What Every Harvard Law School Student Should Know About Appleseed

Among the many public service endeavors of Harvard Law School graduates, one lasting institution stands out:  Appleseed.  Recent Harvard Law School students may have seen the Appleseed conference room, on the fourth floor of Wasserstein Hall and wondered, what’s the Appleseed Foundation?

Appleseed is a network of 17 public interest justice centers in the United States and Mexico, with a national headquarters in Washington, DC.  At the 35th reunion for the Class of 1958, Ralph Nader, Ed Levin, Ralph Petersberger, Bert Pogrebin and other distinguished lawyers asked how they could make a lasting difference.  They didn’t do a day of service or make a huge reunion donation to the law school; rather, they decided to create a foundation whose mission would be to create other local institutions that would address systematic injustices…in short, to spread the seeds of justice, much as Johnny Appleseed planted apple orchards throughout the Ohio River Valley, Midwest and Canada. Continue reading “What Every Harvard Law School Student Should Know About Appleseed”

Record Retrospective: Obama on Affirmative Action

On December 9, the Supreme Court will hear Fisher v. University of Texas to decide whether affirmative action is permissible under the Equal Protection Clause of the 14th Amendment.

25 years ago today, President Barack Obama, then-President of the Harvard Law Review, wrote to the Record explaining and defending the Law Review’s affirmative action policy.

Review President Explains Affirmative Action Policy

To the Editor:

Since the merits of the Law Review’s selection policy has been the subject of commentary for the last three issues, I’d like to take the time to clarify exactly how our selection process works. Continue reading “Record Retrospective: Obama on Affirmative Action”

“Slave-Owning, Slave-Trading Murderers”: Students Call on Harvard Law School to Address Historical Ties to Slavery

You won’t go far at Harvard Law School without running into the Royalls.

In the Treasure Room of Langdell Library hangs a large portrait of the family of Isaac Royall, Jr. Each year, first-year Harvard Law School students sit together beneath this painting as they enjoy a welcome meal with the Dean. Isaac Royall is a figure intimately associated with the origins of Harvard Law School: in 1779, he donated lands to Harvard College whose sale endowed its first professorship of law. The Royall Professorship of Law is still held by a HLS faculty member, and the Royall family crest, bearing three sheaves of wheat, is currently part of the Harvard Law School crest. But the wealth that created Harvard Law School has a disturbing origin. The Royall family fortune was acquired through slavery: their sugar plantation was worked by slave labor, and they augmented their profits by shipping and selling human beings between Boston and Antigua.

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Changing Our Approach to Climate: The Value of Fossil Fuel Divestment

It’s a problem we all recognize but fail to grasp: global emissions of CO2 are pushing humanity towards a post-civilization scenario. The latest science predicts a 160-foot foot sea level rise if humans burn all known oil, gas, and coal reserves. If fossil fuel companies continue to pursue business as usual for the next 35 years, global temperatures by 2050 will be 7°F higher than the preindustrial average. Just half that warming would likely trigger the melting of Greenland and West Antarctic ice sheets, raising sea levels by 33 feet.

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What Every Harvard Law Student Needs to Know About Corporate Crime

When can a corporation be prosecuted for a crime?  One of the most remarkable stories in all of American criminal law is the recent rise of the corporate prosecutions.  From last week’s announcement of new Department of Justice policies on corporate prosecutions, to the billions of dollars of currency fixing settlements in prosecutions of major banks, to the campaign trail speeches of candidates calling for more prosecutions of bad corporate actors, to the concern that “too big to fail” institutions can avoid justice for the harm they caused to our economy, corporate crime has never been more central to the national debate.  It should be a greater part of the law school discussion too and there is wonderful work that law students can get involved in. Continue reading “What Every Harvard Law Student Needs to Know About Corporate Crime”

A Field Trip to the American Museum of Tort Law

The American Museum of Tort Law is the first law museum in North America of any kind.  It opened to the public on September 26, 2015.  That morning I drove to the gravel driveway of Hastings Dorm and picked up three Harvard Law Students: Pete Davis, Mike Shammas and Jake Sussman.  We were embarking on a law school field to check this museum out.  Throughout the country there are 35,000 museums dedicated to a variety of subjects, such as sports, UFO’s and blueberries, but not one is dedicated to the subject of law.  Given that America prides itself for being a country governed by the “rule of law”, it was about time a law museum made its way into the mix.  Maybe it took till 2015 to have a law museum because exhibiting the law is not intuitive.  Parchment behind Plexiglas will not draw many viewers.  Even hardcore law students would prefer to read a case on their MacBooks.  So how could this museum pull it off?  The four of us pondered this question as we drove to Winsted Connecticut, the location of the tort museum. Continue reading “A Field Trip to the American Museum of Tort Law”

Change the Culture

The rape trial of Owen Labrie opened a stunningly clear window into the culture of St. Paul’s. It’s a culture that I feel I know well. I know it because I went to Phillips Exeter Academy, which is part of that same coterie of prep schools, and my daughter went to St. Paul’s. Growing up in that culture, this is what I learned about gender relations: first base, second base, third base, homerun. The object was to score, to push against resistance, to overcome by whatever means.

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What Every Harvard Law Student Should Know About Solitary Confinement

On any given day in the United States, supermax prisons and solitary confinement units hold tens of thousands of men, women, and children in conditions of extreme isolation and sensory deprivation, without work, rehabilitative programming, or meaningful human contact of any kind. These people are confined to small, often windowless cells with solid steel doors, where their only interactions with prison staff take place through “feeling slots,” and their only respite may be one hour a day to exercise alone in a walled or fenced “dog runs.” They may remain in solitary for anywhere from weeks to decades. This massive experiment in total human isolation is one of the nation’s most pressing human rights issues. Continue reading “What Every Harvard Law Student Should Know About Solitary Confinement”

What Harvard Law Students Should Know about the Popular Roots of Law in Massachusetts

On August 27, 1774, a Saturday, Timothy Paine (Harvard 1748, fifth in class, ranked at the time by “dignity of family”) received some visitors at his home in Worcester. Two thousand militiamen had gathered on the town common, they told him, to obtain his resignation from the Council. King George III had just appointed Paine and 35 others to serve on that powerful body, taking the place of council members who had been duly elected in May, and each of these appointees, like Paine, now had to face the people’s wrath. Continue reading “What Harvard Law Students Should Know about the Popular Roots of Law in Massachusetts”

Harvard Law School Welcomes New Dean of Students Marcia Sells

Marcia Sells will officially assume her position as Dean of Students on September 21, fulfilling the position vacated by Ellen Cosgrove’s departure for Yale Law School. After experiences ranging from ballet to private practice to academia, Sells is looking forward to her role in the Law School’s Administration.

“I like figuring out how to make things work well,” said Sells. “There are opportunities for collaboration between different offices—which is true in any field, especially higher education. I also like the engagement with people who are at different stages of their professional and intellectual development. It is nice to be there, and hopefully have some role in helping people find the beginnings of their paths.”

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Donate to The Harvard Law Record

The Record, the oldest independent law school newspaper in the country, relies on donations to continue publishing, and we would be extremely grateful if you could donate — even a small amount — to help us operate next year. (For more information, see the “donate” tab on our website at the following link: http://hlrecord.org/?page_id=20019.) Publishing costs each year are in the thousands.

Before last year, The Record — a presence since the 1940s — had stopped publishing regularly and had been relegated to an online existence. But last year, with the generous help of former editor-in-chief Ralph Nader, we’ve been able to publish biweekly and to serve as a forum for Harvard Law students and others to debate issues shaking the campus and the broader community. In addition to regularly publishing quality pieces, we’ve garnered thousands of followers on Facebook and Twitter and earned mentions in numerous other media outlets.

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What Harvard Law Students Should Know About Activism

I have long considered myself an activist. I have tried to “change the system” by getting elected to boards, submitting shareholder resolutions and writing op-eds. Not a grassroots effort, by any means, but more of a corporate Robin Hood. I’ve never been a street protester, a marcher or a boycotter. I was already out of school and working in the 1960’s and 70’s so I became an “inside” activist.

Then, this past spring I read in the Crimson “Divest Harvard Plans Weeklong Blockade of Massachusetts Hall,” I had to ask myself: why I am not participating? Why not me? And so I went. My wife and I drove to Cambridge and joined the small group gathered to protest Harvard’s investment in fossil fuels. Continue reading “What Harvard Law Students Should Know About Activism”

What Harvard Law Students Need to Know About Corporate Criminal Prosecution

For more than a decade, the Justice Department morphed its approach to corporate crime, eschewing criminal prosecutions in favor of deferred prosecution and non-prosecution agreements that allowed large corporations to avoid the ignominy of criminal convictions. The trend began during the Bush administration and became so dominant during the Obama administration that the Criminal Division of the Justice Department entered deferred prosecution and non-prosecution agreements in more than two-thirds of the corporate cases it resolved.
There seemingly were no crimes that did not qualify for corporate absolution. The Justice Department entered a non-prosecution agreement in the Upper Big Branch mine disaster that killed 29 miners, even though the Labor Department found that the mine owner had committed over 300 egregious violations of federal mine safety laws. The Justice Department agreed to a deferred prosecution with HSBC, even though the bank was involved in nearly a trillion dollars of money laundering, much of it from drug trafficking. There were no prosecutions at all for the worst financial crisis since the Great Depression, even though financial institutions and officials within those companies took risks and engaged in conduct that imperiled the global economy.

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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?

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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.”

Continue reading “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”