Negotiating law school was fun, fulfilling

BY ELAINE LIN

Recently, I was present at a meeting between clinical students for the Negotiation and Mediation Clinical Program and a client representing the Federal Energy Regulatory Commission (FERC).  The representative assumed that we had plenty of opportunity to work in teams at the law school, since that’s what most of us will have to do after we graduate. The law students and faculty in the room chuckled at how far off her assumption was from reality. 

What are the skills we need after we leave law school? Surely, a nuanced understanding of constitutional law isn’t all there is to legal practice. Perhaps this is my own bias stemming from how I’ve spent my time here, but I would add team work, project development, project management and client development to that non-exhaustive list. And in Harvard Negotiators, I found all that. 

Harvard Negotiators (HN) is the student oganization here at the law school focused on negotiation and dispute resolution.  Through HN, I was able to take negotiation theory from the classroom into the real world.  HN members and I have created value for clients by providing them substantive work in negotiation and dispute resolution.  And as students, we have benefitted from the opportunity to engage the real world, develop actual work experience in a low-risk setting, engage our passions and bring ideas to reality.

To give you an idea of what all that means, in the past year HN has…

 

·       Developed negotiation curriculum for the Prison Entrepreneurship Program (PEP), a Houston-based non-profit that provides educational and mentorship programs for enterprising incarcerees.

·       Developed difficult conversations curriculum for at-risk youths affiliated with FAIR Fund, an international NGO working in anti-human trafficking, domestic violence and sexual assault prevention.

·       Created best practices manual for renegotiating child support agreements for the American Academy of Matrimonial Lawyers

·       Trained outside organizations in negotiation skills, including Firemen and the Town Administrator of Nantucket, elected officials of the Mississippi NAACP, and graduate students at the Harvard School of Public Health.

·       Put our skills to test at the American Bar Association Negotiation Competition, St. John’s Dispute Resolution Triathlon, and the International Negotiation Challenge in Leipzig, Germany.

·       Simulated multi-party bankruptcy negotiation with other law students in light of the economic crisis

Our work last fall helped incarcerated individuals in the Houston prison system learn how to better navigate their business and personal lives after leaving custody, we helped youths in the DC Metro area learn how to have difficult life-altering conversations, and hopefully helped a few of the many children in the middle of the country who are currently experiencing hardship due to the economic downturn.  Firemen and other union workers in Nantucket will hopefully be able to secure better contracts, and at a minimum, the animosity in their relationship with the Town has decreased. And the list goes on.

It’s not to say that our organization has all the answers or are experts at all of this, but in the process of finding projects to work on, managing our work load, and delivering concrete results, I know that I’ve developed some expertise – and just learned a ton.  

I love the fact that HN is organic and interest-driven. If you have an idea or an interest, the mentality is – let’s try to make something happen. Given that negotiation touches every aspect of our lives and is implicated in almost any field, it seems like everybody has an interest that overlaps with what we do. But HN is not about riding on someone else’s coattails or waiting for someone else to act.  It is all about figuring out what you want to do and how to do it.  My experience has taught me that if you have an idea, ask questions, and ask for help, you can actually make things happe
n.

With the countdown to the end of law school being only weeks now instead of months, I confess that I am extremely jealous of those who get to continue on here. There are incredible resources here at the HLS, and it’s been an incredibly luxury to develop myself professionally while impacting the world positively.

My fellow classmates and I all come from such different backgrounds and bring an amazing variety of experiences and passions to law school.  And as far as I can tell, the point of law school wasn’t to take those differences and stuff them into nice little conformist boxes, but to bring those differences to the table to enhance the experience – yours, those around you, and the community beyond.

If I could say anything to those not yet staring the cap & gown in the face – and maybe because I’m a graduating 3L you might afford me the opportunity – it would be to take the opportunity while here to learn, not just from books and cases, but about life and the world. I know I just said it several sentences ago, but there are incredible resources here. Being a student at HLS and taking part in an organization gives you the platform from which to launch new ideas. Find your own analogue to the Negotiators, or feel free to join ours. It has certainly made my experience here at the law school all the more worthwhile.


Ralph Nader: More law professors should be like Elizabeth Warren

BY RALPH NADER

Dear Editor:

The wide acclaim given to the standup reformist advocacy and wise interrogations by Professor Elizabeth Warren during this period of chronic abuses by many in the financial industry is a refreshing wind coming from the Harvard Law School to Washington, D.C.

Professor Warren combines rigorous scholarship with a superb sense of needed change and clear ways to communicate those needs to families and individuals around the country. Let’s say that in consumer circles, the chairperson of the Congressional Oversight Panel is a superstar!

Her example, along with those of a few other HLS professors, such as Lawrence Lessig’s launch of Fix Congress First! should stimulate a broader discussion among students about what conditions produce activist professors and how to motivate more of them who are already on the faculty.

Students of Elizabeth Warren are directly being enriched by her teaching and advocacy. There is a moral imperative to connecting knowledge with action.

I propose there be an open forum some day next fall so that students and faculty discuss concrete ways to activate more of the latent talent among the faculty for long overdue changes in our corporatized and bureaucratized legal systems writ large and small. Any interested readers may wish to contact me at info [at] csrl.org.

The 600 year old Chinese saying that “to know and not to do is not to know” may not apply to the Harvard Law faculty, but it does send a provocative message in this age of gigantic manipulation of the law to serve the interests of raw power.

Sincerely,

Ralph Nader ’58

Harvard Law students raising own fund to support public interest careers

BY ALISON WELCHER

The following letter appeared in the Harvard Law Record exhorting Harvard Law School students to contribute to a grassroots initiative to fund a graduate of the school interested in public interest work. It is reprinted here in a slightly modified form to inform a general audience about the student effort.

$1 per day for 1 month from each student at the law school would fund a fellow classmate to work in the public interest for a year following graduation.

The Post-Graduate Student Funded Fellowship is the result of students realizing there is much we can do to help one another and others in a time of economic and social distress.

The immediate goal is to support one of our peers, someone whom we have shared classes with, been inspired by, and who is eager to tackle the problems of the world. The effects of the fellowship, however, will surely extend beyond the HLS community. By funding a year of public interest work, we are  confident that we are also funding positive change for the individuals and communities with whom the fellow works.

Even beyond that, we believe that this Fellowship has the power to positively influence the school’s culture, building greater community on campus. This is why it is important that this fellowship be grassroots, led and supported by students.

The economic downturn has made clear that nothing can be taken for granted, including the availability of a job for someone both qualified and deserving. Discussions about post-graduation plans have turned into comparisons of starting dates, deferral periods, and the latest frustrations of trying to crack into the public sector. Some of us find ourselves relatively well positioned; others are still busy networking, mass e-mailing, and polishing up fellowship proposals.

And so this time presents a unique opportunity to step back and think about what
each one of us can do to help our fellow classmates in addition to those less fortunate
outside of the HLS community.

We have worked to make it as easy as possible for students to donate. Everyone is encouraged to visit our website at www.law.harvard.edu/students/orgs/fellowship, and donate through the online form (by writing in Post-Grad Student Funded Fellowship in the Additional Comments section). As you may have noticed, we are holding weekly bake sales until the end of the school year, and we’d love for you to stop by, chat, get more information, buy a treat and give back. Third year students have the chance to direct their class gift to the fellowship, among the other options. 2Ls will have the opportunity to donate “One Day’s Work” this summer to the fellowship.

This is hopefully just the beginning.

We have selected students with the drive and ideas to lead this initiative next year. Our goal is to make the fellowship a permanent part of the HLS community.

Thank you.

Your Post-Grad Student Funded Fellowship Chairs,

Sheila Lopez, Julie Ruderman, Alison Welcher, and Maura Whelan

Comcast decision threatens net neutrality, fairness to consumers

BY STEPHANIE YOUNG

Two weeks ago, the U.S. Circuit Court of Appeals for the District of Columbia ruled that the FCC does not have authority to regulate broadband Internet service providers, granting Comcast the ability to shape its consumers’ use of certain web applications.

This is the most recent development in a string of court battles that stems from Comcast’s practice of delaying or blocking certain types of Internet traffic without disclosing the details to its customers. While other companies may also engage in the same practices, Comcast, as one of the biggest and most powerful ISPs, sets the standard for the industry.

The saga began in 2007, when one Comcast customer who had extensive network experience figured out that certain applications were being blocked. He realized that his Internet connection shut down when he tried to share his favorite music, public domain barbershop quartet recordings, via peer-to-peer applications. Because Comcast does not disclose what information they block and when they do it, less sophisticated users may not know that problems with their Internet connections are intentionally inflicted
by their ISPs.

The Electronic Frontier Foundation and Associated Press investigated, and discovered that Comcast purposely slowed or blocked peer-to-peer file sharing applications such as BitTorrent. Subsequently, special interest group Free Press filed a complaint against Comcast with the FCC in 2007 based on this practice. Free Press asserted that Comcast’s secrecy constituted a deceptive practice that should be regulated.

Comcast explained that this was merely a “network management practice,” to ensure that no one consumer took too large a share of its bandwidth away from other customers. However, it failed to regulate some other applications that used more, and restricted other applications that used less bandwidth.

In 2008, as the result of agency adjudication, the FCC ordered Comcast to disclose full details of its network management practices and create publicly available plans for new and nondiscriminatory practices. Comcast appealed this finding on the grounds that the FCC did not have authority to regulate under its “ancillary” authority. Comcast also claimed that the FCC could not make this decision through adjudication instead of conducting a formal rulemaking proceeding.

In the April 6 decision, the D.C. Circuit found that the FCC misused its authority in regulating Comcast’s network management practices, effectively allowing Comcast to inhibit transmission of whatever content it deems troublesome to its networks. FCC Chairman Julius Genachowski ’91 said that even despite this decision, his agency would look for other means to protect consumer interests in broadband.

As the appeal was pending, several bills introduced in Congress sought to remedy this issue from a consumer protection standpoint. The Internet Freedom Preservation Act, a bill introduced on July 31 of last year, includes enforcement provisions for noncompliant ISPs and creates law directly rather than delegating to the FCC for rulemaking. This bill is currently in committee but will probably be replaced by the more recent National Broadband Policy. The Broadband Consumer Protection Bill, introduced on March 15, aims to promote disclosure to consumers of the actual transmission speeds their ISPs achieve. The act would spur an FCC rulemaking to ensure that broadband marketing includes clear information to consumers about what speeds they can realistically expect, and to regulate ISPs’ marketing and service procedures.

The FCC released details of its National Broadband Plan, a priority of the Obama  administration, on March 16, stating multiple goals of increasing the number of Americans with broadband connections, improving computer and Internet literacy, and making access more affordable. It remains to be seen how the National Broadband Plan will comport with the D.C. Circuit’s decision. Unfortunately, the recent Comcast decision means that the FCC may not have authority to regulate.

This decision left the FCC with lesser regulatory power over broadband, and consumers with fewer rights against the industry. In order to ensure that consumers receive fair terms and competitive prices, either Congress or the courts need to reverse this trend and place broadband squarely under the FCC’s authority to regulate.

Stephanie Young is a 2L.

Letter: Did April Fools article prompt Stevens retirement?

BY ANDREA SAENZ

Dear Editor,

I can’t help notice that only one week after “General Kagan” demanded a Supreme Court vacancy open up in the April Fools’ Day issue of the Harvard Law Record, Justice John Paul Stevens announced his retirement. I can only conclude that Stevens and the White House thought that the column was written by the real Elena Kagan, and jumped to oblige her. (This wouldn’t be a first, as the Record April Fools’ Day issue has been tricking inattentive media and academic types since the 1970s.) The Record board should feel justified in claiming complete credit for Stevens’ retirement.

Anyway, count me among the thousands of HLS students and alums who will be unapologetic homers for our former dean if she is nominated. I hope this is her time. But I have to say that there is a major downside if Kagan ascends to the Court: she will have to wear a dowdy black robe all the time instead of her famous rainbow of solid-color blazers. (A Google image search provides all the examples you need.) I always wanted to put Elena Kagan Paper Dolls in the Record, where the basic doll was wearing a black top, black pants, and sensible shoes, and then you could dress her up in a red blazer, a green blazer, or for a formal night out, a black blazer.

Lest you think Kagan left this fashion statement behind at Harvard Law School, I asked a friend who works in the Solicitor General’s office, and he assured me that Kagan has kept the blazer collection even at her lofty post in DOJ. That made me feel good, like Kagan wasn’t going all “D.C.” on us. Alas, robe beats blazer every time. Best of luck to her or whatever other HLS grad is nominated for the spot (since that seems to describe almost everyone being short-listed). 

Andrea Saenz ’08

Editor-in-Chief, Harvard Law Record, 2007-08

Give money to Harvard? Nope means NOPE

BY MICHAEL

In 1987, our last year as students at Harvard Law School, we formed a group called NOPE. No matter how rich we became, even if we could credit Harvard for our careers, we vowed to never contribute anything of financial value to its endowment: Not One Penny Ever. NOPE. We took our share of responsibility for three bitter years, but we also blamed the faculty for their indifference to higher values and to students.

More than a hundred of our classmates signed the NOPE pledge and the story hit the AP wires. Rereading the old newspaper articles about our little revolt, we see that our gripes were imperfectly articulated to say the least. (See, for example, http://articles.latimes.com/1987-02-22/news/mn-5117_1.) Now we would say that, despite the Latin phrase in the university’s seal, the Harvard Law School rarely stands for truth or other high values. It does not prepare students for success; it brands them for success. At best, the law school distracts students from more important things for three years. At worst, the Harvard Law experience is morally corrosive, because some students look to the institution for truth and wisdom, but it delivers neglect and cynical politics.

Now we are taking a break to write a book called Boiling Over at Harvard Law. We describe—as part memoir and part investigative report—the dark side of the Harvard experience. We show the alcohol abuse and recreational excursions into marijuana, cocaine, and heroin, the sexual perversions, and, worse, the long stretches of ennui at a time when students should instead be thrilled to pursue wisdom. We tell the tale of one student who hid in his apartment in 1600 Massachusetts Avenue, painting abstracts instead of attending class during the second and third years. We hope our readers will use these details to embark on a broader critique of a self-absorbed institution that has churned out generations of America’s political elite.

Maybe it shouldn’t, but all of this matters, because the Harvard brand is so strong; the scarlet letter H goes a long way. That stamp was on display on January 20, 2009, when a Chief Justice who got his degree from Harvard Law swore in a President who received his J.D. from the same institution – and who stood near a First Lady who had done the same. Not since HLS alumnus Rutherford B. Hayes (Class of 1845) was president were things so sweet for the HLS community.

Harvard’s myth-makers would have you believe that Barack Obama’s character was shaped for the better during his three years in Cambridge. We are convinced that it was not. In rounding up 500 ambitious, intelligent students every year a random distribution of fortunes combined with Harvard brand equity will take some law graduates into greatness—and some into the pit. The myth may propel some to high positions. The substance of the institution does not.

Our description of the law school, unlike past critiques, touches the institution’s core. We believe the center there is hollowed out and rotten with a toxic faculty that poisons those around it. Some graduates do not show obvious signs of damage. Perhaps they were not as sensitive as we were to the toxins.

Harvard’s apologists might try to limit our observations to an odd period in the law school’s history. The late 1980s were indeed an ugly time when the battles between the Critical Legal Studies crowd and the more conventional scholars left scars. That was then, this is now, the apologists might say. Even so, our history covers two years in Michelle Obama’s education, not to mention the period right before Barack became the first African-American editor-in-chief of the law review. This was an important time at Harvard, if for no other reason than because it formed part of the untold biography of the world’s most powerful couple. And despite former Dean – and now Supreme Court Justice nominee Elena Kagan’s efforts to make Harvard a better place since we graduated, we believe a real remedy for Harvard’s problems would come from something more than free coffee and cookies, from change more substantial than smaller first-year sections and more international courses. The law school’s flaws, we claim, are more fundamental.

Generation after generation, Harvard Law has been home to arrogant teachers who reinforce the arrogance of students already impressed by their own college grades, LSAT scores, and other accomplishments. That arrogance prevents bonds of humanity from developing into community. That arrogance extinguishes the curiosity and the humility necessary to understand the world. The HLS faculty is full of geeks who did extremely well on law school exams but never developed the whimsy or the poetry or the jazz to make them truly great people. For the most part, they are neither outstanding philosophers nor accomplished practitioners. Clever but not wise, they sneer at the commoners (their own graduates) who draft contracts, litigate cases, and serve on lower courts.

True, Harvard is a training ground for the country’s elite. But who is really happy with the results? If the law school can’t pursue its mission with character, integrity, and humility, it should forfeit its special place in our national life.

Look to Barack’s hero, Abraham Lincoln, for a telling contrast. Lincoln, mocked by the East Coast elite, was a hard-working and gangly man from the frontier. Too poor to attend an Ivy League school, he learned the law through his own studies and apprenticeships. Lincoln did not lord it over other people; he acknowledged a Lord above his own head. (We’ll stop here, since we had better not talk too much about the Almighty if we want Harvard to pay any attention. Even at the Divinity School He has nearly disappeared from view.)

After the Civil War, Lincoln reminded the nation of the abyss, in order to inspire us to reach for the stars. Lincoln’s address at the Second Inaugural, no doubt, was about truth. Tested by death in the White House and by losses across the country, Lincoln schooled the nation on its pain and its healing. “With malice toward none,” he said, “with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.” We are willing to bet that Harvard Law professors don’t talk like that.

Michael Christian ’87 is retired in San Diego. Prof. Afsheen Radsan ’87 teaches at William Mitchell College of Law in Saint Paul, Minnesota.

Congratulations, law school Class of 2010. Your survivors’ guilt begins now.

BY EKSTREEM LLP

On behalf of the fellow members of your employer, our most prestigious law firm, we wanted to offer a heartfelt congratulations to you, incoming associates of the Class of 2010! You’re now only a month or two away from the end of your academic lives. Take a breather, enjoy your victory lap, and blow your savings on that extravagant bar trip to the new Club Med in Goa; when you check your account balance after that, you will only relish discovering the date that you will be beginning of your bondage to Me, LLP. And I may or may not mean literal bondage, but I don’t think it would be a good career move for you to ask.

Trust me, we have work waiting for you. It may not be substantive. It may not be billable. We may use these facts to later turn you out on the street, with insufficient experience to make a lateral move, and literally no other recourse in this economy but your state’s rapidly dwindling unemployment funds. After all, did you think we were going to keep you around, hiking your pay when there’s always a fresh new crop of 3Ls being grown somewhere in this great country? As long as America continues opening more law schools, your stock will keep going south. Sorry.

But take heart. You’re among the lucky ones. We know all about your friends – deferred ad infinitum, no-offered entirely, forced to beg for jobs at Human Rights First or some other vanity project that’s been pretty happy to pay J.D.s in “experience”. Take a moment to think about whether you’d toss some pennies to your failed classmate when he’s lying face-down in the gutter and reeking of the stench of cheap whiskey. Of course you wouldn’t. I mean, you did choose to take a firm job. That’s just not the kind of person you are.

Oh, but the guilt – the guilt will be bad. You’ll shed some tears over the lost comrade from study group whose promising gunning seemed destined to land him a seat on an Appellate Court, at least. You’ll wonder why the girl who won the Sears Prize that one year now shows up to reunions with an 87 year old scion of the Astor family and lists her profession as “homemaker”. You may think you recognize that Starbucks barista, mall janitor, or “sanitation engineer”. But then you’ll shake your head and say “nah”. Harvard Law grads sunk so low? Impossible. I mean, you definitely weren’t informed about it by the alumni magazine.

But you won’t think about these things for very long. In the old days, we were flush enough to bring in consultants to help bright young things deal with the fact that the telos of their high octane, extra extracurricular-fueled adrenaline rush through adolescence and early adulthood was a cell-like office with no view, shared with another dejected victim of diminished expectations. They talked about family and how it could help balance an unsatisfying work life (not that we’d ever think it was acceptable to ignore your vibrating BlackBerry when baby was in distress), or played up the different “lifestyle choices” of mergers and acquisitions versus capital markets practice as if there were a real distinction.

My favorite was the paralegal who came to us from i-banking and decided to leave the Financial Times‘ “How to Spend It” magazine around the office, allowing associates to daydream about what they would be doing with all the free time we never allowed them to have. We even had a billing code for it. Pacing the office at night, I’d come across a second-year associate, eyes practically raccoon-like from lack of sleep, hands jittery from all the caffeine consumed to maintain the momentum of doc review.

He’d be gazing wistfully, with what little energy he had left, at the glossy pages of “How to Spend It,” imagining he’d partied away his graduate education in business school and was actually able to bail from the office at 6:30, like some kind of sales-rep troglodyte. “Oh, you want a boat?” I’d ask, and the beleaguered plebe would look up, encouraged by my effort to engage him in human conversation, a slight smile beginning to emerge from his weary façade. “Well,” I’d then deadpan, “maybe it’d get you to the deposition you’re supposed to do in Hong Kong. In 12 hours.” Then I’d hand him the ticket and remind him how unfortunate it would be if he didn’t make like that famous Cravath associate and take advantage of the International Date Line to bill more than 24 hours that day. I’d remind him that the Cravath associate in question had managed to ascend to the heights of senior associate on that whim alone. Those were the times that stirred men’s souls! Now I’d just remind my hapless charges that said associate still has a job – though just barely. As a contract attorney. In a basement. In Fargo.

Sorry, Class of 2010. We can’t afford those sort of sundry amusements anymore. Ditto the ordered-in meals and cab rides home. But there’s a Subway around the corner, and a subway beneath your feet! Funny how one word, capitalized differently, can take care of so many of your needs. Speaking of which, you had better not fail to capitalize the right words on the first memo you prepare for one of our clients. After all, you all said on your resumes that you were “senior editors” of your respective journals, and if you haven’t memorized the Bluebook as well as a Christian fundamentalist militiaman has memorized the Bible, well, you’re dead weight, son. And I do mean son: the clients are no longer paying for the ink it takes to make all our inter-office communications gender neutral anymore.

Not every quality of life provision is so costly, you say? Wrong. Casual Fridays? Over. We’re not chasing pots of gold at the end of magic rainbows; we’re lawyers, and we need to look professional. Buy a suit or two. Italian only. I’m talking to you, kid from out of his league who wore a Jos. A. Bank outfit to his exit interview.

Don’t like it? There’s a homeless shelter down the street, and I’m definitely not telling you that because you’re allowed to use your pro bono hours volunteering there. And don’t forget that, should you complain, there’s a pretty angry crowd of pitchfork-wielding crazies willing to knife you for daring to compare long hours spent in our marble hallways to your own private Gulag Archipelago. Yes, you’re between a rock and a hard place. But you do get $160k for the privilege. And with that, I’ll turn it over to your financial services representatives, who I understand are very interested in talking to you about that outstanding debt on your student loans.

Ekstreem Azwhol is managing partner of his eponymous firm and an esteemed alumnus of Harvard Law School, where he won the Sears Prize, the Fay Diploma, served as President of the Law Review, Grand Wizard of the Federalist Society, and was deemed “the crown prince of egomaniacal chauvinism” by the editrix-in-chief of the Journal of Law & Gender. He clerked for Justice Scalia and was awarded the Presidential Medal of Freedom by George W. Bush for his service to American ideals.

Kagan: I’m just one overdue, unfortunate accident away from greatness

BY GENERAL KAGAN

The following article was originally published in the Harvard Law Record’s 2010 April Fool’s Day edition and was intended as satire. It does not and was not intended to reflect the opinion of Solicitor General Kagan.

Nine of them. Nine Justices. And now all that remains for all my plans to be fulfilled is for any one of those nine to have some unfortunate, random thing happen, for some minor illness to worsen inexplicably, and I will take my place among the eight that remain.

All it would take is the flutter of a pulmonary valve, the clogging of an artery, or the rupture of tiny blood vessel, causing a debilitating stroke. Any of these must be routine medical events, seen in any hospital every day of the week. And how many fatty meals does it take, how many salty french fries, how many tainted glasses of water before each of these events becomes a statistical inevitability? What sort of medical miracle are these people?

But the absurdity only ripens the longer one considers the situation, for any slip, any crash would be enough to take one of these illuminati from their post and into the halls of history. A dropped bar of soap, picked up in haste, leaves a spot of residue that causes a foot to slip, but there’s no handrail to save you, Clarence! A stale sacramental wafer, hastily dipped into the holy wine by the priest in communion, is swallowed a little too quickly, lodging at the epiglottis. Say your prayers, Samuel! Driving to a great-grand-child’s first communion, a nail in the road punctures a tire, and the car spins to the right and is crushed by a tractor trailer. Addio, Antonin!

And yet day in and day out they hum along in their steady routine, avoiding accidents, eschewing risk factors, and imbibing their miracle drugs to stave off that final sickness. But I can see it in their faces. Another wrinkle under the eye. A new liver spot. An enlarged goiter. An unusually pallid complexion. All these signs reveal the inexorable creep of age, the sure exhaustion of youth and vitality.

And ever since Souter left for a simple life in the hills of New Hampshire, there has been an obvious discomfort among those remaining, those who realize that they are letting their last days be sapped by an oversized vanity that can do no more than extend the tenure, carve another notch in the post of history, and sign off on another opinion, another page in the Reporter.

Why do they persist? What is the irrational impulse that keeps these jurists going? I can understand Roberts and Alito, and I envy Sotomayor. I might not shed a tear if it were one of them who was laid low first, but I would certainly understand their resoluteness, their tenacity. Even Thomas, appointed so young, has barely just hit his stride. He won’t be as old as Stevens is now until 2038. But how can these aging relics continue to trudge along so stubbornly against the winds of fate? John Paul, Ruth, Antonin, Anthony, and even dear Stephen are all already in excess of the average life expectancy. Don’t they know that they are tempting fate with each piercing interrogatory and each impassioned dissent?

I can only suppose that they, like myself, were one day counting the days from the other side of the line, biding their time until some other old fart would kick the bucket. And I suppose that I too will some day be in those robes, looking out at a rising pretender to my seat and despising each concerned look, every quickening of the pulse at a fit of coughing. From those lofty heights, with no more climbing the ladder of overachievement and an army of envious idolaters hemming you in, the next step can only take you downward. And like Wood, Garland, Sullivan and the rest, I will be right here, waiting for that moment.

Elena Kagan is former Dean of Harvard Law School and currently serves as Solicitor General of the United States.

New Harvard Law Review president: no threats, only opportunities online

BY RECORD

Following in the footsteps of President Barack Obama ’91 and many before him, Zachary Schauf ’11 was elected President of the Harvard Law Review on January 30. The Harvard Law Record made its way to Gannett House to discuss all things law review, past and future, with the new editor.

1) You went to college at Stanford, earned a masters degree in England, and worked as a writer and editor in D.C. Now you’ve come to Cambridge. What brought you to Harvard Law School?

I’ve been all over the place, it’s true. To make a long story short, I decided to go to law school because I wanted a career that would be both intellectually challenging and focused on solving concrete problems, and the law seemed like the best fit. As for why HLS, I came because I don’t think there’s a better place to get a legal education. Although people debate the merits of big schools and small schools, I love HLS’s size. The faculty has leading experts in just about every field you can think of, and the students here have done so many impressive things.

2) Rumor has it that you were voted your Section’s ‘Most Likely to be Law Review President.’ That Delphic pronouncement aside, what ultimately encouraged you to run for Review President?

First off, I should say that I was very surprised by that humbling vote of confidence from Section 7, though I was fairly sure that it would jinx me during the write-on competition. In the end, I decided to run because I had such a fantastic experience during my first semester on the Review. We have a very special community, and we have the chance work on the cutting edge of legal scholarship. After getting to know the organization, the choice to get more deeply involved was an easy one.

3) What are your goals as Review President? What lessons did you learn from your predecessor, Joanna Huey ’10?

We’re about to enter our 124th volume, and our biggest goal is to uphold the Review‘s commitment to publishing high-quality, well-edited scholarship. Beyond that, we set our priorities democratically during our transition process, and my role is principally to implement the goals we’ve identified as a class. This year, one of our main goals is to continue to build our online Forum.

Joanna has been a fantastic leader, and incredibly helpful as I’ve been learning the ropes. Joanna — along with the other members of the outgoing leadership team, Colleen Roh ’10 and Chris Bates ’10 — have made the Review a wonderfully welcoming and inclusive community, and I hope that Luke McCloud ’11, Christina Hoffman ’11, and I can build on their success.

4) What have you enjoyed most about your time on the Review?

The Review is a close-knit and supportive group, and it helped ease the transition from 1L year, when almost all your classes are with the same 80 people, to 2L year, when the school becomes a much bigger place. I hadn’t anticipated what a fun place the Review would be. Sure, we do our share of work, but we also have monthly issue parties, heated Wii tournaments, and lots of long conversations over bagels and coffee — sometimes about the law, sometimes about the latest episode of Mad Men.

5) In light of websites like SSRN, academic  blogs touting new and interesting research, and faculty work-shopping trends, much has been said in recent years about the continued relevance of law reviews. What, if anything, can the Review do to stay relevant in the legal community?

I’m confident that the Review will remain an important institution in the legal community for a long time. We sort through thousands of submissions each year to pick 15 or so of the strongest articles, and our track record shows that many of these articles will end up changing the way people think about the law. We also put enormous energy and care into our editing process; I think that our authors would agree that this process makes already strong articles even stronger. And our generalist focus can promote conversations among different specialties that might not happen otherwise. In light of these roles, I think the Review and the trends you mention are complementary rather than conflicting. Of course, we recognize that changes in technology create new challenges and new opportunities. That’s one reason that our online Forum will be a focus over the coming year.

6) What does the Forum entail? Are digital journals, like the new Harvard National Security Journal, the future?

The Forum is principally a way to continue the conversations that begin in the printed journal. We don’t envision it as standing alone. Its focus is on short commentaries that build on the articles we publish in the printed journal, and our hope is to solicit several responses to one article in each issue, and for the responses to come out as close as possible to the article. Because we see the Forum as tightly connected to our regular articles, our commitment to the printed journal remains as strong as ever. Our Forum Chair, Andrew Moshirnia ’10, is working hard to bring these ideas to fruition.

Of course, we’re excited about the growth of student-edited journals, like the Harvard National Security Journal, and it’s great that the digital format lowers the startup costs. They enrich legal scholarship, and they’re great for the HLS community. I think there’s plenty of room for both models to thrive.

7) Last year Joanna noted that the best part of the Review, resume aside, was the Community. What else appeals to you about the organization?

The work we get to do here is really fantastic. On our articles, we get to work with authors who are at the top of their fields. And on our student writing, we’ve got a fantastic group of talented editors with interests that span a huge range of topics. It’s a lot of fun to work with each other to help make our writing better.

8) What should interested 1Ls do to find out more about the Review?

We’ve held a few info sessions so far, and after Spring Break we’ll be holding tip sessions for our write-on competition, which takes place the week after spring exams. If anyone has questions in the meantime, I hope they’ll email me or our Outreach Editor, Beth Newton ’11.

Green light for an internet red light district?

BY MATTHIAS KETTEMANN

xxx

It is not as if there weren’t enough pornography on the web. Exact figures are difficult to come by, but estimates of the number of websites dedicated to pornographic material range from 1 to 25 percent. And soon there will be more. In fact, a whole Top Level Domain or TLD (the letters after the last dot in an address, such as .com or .biz) will soon be dedicated to “adult entertainment”: the new TLD dot triple x, or “.xxx”.

In a decision published on February 19, a top-notch three judge panel ruled in favor of an association of adult entertainment companies, represented by ICM Registry, and declared that the private corporation responsible for assigning new Top-Level Domains, the Internet Corporation for Assigned Names and Numbers, or ICANN, was wrong to deny ICM Registry their application for the new “voluntary adult TLD” .xxx.

The history of the conflict, which has serious legal implications for the development of the international domain name systems, started when ICANN opened the address space to allow new industry-sponsored, generic (that is, not-country related) Top Level Domains. The sex industry soon saw the potential to generate more revenue by adding websites ending with .xxx. On its website, ICM Registry prides itself with providing, with the new .xxx TLD, a “greater degree of confidence and certainty to [the] online experience” of “willing adult consumers of adult entertainment”. The creation of .xxx would lead to a “credible, self-regulated forum for all stakeholders to discuss and actively respond to concerns about online adult entertainment.” Discussing and actively responding to such concerns was probably not chiefly on the mind of ICM Registry when it applied for the TLD. Rather, as domain names such as sex.xxx could be sold for a lot of money, considerable financial interests were at stake.

As Lisa LaMotta of Forbes.com reported, the first two most valuable domain names are related to pornography. Sex.com was the first domain to break eight-figured barriers in 2005 by changing owners for $12 million. Porn.com was sold in 2007 for $9.5 million. But financial concerns were not chiefly among those with which regulator ICANN had to grapple.

Having presented itself as a technical regulator and not as guarantor of the Internet morals, ICANN had always insisted that it would only apply technical standards in assessing applications for new Top Level Domains. But after having first decided, in 2005, that the application by ICM Registry for the new Top Level Domain met all required criteria, the Governmental Advisory Committee uniting a number of states and advising the ICANN Board in its decision intervened. The Board reconsidered its decision and ultimately denied ICM Registry the new address space. 

The Independent Review Panel now found that this “reconsideration … was not consistent with the application of neutral, objective and fair documented policy.” Harvard Law School Professor Jack Goldsmith, who provided an expert report on which ICM Registry relied, used even stronger words, saying that “the clearly fictitious basis ICANN gave for denying ICM’s application” is “most obvious”.

As the Panel pointed out, the change in opinion of ICANN could be traced back to an outcry of governments that started with an August 11, 2005, letter by Michael D. Gallagher, Assistant Secretary for Communications and Information of the U.S. Department of Commerce, evidencing a “volte face in the position of the United States Government”. This development was caused, according to the Panel, by “a cascade of protests by American domestic organizations such as the Family Research Council and Focus on the Family.”
While DOC officials seemed to first approve the new TLD, they were galvanized into opposition by critique by the Religious Right, including figures such as Jim Dobson, who had, as the Panel writes, “influential access to high level officials of the U.S. Administration.”

ICANN thus faced a dilemma: If it accepted the .xxx domain it would show that it was immune to interference by the US government. This was an important issue at that time, as the so-called World Summit on the Information Society process was ongoing at the time. The process explicitly aimed at creating a more international (read: less US-influenced) Internet Governance. But if ICANN did not reconsider the introduction of .xxx, there might have been a serious backlash from the Bush Administration, which was under pressure from Christian Conservatives. “We’re damned if we do”, ICANN Chairman Vint Cerf is quoted as saying in 2005, “and damned if we don’t.” In the end, ICANN refused to allow .xxx. Now, five years later, they were again “damned” for this decision. 

No deference necessary

The three judge panel consisted of a former President of the International Court of Justice, Stephen M. Schwebel, as Chair, the former president of both the London Court of International Arbitration and the World Bank Administrative Tribunal, Jan Paulsson, and Dickran M. Tevrizian, a U.S. federal judge for the Central District of California. The majority first underlined that “the judgments of the ICANN Board are to be reviewed and appraised by the Panel objectively, not deferentially by application of the ‘business judgement’ rule”.

Judge Tevrizian, who had been nominated by ICANN, dissented on this point saying that a de novo consideration of evidence should not have taken place. Also, he disagreed with the role of international law in the case. Though not decisive in this case, the majority ruled that ICANN was “charged with acting consistently with relevant principles of international law, including the general principles of law recognized as a source of international law”, and specifically the principle of good faith. ICANN had denied the import of international legal principles for its work. 

The majority also found that ICM Registry had met all the necessary conditions, including “sponsorship criteria” (which relate to the proposal being representative of the industry it purports to represent) and that the decision by the ICANN Board to reconsider their application was a violation of “neutral, objective and fair documented policy.”

Forced migration? 

This decision which ends a year-long battle that had pitted Internet scholars against each other does not even satisfy all representatives of the adult entertainment industry. A Top Level Domain dedicated exclusively to adult content could be used by some states as a means to force all unwanted or supposedly immoral content to migrate to this TLD which could then be easily monitored or blocked. Professor Goldsmith confirmed this in his expert report: A “website on the .XXX domain is easier for nations to regulate and exclude from computers in their countries because they can block all sites on the .XXX domain with relative ease but have to look at the content, or make guesses based on domain names, to block unwanted pornography on .COM and other top level domains.”

Will states use the .xxx domain to create a red light district on the Internet? Milton Mueller, Professor at Syracuse University School of Information Studies and Director of its Telecommunications Network Management Program and another expert witness for ICM Registry alongside Professor Goldsmith, does not think so. In a statement to the Harvard Law Record, he writes that “countries that possess both the political power and the hostility to freedom of expression required to do that are the ones that systematically block online porn anyway (China, the Arab states, Iran, etc). If it meant that the sites were merely segregated in .xxx rather than blocked altogether, it would be a step forward for adult sites. There might be some countries that try to use .xxx as a compulsory red light district, but if that just means that they are blocked the obvious response is for the online adult sites to locate in the U.S. and other more liberal countries”.

Similarly, on the “Online Adult Indust
ry News” blog, Stuart Lawley, Chairman of ICM Registry, was quoted as saying that he is “eager to work with ICANN to make dot-xxx a reality, and the time for stalling is long past.” (I would have wanted to read on, but accessing the site produced a stream of strange pop-ups of scantily-clad women and my neighbors in the library had started to frown.)

Is there anything to Judge Tevrizian’s warning in his dissent that “any disgruntled person” will now be able to “second guess” ICANN. “This is sheer nonsense”, Professor Mueller told the Record. “One has to be a lot more than ‘disgruntled’ to take on the risks, costs and time burdens required by the [process] as it now stands.” First, this is a question of money.

According to Mueller ICM Registry spent $ 4-5 million on legal representation. More fundamentally, Mueller believes Judge Tevrizian’s warning to be plain wrong: “Couldn’t you say the same thing about judicial review of Congress or the Executive Orders of the President? Or lawsuits against corporations by their shareholders? Does Tevrizian think that no corporate board can ever do wrong?” As the financial crisis has demonstrated beyond doubt, corporate boards can do wrong and courts are often right to second-guess them.

Snatching victory from the jaws of ICANN’s defeat?

In the end, ICANN’s defeat might actually be a win. Professor Mueller wrote in his blog that “the “defeat” for ICANN’s past President and Board Chair (and the Bush Administration) is actually a great victory for ICANN as an institution”. To the Record, he explained that “ICANN is a new global governance institution. Up to now, people have been deeply worried about its lack of a foundation in law, a problem caused by its global nature and its unilateral creation by the US. The feeling that ICANN has inadequate external accountability mechanisms prevails almost everywhere outside of those on the payroll of ICANN.” The new review process, however, will provide ICANN’s stakeholders with a greater sense of security and ICANN itself with some guidance. Overruling ICANN was important. “The panel proved beyond a doubt”, Mueller said, “that the independent review really is ‘independent’, and this in turn builds confidence that ICANN’s own institutional solutions can develop into the robust accountability mechanisms it needs.”  

This backbone against future government interference might come in rather handy, as only on February 24, Lawrence E. Strickling ’76, Assistant Secretary of Commerce for Communications and Information, announced that the US would end its decades-old “hands-off” policy towards the Internet: Without “government involvement”, he said in a speech at the The Media Institute, “we will lose the one thing that the Internet must have—not just to thrive, but to survive—the trust of all actors on the Internet.” 

The panel confirmed ICANN’s view on one essential point: The decision is not binding on the ICANN Board. But ICANN is likely to allow .xxx anyhow. After all, the last years saw an internationalization and a liberalization of the Top Level Domain market. These days, ICANN is accepting new propositions for Top Level Domains from cities (think .berlin), regions, and private actors. Apart from meeting certain policy conditions, it’s just the small matter of paying around US$100,000 to become the owner of your very own Top Level Domain. 

Matthias C. Kettemann, a Fulbright and Boas scholar, is an LL.M. student from Austria.

Cambridge, USA: Don’t let scholar call for Gaza genocide in Harvard’s name

BY JESSICA CORSI

Martin Kramer is using the mantle of Harvard University to promote racism and genocidal birth prevention policies, and Harvard’s Weatherhead Center for International Affairs is letting him get away with it.  The Weatherhead Center is also striking back at critics, aiming to freeze them out by claiming that asking the Center to condemn Kramer’s statements flies in the face of academic debate and freedom of speech. 

But the Center has forgotten something crucial in taking this tack: supporting speech can never absolve Universities of the responsibility they have for the repercussions that flow from this support.  Universities don’t exist to promote any speech at all. Universities are special and powerful actors in the realm of ideas and policies, and the Weatherhead Center—self-described on its website as “the largest international research center within Harvard University’s Faculty of Arts and Sciences”—is uniquely influential and therefore uniquely liable for the “debate” that it fosters and the scholars to whom it lends its name and credibility.

But we need to start with who Martin Kramer is, what he said, and where and when he said it.   According to the Weatherhead Center’s website, Kramer is a  visiting scholar in the Center’s National Security Studies Program (NSSP.)  This program aims to be highly influential, claiming a practical and far reaching impact on the world’s most critical issues:  “The central purposes of NSSP are to conduct basic, policy-relevant research on critical topics of national security and strategy and to educate and prepare scholars in strategy and national security for positions in colleges, universities, research institutes, and government.”

Kramer spoke at the 10th annual Herzliya Conference in Israel on February 3—a conference that, like Harvard University and the Weatherhead Center within it, attempt to assert their influence on Middle East policies and global politics generally  (the Conference website states that “the Herzliya Conference is Israel‘s primary global policy annual gathering, drawing together Israeli and international participants from the highest levels of government, business, and academia to address pressing national, regional and world strategic issues.”) In his remarks, Kramer called for population control as a way to “break” the cycle of martyrdom and radicalism in several Islamic countries, and more specifically, in Gaza.  As other people writing before me have pointed out, his words encourage action that matches the (narrowly defined) definition of genocide from the 1948 UN Convention on Genocide, because he promotes “breaking Gaza’s runaway population growth” as a means to “ris[e] to the challenge” of radicalism against the state of Israel.  These statements seem to fall within the realm of calling for genocidal policies by advocating the prevention of birth within a specific ethnic, racial, or religious group. The heart of what Kramer said is excerpted below, and can be found on his personal website in both text and video format:

“Afghanistan and Yemen will almost double their populations between now and 2030. What will 28 million more Afghans and 20 million more Yemenis do? What about the nearly 80 million more Pakistanis who will be added by 2030? This explosive growth will drive radicalization through another generation at least, and push it into Europe and America through emigration.

Second, there is hope. By 2030, these societies will have passed through the youth bulge. Fertility is already falling, in some places steeply.  .  .  .

Now eventually, this will happen among the Palestinians too, but it will happen faster if the West stops providing pro-natal subsidies for Palestinians with refugee status. Those subsidies are one reason why, in the ten years from 1997 to 2007, Gaza’s population grew by an astonishing 40 percent. At that rate, Gaza’s population will double by 2030, to three million.

Israel’s present sanctions on Gaza have a political aim—undermine the Hamas regime—but if they also break Gaza’s runaway population growth—and there is some evidence that they have—that might begin to crack the culture of martyrdom which demands a constant supply of superfluous young men. That is rising to the real challenge of radical indoctrination, and treating it at its root.”

On February 22, Kramer clarified what he meant by “pro-natal” by stating on his website that “UNWRA [the United Nations Relief and Works Agency for Palestinian Refugees in the Near East] assures that every child with ‘refugee’ status will be fed and schooled regardless of the parents’ own resources . . . .”  So, in short, Kramer supported removing programs that feed and educate children of Palestinian refugees, and he lauded Israel’s sanctions on Gaza as “break[ing] Gaza’s runaway population growth.”  We should laugh at any attempt to repackage these statements—such as the Weatherhead Center’s subsequent February 23 spin on them as  “express[ing] dismay with the policy of agencies that provide aid to Palestinian refugees, and that tie aid entitlements to the size of refugee families.” Anyone who can read can see them for what they are—a statement not merely of “dismay,” but one that advocates curbing births within Gaza’s Palestinian population, and that declining births in countries such as Pakistan are a very good thing.  The Center’s letter and Kramer’s rejoinder focuses on Kramer’s statements about Gaza, but as the excerpt above shows, Kramer himself is concerned with controlling the populations of several Muslim countries, more generally.  The context in which Kramer’s Gaza statements were made undermine the notion that his primary focus is the actions of refugee agencies, as opposed to birth rates, period.

These statements are not where the problem ends; things got worse when, instead of condemning the content of this speech as racist, anti-Muslim, anti-child,  and anti-refugee, the Weatherhead Center began to cloak it in the legitimacy of academic dialogue.   In the Center’s February 23rd statement, which Kramer has made use of by publishing on his website, the Director and Acting Directors of the Center claimed that “it would be inappropriate for the Weatherhead Center to pass judgment on the personal political views of any of its affiliates”—something that the Center surely does each time it considers whether to accept persons as affiliates—and sheltered Kramer’s statements in “fundamental academic freedom.”  The Director and Acting Directors have erred greatly in issuing this letter of support.  We are all called upon to “pass judgment” on views that express racism, and particularly views that call for reducing the population of any one group, and suggest specific means of how to do so.  And, crucially, there is no such thing as “fundamental” academic freedom—academic freedom is a qualified concept, constructed for the purpose of promoting the role of Universities as influential sources of ideas and policies that shape the world.   Academic freedom does not exist separate from the ethos of a University or its institutions.  As fonts of social mores, Universities have a particular responsibility to condemn egregious and inhumane ideas.

The ethos of the Weatherhead Center belies the statements they have issued in acceptance of Kramer’s racism. Its website states that “[t]he Center was created [in 1958] as a means of confronting the world’s condition,” a condition characterized at least in part by the idea that “[f]oreign affairs in our era pose unprecedented tasks…Today no region is isolated; none can be ignored; actions and events even in remote places may have immediate worldwide impact . . . .”  For a Center founded on the interconnectedness of ideas and their relevance and impact on the world, it is perplexing to say the least that they would take t
he position that Kramer’s statements were merely an opinion, denying the broader impact such opinions have.  The influence of such statements is particularly enhanced when made by someone with the clout of the Harvard name behind him and who has self-reported on the Center’s website that his research interests are “U.S. policy options in the Middle East.”  Neither Kramer nor the Weatherhead Center “speak” or “think” into a vacuum.  The dialogue in question aims at deliberate outcomes. 

How are we to take seriously the idea that Kramer’s statements, combined with his affiliation with the Weatherhead Center and the Center’s support of his freedom to make them, pose no problem; are simply ideas; are only discussion and words; when the Center exists and Kramer works not only to promote “controversy” and debate but to shape the actions of governments?  We are not that naïve, and the Weatherhead Center should cease to offer such a disingenuous excuse.  The Center is hiding behind the position of freedom of speech, when it has created the Center’s dialogue not simply to generate more speech but in order to have a larger influence on the world of foreign affairs.  It must take responsibility for the ideas it helps generate and support.  It cannot lead and duck at the same time.

Kramer’s statements and the Weatherhead Center’s support of them raise the question of the point at which an institution must distance itself from the “personal” viewpoints of its affiliates.  Certainly Kramer has a right to write and say such things.  But let’s not forget who he is and where he was speaking.  Kramer’s “personal” viewpoint was expressed at a large, international, influential conference, in his capacity as a Weatherhead scholar.  The Weatherhead Center has come to his defense, and their statements of support have been broadcast to the entire world.  At this point, we need to stop pretending these are only the personal statements of an individual, for they have taken on the character of Harvard University sanctioned speech and have been lent all of the legitimacy that this carries.  Let us take such support seriously, and to call upon the Center to behave more responsibly in the ideas that it promotes.  It is no small thing to denounce the feeding of refugee children, and it is no small thing to pretend that the concept of academic freedom can be stretched far enough to protect such calls.

The 9/11 trials: Holder’s last stand

BY ANDREW KALLOCH

Last year, Attorney General Eric H. Holder declared that America was a “nation of cowards” in the area of race relations. Predictably, pundits and politicians hollered Holder down; members on each side of the political aisle spouting sanctimonious verbiage about “how far we’ve come,” believing that the presence of a black president in the White House meant that the struggle for civil rights was at or near an end.

Less than ten months after the “nation of cowards” flap, Holder triumphantly announced his decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in Federal Court in Manhattan, steps from the former World Trade Center.

Little did Holder know how prescient his February words about America’s cowardice would become, as slowly, but steadily, members from all parts of the political spectrum conspired to keep KSM and other 9/11 plotters out of civilian court.

Some of the arguments in favor of military commissions stemmed from true intellectual disagreement—the belief that terrorists caught on foreign soil were not entitled to the rights provided to criminal defendants in civilian courts. While I strongly disagree with that position, there is nothing inherently cowardly about the belief that the Constitution applies to certain individuals and not others.

However, much of the vitriol hurled Holder’s way was fear-mongering about the nation’s ability to adequately defend itself, the courts’ capacity to protect classified information, and, most spinelessly of all, concern about the fact that terrorists would have a platform for their own cowardly ideology.

Indeed, it did not take long for politicians to whine about the alleged risks the trial brought to New York City. Rep. Peter King, a Long Island Republican, said that hosting the trial in Lower Manhattan would move New York City “to the top of Al Qaeda’s target list.” King must be the only New Yorker who doesn’t already know that New York is Al-Qaeda’s #1 target.

Holding KSM’s trial in Lower Manhattan would not make the city a more attractive target for terrorists. The New York City Police Department has the most capable intelligence and counterterrorism units of any police department in the world. Moreover, were the trial to be held in New York, KSM and his co-conspirators would likely be housed in Unit 10 South of the Special Housing Unit in the Metropolitan Correctional Center in Lower Manhattan, a maximum-security unit specifically designed to house terrorism suspects and other offenders who pose a proven danger to other inmates or prison guards.

Others who criticized Holder’s decision expressed concern about the nation’s ability to control classified information. In the Wall Street Journal, former Justice Department lawyer John Yoo wrote that trying KSM in civilian court would provide an “intelligence bonanza” for Al-Qaeda. While we shouldn’t be surprised by now of Yoo’s unparalleled ability to look the other way when the law repudiates his personal beliefs, it is worth noting that military commissions use the same law to protect sensitive national security evidence as the federal courts, the Classified Information Procedures Act (“CIPA”).

CIPA was successfully implemented during Zacharias Moussaui’s trial in 2006, a trial that then-Senate Majority Leader Bill Frist (R-Tenn.) hailed as “a small but important piece of justice” that provided “proof that our society is grounded in the liberating power of justice and the rule of law, which are our most valuable weapons in the war on terror.” The Moussaoui court even took the extraordinary step of creating a special website where the public could view nearly 1200 trial documents.

Independent of the concern about classified information, abandoning the civilian courts would prevent the U.S. from bringing some of its most wanted terrorists to justice. As the New York Times reported this week, a commissions-only policy would prevent some nations from extraditing terrorism suspects, including two men suspected of plotting the 1998 East African embassy bombings and a Somali citizen accused of recruiting American citizens to fight for al-Shabaab.

As pitiful and uninformed as King and Yoo are, Rep. Pete Hoekstra’s (R-Mich) pathetic fear mongering is unparalleled. Hoekstra told CBS’ Face the Nation that terrorists should not be tried in civilian court because it would “allow them to use it as a platform to push their ideology.”

If Al-Qaeda wants to pit their murderous ideology against the values of liberty, equality, democracy, and the rule of law, I say bring it on. We may not win over “Jihad Jane,” but we will show billions of peace-loving people that our nation’s strength is not in its arms, but in its fundamental principles.

If President Obama intervenes to send KSM’s trial back to a military commission at Guantanamo Bay, Eric Holder has a clear choice: join the cadre of cowardly politicians and professors who view the rule of law and the values of our nation as insufficient bulwarks against a murderous, radical ideology, or resign his office in protest. The Attorney General was right to call out America on its cowardly approach to race relations. Now, it is time for Holder’s Last Stand.

Andrew L. Kalloch ’09 was Editor-in-Chief of the Harvard Law Record from 2008 to 2009. He now lives in New York.

U.S. funds immigration cops, but not courts

BY ANDREA SAENZ

As an immigration attorney, I represent an asylum client who was arrested in the Michael Bianco factory raid in New Bedford, MA in March 2007 – so long ago that at the time of the raid, I was a mere 2L in the Harvard Immigration and Refugee Clinic, proving support to the lawyers helping the newly arrested clients. After various procedural steps, the client was finally given an hearing date for November 2009. As usual, we worked for hours upon hours assembling her brief, country conditions documentation, expert affidavits, and more.
Two weeks before the hearing, the judge took a medical leave and canceled several weeks of his schedule. We appeared in court the next month to get a new hearing date for the client. Her new date: May 2011, four years after her first arrest. That was the first free slot.

On top of that, because the client applied for asylum more than a year after entering the U.S., she is ineligible for a work permit while her case drags on. She must stay in the U.S without the right to work until her case is called — unless she gives up hope and goes back to the country she fears.

And in another recent case, I worried for the entire thirteen months we waited between filing the client’s application for permanent residence and the court hearing that one of the client’s key witnesses and claims to relief, her elderly and ill mother, would die and devastate not only her daughter but her daughter’s chance at a green card.

These kind of delays are pervasive in every one of the U.S.’s 57 immigration courts, and are getting worse by the day, thanks to two factors: the underfunding of the immigration courts, and the explosive funding of law enforcement programs that refer foreign-born people from encounters with the criminal justice system into the immigration court system. While the recent media attention on the immigration system has focused on the possibility of political reform, and importantly, on the shocking conditions and challenges of the immigration detention system, the actual functioning of the immigration courts themselves has received little ink.

The problem is simple: The immigration courts were already a ten-pound bag straining to hold a twenty-pound caseload. With the incredible growth of the Criminal Alien Program, 287(g) local law enforcement partnerships, and Secure Communities jail screenings, without any parallel growth in funding for the courts or prosecutorial discretion, the law enforcement system has dropped a fifty-pound weight right on top of the sack, and it is more than the system can bear if it is to produce real due process. And given what is at stake – the unity of parents and children, protection from persecution, and more – we must produce due process.

Consider the numbers: In fiscal year 2008, the Department of Homeland Security initiated removal proceedings against 291,217 people, who must all be tried by the Department of Justice’s Executive Office for Immigration Review (EOIR), operating with 57 courts and 231 judges. This is a 36% increase from just two years ago. Each judge now completes more than 1200 cases per year. Compare that to 729 cases a year for a Veterans Law Judge and 544 cases a year for a Social Security administrative law judge.

And it is likely to get worse, as Congress continues to pump up funding for Immigration and Customs Enforcement programs. DHS has already announced that they will expand Secure Communities and hope to eventually check the immigration status of virtually every person booked into any local jail in America through their fingerprints. Every one of the people referred from these checks, which include both undocumented people arrested but never charged with a crime as well as long-time permanent residents with criminal convictions as minor as a single simple drug possession charge, will be funneled into an immigration court system whose  resources are stagnant.

But don’t take my word for it. The American Bar Association Commission on Immigration has just released a nearly-500-page report, “Reforming the Immigration System,” analyzing in great detail the holes in the court system. The ABA strongly recommends major changes in judge hiring and training, access to counsel, judicial review, reduced use of detention and videoconferencing, and increased discretion by DHS attorneys. Last June, the Appleseed Center for Justice released a report, “Assembly Line Injustice,” making many of the same points and emphasizing the need for a more professional and consistent court system that provides some kind of counsel to poor clients who are eligible for relief.

Beyond delays, judges are under enormous pressure to finish cases that do come before them on tight “case completion” deadlines, and so to rush complex cases through the system. Individual hearings, even difficult asylum cases, are regularly double and triple-booked into three-hour hearing slots, with the parties knowing that asking for a continuance to finish means waiting another year or more.

In a case I had in 2008 involving a victim of serious domestic violence who was put on an electronic ankle bracelet despite having no criminal record, I had to beg and plead for an extra month to prepare her complicated asylum claim. The judge, sympathetic to my pleas, still had to call the regional assistant chief immigration judge just to get permission to deviate from his case completion deadlines, because the clients with ankle bracelets were being heavily expedited, regardless of the merits of their cases.

Immigration judges experience burnout, high stresses, and “compassion fatigue,”  causing one crying asylum seeker to sound just like another. In their offices, they are given little staff support, often having to share one law clerk among four or five judges. (New job opportunities for unemployed law grads, anyone?) The understaffing at EOIR is not news: former Attorney General Alberto Gonzales ’82 seemed concerned about the issue, recommending DOJ hire 40 new judges. DOJ isn’t even close to that goal, barely keeping up with attrition.

The lack of prosecutorial discretion is another serious problem the ABA points out, as unlike the criminal courts, this is a system where the “cops” (ICE or Border Patrol officers) file the charges and the “prosecutors” (DHS trial attorneys) rarely, if ever terminate cases for purely discretionary reasons, even if the respondents are children, the elderly, or the mentally ill. This leads to another problem: none of these groups, even if they are indigent asylum seekers, are entitled to free counsel. Much has been written on this issue: the lack of access to counsel in addition to documented disparities in immigration judge asylum grant rates has produced what some scholars call “refugee roulette” – an unpredictable system that is not in line with our desires to meet international human rights obligations.

As a result, more and more cases are appealed through the Board of Immigration Appeals, which does not, for various reasons, always review immigration judge decisions very robustly, and land in the laps of federal circuit court judges, who are not happy about their exploding immigration docket. Judge Richard Posner ’62, who has been the sharpest and loudest critic, said as long ago as 2005 that the adjudications of cases by the immigration courts and the BIA had “fallen below the minimum standards of justice.” The immigration judges themselves are not burying their heads in the sand: Dana Leigh Marks, president of the National Association of Immigration Judges, has agreed that for many clients, they are trying “the equivalent of death penalty cases…in a traffic court setting.”

We cannot fund cops but not courts. If local law enforcement partnerships with immigration authorities are here to stay, and it looks like they may be, we must also re-discover prosecutorial discretion and build an immigration court system that can keep pace with our desires to process more and more immigrants through it – a system that is at once bigger, fairer, and more flexible.

And yet, despite the cracks in the walls of the immigration court system, I’ve decided to join up. When my fellowship ends this year, I’m taking an attorney advisor (law clerk) position with the New York Immigration Court.

I am doing so because the system will chug on whether or not people work for it that have defended immigrants or read ABA commission reports. No one is going to take a political wrecking ball to the immigration court system and tear it all down; the ABA’s most radical suggestions are converting it to an Article I court and hiring a lot more judges and clerks. Having been both a public school teacher and a nonprofit attorney, I know good people can do good work even in a stressed organization. I’ve seen that from some of the judges and even DHS attorneys I’ve encountered in the last two years. So I will try to do good work.

But it’s slow going.

Andrea Saenz ’08 is an Equal Justice Works Fellow at Boston’s Political Asylum /Immigration Representation (PAIR) Project. She was Editor-in-Chief of the Harvard Law Record from 2007-08.

When will this generation stand up?

BY MATTHEW HUTCHINS

As the twenty-first century waxes into its second decade, clouds are gathering over the American Republic. A faltering economy, stymied foreign policy, and rising specter of corporate domination of life at home and authoritarian domination of nations abroad has put the public in a state of dissatisfied disillusionment. We need leaders to step forward with a straightforward elaboration of the principles that unite our interests across party lines, but the collected inertia of the two-party oligarchy and the sensationalistic media manages again and again to steamroll over the voice of the individual in favor of the talking head, the rehearsed and scripted speech, and the ten second sound-bite. 

The Greatest Generation has been put to bed, and the Baby Boomer experiment has once again overdosed on its own hedonistic excesses.  Now we tread in a desolate chasm while the next generation prepares to stand up and have its voice rise above the noise of the aging demagogues that have populated the media landscape during the Clinton-Bush era.

But are we entering an even darker chapter in America’s degeneration into demagoguery?  Glenn Beck’s recent appearance at CPAC offers surprising evidence of the fervor excited by base appeals to the anger and resentment of the crowd.  More disturbing yet is the shift from a Republican ideology of veiled elitism toward overt anti-socialist fascism.  Beck has begun an escalating revisionist campaign against the core of progressivism and all of its historical proponents, including Roscoe Pound and the Legal Realists.  In his mind and rhetoric, the gilded age of the 1920’s provides a model for America’s True Destiny, and rather than retreating from the seemingly discredited Reganite philosophies, Beck elevates them to mythical status.

Harvard Law School should be outraged at this campaign, not because Beck himself is a significant figure, but because the public is playing directly into the hands of this charismatic fool and turning against every concept that this institution has spent over a century developing and deploying into the legal culture of the nation. And while we sit comfortably in the halls of Langdell pondering with glee the control of the White House by Barack Obama ’91 and Cass Sunstein ’78, the policies so virulently condemned when practiced by Cheney-Bush are silently tolerated under our chosen President.

The missing element in the Thunderdome of present-day discourse is an overarching conceptual framework within which the course of the nation can be justified according to a set of consistent guide posts.  That is not to say that we need to search through history like Beck to invent a lost gospel that will guide us into the future.  Rather, we must look at the new circumstances of technology, economic reality, international relations, civil rights, human rights, and environmental concerns and assemble a vision of our future that is more than a grab bag of buzz words to be exploited in talking points. And to do this we must step out of our overly intellectualized artificial domain and down into the hedge rows of the public discussion of government and the law. 

Our nation needs genuine leaders who can navigate the uncharted highway of our future and lead us toward solutions that are based on logical argumentation, common sense, and the spirit of participatory democracy that has sustained our Republic during its darkest nights. We are the ones to take up this responsibility. It is our time to take up the torch and charge forward.

Matthew W. Hutchins is Co-Editor-in-Chief of the Harvard Law Record.

Nuance needed in dealing with Iran

BY MOHAMED HELAL

nuclear iran

Most people focus on Iran’s alleged ambition to join the exclusive club of nuclear weapons nations as a grave security threat. Whether or not Iran actually aspires to acquire nuclear capability is debatable, but what is certain is that examining the nuclear program in isolation of the political landscape within Iran and the broader strategic environment in the Middle East is a fatal mistake. 

The problem with Iran is more complex than a clandestine nuclear program or the enrichment of uranium; the problem is what Iran stands for and represents: a religious response to the problem of governance in the Middle East. This is a dangerous answer, because a regime that legitimates itself on the basis of religion will also purport to be the custodian of truth. It is a system that eliminates the marketplace of ideas and encroaches on what is supposed to be a deeply personal and private relation between man (and woman) and his God. In the Middle East, where religions were born and continue to thrive, and where people are highly emotional, such a model threatens to retard the region back to the Dark Ages. 

Worse still, as Iran feels increasingly threatened by western, particularly American, pressure, it has sought to gather regional cards that it could use in its political poker game with the West. To put it another way, Iran has planted detonation charges throughout the region that it could use to ignite the Middle East if the need arises. Thus, the ominous shadow of Iran’s political and military claw Hezbollah constantly hangs over Lebanon, threwatening to replicate the events that provoked Israel’s disproportionate war on its small northern neighbor in August 2006. Iran also periodically threatens to annex Bahrain and already occupies three U.A.E. islands in the Strait of Hormuz, which is a maritime strait critical for the global oil market. Tehran also holds many of the keys to Baghdad, with obvious implications for Iraq and the United States. Moreover, Iran funds and arms the Houthi rebels in Yemen, which are one of many challenges that are portending the division of the country overlooking the southern entryway to the Red Sea. 

The question then is, what can be done about this, which is a question the Obama administration is probably considering now. The first answer to the complex problem of Iran is simple: do not use force. The United States has, fortunately, jettisoned the deleterious doctrine of regime change, and any surgical military strike will never eliminate Iran’s dispersed and well-protected nuclear program. If anything, a military operation against the Islamic Republic will unite Iranians, who will rally around the flag, and, more dangerously, compel Tehran to ignite the powder-keg that is the Middle East.

What we need is a more sophisticated strategy of talking softly and carrying a big stick. For Iran the big stick should be the threat and gradual application of tighter multilateral, U.S. and European economic and military sanctions that generate enough local pressure for the regime to mend its ways. Tehran must place all nuclear facilities under full IAEA inspection, withdraw its support of subversive elements in the region and to refrain from intervening in the affairs of its Arab neighbors. In return, Iran should be promised the rightful place of the glorious Persian civilization at the table of nations, and it must receive assurances of non-belligerency from western powers and from Israel. This strategy must also be coupled with a sincere effort to free the Middle East of all weapons of mass destruction. History has also taught us that all of the Middle East dilemmas will be ameliorated by peacefully settling the Arab-Israeli question and by the establishment of an independent and viable Palestinian state in the West Bank and Gaza. 

This requires both a dialogue with and pressure on Iran, and continuous consultations with regional players to reach understandings that avoid past mistakes. For too long the security of the Middle East and Persian Gulf has been dictated by cursory and shortsighted policies that have not fully comprehended the complexities and subtleties of the region. We must move beyond strategies like Reagan’s “Gulf containment” and Clinton’s “dual containment” that have perpetuated instability and insecurity. Instead, we must initiate a serious dialogue with all the relevant and influential parties, including Russia and China, to devise a sustainable policy that promises the weary people the Middle East peace and prosperity. 

Mohamed S. Helal is an Egyptian diplomatic officer who studies at Harvard Law School as a Fulbright Scholar. He served in the Cabinet of the Minister of Foreign Affairs of Egypt from 2005 to 2009. The opinions expressed in this piece are exclusively those of the author.