Editor’s note: 30 years ago today, The Record printed this excerpt from a speech delivered by Abner J. Mikva to the D.C. Bar Annual Meeting in 1985. Chief Judge Mikva served on the United States Court of Appeals in the D.C. Circuit, first in Seat 11 and then as Chief Judge. Merrick Garland would eventually replace him in both seats. Chief Judge Mikva passed away last year.
In 1979 I was called by the Attorney General to tell me that President Carter was going to nominate me for one of the new judgeships on the U.S. Court of Appeals for the D.C. Circuit. I remember wondering what the President’s timetable was, and how long it would be before I moved to my new offices down the street. What naivete!
Continue reading “Record Retrospective: Senate Should Not Subject Judicial Nominees to Simplistic Political Litmus Tests”
I ride the train to work every day. I’ve always heard that this train is an awful way to travel. But the traffic is so bad. 25 minutes on the train compared to 90 minutes in traffic. How bad could it be? When I tell people I commute on the train, they say “Wow,” or “I’m sorry,” or “And you survived!” I understand now.
Continue reading “J-Term Diary: Commuting in the Philippines”
For many reasons, 2007 was not a particularly good year for me. As I was a teenage boy then, most of these reasons involved teenage girls, one in particular. However, another reason that 2007 was lame was because that year marked the end of the original run of Gilmore Girls.
Thankfully, Netflix has brought back Lorelai, Rory, Emily, and all the rest of Gilmore Girls in the four-part mini-series Gilmore Girls: A Year in the Life. In total, there’s six hours of fast-talkin’, pop-culture referencin’, Stars Hollowin’ goodness.
Look, if you’re reading this and you loved Gilmore Girls, you should absolutely watch A Year in the Life. In fact, you’ve probably watched it already. Write in with your thoughts.
Continue reading “Record Review: Gilmore Girls Revival Surprises, Delights”
The battle-cry of the American Revolution: “give me liberty or give me death!” Reflecting upon my first year living in America and upon what I have learned in criminal law, I find it hard to believe that Americans truly value liberty. What I see is the human spirit crushed under the yoke of an overly oppressive criminal justice system. I fail to understand how to logically reconcile over-criminalization and mass incarceration with the famous American love of freedom.
The rhetoric justifying this draconian criminal system does not help. Classmates speak of deterrence and signals – which is simply a way to sugar coat what is truly happening: we are scaring people into submission. But is this the sort of human we wish to foster? A being whose conduct does not flow from virtue but from fear. This is our vision of humanity’s highest form or greatest potential? Do we want a society of craven and vindictive worms that curl up lest they get stepped on? The idea that we must design our society according to such a vision reveals a troubling pessimism regarding human nature and a profound lack of ambition regarding the possibilities for society.
And this is all for the laudable (and supposedly necessary) goal of self-preservation. But the emphasis on preserving society neglects the more important antecedent question: is it the sort of society that is worth preserving? What if the methods through which our society ensures its survival creates the sort of society that is undeserving of survival?
Continue reading “The Blood Price”
A few days ago, I spoke to a Harvard Law alumnus, inter alia, about the recent presidential election. The alumnus had supported Barack Obama, worked as a plaintiff-side civil rights litigator, and also happens to be black. Ordinarily, he votes Democratic. Yet this year, he voted for Donald Trump.
There are many people to blame for Trump’s victory. But one among the blameworthy is you, dear reader. The Democrat. The liberal who’s too cool to be a Democrat. The leftist who’s too cool to be a liberal. When the American Left has lost a black Harvard-Law-educated civil rights attorney to Donald Trump, it has done something very, very wrong.
Continue reading “Whom to Blame For Trump? You”
- The Republican establishment since 1960
- The media
- James Comey
- Minorities who voted for Trump
- Democrats/liberals who didn’t vote
- Mark Zuckerberg
- Jill Stein voters
- Whites who voted for Trump
- Liberals who couldn’t stop labeling every Trump voter and/or white person a racist
- Liberals who didn’t call out the people in group 9
*The ordering is somewhat arbitrary, but I do mean to say that I saw each of these individuals/groups as but-for causes of Trump’s victory.
 A friend of mine would have replaced 4. with “Women who voted for Trump” (and I imagine 8. with “Men who voted for Trump”). I suppose that exposes our respective biases.
Dear Heather Mac Donald,
In September, you came to Harvard Law School on the invitation of The Federalist Society to discuss the findings of your new book, The War on Cops. Because the audience was left with a negligible amount of time to engage, I wanted to take this time to respond.
Your credentials are very impressive, and you came equipped with a significant amount of data in support of a narrative that there is currently a “War on Cops.” However, I wonder if you have ever read these words from Martin Luther King Jr. in his famous letter written from Birmingham Jail:
Continue reading “Dear Heather Mac Donald”
Harvard Law School has a proud history of being at the forefront of progressive tort law. Chief Justice Lemuel Shaw, who studied law at Harvard College, authored the landmark decision of Brown v. Kendall in 1850, the first judicial opinion to recognize negligence.
Oliver Wendell Holmes Jr. studied law at Harvard at a time when tort law was an incoherent ragbag of miscellaneous wrongs still shaped by the writ of trespass. Holmes’ 1873 book, The Theory of Torts, revolutionized tort law by breaking civil wrongs into the triad of negligence, strict liability, and intentional torts. This division is now taught in every law school in the country.
Continue reading “Rebooting Cybertorts For The Internet of Things”
Like an exclamation point to his entire campaign, Donald Trump appointed Steve Bannon – a man who, at the very least, has perpetuated anti-Semitism – to be his chief strategist. A message that so many Jewish children in the United States grew up with now rings truer than ever. That message? Don’t get too comfortable.
It is something our parents tell us again and again – you are accepted now, but you never know what tomorrow holds. We are raised on stories of neighbors who turned against our grandparents, of friends who looked away, and a government that did the unthinkable. For Jewish people who can pass as ‘white,’ these stories make us hyper-aware that whiteness granted can be revoked at any time, and that control of that decision always belongs to someone else. Continue reading “We Remember”
Although many of us on the left viewed the 2016 election as a referendum on Donald Trump, the exit polls indicate that voters’ views on Hillary Clinton, not Trump, were a more decisive factor in the final tally. Clinton voters were significantly more likely to vote out of enthusiasm for the former Secretary of State, while Trump voters were primarily voting out of dislike for other options. In other words, while bigotry, sexism and downright disgusting behavior undoubtedly played a significant role in the 2016 presidential contest, there was a consequential portion of voters for whom the election was a referendum on what the Democratic Party represents to them.
To many voters Clinton, Obama, and our other Democratic leaders represent public institutions—institutions that HLS holds a unique responsibility towards. The executive, legislative, and judicial branches of government are largely a manifestation of our legal system. The nation’s highest ranked law schools, like HLS, are idolized in the legal profession and have a large role in defining the norms in that legal system. Indeed, an overwhelming proportion of our Democratic leadership graduated from these very schools. In this light, there is a lens through which the election can be viewed as a referendum on HLS itself. Continue reading “How We Can View The Election as a Referendum on HLS”
I have observed in recent days that many people on this campus seem shellshocked by the election result. Not so me. As careful readers of my previous columns will note, I have always assumed that Donald Trump would be our 45th president. To the half-a-dozen of you who read my previous columns, and failed to heed my warnings, you have only yourselves to blame. How many times did I try to tell everyone—the Dean, my fellow-classmates, the professors in whose classes I am nominally enrolled—that this day was at hand? How many times did they say to me, “Oh no, Fenno, you’re crazy!” Oh, I’m crazy, am I? I’m crazy? Would a crazy person LAUGH LIKE THIS????!!!!!!
No. No one is laughing now. This is serious.
Continue reading “Fear Not: I Have This All Under Control”
The liberal is truly a surprising creature. A liberal believes in reform but does not wish to confront the fact that the problems in our society implicate its very constitution – capitalism, patriarchy, etc – despite speaking the inherited language of “human rights,” “equal outcomes,” and so on. They believe they can endlessly feast on hypocrisy without getting indigestion as though the rest of society will tolerate their nonsense indefinitely. Trump’s election demonstrated how out of touch Harvard’s liberals are from the realities of the society they presume to lead.
During the election watch “party” in Belinda Hall I witnessed students’ reactions as a Trump victory became more certain by the hour. Some drifted listlessly around the lounge. Others drank themselves to a stupor or cried. Yet just the day before, many of them were utterly apolitical and content with the general direction and organization of America – many the same kids who didn’t breathe anywhere near a picket line when HUDS was on strike. The harsh truth is that most Harvard liberals orient their ambitions toward a lucrative and comfortable life – a sort of life that is only possible within the context of a general system of exploitation. As such, the Harvard liberal is totally complacent in perpetuating the sort of society whose immanent tendencies produced a Trump presidency. Thus, what truly happened on election night wasn’t really so much disgust at the nasty state of affairs in the country but terror in realizing that the accustomed logic with its rewarding prerogatives for the Harvard liberal is not guaranteed after all. For I refuse to believe that those who already stomach so much injustice and yet proceed toward their sweet corporate gigs are genuinely revolted by a Trump presidency. Anybody with half a brain knows that the injustices Trump represents are injustices that are constantly reproduced in throughout the country (and world). Continue reading “The Death of Liberalism”
My favorite high school teacher has this poster in his classroom: “Don’t just do something, sit there.” It’s a wise message for the first week after the crisis: I worry if we jump into “The Response Plan” too early, we will repeat the same mistakes that brought us here. You can already see it happening in our newsfeeds, as everyone’s plan for the Age of Trump seems to be: “Everybody just needs to double down on my worldview.” Carving out time for reflection in spaces outside of campaign politics—reading spiritual books rather than pundits’ hot takes, watching a play rather than a cable news show, reaching out to real people rather than ranting about the latest stranger’s horrible comment thread—is crucial if we hope to shine a path out of here.
I also, however, believe in Roberto Unger’s insight about hope and action: “It is a common mistake to suppose that hope is the cause of action. Hope is the consequence of action. You act, and as a result, you begin to hope.”
So, this week, what then should we do? My proposal: alongside carving out time for reflection and offering immediate care to our neighbors, we should spend this week making a commitment. Concretely, we should make a commitment to a certain amount of time and a certain amount of money that we are ready to consistently give to our country in the coming years. Very specifically, we should each commit to a number of hours we are ready to give each week and a percentage of our paycheck we are ready to give each month. Continue reading “Commitment in the Age of Trump: Two Practical Steps Forward”
What America needed more than anything from this election was solidarity: the feeling that we are all in this together, that we have a shared direction, that we have found common ground. Instead, the greatest threat in our lifetime to our national solidarity—to our neighborliness, to our decency, to our commitment to shared endeavors—has arrived. We thought we were better than this. But we have been blindsided. And we are confused and afraid.
When we are confused and afraid, we are tempted by twin evils.
First, we are tempted to quit. We are tempted to run away to Canada, or run away to irony, or run away to fantasy. We are tempted to hide away and build our bunkers.
Second, we are tempted to blame. We are tempted to search for our scapegoats and fall guys. We are tempted to tie some people and groups to the whipping posts and place our hurt onto them.
Our first task on this dark week is to resist these immediate temptations. Continue reading “From Despair, Work”