.

A large percentage of what these state agencies do restrains trade. From the decision to set up barriers to entry (controlling supply) to rules dictating how one practices, to the excision of practitioners from the trade, you have per se unlawful group boycotts and price fixing offenses as a matter of everyday practice. If they do not have that “state action” exemption, they are (a) committing federal felonies and (b) subject to civil suit for treble damages.

So what has happened? Virtually every trade and profession and area of commerce has been captured directly and ostentatiously by the industries regulated. Most boards and commissions throughout the nation are composed in controlling fashion by current practitioners in the area of commerce allegedly regulated on our behalf as the People. There is little or no actual review by any state official with a broader perspective.

This problem has nothing to do with liberal vs. conservative. The issue of whether the state should regulate an area of commerce is always up for debate. But if there is a market flaw that warrants intervention in a regulatory mechanism, it is not properly delegated to the very private profit-stake tribal interests involved. That conflict of interest is exacerbated in a branch where actions are not substantially covered by the media, and are subject to virtually limitless ex parte (concealed) contacts with the lobbyists already disproportionately influencing the legislative branch. What some principled conservatives have figured out – most of these agencies are not the gestation of consumer groups — they are created, supported and controlled by the entities regulated. In studying California’s agencies for 35 years, I can assure you that their most ardent progenitors and defenders are the industries regulated.

We do not contend that those board members engaged in these functions are mustache twirling cads tying a maiden to the tracks. Most think they are serving the public interest, and are unpaid. But they are part of an occupational grouping, which is the modern tribal body prevalent and powerful in the 21st century. They have a perspective borne of their grouping. Take state bars, for example, all controlled by practicing attorneys. That is we. How many disciplinary systems go after excessive attorney billing? How many look at large law firms? How many police egregious dishonesty and deceit in court filings? How many ever require a showing of real competence in an area of actual practice (personal injury, criminal defense, bankruptcy, admiralty, etc) respectively relied upon by consumers? Ever tested at all? For a lifetime? And then how many require malpractice coverage, or even cover unpaid malpractice judgments through funds collected from fees or otherwise from a profession that controls its own regulation? They do not think of it. It is not part of the tribal culture to do so.

But the party is over. This decision has put a bright light on the embarrassment of state agency governance. Nor is that governance trivial in its coverage. Most regulation is not federal but state, everyone from doctors and nurses to lawyers and any kinds of contractors and insurers, real estate agents, architects, engineers, accountants, auto dealers, geologists and so on, reaching over one hundred trades and professions. Federal regulation is relatively trivial in comparison. The Court said “independent state supervision” back then, and now it says: “And we meant it, you flagrant violators.” You cannot have any state regulatory body controlled by “active market participants” in the trade or profession (or area of commerce) regulated, including state bars. Explicit, clear, repeated. That delegation removes any sovereign protection, you are all naked. So antitrust counsel, go to town. Board members are all liable. The state treasury is liable.

The 6-3 decision has a strange dissent. Justice Alito argued that it will create a “morass.” And that has some truth to it, but only because the Court has been flouted to such a degree. But you do not get “adverse possession” rights to create a cartel government because you have been at it for a long time. The dissent also makes the usual weak argument that these lines are really tough, and what about someone who has a relative or someone who is excessively sympathetic? It even cites one of my works to make the cute point that the respondent FTC was itself accused of being in the hands of industry (citing our Nader Report on the FTC in 1968). In other words, everyone can be corrupt. Ok, fair enough. But then it draws the non sequitur conclusion that because there is somewhat of a slippery slope (such slopes are hardly rare in any area of law or commerce), we should draw no line at all. It would seem reasonable that a fair “bright line” to draw is to say no to broad delegation of state power to a group currently participating in the very economic trade at issue. How is that a slippery slope?

Scalia, in oral argument, notes that he only wants “neurosurgeons” to decide who is competent to perform brain surgery. Partly true: We certainly want competent expertise to determine competence. But again, we have the non sequitur that this legitimate need means they should be the state’s governors. It is both possible and realistic to combine needed expertise without delegating state power to restrain trade to the very group benefitting from those restraints. Why did the dissenters not learn this in 9th grade civics class? They rely a great deal on arguments about respecting state sovereignty but, apart from blatant hypocrisy in cases such as the Concepcion case, how do you not draw a line when the catch-22 issue is whether it is an exercise of a legitimate state creature? The issue of “improper delegation” of constitutional authority is not just a liberal concept. It is germane to conservative theory as well. And delegation to a private group with a conflict of interest hardly corresponds to the most basic notions of democratic self-government.

The few responses thus far are from agencies already making up untenable theories, for example, “it only applies if the trade selects those making the decisions” (wrong, the Court did not so limit its decision at all). Or “it does not apply to us because our board decisions are reviewed by general legislative inquiry, or the presence of deputy AGs, or some general review of its operations.” But that will not work either, not unless it is specific review of every potentially anticompetitive decision by an entity with full power to approve or disapprove or alter and which does so in a bona fide fashion, considering those effects on behalf of the state, not a self-interested cartel.

The Court has finally struck a blow for democracy. And it will be actualized because of one phrase: treble damage liability. Thank you, Justice Kennedy. Now we all have to clothe many naked and quite ugly kings.

Robert C. Fellmeth, Stanford University (AB) 1967, Harvard University (JD) 1970, is a former state and federal antitrust prosecutor (1973-1982), coauthor of California White Collar Crime (w/ Papageorge, Tower Publishing, 4th edition 2013), et al., and former State Bar Discipline Monitor for California, Director of the Center for Public Interest Law, Price Professor of Public Interest Law, University of San Diego School of Law.

What Harvard Law Students Should Know About the Torture Lawyers: What Will They Tell Their Children?

In Robert Bolt’s play, Man for All Seasons, Sir Thomas More is condemned to death for denying the legitimacy of the king’s divorce. The only witness against him is Richard Rich, an ambitious young lawyer who, by false swearing, dooms More and damns his own soul for all eternity. As More struggles to understand why, he learns that Rich has just been appointed Attorney-General for Wales. “For Wales?” he asks the young man. “Why Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales?”

I think of Richard Rich each time I read of another lawyer who has disgraced himself for power or preferment. Indeed, I have invented the “Richard Rich Society” in my mind for just such people. Their numbers include the Justice Department lawyers who authorized the kidnapping, torture, indefinite detention, and assassination of alleged terrorists by the Bush and Obama administrations. Others abetted these lawyers, or shielded them from exposure or prosecution. No one today would ask if these disgraceful lawyers fear the wrath of a righteous God. However, it is not too much to ask what they will tell their children when asked: “Daddy, what did you do in the war against terrorism?”

Their practiced answer, of course, will be “I kept America safe from terrorists.” However, history books will tell a different story, and the children will learn how their fathers twisted the law to give CIA agents and military guards legal cover so that they might kidnap and torture often innocent “enemies,” and hold them without trial for more than a decade in CIA and military prisons, including Guantanamo – the American Devils Island.

John Yoo (Yale Law, ’92), is a charter member of the Richard Rich Society. He is the very model of a modern Richard Rich. At the CIA’s request, Yoo wrote secret memos assuring CIA agents that they had legal authority to use “extraordinary techniques” when interrogating prisoners. These memos were secret, of course, because they could not have withstood the light of day. CIA officials jokingly referred to them as “get out of jail free cards” because they were meant to give American war criminals a new legal defense: “I’m not a war criminal because my lawyer said I could do it.”

Yoo also wrote memos justifying the creation of military tribunals that would not be bound by the ordinary rules of evidence – something officials don’t do unless they intend to introduce evidence obtained by illegal means.

The memos were a “bad idea and even worse advice,” Dean Chris Edley (Harvard Law, ’78) conceded when he defended Yoo’s return to his tenured position at Boalt Hall, but they couldn’t be deemed criminal unless a court so ruled. And because President Barack Obama (Harvard Law, ‘91), would not allow the torturers to be prosecuted, there was nothing to prevent Yoo from returning to the classroom.

To prosecute Yoo, Edley said, would also criminalize a philosophical dispute over the scope of the president’s powers. Yoo and his fellow lawyers were just advocates; President Bush and his aides were “the deciders.” “We did not take a policy position,” Yoo claimed. “All we did was give advice, as lawyers do, on what would be a defense if you got into trouble.” Of course, Dean Edley should have known from his own years in the White House that these memos were not amoral exercises. They were insurance policies, meant to shield brutal interrogators from prosecution by undermining the definition of war crimes. That is why military lawyers, were excluded from the drafting process. They knew what the laws of war required, and what kinds of reprisals that torturing enemy soldiers would provoke.

If Yoo were only giving abstract advice, his memos would have been more informative, more balanced, and less tendentious. Yoo would have also acknowledged, as every law student knows, that the Supreme Court had rejected his assertions of unlimited presidential power in the famous case of Youngstown Sheet & Tube Co. v. Sawyer (1952). And, if they were playing it straight, Yoo and his OLC colleagues would have mentioned the Convention against Torture and its implementing statute in their early memos.

But the politicians for whom they worked did not want dispassionate, evenhanded, comprehensive legal advice based on fair readings of precedent. Like Henry VIII, they wanted legal-sounding justifications for what Sir Thomas More would have recognized as immoral, criminal acts. Precedent was clear, of course. American courts had sent a Japanese soldier, a Texas sheriff, and Chicago policeman to prison for the near drowning of prisoners. But to Vice President Cheney, Bush’s Cromwell, Yoo’s reading of the law did not have to reflect precedent; it just had to cast doubt on settled law. And Yoo was just the quibbler to do it.

To Dean Edley, the academic Everyman, Professor Yoo was shielded from the moral judgment of Boalt Hall by “academic freedom,” a portable privilege that he took with him when he joined the Justice Department. That freedom “would be meaningless,” the dean reasoned, if it could not protect a tenured professor from being fired for participating in a criminal conspiracy to promote torture, kidnapping, and indefinite detention. Lawyers don’t conspire to facilitate war crimes, Edley reasoned; they just give immaculate advice.

As a result of Yoo’s “advice,” and Obama’s refusal to prosecute, government kidnappers, torturers, and assassins now enjoy de facto immunity from criminal prosecution. So, too, do the politicians and lawyers who enabled them. And if this “’advice” fails to persuade the American public, the Justice Department and Congress can undertake investigations at a glacial pace until the statute of limitations runs out.

Like John Yoo, other members of President Bush’s torture team have prospered from their lack of moral and legal scruples. David S. Addington (Duke Law, ’81), who was the driving force behind the torture memos and warrantless wiretapping on an industrial scale, is now a vice president for research at the Heritage Foundation. Attorney General Michael B. Mukasey (Yale Law,’67), was hired by Debevoise and Plimpton, despite his vociferous defense of waterboarding, indefinite detention, warrantless wiretapping, and the “my lawyer said I could do it” defense. John A. Rizzo (G.W. Law, ’75), now works for Steptoe and Johnson, the Defense industry lobbyists, despite his years approving secret prisons and torture as the CIA’s top lawyer. Former Attorney General Alberto Gonzales (Harvard Law ’82), who championed military tribunals, the Patriot Act, and torture, and advocated denying habeas corpus relief to prisoners, had more trouble gaining employment, but finally was hired by Texas Tech in 2009 and Belmont University Law School in 2011. Meanwhile, Jay Bybee (Brigham Young Law, ’77), who signed Yoo’s first torture memo, was rewarded a seat on the U.S. Court of Appeals for the 9th Circuit.

Like Richard Rich, none of these “can do” lawyers fears for his soul. But one has to ask, do they fear the judgment of history, or of their children?

Christopher H. Pyle, author of Getting Away with Torture: Secret Government, War Crimes, and the Rule of Law (2009), teaches constitutional law at Mount Holyoke College in South Hadley, MA. In 1970, as a former captain in Army intelligence, he disclosed the Army’s spying on civilians. He then worked for Senator Frank Church’s select committee to end the spying. He can be reached at cpyle@mtholyoke.edu.

What Harvard Law Students Should Know About Reining In Corporate Welfare

First, the bad news: there is a serious public policy problem at which lawyers, when swinging for the fences, have repeatedly struck out. Now the good news: lawyers, when working with community organizers and labor leaders, are winning terrific precedents.

The policy problem is corporate welfare, especially when states and localities (not counting Uncle Sam) spend an estimated $70 billion per year on “economic development incentives” that are all too often windfalls extracted when companies exploit federalism to whipsaw states against each other.

In a Darwinian corporate version of rising inequality, the problem has gotten much worse the past decade, with the soft economy creating more desperate politicians. Whereas we used to count about 10 “megadeals” per year (essentially deals costing taxpayers nine or ten figures each) for a total of $3 billion annually, we are now counting about 20 megadeals per year costing more than $6 billion.

Boeing’s record $8.7 billion deal from Washington State and Tesla’s $1.3 billion package from Nevada are but two high-profile examples. Illinois Gov. Pat Quinn lost office in part due to anger over three huge packages (Sears Holdings, Motorola Mobility and CME) and New Jersey Gov. Chris Christie has spent more than $5 billion in five years, including more nine-figure deals than any governor in U.S. history (eight and counting).

If you were to attach partisan labels to these states’ executives, you’d have two from each major party, and that’s indicative of the bipartisan dogma driving this ruinous trend: most elected officials think tax cuts create jobs, despite many forms of evidence to the contrary.

The highest-level legal assault on large, company-specific deals was the case Cuno v. DaimlerChrysler, concerning subsidies given for a new Jeep plant in Toledo, Ohio.

The plaintiffs were represented by Northeastern Law School Prof. Peter Enrich, whose students assisted him as the case won on appeal before the Sixth U.S. Circuit and was granted certiorari by the Supreme Court in 2005. However, rather than opine on the Commerce Clause issue at hand, the Court ultimately ruled in 2006 that the plaintiffs lacked standing in federal court. Charlotte Cuno, a tiny grandmother who served as the name plaintiff, attended the oral arguments and sensed the Court’s inclination; she raged afterwards to the news media, citing her grandchildren’s struggling, disinvested schools as evidence of her family having been harmed by Toledo’s eroded tax base.

The Cuno case provoked an enormous amount of blowback. Two K Street coalitions were formed (by Ernst & Young and the Council on State Taxation) to file amicus briefs: against Cuno and her co-plaintiffs stood 37 states, almost every association of state and local elected officials, many individual companies and even the United Auto Workers who represented the plant’s hourly workforce. As a contingency, federal legislation was also introduced (with bipartisan sponsorship from all eight senators in the Sixth District) that would have legalized the “war among the states” (since the Commerce Clause grants Congress the authority to regulate commerce among the states).

Another lawyer who tried mightily to legally nullify deals is Robert F. Orr, who retired early from the North Carolina Supreme Court to direct the North Carolina Institute for Constitutional Law. Using state constitutional arguments, he sought to invalidate three high-profile deals, including the state’s largest-ever deal granted to Dell in 2004 and another package to Google. None of the cases succeeded.

While these legal efforts to overturn incentives altogether have not prevailed, lawyers have played critical roles in past disputes concerning the abuse of economic development subsidies, which in turn have resulted in significant reforms to make development spending more transparent and accountable. Lawyers are also on the forefront of some of the most exciting efforts to make subsidies really deliver for working families.

In a series of lawsuits during the late 1980s and early 1990s, cities or workers sued companies that had received incentives and were now closing factories. Duluth, Minnesota, saved its largest factory, Diamond Tool, in 1988. Workers at American Home Products in Elkhart, Indiana won a $24 million settlement in 1992. Ypsilanti Township in Michigan prevailed at trial but lost on appeal against General Motors. Other cases with mixed results occurred in New York State, Ohio, Illinois and West Virginia. A Fordham Law Journal article summarized the legal theories they employed.

Thanks to these cases, which often amounted to dislocated workers going down swinging, the addition of “clawbacks,” or money-back guarantee language, became common nationwide in state and local economic development law and contracts. These and other accountability safeguards, such as disclosure of costs and benefits and job-creation and job quality standards (i.e., wage and benefit rules) became mainstream best practices.

In California, the co-founder of the Los Angeles Alliance for a New Economy (LAANE), attorney Madeline Janis, co-pioneered the use of Community Benefits Agreements. These private contracts between community-labor coalitions and private developers ensure that local residents benefit from major redevelopment projects with provisions such as local hiring, living wages, affordable housing, environmental easements and/or set-asides for local social-service providers or merchants. The agreements are in turn appended to public redevelopment contracts, strengthening their enforceability.

Today, Janis is using her legal skills to rewrite the way U.S. transit agencies procure buses and railcars, to favor higher domestic content and more hiring of disadvantaged workers and veterans. LAANE’s Jobs to Move America campaign won Federal Transit Administration approval of its alternative U.S. Employment Plan model for Requests for Proposals to be issued by transit agencies. The Plan has already been embraced by some agencies, including the Chicago Transit Authority for a $2 billion purchase.

There remain many live legal issues in economic development today. Progress Ohio unsuccessfully litigated the constitutionality of Ohio Gov. John Kasich’s privatization of the state’s development department, now known as JobsOhio. Hotel and casino workers in Atlantic City found a legal avenue to petition for a proposed subsidy for a new, unwanted hotel/casino to be on a ballot, where it would likely have been defeated (had the state not retroactively stripped the petitioners of the ballot right).

Our cumulative takeaway from all of this history is that the court of public opinion matters greatly when one is trying to unravel $70 billion a year worth of vested interests. Absent a public educated about the recurring failures and collateral damage of tax-break deals, litigation against programs per se face daunting odds.

That’s why, in addition to raising up positive legal precedents, we at Good Jobs First have published more than 100 studies explaining how subsidies gone awry are undermining public services and especially public education, fueling inequality, paying for suburban sprawl and favoring affluent suburbs, subsidizing private for-profit prisons, favoring poverty-wage retailers like Walmart, favoring the corporate One Percent over small business, paying companies to create “new jobs” by merely moving short distances within a metro area but across a state line, providing “megadeals” costing more than $1 million per job on which taxpayers can never break even, and, note this, allowing companies to secretly keep employees’ state personal income taxes and consumers’ state sales taxes.

A major regulatory breakthrough is also looming: the Governmental Accounting Standards Board (GASB) will in August 2015 issue a new standard that we expect will effectively require states and cities to account for the revenue they lose to economic development tax breaks. This is the first time GASB has ever weighed in on the issue and there may be legal interpretation and compliance disputes as the rule takes effect in 2016.

Finally, a challenge for creative lawyers: powerful, secretive “site location consultants” represent most big firms in “war among the states” episodes (sometimes even pulling down commissions of up to 30 percent of the subsidies they negotiate), but no state regulates them or requires they register as lobbyists. An aggressive use of state FOIAs to examine their roles in high-cost deals might reveal compelling evidence they deserve to be so regulated.

Greg LeRoy, who is not a lawyer, directs Good Jobs First and is the author of The Great American Jobs Scam: Corporate Tax Dodging and the Myth of Job Creation (Berrett-Koehler, 2005).

What Harvard Law Students Should Know About the Rights of Employees to Litigate Claims of Wrongful Discharge

The common law followed by most states is the so-called “employment at-will” doctrine – that employees can be terminated for any reason. There are many exceptions to the “at-will” doctrine. Discharges in violation of federal or state statutes, for example non-discrimination statutes such as Title VII of the Civil Rights Act, are forbidden. Further many employment agreements, for example collective bargaining agreements applicable to union shops, forbid discharges without “just cause”.

Victims of discriminatory discharge because of race, gender etc., and protected by statute can often enforce their rights by filing charges with the appropriate governmental agency, for example the Equal Employment Opportunity Commission (EEOC) or National Labor Relations Board (NLRB).

Where an employment agreement forbids unjust discharge victims may obtain relief for breach of contract under state law in state court or in federal court where there is diversity of citizenship. Wrongfully discharged employees covered by a collective bargaining agreement usually can seek relief from an arbitrator selected under agreement procedures.

Victims of wrongful illegal discharge can recover damages based on lost wages and benefits e.g. the difference between normal wages and post dismissal earnings. Punitive damages, emotional distress damages and attorney fees may be available where the discharge involves a tort or violation of a statute.

Previously representing individuals in wrongful dismissal cases was a lonely exercise. Most tort personal injury lawyers were unfamiliar with workplace issues. Union labor lawyers were reluctant to represent nonunion individuals. The law governing individuals was uncertain and evolving.

However, a handful of lawyers in 1985 joined together and formed the National Employment Lawyers Association (NELA) (https://www.nela.org/NELA/), dedicated to the rights of non union employees. NELA’s growth paralleled the growth of common law cases filed by individuals – usually victims of wrongful dismissal. NELA provided a home for lawyers for whom traditional bar associations had no role. Gradually tort and contract law opened up for individual employee victims of defamation and breach of employment agreement. Today individual non union employees have many viable common law and statutory remedies which provide substantial damages.

NELA boasts over 2500 members in all 50 states and its annual convention draws over 500 attendees. NELA has a paid professional staff and has filed many amicus briefs in state and federal courts. NELA members have formed state and local chapters in most states and major cities. NELA lawyers continue to successfully advocate modification of out moded common law rules. They seek to preserve and expand statutory remedies and craft new procedures protecting and expanding individual rights.

Paul Tobias, HLS ’58, is the founder of the National Employment Lawyers Association (NELA) and a partner in the law firm of Tobias, Torchia & Simon in Cincinatti, Ohio. He is the auther of many articles and books on employment law.