Cambridge, USA: Are J.D. students antisocial?

BY JESSICA CORSI

JD student on a typical Saturday night?

Recently returned from a year abroad in the other Cambridge the limey one Record editrix JESSICA CORSI brings anthropological insight to bear on the perplexing question of just why J.D. students seem so unfun and why, despite studying in the same environment, LL.Ms. have them beat.

Allow me generalize and stereotype for a minute: Harvard Law School is not the friendliest place in the world. I’m not saying it’s a hostile environment, where people rip the pages out of books.  And I’m sure many people meet their lifelong best friends here, as well as happily marry their classmates (happy anniversary, Barack and Michelle). But if you’re coming from somewhere else, you can’t help but notice that, while civil, its neither a particularly warm nor a particularly social environment.

Lately I have gotten into the habit of saying hi to everyone, including random people that I don’t really know.  And my new building is chock-full of law students, who are pretty easy to spot.  So I felt even more comfortable smiling and introducing myself to these classmates when I met them in the elevator or on the stairwell.  Apparently this is not the right approach, because the conversations immediately stalled.  “Hi, I’m Jess, I just moved in.  I’m at the Law School, how ’bout you?” If I was lucky I received a tight smile in response.  Sometimes, people responded with, “Hello.”  Getting basic information from them—like, oh, their names—was like pulling teeth. 

After a few days, I stopped smiling at the people in my building.  It brought me back to 1L year, when, just as in Legally Blonde, people would create closed study groups and actually tell people “No you can’t join” to their face in front of other members of the “group.”  Other classmates would declare (in private of course) that they had already chosen their friends and that they didn’t want any more.  So then, if both your study group and your social circle are full, why bother smiling at someone in your elevator? 

This might be called Theory #1 of why Harvard J.D. students seem so antisocial: the “my dance card is full” theory.  But for schmoozy future lawyers, you’d think they could at least view these as networking opportunities.  We’ll have to pursue other theories.

Theory #2: HLS students are inherently socially inept.  I have never had so many awkward conversations in my life as at HLS.  I have also had the pleasure of overhearing many a ridiculous one.  Favorite encounters of mine from the past: “You know what seersucker is; you must have a house in Nantucket.” My response: “No, I’m just into fabrics”.  Section mate overhearing a friend who had visited my apartment and who had liked it: “Oh? Do you have a big apartment?” Me: “Well no not really but—” Cutting me off: “Yeah, so do I. I have a really big apartment, too.”  Well—thanks. Awesome.  Happy to hear that. Amazing conversation we’re having here.  Next you can ask me how big my bank account is.  My first day sitting in the Hark café, I was lucky enough to listen in on, “And then her parents gave a menorah. A menorah! Can you believe it? I mean, other people gave like, $1000.”  Not much to say in response to that.

But it has been my LL.M. friends that have really summed it up the best.  My favorite LL.M. story went like this:  an LL.M. student walks into class on the first day, sits down, and turns to the person next to him. He smiles, sticks out his hand, and introduces himself with his name and where he’s from. The J.D.’s response: blank stare, followed by, “Hi.”  LL.M. waits.  Maybe she’s going to offer some similar information, like, oh I don’t know, her first name, something really deep like that.  No; it doesn’t come.

Not wanting to fall into the “What’s your name?” conversation reserved for small children (to be followed with “And how many years are you?” and a few fingers held in the air), he asks her what class she’s in. “2L.”  Blank stare; you can practically hear the “plink plink” of their eyelids as they awkwardly look at each other.  And that, my friends, was the close of their conversation.  LL.M. friend: “The thing is, it’s not like she didn’t want to talk to me.  She didn’t turn away; she stayed engaged.  It was just that she couldn’t manage to say anything.”

But not everyone is so tongue tied, nor is every conversation boring or pompous.  Our school is heavily diverse, and we do have a fascinating student body.  So where then are all of these charmers, these socially skilled extroverts who don’t feel like they can have, max, five friends?

Theory #3: they’re either too busy,  they think that they’re too busy, or are convinced that they have to pretend that they’re too busy.  In my opinion, HLS was a lot worse in this respect when there were still real grades; it put more pressure on us to work harder.  But even without numerical GPAs, HLS is still a pressure cooker of expectations and demands.  And since the economy has tanked and firm jobs are no longer handed out on a silver platter, all sorts of new and quite serious pressures have reared their ugly heads.  Even if you have a job, there’s still the pressure to be up at 6AM jogging, working on a journal, doing something else impressive, finding your future husband/wife (if you’re one of the ten people who arrived unmarried), and so on. To hedge your bets, you’d better apply to 40 jobs, ten clerkships, 15 fellowships, and attend all sorts of lunch time lectures, weekend trainings, research for your favorite professor, and so on.  If you have free time, you’ve screwed up.

It’s just too busy here.  Its one of my least favorite aspects of life at HLS, and results in people preferring to wave to you as they pass by then stop and speak to you for 5 minutes. If they do stop and speak, their likely answer to “how are you?” is either “busy” or “tired.”  Fun bunch we are when we’re pulled in so many directions at once.  The faculty and staff certainly seem to encourage this.  At Cambridge, the first thing I heard was to make sure not to overdo it, and to take the time to engage in fun activities.  Here, there are high expectations from every camp, without much allowance for other coursework or outside commitments.  But it can’t all be chalked up to outside pressure: HLS students are the type who constantly drive themselves, and that can add up to a tense and hurried social setting. 

And yet we’re not the only high-powered law school out there.  Why is it that they seem to have more fun at Stanford or NYU? Theory #4:  New England is not such a barrel of laughs.  Let’s be honest: it’s really cold here.  The bars and clubs only stay open ’til 1AM. Again, it’s really cold. New England is not known for its hospitality, and Harvard is not known for its party people.  Also, it’s really cold. 

Still, law students in Stockholm seem to know how to have a good time.  Boston, on the other hand is known as a bit of a tough town.  With its mobster heritage and diehard sports fans, it’s not a soft and squishy place.  If we all went to law school in Rio, on the other hand, we might be more apt to blow off studying to meet our friends at the beach or skip out for the entire week of Carnival.  In other places, the pressure runs in the opposite direction, and you’re chastised if you’re too much of a workaholic.  If only HLS were that place.

But we’re not a homogenous crowd, or at least, there is another group lurking amongst the J.D.s: they’re the LL.M.s, and they seem to have much more fun.  I’ve been studying them to find out why.  In the first place, they can savor the shortness of their stay.  Their year long course incentivizes them to really live it up, whereas looking out across three years
can feel prettybleak for a J.D.  The other secret of LL.M.s: they mostly hang out with each other.  Out at dinner with a handful the other night, this group told me they’d given up on J.D.s.  “Its not worth the effort!” they said, since J.D.s never made the effort in return and continually “blanked” them: UK speak for when you walk right by someone you know without even bothering to acknowledge their presence, let alone say hi.  J.D.s note this too; I remember a friend complaining to me about this phenomenon and how he’d gone to a dinner party with a guy he’d met no less than five times, and who still insisted that they didn’t know each other.  Maybe this person was too stressed out to remember; or maybe he was on a power trip of acting like he was too important to remember.  Whatever the case, it stinks.

So what’s a frustrated J.D. to do?  My advice: infiltrate the LL.M. class. And if that fails, head to the Ed school: teachers are nicer than lawyers, hands down.

The immortal essence of October baseball

BY MARK SAMBURG

Record Sports Editor MARK SAMBURG refused to give a postseason forecast last issue out of a deep conviction that the Red?Sox would be eliminated in the first round by the Angels.  This article was held for publication after the Sox elimination from the playoffs.

The Steal.  Mr. October.  The Big Red Machine.  The unforgettable plays, the heroes, and the legends have always been born in October.  Magic dominates from the first pitch until a single victorious team drips with champagne and cheap beer.
Baseball cannot be reduced to the page.  Many have tried, and none have yet succeeded.  I have no illusions about my own ability to capture baseball in mere written words.  Baseball must be lived, breathed, and loved.

At its worst, in meaningless games played in forgotten towns in the last week of June, baseball is a game of irresistible personalities.  At its best, with the finest closer in history standing four outs from another World Series and an unknown speedster hovering off first, it is an immortal collection of images and stories.  October baseball is effortlessly immortal.

I tried to write a preview of the weeks to come—an inadequate effort to predict the unpredictable.  Even if I could, (and I can’t), even if I wanted to (and I don’t), I wouldn’t.  The magic of October baseball is inextricably tied to not knowing.  The truth?  Nobody knows what October will bring.  We can guess, and we do, but balls will take bad hops, pitchers will find one final masterpiece in arms believed to be out of gas, and doctors will stitch tendons together, leaving the hopes of millions in a blood-soaked sock.  Any claim of October clairvoyance is an affront to the majesty of the playoffs, blasphemy against the interminable tension of the game’s greatest month.

The moments are here, the heroes waiting in the wings.  In New York, a third-baseman waits in pinstripes, eager to prove his October chops, desperate to leave behind autumn failures.  Last year’s champions wait in Philly to do what few have done.  An old ballpark, beloved by its players and fans, hated by those who journey to play beneath its billowing roof, waits defiantly, not yet ready to say farewell to Minnesota baseball.  A brilliant manager—maybe the best ever, stands on the brink of another St. Louis October.  The hero of two Boston autumns, exiled and nearly forgotten, waits with New York’s own abandoned legend, both awaiting redemption in southern California.  In a moutaintop humidor, leather and twine soak in moisture to hamper their flight—to level the most unlevel field.  Three thousand miles away, a seemingly unstoppable lineup carries the memory of a lost tenth man as they face another inevitable tangle with their classic October nemesis.  Far closer, just across the river, an eternal underdog, newly acquainted with the bliss of victory, places its hopes on the shoulders of a diminutive second baseman with drive unseen outside the greatest of champions and a dominating closer who has yet to allow a run in any of his Octobers.

Nobody can know who will emerge victorious, or which seven will face the long walk back to a clubhouse unprotected by plastic sheeting, empty of champagne and newly opened boxes of caps and t-shirts.  All we can know is that October is upon us, and that it has brought the best of baseball with it.  There is nothing like October baseball; even on television, the dirt is drier, the grass greener, and the intensity palpable.  Baseball sizzles in the playoffs.  Listen to your television or your radio.  If you’re lucky enough to make it to a postseason game, close your eyes for a moment between pitches.  You will hear baseball, and you will hear the intensity of these games and the men who play each game as if there are no more games to be played.  For some, this will be true.

For those lucky few who will set their cleats on the dirt of a field over the next four weeks, the pressure is never higher than October.  For the millions of us who live and die with each pitch from their ace, each swing from their #9 man, the next month is the pinnacle of sports fanhood—a marathon at a sprint’s pace.  Enjoy the games.  Suffer through the horrible play-by-play commentators that national networks shove down our throats, replacing our own beloved broadcast teams.  Marvel at Craig Sager’s postseason “wardrobe” (and your ensuing epileptic seizures).  Hang on each pitch.  Love the heroes.  Remember the moments.  Take this month to experience baseball at its finest.  And yes, of course, GO SOX!

Guinea: has a nascent democracy lost its way?

BY JEAN-LOUIS

Guinean soldiers in Conakry

On September 28, thousands of Guinean citizens gathered in the national football stadium in their country’s capital, Conakry, to voice their protest against the country’s de facto leader, Captain Moussa Dadis Camara. They were met by a military that did not hesitate to open fire on them, nor to loot and rape during the ensuing chaos. The appalling toll of this short but brutal repression is estimated at 157 killed and 1250 wounded.

For now, violence and unrest do not seem to have spread in the country. In a phone call hours after the event, the President of MDT1, a local NGO for the defense and promotion of human rights and the rule of law, confimred that violence was mostly contained to the stadium and that it did not spill over in the rest of the capital, but that brutal and widespread violations of human rights had taken place there. He stressed that all efforts would be taken in order to press the government to investigate these events and to bring the perpetrators of human rights abuses to justice.

There is no doubt:?Guinea is at a crossroads, and both its citizens and the international community should carefully consider the recent appeal by Lawyers Without Borders Guinea to become conscious of the situation. An account of how Guinea got to this point should help.

A brief history of power in Guinea

The stadium where these sad events took place, the “stade du 28 Septembre”, is named for the date of Guinea’s independence from France, which it gained 51 years ago. At the urging of Sékou Touré, Guinea was the only French colony to voluntarily renounce its colonial status when given the option to do so by French President Charles de Gaulle in 1958. This was a source of great national pride and was followed by policies enshrining the place of local languages and cultures, as well as attempts at economic autarchy.

Unfortunately, as Lansiné Kaba painfully pointed out in his book Le ‘non’ de la Guinee à De Gaulle (“Guinea’s ‘no’ to de Gaulle”), the results was slower development, no unifying national language or education, and  difficulties modernizing public administration. All these aspects pose serious political challenges in a country with eight administrative regions, seven main languages besides French (none of which spoken country-wide) and twenty-four ethnic groups, all within a territory the size of the UK or Oregon.

This diverse population of over ten million was ruled over with a strong hand by Sékou Touré  from independence till his death in 1984, when power was seized through a military coup by Lansana Conté. The new dictatorship, which retained its predecessors’ policies regarding economic development as well as its characteristic brutality against any political opposition, lasted until the death of President Conté, on December 23rd of last year.

Power was promptly seized by a military coup led by a largely unknown army captain. But in response to the long frustrated popular expectations for democracy and respect for human rights, Captain Moussa Dadis Camara promised a peaceful handover of power after free and democratic elections, in which he solemnly foreswore taking part. The citizens of Guinea reluctantly accepted this promise of a peaceful transition among fears of civil war. But the bargain was clear: Captain Camara would hold elections before the end of 2009 and would not run for office, playing a role similar of that of Obasanjo in Nigeria.

How did we get to this bloodshed?

After seizing power, Captain Camara suspended the constitution, banned political and union activity, and declared that the government and the institutions of the Republic had been dissolved. In return, he declared his intention to fight corruption, straighten public expenditure and fight criminality. Camara’s populism gained support with the indictment of the late President Conté’s son, currently detained in Conakry’s central jail. Citizens accepted this delay to democracy in order to assure stability and the peaceful organization of free and fair elections, which were not something to be taken for granted in the region.

But when “arbitrary arrest and detentions, restrictions on political activity, and unpunished criminal acts by the military” were not met by efforts to set a date and prepare the elections, this conditional support started to wane.

Over the summer, people in the streets of Conakry would confess their fears about unmet promises, and some would swear they would even risk their lives to prevent the coup from transforming, once more, into a dictatorship. Camara’s recent allusions to the possibility of running for office proved unbearable.

The crossroads ahead

In the months after the coup, lively discussions divided both internationals and locals in Guinea as to whether elections ought to be held immediately, or after a few months of transition. Advocates of waiting argued that the country has no history of democracy, little political activity, and fragile parties which struggle to gain consensus across the country’s many ethnic and linguistic divides. Those that wanted immediate elections, however, said that the power of the military in Guinea coupled with its disrespect of human rights represented a danger even when it was out of power, let alone when it was not. Moreover, history proves, not just in Guinea, that power tends to be incredibly “sticky”, and the longer one holds it, the harder it is to separate from it.

The late events seem to put an end to the debate: nine months after the military coup, elections are now necessary if not urgent.

If Captain Camara decides to hold on to power, either through the semblance of an election, or all-together without holding any, there will be bloodshed,  and his regime will transform into a brutal dictatorship in order to maintain its grasp.

If elections are held, and Captain Camara does not run, many challenges lay ahead for Guinea’s democratization. The country will require the assistance of the international community to hold off the influence of neighboring states, and to hep jump-start the prosperity of a country that has one of the world’s lowest rankings on the Human Development Index. At any rate, a nascent democracy should not be left alone at night in the middle of a crossroads.

Jean-Louis Romanet Perroux studies at the Fletcher School of Law and Diplomacy. He has lived and worked in Guinea.
 

Letter: Harvard should consider shorter, less expensive law degree

BY

Open reply letter to John F. and Lynn A. Saverese, both J.D. Class of 1981, who are  soliciting funds for supporting financial aid and scholarships at Harvard Law School.
 
Dear John and Lynn Savarese,

The letter I just received from the two of you in your roles as Co-Chairs of the Harvard Law School Fund is the second such plea.  I don’t know how I am to interpret the shift from April to September in the salutation from “Dear Mr. Fisher” to “Dear Frank”.  As far as I know we have never met nor communicated directly, but I am going to accept the “Dear Frank” as an invitation to be as candid with you as if we did know each other.

How am to interpret your letter?  Surely, as a personal endorsement of the need for money to help finance student aid. But I wonder if you have given the matter the same review and attention you would give to the testimony of one of your clients in an important law suit.  For that matter, on whose behalf are you writing, on behalf of our law students or on behalf of the faculty and the school?

On cross-examination you might concede that the Law School could ease financial strain on students without reducing the quality of the J.D. degree.  One way would be to drop the third year, or postpone it to mid-career.       

Most of our students intern with law firms after the second year, and if found able are hired.  But we then require them to return to Cambridge for a third year in residence, adding to large student debt and, most significantly,  to forego a year’s earnings.  It is suggested that in the third year students can gain from “clinical” work, but “clinical work” sounds like what a young lawyer could do in a firm and be paid for. It is also said that the third year permits training in a legal specialty.  But at the outset of a career a student can not be sure about a specialty and in the third year often ends up working on the specialty of interest to a professor.

Northwestern University Law School now offers both three-year and two-year J.D. degrees.  Let’s watch how the market values the two. Clearly, the savings to students of a two-year program would dwarf any financial aid which might be received as a result of fund-raising efforts such as yours. Would you agree that a two-year program is something Harvard should consider as a way to help students?

Let me be clear. It does not make me less loyal to the Law School to wish it to consider changes. Since my great grandfather Henry Dummer attended the school (in 1829-30 as one of its first handful of students) the School has changed in big ways. And changes were experienced by my father and his two law school-attending brothers as well.  I simply wish the Law School might now lead the country to more cost-efficient legal education – as an alternative to funding the status quo, or as your letter suggests the status quo with bells and whistles.
 
Sincerely,
 
Francis Dummer Fisher ’51       
Senior Research Fellow,
LBJ School of Public Affairs
University of Texas at Austin

The G-force in world politics

BY MATTHIAS KETTEMANN

global g

As the G20 replaces the G8, MATTHIAS C. KETTEMANN revisits the nomenclature of “G” in world politics.

At the Pittsburgh meeting of the Group of 20, or G20, President Obama announced that the more legitimate informal gathering of 20 states would replace the smaller, and more elite, the G8 as the world’s premier forum for discussion on issues such as climate change, global financial stability and finding responses to systemic imbalances. While accepting the G8’s effectivity, international relations scholars and most states not included in this exclusive circle have criticized the role of ‘club governance’ for some time and should welcome the trend to this (slightly) more representative forum. But the G-force experienced by politicians in an interconnected, interdependent world which requires policy responses to keep up with the pace of change does not stop there. In fact, G is probably the most important letter in international relations, as it is used to describe a rich variety of unofficial political constellations with political clout disproportionate to their legitimacy – if measured in traditional terms. Here’s why:

Whether the G2, a proposal suggesting closer ties between the US and China is a “G1,” or a “good one,” is open to question. The G3 is both a grouping of Colombia, Mexico and Venezuela and of the three biggest European countries, Germany, France and the United Kingdom. The G4 serves to designate both, a group of China, India, Brazil and South Africa as the leaders of the WTO subgroup G20 and a coalition of Brazil, Germany, India and Japan that is campaigning for seats on the Security Council. Since the last G7 meeting, the G4 has become shorthand for an ‘elite’ group of US, Japan, China, and the EU which President Obama pushed to supplant the G7 (a proposal, which seems to be somewhat at odds with his G20 proposal promoting more international legitimacy).

The G5 was used to designate the world’s largest economies (US, Germany, Japan, France, UK) until the group was expanded. Another G5, referring to a group of nations consulting on matters of European security policy, is still in existence (though has been largely inactive lately). The G6, the former G5 plus Italy, now meets as the G7 (plus Canada), the G8 (plus Russia) or the G9 (plus the European Commission).

But let’s talk business: in international financial institutions, where effectivity counts for a lot, the G7 has an important role, as well. The finance ministers and central bank heads of the eleven biggest OECD countries meet, surprisingly enough, as the G10. Perhaps they wished to avoid confusion with the actual G11, the “Cartagena Group”, a group of South American debtors that have teamed up forces to ease their burden by negotiating for common solutions. The G12, again, is a forum for central bank representatives of 13 industrialized nations.

The G13 is a group of states which are uniting their forces to reform the United Nations (Since their efforts have not been spectacularly successful to date, they might profit from some inspiration from their namesake: G13, a marijuana strain of “American Beauty” fame). But here there’s “clean” fun, too: the G14 is a group of 18 Europe’s soccer clubs, including big names as Ajax Amsterdam, Bayern München, Manchester United und Real Madrid. 

Now, back to international relations: the G15 is a group of 17 non-aligned states founded in 1989, which promotes ideological independence in international affairs and has, in the past, proved anything but ideologically independent. In trade negotiations, the G20 developing countries includes a growing number of developing countries from Argentine to Zimbabwe that represent 65% of the world’s population. Better known, of course, is the other G20: the informal gathering of the 20 biggest economic powers and the European Union, which is now destined to become the world’s most important governance club.

The G24 is a sub-group of the G77 (of 132 developing nations). Both represent the interests of developing nations in international financial institutions and global trade talks. In the framework of the G90, meetings of African, Caribbean and Pacific island states are held.

Even when flying to and from group meetings, the politicians cannot quite avoid the force of the G: neither the g-force (during acceleration and deceleration), nor the gravitational constant G (when staying in air) – nor, incidentally, the G100, G150, G400, G500 or G550, all airplanes manufactured by Gulfstream and used as business jets that transport the G-groups’ VIPs.

What does this brief survey tell us about the role of the G in world politics? First, that you can never trust numbers; second, that ‘club governance’ is on the rise and that informal gatherings producing Gentlemen’s Agreements play an increasing normative role; and third, that teaming up to pursue common interests is the best way forward in an increasingly complex and interconnected world.

The G-force in international affairs can also inform the stalled process of UN reform. Isn’t the debate missing the obvious way forward: simply renaming the 192-member states organization. G192, anyone?

Matthias C. Kettemann is an LL.M. student from Austria.

 

Is 1L one hell? Survival tips from a law professor

10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude.

His friends used to tell Socrates
Now really, don’t be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because  professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what’s really important — the issues, valid positions, arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, “You know, the class actually makes a lot more sense, now that I’ve done the reading.” So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.”

1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t mean you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just rivers.
When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense.

Prof. Einer Elhauge ’86 graduated first in his law school class.

Obama should be wary of military advice on Afghanistan

BY ANDRU WALL

In the coming days President Obama will answer this critical question: what is the US strategy in Afghanistan? As he weights the options, burdened by eight years of strategic blunders, no shortage of advice is being offered by his national security team and the Washington chattering class. If you listen closely, you’ll recognize two familiar refrains: the military can win this war if only it is given the necessary resources, or, alternatively, the struggle for freedom in Afghanistan is not (or should not be) a predominately military struggle.

This debate, which closely parallels debates over Vietnam, appropriately arouses passions on both sides. What is not helpful are contentions that one position is more patriotic or “pro-military” than the other. Rubber-stamping General McChrystal’s request for more troops does not prove the President’s commitment to national defense any more than supplying unlimited

Who was really behind Lockerbie?

BY KATE SPENCER

Twenty-one years later after the bombing with which it began, the Lockerbie saga just won’t go away. The most recent media coverage has revolved around the release of the convicted al-Megrahi and his return to Libya. His release and the hero’s welcome he received provoked international outrage, most vocally from the U.S. Was it really a straightforward case of the Scottish Justice Minster experiencing a tug on his heart strings after meeting al-Megrahi, terminally ill with cancer?

The attack

On December 21, 1988 at about 7:20pm, over a small town in the Scottish Borders, Pan Am 103, heading from Heathrow to New York’s JFK Airport and carrying primarily American passengers, fell from the sky . A bomb exploded from within the hold, tearing a hole into the side of the plane, which then snapped into pieces in the air. There was no time for the cabin crew to make a distress signal, no emergency procedures were initiated – all on board fell to the ground from 31,000 ft. The explosion killed 11 people on the ground Lockerbie. No passengers or crew on board the plane survived. Fatalities totalled 270.

Theories abound as to the perpetrators and motives of the attack. Books, films and countless documentaries have publicised the inconsistencies surrounding the case (notably few have been screened on U.S. television). Initial blame focused on three countries: Iran, Syria and Libya. Following the erroneous shooting down of an Iranian passenger plane by the USS Vincennes 5 months earlier, Iran had likely motive. The U.S. Defence Intelligence Agency indicated that the Palestine Front for the Liberation of Palestine in conjunction with elements of the Iranian government and Hezbollah were planning to attack a U.S. target. 8 weeks before the bombing a PFLP cell was arrested in West Germany and bombs similar to that used on Pan Am 103 were confiscated.

The trial

However, in 2001 a Libyan intelligence officer, Abelbaset Ali Mohmed al-Megrahi, was convicted of involvement in the bombing and sentenced to life imprisonment, amid extreme doubts over the circumstantial evidence that secured the conviction.

The trial was conducted under Scottish criminal law, before three judges and no jury at Camp Zeist in the Netherlands. The entire investigation, trial and aftermath has been immensely complex, and al-Megrahi’s release has only served to fan the flames of conspiracy theorists and add to the international controversy. Skepticism of some of many of the emerging theories is important.

Potentially significant evidence was either not followed up or not presented at trial. It is alleged that quantities of heroin, large sums of U.S. dollars and a T-shirt bearing Hezbollah insignia were found at the crash site in Lockerbie, claims that were never investigated. American agents were present at the crash scene and a recent documentary film has suggested a fragment of the explosive device left the U.K. and was examined in the U.S.: an allegation which, if true, could have resulted in a claim of contamination of evidence. Further facts that raise questions are: the party of American intelligence officers on board the flight returning to the U.S. after an aborted hostage-rescue mission in Lebanon, the anonymous warning made to the U.S. Embassy in Finland in early December 1988, warning that a Pan Am flight from Frankfurt would be blown up by Palestinian terrorists in the next two weeks. Still, politically and logistically, bringing an Iranian sponsored Palestinian terrorist cell to justice would have been nigh on impossible. Undoubtedly Libya was a more convenient accused.

The prosecution maintained that the bomb was placed in luggage in Malta. By the end of the trial the defense was suggesting the possibility of it being planted in Heathrow, a theory supported by Robert Baer, a former CIA agent (played by George Clooney in Syriana!) He suggests that it makes no sense for the bomb to be put on the plane at Malta and having to make two stops before it exploded on its way to the U.S. Much more likely, he maintains, that the bomb had been planted at Heathrow. Months after the conviction of al-Megrahi, a former security guard at Heathrow revealed he had discovered a break in at the Pan Am luggage facility on the day of the attack. The prosecution case relied on the premise that a bag was checked on a plane from Malta, not Heathrow, without a corresponding passenger. In a civil action brought by Air Malta over a “libellous” documentary that showed the “bomb bag” being loaded onto the plane at Malta, the airline produced evidence proving all bags had been accounted for and accompanied by passengers. The action settled out of court.

Also key to the prosecution case was the witness evidence of Tony Gauci, a Maltese shopkeeper and tailor, who claimed to have sold the clothes found in the suitcase containing the bomb to al-Megrahi. Considerable doubt arose from Gauci’s evidence, particularly in light of allegations of a $2 million pay-off. Gauci was non-committal as to whether al-Megrahi was the man who purchased the clothes from his shop. The closest he got to a positive identification was to state that there was a “resemblance”.

He was uncertain of the date he sold the clothes and was memorably described by the man who indicted al-Megrahi, Lord Fraser (Scotland’s most senior law officer at the time) as “not quite the full shilling”. The UN appointed external arbiter stated after the trial: “there is not one single piece of material evidence linking [Megrahi] to the crime… the guilty verdict appears to be arbitrary, even irrational.” He has also said that the split decision, where one accused was found guilty and the other not guilty is highly questionable and further, that it is impossible to believe that a lone intelligence officer could have masterminded and organised the attack. While the Libyans did eventually (in a roundabout way) accept responsibility for the attack and paid out billions in compensation to Lockerbie victims’ families, Libyan government officials label this move as purely pragmatic: ” [it was] easier for us to buy peace and this is why we agreed to compensation.”

A Scottish Criminal Cases Review Commission (a body established to investigate alleged miscarriages of justice) inquiry was launched and a recommendation given that there should be a new appeal. This second appeal was conveniently dropped before Al Megrahi’s release. Why? Was a deal done? Was Al Megrahi persuaded to drop his appeal so he could go home to die? Therein lies the true injustice – and the only assumption that can be drawn is it wouldn’t be in the interests of any government concerned to pursue the appeal.

Al-Megrahi’s release: a question of British interests, or of Scottish independence?

So, unanswered questions engulf the Lockerbie affair. An official inquiry, so desired by the families of the Scottish victims and the general public, has been repeatedly refused; the UN is now being called on to conduct an international inquiry. The evidential issues have never been resolved. Factor in the British commercial presence in Libya (oil and arms trade), the Blair government’s favorable attitude toward Gaddafi and Gaddafi’s volte-face desire to ingratiate himself into the international community. Add to this the extraordinary prisoner extradition agreement in 2007 (that the Scots refused to carry out) aimed solely at returning al-Megrahi to Libya and the picture of emerges is one that appears to leave the U.K. government with much explaining to do.

Whether the conspiracy theories have anything to do with al-Megrahi’s release is an entirely separate issue. What all these conspiracy theorists (who see the release as the latest development in a series of unorthodox goings-on) ignore is the “Scottish” issue. Scotland has a distinct legal system, an entirely independent criminal justice system and, since 1998, a devolved Scottish Parliament with the power to legislate on most “domestic” matters. The most recent Scottish ele
ction resulted in an Scottish Nationalist majority coalition, with a clear autonomist agenda. Relations between the Scottish Government and Westminster are frosty to say the least. The idea that the Nationalist administration would risk international censure by releasing al-Megrahi on the orders of Gordon Brown to further “British” business interests is, to my mind, absurd. Release on compassionate grounds is a genuine tradition in Scots criminal law and some suggest this was an example of the Scottish Government, keen to prove itself as an international actor, doing something uniquely “Scottish”. There was widespread support within Scotland for the release of al-Megrahi; perhaps as a result of the cynicism surrounding his conviction and the outspokenness of those advocating for his release, or at least re-trial. However the American reaction to the decision and the quagmire of controversy surrounding it negate any political expediency it may have achieved.

Currently, al-Megrahi is releasing documents he would have used in his latest appeal on the internet, documents which he says prove his innocence. But despite his release he will die guilty in the eyes of the law. Without a public inquiry the unanswered questions will never be answered and the alleged miscarriage of justice remains just that — alleged.

Kate Spencer is an LL.M. student from Scotland.

Canned goods, ammo, and conservative paranoia

BY MATTHEW HUTCHINS

The degeneration of public discourse seems to have accelerated since President Barack Obama ’91 defeated John McCain and Sarah Palin, and the present debate over health care reform has brought us to a new pinnacle of obscurantism and misinformation. Perhaps the greatest mistake committed by President Obama so far has been his underestimation of the extent to which the popular consciousness is moved by the mass media’s propagation of the inflammatory rhetoric of anti-government demogogues.

Glenn Beck and Rush Limbaugh are the standard fare in many Americans’ homes, and while they themselves are merely media mouthpieces, they embrace a brand of conservatism that is being formulated by individuals who are so virulently opposed to Obama’s very existence that they will analogize his administration and policies to whatever abhorent ideology they find most likely to inspire fear and anger.

In short, the Republican Party has become a refuge for disaffected radicals whose most distinct political sentiment is rage. On National Public Radio to discuss his book, “The Death of Conservatism”, Sam Tannenhaus said that today’s conservatives have become a party of radical “revanchists” who are driven by a desire to attack Democrats and the Left, blaming them for the loss of their values. Ironically, just this past week the so-called “Godfather of Conservatism”, Irving Kristol, died at the age of 92. As a man who began his intellectual life as a self-avowed liberal and Marxist, only later to become a leader of conservative thought, Kristol brought rigorous analysis to his advocacy in favor of capitalism and the free market. His passing, like the death of William F. Buckley, Jr., is a sign that the core figures of the conservative movement’s success in the twentieth century are no longer present to carry it forward. But looking deeper than that, Kristol’s passing is in many ways foreboding for those who would hope to see an intellectual renaissance on the Right.

Looking back to the latter half of the twentieth century, the staunchest advocates of conservatism were strident defenders of capitalism as a counterpoint to the Soviet version of communism or European socialism. With the Reagan era, these advocates had their greatest vindication. Taxes fell, the Soviet Union collapsed, and a rising tide of prosperity carried America into the nineties. But the political landscape today is utterly different from that which faced conservative thinkers of the last era. Taxes have now been at historically low levels for more than two decades. Europeans and developing nations have all recognized the value of strong capital markets. America’s military may still be the dominant force in the world, but wars today are fought over cultural, not economic differences, and are waged through guerrilla insurgencies, not nuclear face-offs. And now the conservative advocates of a free market are left to scratch their heads by a series of investment bubbles, brought on by laissez-faire deregulation, that have nearly dealt capitalism a fatal blow and forced the largest entities in the private markets to rush to national governments around the world for public assistance.

It is perhaps the unfamiliarity of the present political landscape which leads some arch-conservatives to conclude that President Obama represents the overthrow of our federal government by a Marxist conspiracy of left-wingers. In a recent article titled “The Left Still Doesn’t Get It” on the conservative website “American Thinker”, Geoffrey P. Hunt argued that the current campaign for health reform is nothing but a massive hand-out designed by “lefties” to benefit a “permanently aggreived, take but never pay class who pay no taxes, convinced they are victims of racist and capitalist exploitation.” He portrays the “regular American” as someone who is frustrated with the expansion of the national government and who will be moved to action to fight socialist government and defend capitalism by the continued affront to traditional values. It is an argument that presumes that everything that occurs in our national government is corrupting a utopian vision of America, and it is a method of discourse that has become typical in both print and mass media.

The proliferation of the presumption that everything the President says is a lie will almost certainly result in confusion and suspicion in the general population with regard to the entire federal government, but ironically this is exactly the reason that the unspoken compact that once held together Wall Street and Main Street is irrevocably broken. As long as the central architecture of capitalism depends on the federal government for its vital liquidity, the Democrats that control Congress and the White House will also be acting as the custodians of American capitalism. And because the Democrats are planning to rebuild, not deconstruct, capitalism, the political center endorses their general program. This puts Democrats in the awkward position of representing both the center-right and the far left, all the while trying to man the levers of the national economy through dire economic straits.

Given the nihilism and erstwhile utopianism of the far right, it seems unlikely that Democrats have much to fear. As distasteful as expansionary economic reform is to conservative firebrands, the opportunity to achieve both social justice and pragmatic, far-sighted reforms should not be squandered just because of a vocal class of hecklers. And while the tea-party staging revanchist radical Republicans are stocking up on canned goods and ammo, waiting for the second rising of the states against federal oppression, the rest of us will be getting on with the important business of figuring out how to best make use of the national government for the betterment of all Americans.

Cambridge, USA: The Shocking Return

BY

After a year spent earning an LL.M. at the University of Cambridge, during which she wrote our series “Cambridge2Cambridge”, JESSICA CORSI has returned Stateside – and was shocked by the culture she found awaiting her.

My first week back in the US, I stumbled upon what at first struck me as an unbelievable scene in Central Square. I had been living abroad for the past 15 months, and I had returned to the US and to Cambridge, Mass. only to finish my J.D. I was trying to make the best of being back, and yet here I was, standing on Mass Ave, watching three police officers arrest an African American homeless man who was screaming at the top of his lungs. The police officers soon multiplied from three to seven, with several police cars flanking them. Was this actually happening my first week back? I mean-really? Did someone phone ahead and request that I be immediately confronted with all of the worst aspects of the US? I was reminded of when I had moved back from Mexico City in 2003, and had landed in a snowstorm and to CNN playing a looped tape of white police officers beating a black man in L.A. Welcome back.

That day in late August in Central Square, I was walking down the street eating a muffin. If I was going to be here, I was going to eat all of my favorite American-esque or American only foods, and the muffin is an American specialty, as is eating while walking down the street (see also eating while driving.) So here I am, walking, pleasing chocolate muffin in hand, and my baked goods revelry is interrupted by yelling somewhere immediately in front and to the left of me. Up ahead on the sidewalk there is a space with two benches facing each other. An African-American man who appears to be homeless-he is surrounded by many bags of the kind that homeless people carry their belongings in-is sitting and watching a scene. I look where he is looking: there is another African-American man, and he is yelling what sounds to me like nonsense; I can’t pick out anything that he’s saying. A white police officer is speaking to him, seemingly calling him by his name. The police officer is saying, “[Name], don’t make me do this; come on [name], you don’t want to make me do this.” Right; so; what am I witnessing here exactly? It sounds like a bully provoking a fight; an abusive partner about to throw a punch but before he does he wants to verbally establish that it was the other person’s fault. I stop walking and stand to watch. I feel incredibly awkward; I haven’t witnessed a scene like this in a very long time. Several times in the past I’ve interrupted these types of arrests, either against homeless people or against political protesters, and its all flashing back in my head. I figure that I should stand there and make sure the police don’t do anything funny. Not many other people are around.

Then, very quickly, the police officer that was calling the man by name takes him by the arm, bends the man’s arm behind his back, and pushes him over the hood of the police car. He takes both of the man’s hands and slaps handcuffs on him. The other two police officers that are there stand very closely behind the arresting officer but don’t move. One of them is white, one of them is not. For a minute or two, the scene is completely frozen; the police officers standing; the homeless man handcuffed and laying on the car, screaming.

Did I really just see that? Has it taken less than a week back in the US to see a white police officer push an African American homeless man onto a police car and handcuff him? This was my first day back in Cambridge; I had yet to sleep one night in my new apartment. Really?? This is really my first day back? It sounds like a bad movie. I stayed and watched for a while; they had sat the man down and nothing was happening. Other people had come out of their storefronts to watch. Satisfied that nothing was happening, I walked on. Ten minutes later I walked back past the same spot. Another police car had come; now there were seven police officers. I counted because I wanted to know how many police officers it takes at 11 a.m. on a Monday morning at the end of August to handcuff a homeless man in Cambridge, Mass. It took more than I would have expected.

Maybe I should have anticipated seeing this type of thing upon my return. Perhaps because I’m looking for it, or trying to categorize it, I feel like I have the most stereotypical and quintessential elements of a place thrust in front of me, wherever I go. I can never remember or anticipate all of it, though. I was expecting the Nantucket Reds in the Square, and the boat shoes with them and with the perpetual khaki shorts, but I had forgotten about how grown men in the U.S. wear baseball hats at all times, and that in Harvard Square they wear them with shirts, Nantucket Reds, and boat shoes all at once. I’d forgotten that student in the U.S. like to wear their gym clothes in public, all day long. I can’t tell how old anyone is or what they do as I walk through Harvard Yard; they’re all in t-shirts and gym shorts and so to me they all look like they just got out of bed. I’d forgotten the eccentricity of Harvard Square-why is there a guy there holding a “Free Africa!” sign. Free Africa? What does that mean? Why has he been there for three hours now? I’m sure he has some deeper purpose. But I can’t tell what that is just by seeing him hold that sign as he stands by the magazine stand.

But I think that what I had truly forgotten about was the jarring juxtaposition of it all. In Harvard Square, people are playing chess in front of Au Bon Pain, a romantic feature of where we live and fitting for such an intellectual center. But, you can’t walk past them without encountering a homeless person selling a “Street Sense” newspaper. I went to meet someone at the COOP, and it all came flooding back that this doorway is where homeless people that live in Harvard Square sleep at night. The contrast is striking: the privilege and charm of Harvard alongside abject poverty and the American nightmare of homelessness. Central Square was pretty quiet that first Monday; it was sunny and the largest crowd in sight was in front of the Starbucks. But there, in the sleepiness of late Monday morning in late summer, I witnessed the arrest of a homeless man who, from the sounds he emitted, seemed to be mentally unwell. This was much more American to me than the fact that I could now get my French fries (not chips; not frites; French fries) with BBQ sauce at the drive through from Wendy’s. I had forgotten the extremes of American daily life.

And with this shocking return, I was back in Cambridge, Mass., USA. Let the semester begin.

Health care debate demands more analytical rigor

BY MICHAEL LUMLEY

Too often, as is the case in the recent debate over health care, people involved in the rhetoric of political argument overlook the value of analytical thinking. In our arguments, we neglect to remember that not every Democrat is a communist, and we fail to concede that not very many Republicans are highly paid insurance executives and/or Satanists. (Yes, there is a difference.) Americans need to ask themselves what they really want when it comes to healthcare, and unless it’s another 20 years of partisan bickering, limited access, and soaring government deficits, they need to shut up and listen. If we choose to rationally analyze costs and benefits or causes and effects, then we have a reasonable chance to design a more efficient, responsive and accessible health care system. Otherwise, we are stuck with more of the same.

I freely admit that, like most Senators and Representatives who will actually vote on the bill, haven’t read the 1017 page document that now rests before Congress. But having read the CBO cost projection analysis and the CRS bill summary, I have a few thoughts on the principles that should guide Republicans and Democrats alike as they seek to draft a workable plan.

Some form of universal coverage, if not a moral imperative, is at least a practical necessity. There’s simply no way around it – in almost all cases, individuals who can not afford health coverage will receive treatment in some form. In addition, costs associated with the lost productivity of unhealthy workers are a significant invisible drain on society at large. Instead of focusing on excluding those who are unable to pay from the system, we should instead concern ourselves with identifying the most cost-effective means for treating these individuals – because the emergency room is not the answer.

Employer sponsored healthcare sucks. It sucks because coverage is selected by an employer, whose primary concern is not quality of care, but the bottom line. There is no competition in the current system because in almost all cases, end users have no control over the final choice of provider. Just because a market is private, does not make it free. Individuals should purchase the coverage that is best for them – on an open market, free from compulsion. Unfortunately, current tax law unfairly subsidizes employer healthcare benefits, artificially raising the relative cost of privately purchased alternatives. Addressing this issue would go much further toward sparking competition than any ‘public option’ plan.

Keep a watchful eye on program costs and societal benefits. The guiding principle of whatever health care system emerges can not be that ‘every human life is priceless, and any cost is justified in saving it.’ While America may be the wealthiest nation on the planet, it will not continue to be wealthy for much longer if we adopt a generous healthcare system that does not attempt to match costs and benefits. So called ‘Death Panels,’ while politically unpopular, are a good start. (After all, doesn’t it make sense to spend more money treating a young mother of two than a washed up heroin addict?) But even without an expensive new healthcare system, America has $11.8 trillion dollars in debt and $59 trillion in unfunded liabilities to social security, Medicare and other government programs. This trend cannot continue.

Incentivize healthy behaviors. Luckily, over 70% of all health care costs are directly attributable to human behavior – behavior like smoking, over-eating or lack of exercise. If we can encourage individuals to kick the habit and go for a jog instead (by lowering premiums for individuals who engage in healthy behaviors) we can reduce overall costs. Unfortunately, such behavioral incentives are expressly forbidden in the new bill, and neither party is pushing to include them.

Insurance is not a consumption scheme. Insurance exists purely to distribute risk. It can never lower the cost of health care – on average, all participants must pay in at least as much as they take out. Health insurance makes sense for high risk, variable cost procedures like brain surgery, but not for predictable, set cost expenditures like checkups, vaccinations, or pregnancies. When no risk is involved, insurance is kind of like a dinner party. Several friends go out to dinner, splitting the bill afterwards. Knowing this, each might go ahead and order a second (or third) cocktail, knowing that in the end they’re only paying a fraction of the price. With a small group of friends, maybe that’s just how the good times roll. But to quote economist Russ Roberts of Geroge Mason University, “Never split the bill with a bunch (a few hundred million, lets say) of strangers. That’s how you get the buffet from hell.”

Michael Lumley is a 1L.

Highlights from the hilarious “birther” case

BY

A fringe political movement known as the “birthers” continue to claim President Barack Obama ’91 was ineligible for the presidency because he was actually born outside the U.S. Last week, a federal judge dismissed the complaint of a soldier who argued for conscientious objection to service in Iraq due to her opinion of Obama’s fitness for the presidency. The court threatened sanctions for Orly Taitz, counsel for the strident soldier – and in a 14-page decision, waxed livid about the frivolousness of the case. Here are some highlights from Rhodes v. Macdonald, by Judge Clay D. Land of the U.S. District Court for the Middle District of Georgia:

* “Plaintiff…has made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as President … Instead, she uses her Complaint as a platform for spouting political rhetoric, such as her claims that the President is ‘an illegal usurper, an unlawful pretender, [and] an unqualified imposter.’…She continues with bare, conclusory allegations that the President is ‘an alien, possibly even an unnaturalized or even an unadmitted illegal alien . . . without so much as lawful residency.'”

* “Then, implying that the President is either a wandering nomad or a prolific identity fraud crook, she alleges that the President ‘might have used as many as 149 addresses and 39 social security numbers prior to assuming the office of President.’ …Acknowledging the existence of a document that shows the President was born in Hawaii, Plaintiff alleges that the document “cannot be verified as genuine, and should be presumed fraudulent.'”

* “In further support of her claim, Plaintiff relies upon ‘the general opinion in the rest of the world’ that ‘Barack Hussein Obama has, in essence, slipped through the guardrails to become President.’… Moreover, as though the ‘general opinion in the rest of the world’ were not enough, Plaintiff alleges… that according to an ‘AOL poll 85% of Americans believe that Obama was not vetted, needs to be vetted and his vital records need to be produced.'”

* “Finally, in a remarkable shifting of the traditional legal burden of proof, Plaintiff unashamedly alleges that Defendant has the burden to prove his “natural born” status… Thus, Plaintiff’s counsel, who champions herself as a defender of liberty and freedom, seeks to use the power of the judiciary to compel a citizen, albeit the President…to ‘prove his innocence’ to ‘charges’ …based upon conjecture and speculation. Any middle school civics student would …recognize the irony of abandoning fundamental principles upon which our Country was founded in order to purportedly ‘protect and preserve’ [them].”

* “To the extent that it alleges any ‘facts,’ the Complaint does not connect those facts to any actual violation of Plaintiff’s individual constitutional rights. Unlike in Alice in Wonderland, simply saying something is so does not make it so…Her claims are based on sheer conjecture and speculation. She alleges no factual basis for her ‘hunch’ or ‘feeling’ or subjective belief that the President was not born in the [U.S.] Moreover, she cites no legal authority supporting her bold contention that the alleged ‘cloud’ over the resident’s birthplace amounts to a violation of her individual constitutional rights.”

* “Capt. Rhodes does not seek a discharge from the Army… She has not previously made any official complaints regarding any orders or assignments that she has received, including orders that have been issued since President Obama became Commander in Chief. But she does not want to go to Iraq (or to any other destination where she may be in harm’s way, for that matter). Her ‘conscientious objections’ to serving under the current Commander in Chief apparently can be accommodated as long as she is permitted to remain on American soil.”

Supreme Court analysis: in free speech and campaign finance debate, is precedent passe?

BY CHRIS CASSIDY

Former Dean Kagan made her debut before the Court on Wednesday

With Justices Anthony Kennedy ’61, Antonin Scalia ’60 and Clarence Thomas having explicitly urged reversal of two key campaign finance reform cases in previous opinions, all eyes were on Chief Justice John Roberts ’79 and Justice Alito at the re-argument of Citizens United v. Federal Election Commission

This critically important case pits the First Amendment rights of unions and corporations against over a century of campaign finance reforms going back to the 1907 Tillman Act. In granting re-argument of the case, which was initially before the Court last term, the parties were instructed to argue whether two precedents are ripe for reconsideration: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. Federal Election Commission, 540 U.S. 93 (2003). 

In the 1990 Austin decision – which Justice Scalia referred to in his sardonic dissent as an “Orwellian” limitation on corporate speech – the Court upheld Michigan’s ban on independent corporate expenditures supporting or opposing candidates. And just six years ago in McConnell, a majority of the high court – including Justices Stephen Breyer ’64, Ruth Bader Ginsburg and John Paul Stevens – reaffirmed the constitutionality of corporate campaign contribution limitations over the dissent of Justices Kennedy, Scalia and Thomas. 

In the re-argument of Citizens United, the justices generally filled their roles predictably: Justices Kennedy and Scalia offered no solace to fans of campaign finance reform; Justice Thomas (who has not spoken during oral argument since February 22, 2009) once again demonstrated his commitment not to contribute to the discussion and gave no indication of having changed his mind on corporate speech; in her first argument since repeating ad nauseam that she is committed to constitutional fidelity before the Senate Judiciary Committee, Justice Sonia Sotomayor indicated her continued commitment to stare decisis; and Justices Breyer, Ginsburg and Stevens seemed dedicated to their previous decisions upholding the constitutionality of Congress’s authority to regulate corporate electioneering. 

With the case apparently theirs to decide, the Chief Justice and Justice Alito relentlessly challenged advocates for existing precedent and legislation. Chief Justice Roberts was particularly keen to challenge the status quo, peppering Solicitor General and former Harvard Law dean Elena Kagan ’86 with pointed questions. Kagan, in her first case before the high court as Solicitor General, presented the FEC’s position in the case. The Chief Justice dominated Kagan’s time before the Court, rebuking her argument at each turn. At one point, Chief Justice Roberts criticized the FEC’s position favoring limitations on corporate electioneering as being “paternalistic” and reminiscent of “Big Brother.”

The Chief Justice was no less active during the argument of former Solicitor General Seth P. Waxman, representing Senators John McCain, Russ Feingold ’79 and other sponsors of the congressional acts to reform campaign finance. Though not as vociferous as his chief, Justice Alito’s questioning of the attorneys also appeared to reveal hostility towards Congress’s role in campaign finance regulation and related Supreme Court precedent. 

Observers are not unwarranted in noting that this argument was similar to that presented late last term in NAMUDNO v. Holder, 557 U.S. ___ (2009). There, the Court considered the constitutionality a key provision of the Voting Rights Act. Civil rights advocates felt a pit in their stomachs after oral arguments, where a majority of the Court subjected them to surprisingly antagonistic questioning. Despite fears for the worst, however, an eight-justice majority ruled narrowly to avert determining the constitutionality of the provision at issue. 

Here, too, the justices seemed to have their minds made up at oral argument, and the Court seemed prepared for conservative, ends-justified judicial activism. 

Standing in front of the Supreme Court after the fact, Senator McCain remarked that he was “disappointed in the extreme na’veté of some of the justices” about the influence of corporate money on politics and policy. A joint statement by Senators McCain and Feingold put a finer point on their criticisms: “During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.” 

Chris Cassidy is the Assistant Director of Communications at the American Constitution Society in Washington, D.C. All opinions presented above are in no way reflective of ACS and are solely attributable to Cassidy, who is online at twitter.com/CitizenCassidy.

 

How long will California burn?

BY MATT HUTCHINS

Anthony Citrano Briggs Terrrace Station Fire Flick

 

Two weeks ago, as the Station Fire threatened to engulf the town of La Canada Flintridge in an inferno, Governor Arnold Schwarzenegger went on television to warn Californians and the rest of the nation of the dire circumstances affecting the state. “Fires are burning from the Northern border of California all the way south and from the Pacific Ocean to the Sierra Nevada. We have fires everywhere.” From the Governor’s words and the consistently shocking news of wildfires and fiscal turmoil in the Golden State, it would seem that there was a sort of economic and ecological Armageddon occurring on the west coast.

 

 

As a native of South Carolina moving to Los Angeles for the summer, I was intrigued by these quintessentially Californian problems that to natives of the state seem as natural as El Nino or the Santa Ana winds. I was not sure what to expect, but I knew that living in L.A. I would see a side of California that had not been shown on television or in movies, and that when I saw this unvarnished reality the confusing messages I had received would begin making sense.

 

 

When I arrived, I was not entirely impressed by the vast urban jungle of L.A., which is rather similar to the sprawling nightmare that Atlanta has become in recent years. Sure there are beaches and mountains, but the essential features of the urban landscape are surprisingly common: central cores with tall buildings, seemingly endless stretches of multi-story apartments and commercial structures, and impossibly wide freeways arching from one spaghetti junction to the next. Looking out from the sparkling glass towers of California Plaza, where the law firm where I worked was located, I could see through the haze to the mountainous horizon, with the entire expanse covered by a speckled patchwork of familiar urbanity through which busses and cars crawled on their daily commutes.

 

 

Over the course of a few months, though, I began seeing the signs I had expected to discover, indications of a harsh reality lurking beneath the mundane surface. In Griffith Park, hiking close to the observatory, I saw the telltale signs of the fires that burned the hills a few years ago. Twisted carbonaceous branches were interspersed among the sparse vegetation that was slowly returning to cover the areas that had been recently scorched. Grasses, shrubs, and undergrowth crowded around charred tree trunks. Here was a sign of the devastation I had heard of, but it wasn’t outside the city, where I had imagined to find a flame-torn battlefield marking a brutal siege. It was right in the midst of fish taco stands and the Hollywood Bowl. I found it bizarre that the very core of a city could be so combustible.

 

 

The longer I stayed in L.A. the more impressive the dryness became. In South Carolina we may have a period of weeks with little to no rain, but that is only because we are in the midst of a severe drought. Even in a relatively dry month we will see some occasional thunderstorms and tropical rains. But in Southern California, the lack of rain is so severe that no life can survive without the aid of irrigation. The demand for water is great enough that in the dry season it may be cheaper to let the plants die and replant later rather than providing water all year round. In the course of three months, I saw rain no more than three times.

 

 

Of course, during the first half of the summer the hottest topic in the news was the impending bankruptcy of the state government. Day after day, one politician after another would accuse some opposing faction of obstructionism, and all the time the Governor was heard threatening to dismantle social welfare programs to make up the shortfall. Over time his woeful rhetoric began to inspire the image of a fiercely armed Governator standing over a prone state government, Bowie knife in hand, ready to chop off a charitable hand to save the poisoned body. Eventually the stalemate collapsed, yielding to reason and necessity, but for a time it seemed that the legislature would herd the entire state off a cliff like lemmings into the Pacific.

 

 

And so as I listened to the Governor talk about the state’s wildfires it took me back to the manmade crisis which continues to loom over the state’s financial future. If we can say that tax dollars are the lifeblood of a state government, the water for its thirsty crop of public programs, then the train wreck that is the California government begins to make a little more sense given the constraints that have been placed on the budgetary process. For let’s not forget that this is the state that gave the nation Ronald Reagan, the tax-slashing Republican par excellence, and a state whose legislature has been tied up by one referendum after another. When we look at Proposition 13 and other tax-constraining measures as a desiccating force that limits the amount of tax money that can be put in the state budget, along with the severe economic challenges that are limiting the amount of revenue that precipitates out of the state’s income stream, we can see that California is facing a profound fiscal dryness. And in this bristling tinder box, the spark of the raging wildfires threatens to reignite the debate over how the state will pay for essential services.

 

 

It should come as no surprise when after a summer of high temperatures and no rain there are fires that cannot be stopped before they spread and consume huge tracts of land. Living in L.A. brought home to me the immediacy of these problems. A desperate situation should not be ignored and action delayed until there is a massive conflagration bearing down on one’s home.

 

 

We need to look at the broken state budgetary process in California and in other states as an indication that we are creating the conditions that will spawn a social and economic disaster. With the economy looking to remain weak for several years, there is more need now than ever for a strong education system that can guide students and displaced workers into careers in growth sectors. And this is a lesson for the whole nation, not just California, because just like California has its fire season, hurricane season is just beginning back East.

 

 

Matthew Hutchins is a 3L?and an Editor-in-Chief of the Harvard Law Record

 

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BY ALIQUAM LOREM

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