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.

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.

Howard Zinn’s people speak…through celebrities

BY CHRIS SZABLA

zinn

The unfortunate passing of Howard Zinn earlier this year was accompanied by a greater number of panegyrics about his work than probing explorations of its legacy. Zinn’s most famous book, “A People’s History of the United States,” is an exposition of American history’s marginalized narratives: poorly-treated low-rank soldiers of the Revolutionary War, indebted farmers, slaves, freedom fighters for civil rights, labor activists and organizers, even Socialists – a list that gives one a sense of the political direction in which the book is often taken to lean.

Zinn worked on “A People’s History” over the 1970s, when it would have been the perfect expression of the Zeitgeist, in which radical critiques of prevailing orthodoxies reigned. But by the time it appeared, in 1980, conservatism was staging a comeback, and Ronald Reagan’s presidency ushered in a patriotic renewal. Instead of being embraced as part of the spirit of the times, Zinn’s book became a partisan lightning rod, a rally point and target in the culture wars.    

That made the reaction to “The People Speak,” a documentary based on Zinn’s work that aired on the History Channel late last year, just before his passing, fairly predictable. The History Channel tends to play it safe ideologically. When it actually runs historical programming (much of its content is now reality TV), it prefers to stick to straightforward accounts of military strategy, leaving politics out of sight and mind. Its moniker, “the Hitler Channel,” is hardly undeserved.

But even the battlefield isn’t completely apolitical: it turns out that many fans of military history either prefer their American story with a side of triumphalism (you don’t see many History Channel programs about Vietnam). So it came as little surprise that the channel’s decision to postpone its regularly scheduled D-Day docudramas for a film based on a controversially revisionist work of American history caused a bit of an uproar. Devoted viewers declared they would abandon a channel they’d watched religiously for years. In the context of a growing chorus in American political discourse that labels any tendency it doesn’t approve of with the conversation-stopping pejorative “socialist”, Zinn’s documentary went so far as to celebrate individuals who wholeheartedly embraced that label.

Indeed, much of Zinn’s work – reflected in “The People Speak” – still seems fresh. Labor history may continue to thrive in the trenches of academia, but it’s hardly scratched the surface of the public discourse, even at a time when it might seem more relevant than ever. Nor does one hear much today about the class resentment that Zinn shows was surprisingly prevalent against the ceaselessly venerated Founding Fathers.  And in the face of the Obama administration’s plodding and hesitant response to the ongoing recession, Zinn’s claim that Franklin D. Roosevelt was cajoled into implementing many New Deal reforms by popular protest and labor action is a frightening reminder of what happens when government remains cautious and inattentive in the midst of crisis.

Other segments deliver a 21st century update on the themes that Zinn piled into the original book, linking the ongoing wars in Iraq and Afghanistan to previous episodes of American expansionism. Especially necessary, given the rest of the History Channel’s programming, is Zinn’s reminder that the Second World War – which, like other wars in American history, heightened instances of segregation and class conflict, and which inflicted needless deaths on civilians – has been historically sugarcoated, its memory exploited to justify a seemingly ceaseless stream of further conflict.

But, thirty years after the publication of “A People’s History” many of Zinn’s stories have lost their radical edge – if simply because they have been so successfully incorporated into mainstream thought. Few would dispute the historical relevance of Frederick Douglass or Malcolm X. Anarchist Emma Goldman and Socialist leader Eugene V. Debs are staples of any decent U.S. history textbook. The ideas that slavery was acquiesced to by its victims or that it could be thought of as a familial relationship (notions that still had currency in the 1950s) are ridiculed. Many of the faces and voices Zinn first pointed to thirty years ago are now firmly entrenched in curricula – if still not universally acclaimed.

Where does that leave a contemporary reworking like “The People Speak”? Beyond being a nice capstone to Zinn’s career, and illuminating some of his less popularized insights, the documentary itself comes off as a bit counterproductive. Beyond standard historical stock footage and voiceovers by Zinn, the star attractions are celebrities who give theatrical readings of primary source documents, acting out the roles of the marginalized voices in Zinn’s narrative. Some of the performances are strong and arresting, but in other cases, the stars’ wattage distracts from the historical message.

Some of the choices are particularly cringe-worthy. Zinn cites “Dear Mr. President,” an anti-Bush ballad by singer-songwriter Pink, as a contemporary example of activists who decry the ironies arising from a system of ideals compromised by a stark reality – and Pink appears in the film to perform the entire piece. Pink’s message is legitimate, but her presence – and celebrity – diminishes the focus on the suppressed and subaltern. The same is true for many of the other stars’ involvement. It’s a little strange that the producers felt that the travails of the underclass were best expressed by the wealthy, superficially-admired people to whom Americans already wantonly turn over so much of their money and time. If they were meant to grab viewers’ attention, they probably did not wind up doing so for the words they were selected to speak.

That does not necessarily impugn the celebrities’ own motives for appearing in the film; some of them are informed fans of Zinn’s work – particularly Matt Damon, who was inspired by Zinn while growing up near him in Cambridge (he famously championed “A People’s History” in Good Will Hunting, the breakout film he wrote and starred in with Ben Affleck). Damon only plays a bit part on screen in “The People Speak,” but was a major force behind the scenes: He spent nearly a decade trying to bring it to television.

Doubtless part of the opposition to the film – and part of the fury that has frequently been leveled at Zinn – is that his work appears to emphasize only the negatives in American history. A narrative that dwells on events like the debtors’ rebellions of 1786, which motivated the Constitution’s instantiation of a strong central government; the New York Draft Riots, exposing the class conflict simmering beneath the surface of the Civil War; or the oppression continuously endured by Native Americans does not seem to leave many positive examples. But Zinn counters by asserting that there is a silver lining to his narrative: it shows “people below behaving magnificently”. 

In fact, like any other positive account of American history, Zinn celebrates democracy, albeit a version of American democracy that deeply emphasizes extraparliamentary and extraconstitutional movement as the engine of meaningful change. His stance raises questions about the extent to which he would continue to embrace these ideas today. The increasing noise made by the Tea Party movement is a reminder that plenty of “people’s movements” never made it into Zinn’s history – those that didn’t fit his ideological valence. Radical libertarians and religious fundamentalists have also had a significant – if sometimes frighteningly destabilizing – influence on American history. As much justice resulted from the courageous acts of many individuals Zinn celebrates, the rule of law can be bent both ways.

Unemployed law student will work for $160k plus benefits

BY ANONYMOUS 3L

“The greatest thing in this world is not so much where we are, but in which direction we are moving.” – Oliver Wendell Holmes, Jr.

“Gah! I’m choking on my own rage here!” – Moe Szyslak

I used to tell people that if they were ever lacking in self-confidence, they should apply for a tenure-track position in a philosophy department somewhere.  In return, you get what amounts to a mail-away self-esteem kit:  a letter praising your accomplishments, expressing astonishment at your charm and sophistication, and assuring you that you will be a great success wherever you ultimately gain employment. It’s extraordinarily fulfilling to hear your praises sung by people of such power and influence, in particular if you have no interest in taking a crucial step towards adulthood.   Only, again, you know – they don’t want to actually hire you.   It isn’t an experience I expected to repeat when I enrolled at Harvard Law School.

It’s been a little over five months since I found out I did not get an offer.  In those five months, certain topics have been rehearsed with wearying regularity.  Greater world, on behalf of the Harvard 3Ls with no offers, let me tell you the things we know:

1. It’s not our fault.  The economy changed unexpectedly, and things are tough all over.

2. In fact, as Harvard graduates, we have more opportunities.  Most people encountering employment challenges in this economy are in worse positions than we are.

3. The loss of Biglaw opportunities means we may find something else from which we derive immense satisfaction, and which we may never have otherwise pursued.

4. People with offers but no start dates are in a poor position as well.  Even those with deferrals of specified duration face the possibility of an unexpected deferral extension, or even an outright retraction of their offer.  In fact, with things as bad as they are, there’s really no guarantee that even those who manage to start work won’t find themselves laid off somewhat soon.  Biglaw right now simply doesn’t offer the degree of security it used to offer.  Everybody is in the same boat.

Joined to this knowledge is the understanding that it is, to be fair, rather difficult as a Harvard Law Student to abandon all self-awareness and immerse oneself in self-pity.  We remain conscious of the privileges we enjoy and the opportunities that exist for us even in our darkest moments.  That isn’t to say we who were no-offered have no room at all for despair.   But it feels impolite.  Those of us who had been hoping to become Biglaw associates have been dealt a real financial blow.  Must we admit what we were told to leave out of admissions essays and job interviews — that we did come to law school with the hope of making money?  Must some of us admit that we hoped to make quite indecorous and undignified amounts of it?  Or are we to put on a brave face and tell the world that our goal all along was to achieve enlightenment and live on an ashram, and for that purpose and that purpose alone did we deprive ourselves of sleep and commit ourselves to learning the Hand formula and the rule against perpetuities?

But the rejection has greater bite than a reorienting of our student loan repayment schedule.  Not everyone who was a summer associate at a Biglaw firm had partner ambitions.  Whatever the reasons we may have had for spending the summer of 2009 as a summer associate, the summer ended by confronting us with our deepest fear.  Like many people praised for intelligence, talent, and discipline, Harvard Law Students are prone to the paranoia that we will one day be exposed as the frauds we suspect ourselves to be. 

Then-Dean Elena Kagan ’86 alluded to these fears when we began our time at Harvard.  Addressing the Class of 2010, she told us that our anxieties were ill-founded, and that we had all long since established ourselves as deserving of our reputations and the opportunities they made possible.  So we studied, and we subcited, and we networked, and we keycited, and we summer associated.  And employers looked at our grades, and our journals, and our work product, and our work ethic, and said, “We don’t want you.”  We came from Harvard, and they were nonetheless unimpressed.  Something about us was so unappealing that it outweighed the appeal of having another Harvard graduate at the firm.

And so we wonder – what mark on our resume is so bad that it outweighs the Crimson H? 

We know the market has shrunk, we know the client base has retreated, we know that everyone is suffering, but we also know something else:  not every Harvard 3L got no-offered.  We did.  We didn’t measure up.  Maybe the hiring process was arbitrary.  Maybe we really had almost no control over some crucial factor. But most of us got here because we’ve been on a long journey, with increasing momentum.  And that momentum just evaporated.

I’m confident we will all land on our feet.  And I’m certain that the experience will be an opportunity for us to find strength we didn’t know we had.  I’ve met us.  And we are, to be frank, pretty amazing.  But the dream of Biglaw is hard to let go.  And after all, there isn’t necessarily any shame in wanting to make money.  Some of the wealthiest Americans have been its greatest philanthropists.  Bill Gates has retired from Microsoft and dedicated a large portion of his financial empire to addressing global warming and poverty.  And Tony Stark created his Iron Man suit to fight the spread of technological weaponry the sales of which, well, financed the creation of his Iron Man suit.  Fine, that one isn’t very persuasive.  Still, I don’t think we should be judged for wanting to be Biglaw associates with the money and power that would eventually have brought.  Maybe we just wanted to be Iron Man.  Think about it.

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.

International law is like a box of chocolates

BY MATTHIAS KETTEMANN

forrest gump world

Forrest Gump’s mother famously said that life was like a box of chocolates: “You never know what you’re gonna get.” The same holds true for international law. Taking the box of chocolate und accepting “what you’re gonna get”, independent of whether you like the particular praline, is what international law is all about. Since the famous Peace of Westphalia of 1648, which brought along the emergence of today’s international legal system, states have taken the box and eaten both the bitter chocolate (i.e., they have accepted their obligations and changed their behavior accordingly) and the nougat (when they have enjoyed the international legal rules that reaffirmed their interests).

Then came along Harvard Law School’s Jack Goldsmith and University of Chicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits of International Law, which argued vehemently for what could be termed a “nougat only approach” to international law. In essence, they posited that international law does not, in fact, pull states toward compliance. States conform with international law, they argued, only when it furthers their interests.

The limits of international law

Former U.S. Ambassador to the UN John Bolton, and more influential thinkers before him, such as Thomas Hobbes, went so far as to question the very existence of international law.

Goldsmith and Posner don’t go nearly as far. They  merely relied on rational choice theory to argue that international law does not act as an external constraint on state behavior. The Limits of International Law was widely read and critically well-received. But some critics, such as international law and economics expert Anne van Aaken of Switzerland’s University of St. Gallen, rightly pointed out that there were limits to the Limits book, as the authors only took account  of the interests of states to conform their behaviour to international law at one – arbitrary – point in time. More significantly, Goldsmith and Posner ignored the possibility (and, I would argue, likelihood) that states have a non-instrumental interest in behaving in conformity with rules, so as to stabilize the system. Of course, in keeping with an state interest-focused “nougat” approach to international law, Goldsmith and Posner could counter that in so doing states are actually, again, acting in sync with their interests – their long-term ones.

A stronger observation is that rational states will accept the obligatory nature of international legal rules as rules, based on an ex ante assumption that international rules are legitimate since, by so doing, they can most likely achieve advantages incuding and beyond their own self-interest (such as world peace, international security, or the maximization of their reputation) in the long run. In what Professors George Norman and Joel Trachtman called a “customary international law game”, states sometimes choose to disobey a rule, but rarely question the rule’s legitimacy as such.

To better understand this point, think of a common thief. He will break the rule against violating another person’s property on an individual basis, but does not doubt the existence of the more general rule providing for the protection of property. Indeed, his risky acquisition of property is made because he implicitly trusts the state’s legal system to protect his property, even if it was illicitly obtained. Even thieves hate thieves. Similarly, in international law, it is often the rogue states that, while breaking international legal rules on an individual basis, believe (and only sometimes abuse) the international legal system in toto. Think of Iraq, consider North Korea, and look at Iran. In fact, the choice by a state to ignore an international rule, or to question the validity of this rule, might, in fact, contribute to an increase its power to oblige – by making others states voice their opposition to the violation. The real difference between theft and the violation of international legal norms by rogue states is that, while we see the consequences of the former on “Cops”, we have to wait for some years to see the outcomes of the latter – as “Breaking News” on CNN.

Does Europe believe in international law?

In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner apply their theory on the limits of international law to Europe. They write that “[l]ike the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.” In essence, they argue that even Europe, which professes to be international law-friendly, does not really believe in international law’s binding power.

In their first example, Goldsmith and Posner consider the case of Yassin Abdullah Kadi and the al Barakaat International Foundation. Kadi’s assets were frozen according to a UN Security Council Resolution against financing terrorism, which had been inscribed in an EU regulation. Goldsmith and Posner write that, deciding the Kadi case, the “the European Court of Justice ruled that the Security Council resolution was invalid.” They are wrong. In its 2008 judgment, the ECJ merely ruled that the regulation implementing the Security Council resolution was invalid because it violated Kadi’s fundamental rights. The ECJ noted that the protection of fundamental rights must be “considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.” This does not mean that the ECJ would ignore international law – on the contrary. The protection of fundamental rights is deeply rooted in international law. By referring to a “constitutional guarantee,” the ECJ likens its role to that of a constitutional court ensuring that all acts passed by the organs it oversees respect fundamental rights. There is nothing wrong with that.

Goldsmith and Posner interpret the decision as meaning that “European countries must disregard the U.N. Charter … when it conflicts with European constitutional order.” Again, they are wrong. The Court merely pointed out that any EU regulation implementing a UN Security Resolution must meet minimum human right standards. By reforming the Sanctions Committee, established to oversee these resolutions, the UN has in fact taken up some aspects of the ruling to render the system more accountable.

Another example that Goldsmith and Posner bring to support the idea that Europe has a self-interest-focused approach to international law is the 1999 NATO intervention in Kosovo. “European nations,” they write, “participated in NATO’s bombing of Kosovo without Security Council authorization.”  This is true, but as a Commission that looked into the intervention later concluded, their action was at least legitimate. Further, the intervention served to stop bloodshed and massive human rights violations in Kosovo and thus served one of the most important goals of the international legal order: protecting individuals. The Kosovo case was later  seen as the first important example of so-called humanitarian interventions, many of which have gone on to be officially sanctioned by international legal bodies. The evolution of the “responsibility to protect” has also been influenced by the Kosovo intervention. Rather than ignoring international law and enforcing their own interests, the Kosovo intervention thus served to confirm underlying principles of international law.

Errors have been made – but also corrected

I have to concede that Europe’s approach to trade disputes in the framework of the WTO has not been exemplary. But very often, especially with two of the issues Goldsmith and Posner mention – “resisting importation of genetically modified foods, or beef from cattle raised with growth hormones” – Europeans follow an international legal concept, namely the precautionary principle, in opposing im
ports. It is true that European countries did not implement WTO rulings against them in these cases, but as legal history in both the U.S. and the EU amply shows, the non-implementation of certain rulings, in exceptional cases, does not serve as evidence of a system’s comprehensive failure. International economic law has been a huge success story, but only a few well publicized disputes make the headlines.

It is also true that some European countries have cooperated with the U.S. with regard to extraordinary renditions, but this attitude has changed. As a number of cases before UN bodies including the Committee Against Torture and the Human Rights Committee show, mistakes have been made and international law has been violated. But again, this does not help Goldsmith and Posner in showing that European states do not believe in the binding nature of international law or ignore it whenever they feel like it.

The importance of values

Goldsmith and Posner mention other examples, including European states’ sometimes wavering support for the ICC, and follow this up with the conclusion that “Europeans hold their values and interests dear, just as Americans do, and will not subordinate them to the requirements of international law.”

But they neglect to mention that values are influenced and honed by international law and international law, conversely, serves to express and implement these values. There is no relationship of subordination. Rather, international law, like every legal system, creates and is supported by a value system based on intricate power equilibria and sometimes mutually contradictory goals. The international legal system is more complex than any national system, even though – or because – it has far fewer actors. That on the international legal plane values clash, bad choices are made, rules are broken and judgments remain unimplemented cannot be doubted. But this is also the situation in every national legal system  and cannot be used to cast a shadow of doubt over the clear evidence that states consider international law to be just that: law.

The end of the Cold War brought what the Finnish international legal theorist Martti Koskenniemi termed, an “enthusiastic revival” of international law. New actors emerged, new laws were made, new hopes voiced. Within the last twenty years, the system of international was greatly energized, and the United States was an important contributor to and shaper of international legal norms, which reflected, inter alia, American values. Given this fact, it is incongruous to argue, as do Goldsmith and Posner, that international law reflects only the interest of powerful states and is therefore not “good” as such.

Just like a box of chocolates

But there is also no reason for a prima facie assumption that a system reflecting the interests of powerful states is bad. This bears out especially in light of the renewed commitment, by the Obama administration, to international law as the prime tool to engage other states and to find peaceful and sustainable solutions to international conflicts. And with the notable exception of historically explainable, but outdated institutional rules, such as the membership and decision-making structure of the Security Council, international law, just as any legal system, has a strong immune system and phases out – through state practice – rules which do not conform to the aspirations of the majority of states. Again, it is like a box of chocolates. Intrinsically good, but with some bitter pieces. 

To continue in this line of thought (and, yes, I am getting hungry as I write this), Hugo Grotius, often described as the “father of international law”, wrote that there lies in each person an “appetitus societatis”, an appetite, or desire, to live peacefully in an ordered society, structured by binding rules of a general nature and applicability. I see no reason why states would not also have this “appetite”. In fact, I would argue, they do.  International law needs to be binding, it is binding, and states accept it as binding – Goldsmith and Posner’s arguments notwithstanding.

More than forty years ago, Louis Henkin ’40 formulated, in How Nations Behave, that “[i]t is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” While not wrong, he was imprecise: It is not only “probably” the case, but evidence has shown that his statement is unequivocally true. 

States follow the Forrest Gump Approach to International Law, eating the sweet and the bitter pralines, enjoying their rights and respecting almost all of their obligations almost all of the times, even if they contradict state interest in the short run. They do so, because they know that the international legal system, and not any particular rule, reflects their values, and will, in the long run, ensure the realization of such values with more effectivity and sensibility to human rights than any nation could possibly achieve alone.

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

A hopeful future for European human rights

BY MATTIAS KETTEMANN

The roads leading to the European Court of Human Rights in Strasbourg are getting faster

In 2010, the  European Convention on Human Rights will celebrate its 60th anniversary. One might think this is a reason to celebate, but for Thorbjørn Jagland, the Secretary General of the Council of Europe, the Convention’s institutional mother, it’s not. In December 2009, he warned that the European Court of Human Rights, which oversees compliance with the Convention, was in a “desperate situation” and “no longer able to function as it should”; some judgments had been “reduced to a few lines”, amounted to “little more than an accounting exercise” and contained “less than a bare minimum of reasoning”. In brief, the situation was “intolerable and unworthy of our [the Council’s] member States’ repeatedly reaffirmed commitment to human rights.”

In general, the Court, which sits in Strasbourg, France, has been considered a huge success. What Secretary General Jagland, along with numerous human rights lawyers and activists over the past years, rightly criticized was that success had been too overwhelming. As the Court’s President, Jean-Paul Costa, pointed out in his Annual Report, in just one year 57,000 new applications had been allocated for decision and 35,460 applications were decided: 33,065 by relatively brief inadmissibility or strike-out decision, but 2,395 by sometimes extensive judgment.

To put things into perspective, in 2008 the U.S. Supreme Court published just 74 opinions. But the Strasbourg Court is charged with a mandate that should give rise to a much higher caseload: It must ensure adherence to the Convention by all 47 members states of the Council, and is, therefore, the court of last instance of human rights matters for 800 million people, a little less than three times the U.S. population.

It’s no wonder, then, that cases before the Court take a long time. So long, in fact, that sometimes the Court’s hearing of cases concerning the right to a fair trial within one of the Convention’s member states winds up violating the right to a fair trial at the Court – due to its lengthy proceedings.

Still, there are silver linings to the clouds that Secretary General Jagland saw during a year when the Court should be celebrating. In fact, three silver linings or “reasons for optimism” as President Costa put it in a rather more upbeat press conference on January 28th. Taken together, these three factors promise to make 2010 a revolutionary year for what is widely accepted to be the most successful and most advanced regional human rights protection system in the world. Let us consider them in turn.

First, the Lisbon Treaty, which finally entered into force on December 1, 2009, affirms that the European Union will accede to the European Convention of Human Rights. While there are still a number of unresolved procedural questions (should, for example, the EU now be represented by its own judge on the Court?) and serious substantive issues to clarify (especially concerning the relationship between the Luxembourg-based European Court of Justice, which rules on questions of EU law, and the Strasbourg Court), the move will have limited substantial impact on the level of human rights protection in EU countries. Already under the pre-Lisbon Treaty framework, fundamental rights, “as guaranteed” by the European Convention, were “general principles of the Union’s law.” President Costa described the future accession by the EU as a “major step towards creating a European fundamental rights space”. It is, at the very least, a symbolic one. 

Also of substantial symbolic and real importance is the vote by the Russian State Duma to finally ratify Protocol 14 to the Convention, which was confirmed by the Duma’s upper chamber, the Federation Council, on January 27. Russia had been the only one of the Council’s 47 member states not to ratify the Protocol, mainly out of political disagreements with Strasbourg over the Court’s scrutiny of military activities in Chechnya, which had invariably led to a number of judgments holding Russia responsible for torture and illegal killings in there. Indeed, complaints against Russia account for roughly a third of all cases lodged with the Strasbourg Court.

Protocol 14, which is part of a larger process of reform of the European human rights system, provides for substantial procedural streamlining, by foreseeing, inter alia, new judicial formations, such as decisions rendered by single judges, or three-judge committees. Further, cases which similarities to already decided cases can be struck off the record (the famous pilot-judgment procedure), as can the untested and potentially problematic category of cases where an applicant has suffered no “significant disadvantage”. The Protocol will also allow the Committee of Ministers, a political organ, which is charged with supervising the enforcement of judgments, to work more effectively with national governments to ensure compliance. 

While the changes brought by Protocol 14 have the potential to substantially streamline Court proceedings, they are not revolutionary. Some procedural provisions have already been implemented through Protocol 14bis, which was adopted in May 2009, after it became apparent that Russia’s ratification of Protocol 14 would take some time. The pilot-judgment procedure has also been applied, rather successfully, through a creative interpretation of conventional procedure rules from 2004 onwards, when it was introduced in Broniowski v. Poland. Protocol 14bis will become moot when Protocol 14 enters into force on June 1, 2010, provided that Russia’s instrument of ratification reaches Strasbourg by the end of February. 

The third positive impetus for the European human rights protection system will have its origin in the idyllic Swiss town of Interlaken, where, on February 18-19, a “High Level Conference on the Future of the European Court of Human Rights” will take place. President Costa described the conference as a “landmark” event in which states would reaffirm their commitment to human rights and, more significantly, “draw up a roadmap for the future development of the Court”. A number of Council officials have weighed in with statements on what needs to be achieved in Interlaken. While differing on the details, the main challenges are clear (though the ways to achieve them are less so).

President Costa himself suggested a number of obvious and not so obvious long- and short-term goals. He proposed, for instance, to develop the idea of filtering applications by legal secretaries as it was unclear whether all applications “should be examined judicially”. Drawing “inspiration” from the EU’s judicial system, he also suggested adding a Human Rights Tribunal subordinate to the Court as a European human rights court of first instance, though this would contribute to what some criticize as the mushrooming of European human rights institutions, with largely parallel bodies existing in the parallel structures of the Council and the European Union.

Among the new ideas to be explored “immediately,” President Costa finally counted “class actions” or collective applications (which are largely alien to the European legal system) and the possibility of referral by the Court of purely repetitive cases to member states or the Committee of Ministers to be “dealt with on the basis of well-established case-law”. 

While the details, as mentioned before, will still need to be worked out and the days before the Interlaken conference are sure to be filled with intensive intra-European human rights diplomacy, one conclusion of President Costa is certainly true: Reforms must bear in mind the “principle of a better sharing of responsibility between the Court and the States”. Truly, ensuring human rights protection is not a matter that states can leave to a court alone, especially one as swamped with cases as the European Court of Human Rights. It is a common responsibility. 

Interlaken literally translates as “between the lakes”. Let us hope that when it comes to reform of the Court system Europe’s leaders will not get wet feet. 

< em>Matthias C. Kettemann is an LL.M. student from Austria.

Bob Mnookin deals with the devil

BY NATHANIEL FINTZ

devilbargain
Robert Mnookin ’68

You are beside yourself with rage.  Your small research-and-development firm in Silicon Valley has partnered with a Japanese company to manufacture and distribute your product.  But you’ve just discovered that this company has violated your contract by secretly creating a knock-off of the design you licensed to them—and selling it in the Chinese market!  They deny wrongdoing, and they also want to renegotiate your original contract. 

You are so angry you can hardly think straight.  But what should you do?  Should you bargain with this devil?  This question, which arises in so many situations, is central to Bargaining with the Devil: When to Negotiate, When to Fight, a new book by Professor Robert H. Mnookin ’68, Chair of the Program on Negotiation.  Rejecting any categorical answers to that fraught question, Mnookin develops and presents a highly nuanced, context-based approach for how one can choose wisely between battle and bargaining. 

The situation described above is but one of several captivating stories that fill the pages of Mnookin’s book.  Each chapter recounts a real-life, high-stakes conflict where emotions ran high.  The contexts differ radically: the chapters include a business conflict between two giant computer companies, a bitter American divorce, and a family inheritance fight.  Other stories emerge out of profound political conflicts.  Some involve political leaders like Winston Churchill or Nelson Mandela; other tales concern lesser-known figures who came face-to-face with Nazi officers or the KGB.  As Simon & Schuster officially releases Bargaining with the Devil, bookstores might have some trouble deciding which section or shelf should be its home.  History?  Current affairs?  Business?  Family?  All of the above?        

In spite of this conspicuous variety, Mnookin’s tales all share a set of key elements.  In each tale, demonization is rampant, and at least one person perceives an adversary as evil.  In some cases Mnookin thinks the perception of evil is fully justified—in others, a mere product of partisan animosity.  And in every single story the same decision must be made: negotiate or fight? 

The compelling nature of this question was evidenced by the crowd in the Ropes Gray Room on February 4, when over two hundred people attended a reception and panel in celebration of the book’s publication.  Along with Mnookin, the featured panelists included Dean Martha Minow, Professors Gabriella Blum LL.M. ’01 S.J.D. ’03 and David Hoffman ’84, and Margot Strom, Executive Director of the think tank Facing History and Ourselves. 

So, should you bargain with the devil?  Mnookin distances himself from the standard categorical answers.  Some would always bargain with the devil; others would never do so.  Speaking to the Record, Mnookin characterized the first view as “the conventional wisdom in my field”—the conviction that “you should always be prepared to negotiate with your enemy, because after all that’s the only way you can make peace with your enemy.”  In rejecting this categorical position, he demonstrates a laudable boldness: at the panel, Blum noted how remarkable it is that Mnookin, “who has dedicated his life to the negotiation field in both scholarship and practice,” here questions a basic assumption that is so fundamental to that field. 

Mnookin also firmly rejects as unwise the opposite notion—that you should never negotiate with an adversary whom you don’t trust or who you think is evil.  He questioned, for example, the Bush administration’s refusal to negotiate or engage with Iran.  And he challenged the notions of some litigators or public interest lawyers who think it is always better to fight it out in court than to negotiate a deal.  

Rejecting both these categorical answers, Mnookin expressed his view that “the challenge is to make wise decisions at a particular time in a particular context.”  Accordingly, the book endeavors to answer the question, “By what process might one try to go about making a wise decision?”  When you’re thrust directly into the presence of a devil, how can you avoid the common traps (such as tribalism, demonization, and dehumanization) that inhibit clear, reasoned thinking?  To answer this question, Mnookin suggests a single “framework” that can consistently facilitate a wise decision about whether or not to bargain with the devil.

This framework involves asking yourself “five basic questions.”  First, inquire into your interests, and those of your adversary.  Second, investigate your alternatives to negotiation, and those of your adversary.  Third, consider whether any potential deal could satisfy both parties’ interests better than their respective alternatives to negotiation.  Fourth, consider the costs of negotiation.  Fifth, consider the likelihood that a deal, if reached, would be implemented.  If this framework seems coldly rational, that is because it is tailor-made to help isolate the signal from amid all the noise—to tease the precious thread of reasoned analysis out from amid a tortuous tangle of other non-rational strands.

In short, Mnookin advocates a particular decision-making process.  He acknowledged that “[d]ifferent people applying the framework can reach different conclusions.”  This is because “assessing the costs and benefits of alternative courses of action involve predictions, and always involve the application of values, and people can disagree.” 

Nowhere is the book’s admirable nuance more evident than where Mnookin fleshes out his approach to moral judgments: “[W]hen the analytic side [of the brain] is acting as a dispassionate judge weighing all the arguments, not a lawyer defending a foregone conclusion, … moral values should, and in some cases must, be factored into decision-making.”  The limited but crucial point is to avoid any abdication of reasoned analysis.

In each chapter, Mnookin offers his appraisal of each character’s decision on whether to fight or negotiate.  But he makes a point of “giving enough evidence … and telling the story in a way where there’s plenty there if people want to reach a different conclusion than the one I reach.”  As Blum noted, “it is only a very confident writer that can do this.”  The book invites the reader to engage closely with each tale; during his writing process, Mnookin thought carefully about how to “take the reader into the story.”  Storytelling is “a different kind of writing than what I’d ever done before,” Mnookin said, yet he has met this new challenge with great success: Minow hailed the stories as “compelling,” and Blum added that each one reads “like a page-turner.”  

Mnookin expressly welcomes diversity in his readership.  Hoffman described for the audience in Ropes Gray just a few of the many ways that the book will be directly useful to “the dispute-resolution world.”  At the same time, Mnookin said that while his other books have been aimed primarily at academics or professionals concerned with negotiation or conflict, he hopes this book will also reach a broader audience.  Mnookin is surely correct in his belief that “there are a lot of people that can connect with the theme of the book,” which arises with great frequency in everyday business and family situations.  “There are many other stories that could be told” and “lots of other chapters” that could be written, he said.   

Mnookin also singled out what he called “the NPR audience”—the “intelligent lay reader who is interested in ideas” and who is especially likely to find the book intellectually stimulating.  Also, Blum remarked, “There are definitely a number of contemporary leaders I’d love to send the book to.”  Last but not least, Mnookin’s readers will s
urely include HLS students—especially since he might assign some of the chapters of the book in next year’s Negotiation Workshop.  Mnookin’s book should be considered required reading for students and non-students alike.  And within this diverse readership, few are likely to disagree that if you read Bargaining with the Devil, a face-to-face encounter with evil will never make you lose your wits.  Satan, for his part, would probably want this book banned. 

Citizens United: What happens next?

 

 

Citizens United v. FEC is the kind of opinion that deserves fierce and decisive condemnation by the American public. Indifferent to the threat of unrestrained economic power, and wedded to a rhetoric of corporate personhood that only seems plausible in the realm of disorienting metaphor, it preaches a vision of free speech that most Americans have rejected for over a century.  Judicially rewiring the First Amendment into an efficient convertor of economic might to political influence, Justice Anthony Kennedy ’61 et al. rewrote a major swath of constitutional law in answer to a question posed only by the majority to itself.  As a result, our First Amendment will spend the foreseeable future frozen in irony – a status born of the role it now plays in gutting the very right it exists to champion.

Harm to free speech is only the beginning, however, of Citizens United‘s consequences.  As judicial and legislative elections fall under the vastly expanded sway of corporate dollars, we can anticipate a new bevy of creative tax loopholes, deregulatory initiatives, and pro-business doctrinal shifts in many fields of private law.  And as Prof. Mark Roe ’75 observes in the Financial Times, Citizens United may actually reduce economic dynamism by encouraging incumbent business interests to deploy their new political muscle against emerging market entrants (who lack the organization and influence to successfully oppose regulatory obstacles).

Citizens United also significantly expands an incentive structure that was already highly conducive to actual and perceived political corruption. Fortune 100 companies reported revenues of $13.1 trillion during the last election cycle, as compared to approximately $745 million raised by Barack Obama ’91, and averages of $711,000 and $2.44 million respectively for House and Senate candidates. ExxonMobil alone reported profits of $85 billion across this same period.  With unlimited access to funds, these corporations would wield extraordinary power over the electoral prospects of our political class – the harms of which are both obvious (bad policies that favor narrow corporate agendas over the public interest) and subtle (reduced popular faith in democratic processes).

It may seem strange to argue that an expansion of free speech will produce this parade of horribles. Justice Kennedy frames the issue in absolute terms, referring constantly to the “chill” of corporate speech. How, then, to square a serious commitment to liberty with the troubling concerns raised by Citizens United? As Prof. Larry Tribe ’66 explained to the House Judiciary Committee, “it would be passing strange if the First Amendment, so central to our system of self-government, compelled us to choose between free speech and democratic integrity.” Properly understood, of course, it does no such thing.  To reach its conclusion, the Court piles one questionable assumption atop another – treating corporations as “associations of individuals,” granting those corporations full free speech rights, equating money and speech, and relegating to analytic irrelevance any concerns about the real-world effect of unmatched corporate wealth.

The combination of these errors leads to a preposterous result, forgetful of the point that the First Amendment protects democracy by safeguarding self-expression essential to political discourse.  Although “we the people” still reserve the right to speak, our relative ability to exercise that freedom in meaningful service to democratic self-governance has been badly compromised.  This result, moreover, is not required by the Constitution.  As explained by Justice Stevens, the unique advantages and characteristics of corporations – legal fictions that we endow with impressive benefits to facilitate economic growth – provide sufficient and long-recognized cause for denying them the same rights as natural persons.

Some commentators, mainly associated with the political right, tell us not to worry.  Citizens United, they insist, will do little to disturb the status quo. This optimistic outlook depends upon at least five doubtful assumptions: (1) legislatures will act effectively to limit its impact; (2) judicial elections will not be meaningfully affected; (3) patterns of corporate behavior will remain untouched by an expressive and doctrinal shift in legal culture and regulatory power; (4) courts will not construe Citizens United as the basis for further expansion of corporate rights; and (5) patterns of approximate party in donations to both political parties will persist undisturbed (the result of which would be greater corporate control across the partisan spectrum). This argument is, quite simply, wrong on its merits. And perpetuation of the status quo ante – with its perverse incentives and tendency toward corruption – would not be cause for reassurance.

At a recent American Constitution Society event, Jeff Clements and Prof. Lawrence Lessig offered wider perspective on these issues.  Clements emphasized the important role that First Amendment doctrine has played in recent conservative efforts at deregulation. This has sometimes taken the form of limitations on the regulation of commercial speech (i.e. cigarette advertisements targeting children), but, in a more pernicious form exemplified by Citizens United, has undermined popular control over elections in the name of corporate liberty.

Lessig agreed.  He observed “a Blade Runner-like moment in this opinion,” and gleefully acknowledged his excitement that computers, too, may soon find favor with Justices keen to endow rights upon non-human entities. But he focused squarely on corruption. Charging the Court with hypocrisy, he contrasted its apparent disregard for congressional efforts to secure electoral integrity with the concern for judicial purity that animated Caperton v. A.T. Massey Coal Co.  Noting that Congress is widely seen as the most corrupt branch of government, and that political action committees, lobbyists, and fundraising events already provide corporations with plenty of expression, Lessig worried that Citizens United will further prevent Congress from realizing the desires of its one true constituency – “we the people.”

So what can we do next?  Lessig and Clements both support a constitutional amendment to remedy the decision’s effecys.  Lessig ups by the ante by calling for a full constitutional convention (from which a more wide-ranging group of reforms might emerge). Both also urged Congress to quickly pass the Fair Elections Now Act, championed by Senators Richard Durbin and Arlen Specter. Other commentators have urged changes to corporation law, shareholder governance, disclaimer and disclosure requirements, anti-coordination rules, and the terms applied to government contractors.  At the state level, Citizens United has emboldened advocates of a shift from the election to appointment of judges. Many of these proposals strike broadly at a much larger pattern of corruption. Although few of these would truly fix the problem, they would certainly provide a badly-needed palliative.

All of which brings us to the main issue:  Does American democracy remain sufficiently energetic to face this challenge? That, I must admit, is an open question. It is remarkable that our president felt the need to spend part of his State of the Union address reassuring us that our political institutions are indeed capable of acting for the common good.  Not that Congress has done much in recent years to justify such faith, as evidenced most glaringly by its recent “debate” over health care legislation. The postmodern air of unreality that pervades much of contemporary political discourse, in which astroturf has replaced grassroots and partisan pundits occupy different realities, seems to leave little room for the kind of meaningful national conversation that might rest
ore integrity to our electoral process.

Such reform efforts are further complicated by Citizens United itself, which, unlike previous Supreme Court decisions that merely denied people rights, commits the further indecency of corrupting the very electoral process that might normally facilitate remedial action. In the future, any legislator involved in efforts to limit or modify corporate funding of elections will confront the multi-billion dollar megaphone of corporate general treasury funds.  Needless to say, the titans of corporate America might feel strongly about ensuring their recently secured ability to flood our marketplace of ideas with PR-friendly sound-bites.

Completing a process begun decades ago, five members of the Supreme Court have staked the future of America’s electoral system on their belief that we previously suffered for a lack of corporate influence. The First Amendment, as shown clearly by Justice Stevens, did not compel that result. Now the time has come for the public, and our elected representatives, to deal with its consequences. Any solution worthy of the name will undoubtedly involve extraordinary measures, including some kind of landmark legislation. “We the people” must therefore be brave.  Only if the American public stands firmly behind advocates of reform can we hope to reinvigorate the integrity of our treasured political institutions.

Joshua Matz is a 1L.

After Citizens United, is a different corporate influence our only hope?

BY PROF. FELLMETH

cashmoney

With the recent Supreme Court holding in Citizens United, corporations and unions have first amendment protection to spend directly on political campaigns – at unprecedented levels. This is not the first ruling to protect speech rights for corporations – they also benefit from the Court’s “Noerr-Pennington” doctrine, which exempts them from antitrust laws when they combine to influence legislation.

But Jefferson and company might be quite surprised to learn that “originalists” citing the sanctity of their original intent would let loose upon our government hated British megacorporations of the colonial era, like the Hudson Bay Company, as a “person” with such rights to combine with other companies and win political influence.  We live in a world that is increasingly controlled by these horizontal organizations.  They, together with labor and professional alliances, dominate Washington and in state capitals.  They are euphemized as “stakeholders.”

These tribal structures are often vehicles that represent the lowest common denominator of the ethical sensibilities of their membership. But the problem is not quite related to the easy demonizing Wall Street or corporate predation; it is that it is the job of corporations to invest capital, and then to try to maximize return on that capital for the stockholders who provided it.  That neutral, understandable task means that they should and must protect that investment, and if society has created market flaws that allow external costs in the exhaustion of the earth’s resources, or health costs borne by others, this is not something they exist to correct.

The problem is that they are now legally able to prevent correction.  The “socialist” moniker thrown at supporters of government intervention applies where the state excessively owns and operates the means of production., when the check between private and public becomes lost. But what do you call the evisceration of that check in a system where the means of production own and operate the state? Is industrial or special interest socialism not even more antithetical to American notions of check and balance?   

The corporate-controlled fate awaiting us is not confined to liberal gnashing over global warming and environmental depredations. Conservatives have a stake also, as the current unfunded liability for social security, MediCare and the national debt exceeds a projected $55 trillion. The carrying charge in current dollars for the debt we are imposing on our children is over $20,000 per family per year.  

Into this evolving and deeply problematical world, Ralph Nader ’58 released his interesting new book, Only the Super-Rich Can Save Us! (Seven Stories Press). This novel combines real-world politik with an imaginative story—a fantasy of what could happen if 17 of the nation’s wealthiest and most influential persons combined to move the needle back toward the middle, accomplishing political reform and economic restructuring. Can such a group transform our long-term future and diffuse interests (the environment, our children and our legacy) by expanding their secondary, public relations “fig leaf” roles into actual, real-world influence?

The prospects would appear dim, but the idea has more to it than the frustration of a longtime consumer advocate. Nader has been largely marginalized by the media as some sort of eccentric, most of whom have forgotten that many of the mechanisms that protect modern consumers, from air bags to drug testing to government transparency – are directly traceable to his citizen advocacy.  But his point in the book is not vindication; it is to raise the possibility of an imaginative alternative.  And with the current elevation of corporate personae, Nader’s jujitsu idea may become the only alternative we have.

Much significant human progress occurs because someone rises above predictable self-advancement, taking on his own elite group. Though this rarely happens, there have been a few remarkable examples, such as Mikhail Gorbachev reversing the Soviet Union’s expected course, ending decades of bullying and antidemocratic domination. He did the unpredictable—he replaced defense bluster with disarmament and political domination with Glasnost.  And no, it was not Reagan or rising oil prices or a peacock-strutting United States that forced the Soviet Union’s course correction.  It was a leader turning against every expected instinct and pattern.  When such reversals of predictable self-interest occur, the consequences may be profound.  Indeed, the highest ethical act in the modern world may be to take on one’s own tribe.

In Nader’s fantasy, that is what these billionaires do.  They get together and find common ground in a legacy of competition, environmental health, political reform, and world progress. Could it happen?  What is interesting is that Nader personally knows most of the folks he writes about.  And his storyline purports to capture not only their political views, but also their personalities: Warren Buffet ordering cherry colas, the clever repartee of Sol Price, and the charisma of  Warren Beatty.  And the fact that these folks do, in fact, care about our planet.

Most of those named in his story currently spend fortunes on charity—on advancing values not far from those promoted by Nader.  But what they do in his fantasy is stop spending the vast proportion of it on direct services.  This is not to say that the billions spent on AIDS or malaria abatement have not yielded important results; the 2009 data from UNICEF shows real reductions in child mortality worldwide.  Some of Nader’s “characters”—all real persons—are largely responsible for this progress.  But their donations are not strongly leveraged, as Nader would propose.

What Nader essentially does is imagine a world where the super-rich seek more than malaria containment—where they seek leveraged change in public investment and decisions.  Interestingly, Citizens United may make that shift both more needed and more feasible legally.  For if corporations can independently campaign for political candidates protecting the value of their drilling rights and seek to burn carbon accumulated over four billion years as if it were a sparkler lit on the 4th of July, why cannot those who have wealth, lacking such a sunk-cost bias, do likewise?  Why can’t Soros and Buffet and Gates and the rest – with wealth freed from direct exploitation bias and able to factor in future costs – participate in countervailing political discourse?

Nader imagines that they end their dabbling and “feel good” dispensation of shots to wide-eyed children and do the work of changing ground rules so that political candidates are bought by the public, not by special interests, so that political campaigns have substance beyond ten-second sound bites and brainless namecalling, so that the many have access to the courts, so that agencies hear from many interests regularly, so that no business is too big to fail.

The fun of reading this book is in joining the author’s fantasy, but punctuating it with our own tactics – what we would do to correct the world’s deviant path had we the resources and visibility of these 17. The characters in this book seek structural and leveraged change—advocacy  for public budgets and laws and international agreements—that properly embody more than the exploitation of narrow self-interest.  Now that the U.S. Supreme Court has radically shifted ground and allowed (contrary to the judgment of the people’s democratic institutions) many billions of corporate and union money to directly influence elections, those interests with capital investment in current profitable enterprise – whether it be mining the seas, polluting the earth, or collecting medical benefits for power wheelchairs and Cialis on the backs of their grandchildren — wi
ll increasingly lock-in their self-protection and their imposed external burden on others.  Their free ride, notwithstanding future costs, will be further and irretrievably calcified into public law.

Although pathetic, it appears as if these 17 and some of their friends may indeed be the most realistic hope we have.

Robert Fellmeth ’70 was one of “Nader’s Raiders” and formerly worked on the Harvard Law Record. He is now is the Price Professor of Public Interest Law at the University of San Diego Law School.

Cambridge2Delhi: Is this what development smells like?

BY JESSICA CORSI

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As Delhi prepares for the 2010 Commonwealth games, the city is being completely transformed.  I traveled there in January to research the right to food for a UNDP report, two years after my first visit. This time, having come to see what had changed, I was greeted by streets lined with piles of bricks and mounds of dirt.  Women in tightly wrapped saris hoed the earth as their children played next to them, and mixed groups of men and women laid bricks in new walls.  I watched them daily as my auto-rickshaw  was crisscrossing the city to deliver me to meetings, and I wondered whether all this construction was really any good – if this was employment for the unemployed or if, when the games came, undesirable people would be swept out of sight.  I wanted to know whether life had really improved for those at the bottom of society.

I found that it hasn’t.  When I met with Dipa Sinha, one of the Commissioners monitoring the implementation of the still-open 2001 Supreme Court case on the right to food, she informed me that reports of starvation deaths have been higher in the past year than in any year since the opening of the case.  There is still no India-wide system to ensure that the Court’s orders are put into action, and relief for starving communities happens in a haphazard way, if at all. 

Sinha told me that she has seen people that they are monitoring die over the course of a year. In a typical case, a report will come that a marginalized community is starving and without any work. NGOs lobby the local and state governments to provide government guaranteed employment and subsidized grains. But these communities have often been cut off from social services due to discrimination against minorities, and when the requesting organization follows up with the authorities, none of the promised actions have been taken. By that time, a handful of severely hungry persons will have died. In these ignored communities there are always malnourished people who are on the brink of dying from starvation.

It is hard for me to take this information in, but it is what I have traveled here to learn: to search for signs of implementation of the right to food orders, and to evaluate the direction that the right to food is taking in India. And overall, I found that one of the many paradoxes of modern India is the juxtaposition of its rapid economic growth with the poverty that seems to have only intensified in the most vulnerable communities. 

Journalist David Rieff is writing a book on malnutrition and hunger.  I had breakfast with him at the India Habitat Center, an oasis of calm in the middle of Construction City.  I found myself disoriented as I ate huevos rancheros in an American style diner, with Abba playing in the background, all while we discussed the “why” of modern India’s paradox.

Were we still in Delhi? 

Rieff pointed out some of the unique aspects of Indian hunger. The gender question, for example, looms large in India. In other countries, Rieff has found, a household with food will have equally fed women and men, while in India a household with food might have a nourished man and a malnourished woman.  And then there are other key indicators of health that are missing.  He has traveled extensively in China, and he said he can drink the water there – not so in India. There is also no comparison with the level of open defecation found in India.  As he spoke I had a flashback to my 2008 trip to inner Uttar Pradesh, the first time I had seen so many people openly defecate.  There is no infrastructure to deliver basic services like sewage. 

Yet, I thought to myself, India has plans to test a new space shuttle, with an eye to making headway in the satellite industry.  This is part of the paradox: impressive development is taking place at the highest level. But the bottom rungs can’t subsist on plans for a spaceship.  Poverty at the bottom is still a life and death emergency.

David Rieff mentioned another aspect of India’s paradox: the economic boom has resulted in an even greater divide between the classes, with newly minted cities for the rich that allow the affluent to screen out the signs of poverty and, perhaps, most importantly, interactions with the poor. 

What I came to think of as the “car and driver set” is a good illustration of this phenomenon. Delhi smells. (As do Mumbai, Chennai, and other Indian cities.) It is extremely noisy. Instead of using turn signals or staying in one’s lane (when it is even marked) you instead make ample use of your car horn. All of this can give you an instant headache. But if you have a car and a driver, you are insulated from the smell, the noise, and the stress of the drive.  This phenomenon is not new, but the greater number of people catapulted into this “car and driver”?class, and the construction of new suburbs to house them, has left India more and more stratified.  Rieff pointed to Gurgaon, a suburb on the edge of Delhi, as an example of this new arrangement.

Coincidentally, I was having dinner there that very night. When I spoke to the friend I would be meeting he said, “I’m warning you, Gurgaon is my least favorite place in India.”  This was a strong statement from a person who had a deep affection for the country.

I arrived in the dark. “This isn’t so bad,” I said to him.  I had been bracing for Armageddon.

“You haven’t seen it in the day.  There’s no infrastructure.  The workers and their families that have come to build this place have no toilets, no water, no electricity.  In the daylight, the whole city smells like shit.  Of course, from inside the office buildings, you can’t smell it.  They even have their own electricity generators for when the power goes off.”

The power went off over dinner.  But then, right on cue, a generator kicked in and restored the lights.

On the drive back from Gurgaon to Delhi, my cab driver was in a talkative mood.  He wanted to share what he thought of India’s development.

“I’ve been in this business, driving only tourists, for 18 years,” he said. “And still, 18 years later, my family and I live in the same place.  Our standard of living hasn’t changed.  And why not? Because the wages for us stay the same, and the prices go up.  The prices of food, even the prices of vegetables, just keep going up.  They keep saying, India is growing, India is shining, this is a new India.  But a New India for who?  Who is getting this new India? I say, give first to the very poor.  There are people here who have less than 50 rupees [$1 USD] a day.  Give to them first.”

I had heard the same thing from all of my cab drivers.  “The price of sugar has more than doubled in the past month,” said one auto-rickshaw driver, as we drove we passed a truck draped in banners and filled with people chanting on bullhorns.  “It’s a political party,” the driver explained.  “They’re talking about the increase in food prices.”  We arrived at my destination, the Supreme Court Commissioner’s office, and she, too, immediately mentioned the food prices and the price of sugar.  The anecdotal reports of rising prices are backed by facts. But you can hear from people directly about how they’re being impacted, and I got a sense that people are heavily impacted.

Life goes on, and plenty of people are doing fine, even as others literally starve to death, and as almost half of India’s children remain malnourished to a point of permanently stunted growth.  Over one weekend, I sat with a friend on the beach in Chennai, and watched a festival being cleaned up.  “There are no trashcans,” she said, pointing to the area where the festival had taken place.  “This (the people cleaning) is the rag picker class.”  Instead of lining the festival area with bins, people were brought in the next day to clear everything away.  “Why not have bins? In order to generate jobs?”  “Ma
ybe,” she shrugged.  “But this caste of people has traditionally cleaned the waste.” 

My friend is a development economist. She shrugged because she knows that poverty in India—and in any place, but perhaps more so here—is complicated.  She took me to an estuary where brand new office buildings perch on the edge of the water.  “This is a very fragile ecosystem,” she said.  “It will probably be destroyed by the development.  But if you talk to people, it seems like this is what they want.  They want the new air conditioned shopping malls.” 

But these are the people in the cities, who can afford to go into these malls. In the rural areas, they want any employment they can find, and they want it now. The cities are mushrooming with investment, but more than two thirds of the population’s income still derives from agriculture. As the government of India focuses on the high tech side of development, the farmers are being left behind.  

In my last interview before I flew home, I asked, “What remains to be done? What are the next steps?” 

“Research,” responded my interviewee, without hesitation.  “We need more in depth studies as to why the programmes that we have, the Supreme Court orders that we have, the laws that we have, are working or not working.” 

But what will come first — more research, or an expanded space program?  The buildings to house foreign companies in the growing tax-free zones, or the infrastructure to provide basic programs for the people who construct the buildings?  If things stay on their present course, development as usual will continue to have a negative impact on the people at the economic margins — which presently seems to be the majority of the Indian population. 

I spent my last weekend in India in Mumbai.  “Have you been to Delhi lately?” I asked a friend.  “It’s a construction site.” 

“I heard that,” he responded, “I wonder what it will look like in time for the games.”  So do I.  I wonder what it will all look like in the near future, and whether people like my taxi drivers and the women in saris digging on the side of the road will experience change.   

This version of the article was modified slightly from the version that appeared in the print edition.

One year after Gaza War, causes of the conflict remain unaddressed

BY NIMER SULTANY

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One year after the Israeli onslaught on Gaza, the territory is still strangled by a comprehensive, tightening siege. And the consequences of last winter’s war, which ran from December 27th to January 18th, have been few. Despite the horrific outcomes and images of civilian death and destruction caused by Israel, war criminals are still at large, and numerous reports by well-known human rights organizations and independent international bodies have done little to effect accountability and freedom.

Egypt has started to build a seven-mile-long underground steel wall with the assistance of the United States Army Corps of Engineers. Israel has further defied international norms by dismissing the UN’s Goldstone Report on abuses of humanitarian law during the conflict offhand. It refuses to conduct an independent inquiry into the Report’s findings. Israel has also been trying to prevent foreign judicial inquiries into such crimes.  

The defenders of Israel’s strategy continue to employ the same mundane arguments they have used in the past. These arguments divert the discussion from substance to procedure by claiming bias and selectivity on the part of international bodies, or by using ad hominem attacks. This time, however, the attacks won’t work as they have in the past.

The internationally-revered jurist and self-proclaimed Zionist Judge Richard Goldstone headed the United Nations fact finding mission on the Gaza onslaught, which produced the Report that bears his name. He insisted that the mandate of his committee be expanded to include crimes committed by both Israelis and Palestinians. The Report is not only explicit in its criticisms of both Israel and Hamas, it even assumes that Israel acted in self-defense. Considering this, it is difficult to believe that the Israeli government’s allegations of bias and its reasons for refusing to engage with the Report are sincere.

But critics of the Goldstone Report trivialize the gravity of the war crimes it documents by claiming that civilian deaths and destruction of infrastructure were not a matter of policy, but of the misconduct of a minority of soldiers. This explanation is dubious for several reasons. First, while one soldier who stole a credit card from a Palestinian home was prosecuted, no soldiers were punished for killing Palestinians. The Israeli military has failed to publicly hold these so-called “rogue soldiers” accountable. Second, the large numbers of casualties, the enormous and wanton destruction of property and the targeting of civilian infrastructure by the Israeli army in the 2006 war on Lebanon and the onslaught on Gaza indicate that these attacks are deliberate. As the Report mentions, many statements by Israeli officials support this conclusion. The Israelis have even codenamed their strategy: the Dahiya Doctrine.

***

Yet legitimate complaints that Israeli aggression against Gaza has been disproportionate or is counter-productive are not effective rebuttals to the Israeli government’s self-justifications. In fact, these lines of argument presuppose that Israel was, at least in part, justified in its “defensive security operation”. When focused on these objections, the dispute revolves around the numbers of Palestinian civilians Israel would have been “justified” in killing.

Israel was not justified in its aggression for more profound reasons than these arguments reveal, regardless of the horrendous outcome of the onslaught. (Around 1400 Palestinians killed were and 5320 wounded and thousands of houses destroyed or damaged.) Israel is not a peace-seeking state acting in self-defense and Hamas is not an irrational fundamentalist or terrorist movement that wants to annihilate Israel. As I will argue below, both perceptions are, at base, crucially misleading.

Israel has proven throughout its history that it has an expansionist plan to control as much Arab land as possible. Israel never acknowledged its status as an occupier and thus refused to apply the Geneva Conventions, claiming that the Palestinian territories are contested areas. It even refers to Palestinian territories by their Biblical names: Judea and Samaria. Israeli settlements (121, plus those in East Jerusalem) and their “natural growth” (479,000 settlers) aim at creating facts on the ground that enable Israel to control as much land as possible. Credible estimates suggest Israel has invested $100 billion in developing Jewish-only infrastructure inside the West Bank. A state that intends a temporary occupation would hardly make such investments.

As historian Avi Shlaim demonstrated in his book The Iron Wall, Israeli governments have worked under a strategy according to which time is on the Zionists’ side: the natives will be overwhelmed by the power of the settlers, ultimately internalizing their subjugation and capitulating to the new reality of power. This means there is no need for peace agreements, and  explains Israel’s rejection of numerous peace deals through its history. Israel’s refusal to engage with the Arab peace proposal emerging from the Beirut summit in 2002 was only one of the most recent examples of this policy.

The history of Palestine, then, is the story of the escalation of Israeli power. The International Court of Justice recognized this in its July 2004 ruling on the construction of Israel’s “separation wall”. The ICJ considered the wall part of an Israeli policy to alter the demographic composition of the Occupied Territories, a policy tantamount to a de facto annexation. The ICJ emphasized the detrimental effects of these policies on the right of the Palestinian people to self-determination. Israeli policies make the prospects for the realization of this right unrealistic.

***

Even the withdrawal from Gaza in 2005, the so-called disengagement plan, sought to entrench the colonization of the West Bank. Then Prime Minister Ariel Sharon’s senior adviser, Dov Weisglass, described the withdrawal from Gaza, in an interview with Haaretz in August 2004, as “the freezing of the political process”:  “And when you freeze that process, you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state… has been removed from our agenda indefinitely. And all this with [President Bush’s] authority and permission… and the ratification of both houses of Congress.”

Thus, describing Sharon’s withdrawal from Gaza as a prelude to further withdrawals and a peace agreement is patently false.

Note that the withdrawal from Gaza did not mean that Israel relinquished control of every aspect of life in the territory. A report by the Israeli organization Gisha listed the administrative aspects which Israel continues to control there: not only its territorial waters, airspace, border crossings, fuel, and electricity, but also Palestinians’ population registry (which determine who is a “resident” of Gaza), and even taxes and the transfer of tax revenues. Through these policies, notes Sara Roy, Israel continues to exploit and “de-develop” the Gazan economy as it has done for decades.

***

Ehud Olmert and Tzipi Livni have repeatedly said in recent years that they believe in the right of the Jewish people to all the “Land of Israel”, but they understand the need for “compromise.” Ironically, Hamas’s statements practically mirror these: it believes in the right of the Palestinian people to all the land of Palestine, but is willing to offer long-term cease-fire agreements. The fact that Hamas is willing to offer cease-fire agreements undermines the argument that it is committed to the destruction of Israel. But Hamas’s proposals have been dismissed by successive Israeli governments from Yitzhak Rabin on.

The fact that Hamas refuses to “recognize Israel” is also unsurprising. For one, a focus on Hamas’s charter, which states this policy, is a reductionist view, concentrating on an anachronistic document, which ignores the evolution of Hamas’s think
ing and politics since drafting the charter. Khaled Hroub, the author of a book on Hamas, has refuted such simplistic claims by discussing more recent documents produced by Hamas.

More importantly, what Israel is demanding is recognition of its ideological character as a Jewish state. In other words, Hamas is not asked to recognize Israel as a de facto entity; Israel already has de facto recognition by virtue of its tanks, warplanes and bulldozers. Rather, Hamas is asked to recognize the current, ethnically-exclusivist ideological character of Israel and the legitimacy of the Zionist project that displaced the Palestinians. Hamas is asked to renounce the history of the Palestinian people as a precondition for negotiations. 

From a Palestinian perspective, recognizing Israel as a Jewish state means both rejecting the Palestinian right to return and perpetuating the subordination of the Palestinian citizens of Israel. Rejecting the right to return before the negotiations even start aborts such negotiations or renders them meaningless. Thus, the fact that Hamas rejected Oslo and refuses to recognize the exclusive Jewishness of Israel has little to do with religious fundamentalism.

In any event, it’s ironic that the leaders of Egypt, Jordan and Saudi Arabia are corrupt dictators, but they are seen as “moderates”. Hamas, on the other hand, has not been shown to be corrupt, was elected democratically and has never attacked any targets outside Palestine and Israel. Nonetheless, it is considered “extremist.”  The criterion for “extremism” is not disregard for human rights, otherwise the states of Egypt and Saudi Arabia deserve the same label. Rather, the criterion is the rejection of Israeli dictates.

At the same time, Israel and the United States have also fragmented Palestinian politics by actively encouraging so-called “moderates” and isolating so-called “extremists,” aborting attempts to form a unity government. As Vanity Fair reported in April 2008, Hamas was reacting to a staged coup d’état when it took control of Gaza. The “moderates” in Ramallah refused Hamas’ call for a unity government under pressure from the previous Bush administration and Israel.

In fact, ever since Hamas came to power in January 2006, through democratic elections, Israel had boycotted its government, withheld Palestinian tax money, imprisoned and assassinated dozens of Hamas’ parliament and cabinet members, imposed a tight blockade that resulted in a humanitarian crisis, and made the lives of 1.5 million Palestinians (52% of whom are children) living in what is effectively an open-air jail, making them totally dependent on Israeli political demagogues and security technocrats. Finally, Israel violated the June 2008 cease fire by attacking a tunnel under Gaza’s border in November 2008, killing Hamas members in a prelude to its large-scale onslaught on Gaza that was long in the making.

Both the 2006 Lebanon war and the Gaza onslaught should be understood in this context. Israel wanted to make any opposition and resistance to its hegemony costly in terms of civilian life and thereby to strengthen the so-called “moderate” camp. According to this logic, only when the Arabs and Palestinians recognize the impossibility of defeating Israel will they accept the fait accompli designed by Israel. Thus, Israel did not attack Gaza to end Hamas’ rocket attacks. This could have been achieved by observing the cease-fire agreement and lifting the siege that is strangling Gaza. Rather, it aimed at crushing any resistance to its domination.

Those who are busy justifying Israeli actions as if Israel were a well-meaning occupier want us to focus on Palestinian violence instead of the siege; on the symptoms (resistance) rather than the root cause of the conflict (the occupation), and on one Israeli soldier captured by Palestinians rather than the thousands of Palestinian prisoners. By doing so, they legitimate the oppressive actions of the longest military occupation since World War II, an occupation that even decides, as Haaretz reported in November 2009, when and whether Palestinians can eat pumpkin, chocolate or pasta.

Martin Luther King, Jr. wrote in his letter from Birmingham: “I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is… the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for someone else’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season’.”

Similarly, Palestinians should not be asked to wait for their freedom. Instead, all those who hold equality, freedom and justice dearly should support their struggle and help them obtain it.

Nimer Sultany is an S.J.D. candidate and a Palestinian citizen of Israel.

Hopes and Dreams: Martin Luther King and Obama’s first year

BY PROFESSOR JR.

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January 2010 is an occasion that is widely celebrated around the country, particularly in the African American community. Not only does it mark the birth of Dr. Martin Luther King, Jr., but it also commemorates the anniversary of the election of President Barack Obama ’91 a year ago this past week. For African Americans, there is a great amount of pride as they look upon these two historic figures and their contributions to equality and justice in America.  While celebrating Dr. King’s accomplishments, there is also the challenge in trying to assess the impact of President Obama’s election.

The first year of President Barack Obama’s presidency has produced mixed results.  One highlight was his early decision to select Senator Hillary Rodham Clinton, a fierce competitor during the Democratic primary, as Secretary of State.  It was a bold decision that reflected the President’s ability to both find talent among the ranks of a group of notable Americans and to move forward his foreign policy agenda.  His nomination of Eric Holder as the first African American Attorney General, former Harvard Law School Dean Elena Kagan ’86 as the first woman to serve as Solicitor General, and former Second Circuit judge Sonia Sotomayor as the first Latina on the Supreme Court, were all notable successes. 

Consistent with President Obama’s eager goal of getting things accomplished, he not only pushed for the bailout of the American financial system, helping it avoid falling into a financial crisis as significant as the Depression of the 1930’s, but also steered Congress through the adoption of an $800 billion stimulus package designed to find jobs for Americans throughout the United States and to create financial resources to address the stagnant economy. 

The President’s promise to draw down the number of troops in Iraq has also been successful, with U.S. Marines departing the country this week as the first wave of the withdrawal.  At the same time, President Obama did not meet his goal of closing Guantanamo in a year, and, in apparent contradiction to his opposition to the war in Iraq, escalated the war in Afghanistan. But all throughout his campaign, he had made it clear that the real fight, to stem the spread of Al Qaeda, is in Afghanistan.  His decision to send an additional 30,000 troops to Afghanistan to address the growing threat of terrorism drew unlikely support, but also much criticism from both sides of the political aisle. 

Also looking back on the legacy of Dr. Martin Luther King this month, we realize he was enormously accomplished in pushing forward the adoption of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and ultimately the Public Accommodations Act and the Fair Housing Act of 1968.  But Dr. King also encountered much controversy and objection to his agenda of non-violence and civil rights.  As we look at the success of the March on Washington on August 28th, 1963, we’re reminded that, less than a month later, four little girls were murdered in the 16th Street Baptist Church bombing on September 21st, 1963.  It took events like the March 1965 beating of John Lewis, who now serves as a Congressman from Georgia, for America to address issues of inequality, and President Lyndon B. Johnson’s overt approval of the Voting Rights Act of 1965. 

But President Obama’s first year and Dr. King’s legacy as a civil rights leader reveal very different attitudes toward war.  Dr. King was an advocate of non-violence, leading to his historic address at Riverside Church in New York in opposition to the Vietnam War. It drew harsh criticism, but it reflected King’s relentless commitment to non-violence even when it was an unpopular theme to pursue. Similarly, Obama was one of the early opponents of the Iraq War. He sharply criticized the war in 2002, less than one year after the anniversary of the death of over 3,000 innocent Americans at the World Trade Center, in Pennsylvania, and in the Pentagon. 

But their contrasting views on war were most evident after President Obama’s decision to increase the level of troops the U.S. maintained in Afghanistan, at the same time he was awarded, like Dr. King, the Nobel Peace Prize. While Dr. King was also criticized for receiving the Nobel Peace Prize at a young age, it was remarkable how much he had furthered the agenda of civil rights in his 39 years before his assassination.  President Obama has had the same goals in mind, but his agenda has taken one step back after attempting to push forward access to greater opportunity and equality. In his remarkable speech as the recipient of the Nobel Peace Prize, he defended the idea of a “just war”, and received the unlikely support of people such as former Alaska Governor Sarah Palin, Newt Gingrich, and Henry Kissinger. 

President Obama’s first year in office was also a mixed record for African Americans.  While the diversity of the President’s political appointments have been lauded – President Obama has pursued an aggressive effort to create a very diverse cabinet, appointed a diverse group of federal judges at the District and Circuit court levels – there has been much concern about the slow state of economic development, the lack of structured efforts to increase the opportunities for African Americans in urban areas, and failure to fulfill an expected goal of greater diversity and accomplishment throughout the nation.  And yet, as we look beyond the limited success that has directly affected the African American community, President Obama has pushed to ensure greater support for minority owned businesses, and for a race to the top for educational reform and a health care plan, at best a fragile hope at the moment, designed to provide coverage to an unprecedented number of African Americans.

The President’s ambition has not been questioned. His ability to achieve many of his lofty goals in the face of fierce resistance from both Republicans and moderate Democrats only reinforces the challenges he will face during the next four years and beyond. What really stands out is the President’s ability to take bold positions, push multiple agendas at the same time, and to persuade doubters, as he undoubtedly will have in his State of the Union address this week. The same enthusiastic focus on multiple issues will guide his presidency for years to come. 

While President Obama cannot be satisfied that he has accomplished as much as he had ambitiously sought, it is certainly true that he has developing unprecedented levels of global support for America’s move from isolation to an inclusive agenda. It will take decades to fully evaluate the impact of his election and accomplishments, but it’s hard to doubt that his efforts to improve America’s global relationships, and to invest in its economy, not only face great challenges, but that, in time, will bear fruit.

Charles J. Ogletree, Jr. ’78 is the Jesse Climenko Professor of Law at Harvard Law School.

Citizens United does not open the floodgates to more corporate money

BY NICHOLAS JOY

In its decision in Citizens United v. Federal Election Commission on January 21, the Supreme Court upheld the disclaimer and disclosure provisions of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold law) while at the same time invalidating a ban on electioneering communications by corporations and unions, political speech that the Court said the government may not suppress simply because of the speaker’s identity.

Citizens United has already caused an uproar. President Barack Obama ’91 has said of the decision that he “can’t think of anything more damaging to the public interest.” Justice Stevens wrote in his partial dissent that the Court has rejected a century of history of regulating corporate electioneering, a claim that many pundits have taken up. In all, the critics have painted a picture of Citizens United as a dangerous innovation that will allow unbridled abuse of the electoral system by corporations and shake the very foundations of our democracy.

These hysterics are overblown for a number of reasons. First, the regulation that the Court overturned covered only a relatively limited category of advocacy. The provision that the Court declared unconstitutional prohibited corporations from using their general treasury funds to pay for “electioneering communications.” Electioneering communications are defined as any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is broadcast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office.

Unless the election law statute were to be read so broadly as to make the “electioneering communications” language redundant, this restriction did not even touch commercials broadcast outside the specified window before an election, political appeals in print such as newspaper advertisements and books, or internet campaigning tools such as the YouTube videos and Google ads that have become so important in recent elections.

Even before Citizens United, corporations were not prevented from broadcasting so-called “issue” ads on TV and radio right up to elections so long as they did not expressly support one candidate or another, even if the intentions behind the ads were thinly veiled. Although electioneering communications certainly play a major role in modern political campaigns, it is hard to imagine these organizations gaining dramatically more influence as a result of this decision, given the numerous avenues available in the past for corporations and unions to influence the electorate.

Furthermore, the notion that the Citizens United decision runs counter to a century of regulation of corporate electioneering is not, strictly speaking, accurate. The practice of prohibiting corporations from making political contributions does indeed date back at least to the Tillman Act of 1907 and is unaffected by this ruling. But the line of cases which allowed the regulation of independent expenditures by corporations is of much more recent vintage.

Citizens United overturns the 1990 case Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) which upheld a Michigan statute prohibiting corporations from making independent expenditures supporting or opposing state candidates.  The court’s holding in Austin that such expenditures could be restricted put that decision in tension with the 1976 case Buckley v. Valeo, 424 U.S. 1 (1976) in which the Court distinguished between direct contributions to political campaigns and independent expenditures and held that a limit on independent expenditures was unconstitutional. The Bipartisan Campaign Reform Act, which restricted independent expenditures at the federal level, was only enacted as recently as 2002.

Some of the criticisms of the Citizens United decision ignore the ways in which its impact could be mitigated through means that do not implicate speech so strongly. For instance, Justice Stevens worries in his dissent that some corporations might spend money in support of candidates whom their shareholders oppose. But corporate laws can be changed to require permission from shareholders before a corporation supports particular candidates. Members of labor unions already have the right to choose not to have their dues used to support political causes.

Even if this decision did signify the sea change that its detractors suggest it does, Citizens United would still have been rightly decided based on First Amendment law. First Amendment protection is generally considered to be most necessary in the domain of political speech. The Supreme Court has repeatedly and consistently held that First Amendment protection of speech rights extends to corporations, stating in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) that, even in a political context, speech does not lose its protection “simply because its source is a corporation.” Because the free speech right enshrined in the First Amendment is so fundamental to our democracy, any law which places a restriction on that right must survive strict scrutiny by being narrowly tailored to serve a compelling state interest. The government interest stated in Austin is that of avoiding the “corrosive and distorting effects of immense aggregations of wealth” on the political process. But the Court stated in Buckley that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Even if Buckley had allowed this rationale, the restriction on corporations would be both under- and overinclusive. Such restrictions would not stop exceptionally wealthy individuals from attempting to influence elections, but they would freeze out both nonprofit corporations and the small for-profit corporations with revenues of under $1 million which make up the vast majority of all corporations.

An argument can be made that the Court showed a lack of judicial restraint by choosing to overturn the precedent established in Austin. But in truth, it is Austin that is the outlier in regards to First Amendment precedent. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Buckley, in fact, had suggested just the opposite. Two and a half years ago, the Court arguably foreshadowed a move in this direction by upholding an as-applied challenge to the prohibition in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) and the decision in Citizens United merely brings First Amendment jurisprudence back in line with the bulk of the case law. Protecting the ability of corporations and unions to voice their support for candidates may not be politically correct, but it is legally so.

Nicholas Joy is a 2L.

Citizens United upholds institutional corruption

BY AMINU GAMAWA

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What started as a 90-minute political campaign documentary against then- presidential candidate Hilary Clinton ended in the Supreme Court with a decision that was described by some critics as one of the worst since Dred Scot. “Hillary: The Movie,” was produced by Citizens United, a conservative nonprofit, as part of its campaign against the former democratic presidential aspirant, and was released during the Democratic presidential primaries in 2008.

The judgment, which relaxes the restriction on power of the corporations to directly spend on advertising during federal elections, was described by Harvard law Professor Lawrence Lessig as “proverbial fuel on the fire”. He notes that the issue is not whether corporations are silenced or their First Amendment right to free speech upheld. More importantly, the outcome is an assault on democracy, capable of promoting a system that will further erode the public trust in their elected officers. Lessig cautioned that decision would undermine the participation of the citizens in the democratic process and that it gives unfair advantage to corporations,  whose financial prowess will give them a stronger voice than the electorate.

Lessig heads Harvard’s Safra Center for Ethics, which studies the intersection between politics, interest groups and corruption in the U.S. politics. As part of the reading for a course convened by the program, I came across a very interesting article by an expert on political corruption, Zephyr Rain Teachout (found in the Cornell Law Review, Vol. 94, No. 341, 2009, for those who are interested), which I found very relevant to the Court’s decision in Citizens United.

Teachout writes that the Framers of the Constitution were obsessed with corruption and saw it as one of the greatest threats to democracy. They designed the system in such a way that corrupt leaders will not only loose their positions, but also their reputation. The Founding Fathers built mechanisms into the Constitution to safeguard democracy by ensuring transparency, accountability and citizens’ participation in the political process. The independence of the political office holders from other special interests was of paramount importance to the Framers.

Teachout writes that “corruption was discussed more often in the constitutional convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened. Madison recorded the specific term corruption fifty-four times, and the vast majority of the corruption discussions were spearheaded by influential delegates Madison, Moris, Mason, and Wilson. The attendees were concerned about the corrupting influence of wealth, greed, and ambition.” It is not an overstatement to say that the Framers actually saw the Constitution as an instrument to fight corruption.

The Framers defined political corruption to include “self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy”.

Their efforts to curb corruption in the political process is visible in issues including the regulation of elections, term limits, limits on holding multiple offices, limitations on accepting foreign gifts, the veto power, the impeachment clause, and provisions for the separation of powers, among other measures, with a view to ensure that leaders represent the interest of their constituency and not personal interests. In the words of Teachout, “taking seriously the architecture [of the Constitution] requires more than passing knowledge of what motivated the choice of architecture. Political corruption is context without which other specific words don’t make sense; it is embodied in the text itself through other words that can’t be understood without understanding corruption”.

History has shown that when leaders put their self-interest above those who elected them, it undermines the trust of the people in the process and inevitably leads to collapse of the democratic system. The Roman and Greek empires are classic examples. The danger of democracies leaving political corruption unchecked is succinctly captured by Teachout: “voters will stop voting, people will stop running for office, and citizens will stop making serious efforts to read news and understand the public issues of their day, because they will believe that such efforts are futile,” she writes.

In McConnell v. FEC, 540 U.S. 93,  which the Court overturned in Citizens United, the Court had made the following powerful comments:

“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the office holder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means to prevention is to identify and remove the temptation.”

Ignoring the threat of corruption to democracy is, therefore, a serious problem that cannot be taken lightly. I agree with Teachout when she writes that “internal decay of our political life due to power-and-wealth seeking by representatives and elites is a major and constant threat to our democracy. History provides some powerful tools to allow us incorporate the anti-corruption principle into the constitutional law of democracy. We should pay attention to it”. The recent decision of the Supreme Court ignores this history, undermining the Constitution’s efforts to curb corruption at the highest level.

The 5-4 conservative majority decision was delivered by Justice Anthony Kennedy ’61, and concurred in by Justice Samuel Alito, Chief Justice John Roberts ’79, Justice Clarence Thomas and Justice Antonin Scalia ’60. Justice Sonia Sotomayor began her Supreme Court career with a dissent. She joined four other liberal justices in disagreeing with the majority decision. The dissenting judgment delivered by Justice Stevens severely criticized the majority court for ignoring the dangerous consequence of the decision on democracy:

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics,” Justice Stevens wrote.

The decision overruled a decade of precedent laid down in McConnell, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002, which restricted campaign spending by corporations and unions, as well as Austin v. Michigan Chamber of Commerce, 494 U.S. 652, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates.

In his weekly address on Saturday, President Barack Obama ’91 criticized the decision as “a huge victory to the special interests and their lobbyists”. The President expressed his disappointment with the ruling,  saying that he could not “think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections”.  He noted that even foreign corporations would now have say in U.S. politics; candidates that disagreed with corporations would come under serious
attack from the corporations during election.

Obama went on to observe that “all of us, regardless of party, should be worried that it will be that much harder to get fair, common-sense financial reforms, or close unwarranted tax loopholes that reward corporations from sheltering their income or shipping American jobs offshore”. He also cautioned that the decision makes it “more difficult to pass common-sense laws” to promote energy independence or expand health care.

The danger is clear!

The competition will now be intense among the corporations to producing the highest number of Senators and Representatives. Doesn’t this undermine the role of the public in the American democracy? Can individuals’ contribution to candidates now count in the campaign process? Will this be the last Congress that is truly elected by the people? How much would this decision contributing in promoting institutional corruption? I am sure most politicians will be more concerned about pleasing the corporations than their constituencies. It will be dangerous for any of them to fall out with the corporations.

American democracy has been a model to many countries across the globe. But the recent decision by the Supreme Court legalizing direct corporate participation which over turn a time revered restriction on the corporation is a worrisome development that deserve concern of anyone that is interested in American democracy’s future. Citizens United has introduced a new era in the U.S. politics.

The Constitution’s “We the People” has gradually become “We the Corporations”. Equating corporations with human beings undoubtedly undermines the participation of individual citizens in the political process. Election into political office under the new regime will largely depend on having the highest donation from the corporations. Corporations and their interests, which sometimes include interest of foreign nationals, will now have the strongest voice in the U.S. politics.

It will not be surprising to see Blackwater, Wal-Mart, Exxon and other corporations being better represented in Congress than citizens, whose interest and participation the Constitution seeks to preserve. This is an unwelcome development that anyone concerned about preserving the U.S.’ long-cherished democracy must oppose.

The matter of democratic integrity, transparency and accountability transcends the usual liberal/conservative or Democrat/Republican divide. It is an assault on democracy and negation of the text and original understanding of the Constitution as understood by the Founding Fathers, who strived to craft a document that would preserve democracy by protecting the interest of the electorate over and above other interests.

One might ask if there is anything Congress can do. Even before the decision was announced, an advocacy group called Change Congress was working to pursue the passage of a bipartisan bill called the Fair Elections Now Act. The bill is sponsored by congress men Sens. Dick Durbin (D-IL) and Arlen Specter (R-PA), and Reps. John Larson (D-CT) and Walter Jones (R-NC).

“Under this legislation, congressional candidates who raise a threshold number of small-dollar donations would qualify for a chunk of funding—several hundred thousand dollars for House, millions for many Senate races. If they accept this funding, they can’t raise big-dollar donations. But they can raise contributions up to $100, which would be matched four to one by a central fund. A reduced fee for TV airtime is also an element of this bill. This would create an incentive for politicians to opt into this system and run people-powered campaigns.”

President Obama said that he has instructed his advisers to work with Congress on a forceful, bipartisan response. In a New York Times op-ed, David D. Kirkpatrick wrote that because of the enormous threat of this decision to democracy, some members of Congress are working hard to introduce new laws that will, cure the defect by either

• Imposing a ban political advertising by corporations that hire lobbyists, receive government money, or collect most of their revenue abroad;

• Tightening rules against coordination between campaigns and outside groups so that, for example, they could not hire the same advertising firms or consultants; or

• Requiring shareholder approval of political expenditures, or even forcing chief executives to appear as sponsors of commercials their companies pay for.

What is really necessary need, as Professor Lessig puts it, is an alternative, “Not the alternative that tries to silence any speaker but an alternative that allows us to believe once again that our government is guided by reason or judgment or even just the politics of the people in a district and not by the need to raise money.”

Aminu Gamawa is an LL.M. student from Nigeria.