Category Archives: Opinion

Commentary by members of the Harvard Law community.

From the Print Edition / Opinion  /  July 25, 2015  / 

Join the Harvard Law Record

“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 … Continue reading

From the Print Edition / Opinion  /  July 20, 2015  / 

What HLS Students Should Know About the Law Firms Recruiting Them

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 … Continue reading

Opinion / Uncategorized  /  May 18, 2015  / 

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 … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

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. … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

Shatter the Ceiling Annual Report

1L Participation at HLS: A 1 Week Long Snapshot Gender Breakdown of Normative Measures of Success at HLS

From the Print Edition / Opinion  /  April 3, 2015  / 

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 … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

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 … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

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 … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

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 … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

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 … Continue reading