Obama should be wary of military advice on Afghanistan


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

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

Who was really behind Lockerbie?


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

The attack

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

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

The trial

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

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

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

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

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

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

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

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

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

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

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

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

The G-force in world politics


global g

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

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

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

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

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

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

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

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

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

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

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

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


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

10. Don’t Wait for the Ball

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

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

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

9. Don’t be boring

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

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

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

7. Focus on the Forest, Not the Trees

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

6. Read Before and After Class

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

5. Don’t Just Settle for Blackletter Law

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

4. Law Is Not Distinct from Policy

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

3. Ask What Future Parties Would Want

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

2. Go Meta

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

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

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

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

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

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

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

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

Canned goods, ammo, and conservative paranoia


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

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

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

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

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

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

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

Cambridge, USA: The Shocking Return


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

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

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

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

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

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

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

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

Health care debate demands more analytical rigor


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

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

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

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

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

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

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

Michael Lumley is a 1L.

Highlights from the hilarious “birther” case


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

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

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

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

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

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

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

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


Former Dean Kagan made her debut before the Court on Wednesday

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

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

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

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

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

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

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

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

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

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


How long will California burn?


Anthony Citrano Briggs Terrrace Station Fire Flick


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



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



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



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



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



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



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



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



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



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


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Donec gravida posuere arcu. Nulla facilisi. Phasellus imperdiet. Vestibulum at metus. Integer euismod. Nullam placerat rhoncus sapien. Ut euismod. Praesent libero. Morbi pellentesque libero sit amet ante. Maecenas tellus. Maecenas erat. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas.

Donec gravida posuere arcu. Nulla facilisi. Phasellus imperdiet. Vestibulum at metus. Integer euismod. Nullam placerat rhoncus sapien. Ut euismod. Praesent libero. Morbi pellentesque libero sit amet ante. Maecenas tellus. Maecenas erat. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas.

Cambridge2Cambridge: In praise of the Socratic Method


Jacques-Louis David’s “The Death of Socrates”


Once again the Record catches up with JESSICA CORSI, our correspondent from the other Cambridge, who is pursuing her LL.M. at that vaunted U.K. institution. This week, Jessica bemoans the lack of the Socratic Method across the Pond and actually (gasp!)?longs to be called out in class.



I can say with all honesty that I miss the Socratic method. While it is the stuff of legends and pre-1L panic attacks in the U.S., it is not much heard of in the UK or in continental Europe. The style here is more autocratic lecture, with occasional suggestions that questions will be taken for 10 minutes at the end. This may sound attractive, and it certainly allows one to relax and be lazy in class, but let me tell you why it strikes fear into my heart.



The Socratic method sounds benevolent: a form of inquiry designed to help you learn and to reveal new lines of reasoning you did not know you had in you; a system to elucidate ideas and understandings; a way in which to tease out and challenge your underlying assumptions on the subject; a dialectic through which to train you to think critically about complicated issues. We all know why we hate it: we did not read for class; we do not feel comfortable talking out loud about this topic; we do not feel comfortable talking out loud in front of the class period; we did not wash out hair today so if we get called on everyone will notice our oily split ends; the professor is obviously cruel and is going to be deliberately horrible in their questioning because that’s what she does; the professor is picking on you to embarrass you because your hair looks like crap and that is so not fair.



The LL.M. at Cambridge certainly manages to sidestep all of the potential downsides of the Socratic method. On the flipside, without it you miss the daily engagements with these analytical skills and everything that you might learn from them. Undergraduates at Cambridge go at least weekly for what is called a “supervision”: a student-professor session that is either one on one, with a pair of students, or in a very small group, where after completing readings and handing in essays on the topic at hand, students enter into discussions led by the professor and they are challenged to defend their points, receiving feedback in the process.



We LL.M.s receive nothing of the sort. In contrast, while lectures are an optional part of the undergraduate course here, it seems this is almost all we do: we show up to lecture; if we are lucky the professor has prepared a handout which is circulated to the class; and then we sit and listen for two hours. Nary a person raises her hand; sometimes when a hand is raised the question is scuttled to the ten minute question period I mentioned earlier. No debate is engaged in. The only sound is the professor talking on and on; that is if you can even hear her. With no one willing to raise a hand, even something basic like “could you please speak up” can go unsaid.



LL.M.s here do not write essays either. We begin in October. Yet the very first date that we can hand anything in for a grade is May 1, if we are writing a thesis or a long essay. Otherwise, we take exams in late May or early June, and call it a day. That’s it-8 hours a week in class spent listening; 3 hours in a handful of exams; and you have earned your masters in law. Behind the scenes you read all the time, deciding for yourself what to choose from the assigned reading lists, as very little is marked as required reading; and as you read you are trying to figure it all out. I suppose the idea is that having a previous law degree, you would know how to make sense of it all; you would have in your head the professor and the classmates and you could orchestrate the great debate on your own.



Many LL.M.s are not taking new courses, but the same courses they took in their previous law degree, because they believe that the masters is an extension and deepening of their bachelor’s in law. Some are taking the same courses at the same school, having just completed their bachelor in law here at Cambridge. It might make sense in that specific case to let people work independently, because it would allow them to use their base knowledge to learn deeper facets of these subjects as they saw fit.



But what about me-one of four students here who do not actually have a law degree yet. Can I recreate those daily debates in my head? Have I found those fifteen other people that might have been questioned in class to explain to me their impressions of the case and their thoughts on the legal issues under discussion? What do you think?



No, of course I have not! And this is why I miss the Socratic method: all of these months, all of these cases and treaties, all of these law review articles, and no one to challenge me or help me see why I am right, wrong, or somewhere in-between. I do not mind being an independent worker or an independent learner-I love it, and that is one of the reasons I love being here-but I expect that in an academic environment someone will guide me along, whether that be my professors or peers of both. That is one of the reasons why academic communities exist-to support each other in learning so that we can reach conclusions and achievements we could not have reached on our own.



Don’t get me wrong; there are many things that I do not miss about being questioned daily, like having to say I didn’t read today so could you please ask someone else, or saying something ridiculous in front of 80 other people. But I am in fact missing the Socratic method, because I think it does what it is meant to do: help us learn both the subject matter and a new way of seeing things. I would settle for any alternative: seminar discussions, volunteer conversations in class, graded essays, because I would like to see if my year here has added anything to what is inside my head. Given that we’re into April, my related thought is that I’d like to know if the process of improving my legal knowledge and understandings is underway before I take my exams. Alas, I shall have to wait and see with the rest of my class. Rest assured that all of the fingers that could be crossed and still leave my hands free enough to write this article have been welded into place.


Amos’s Sermon: Appreciating the Triumph of Truth

BERLIN, October 29, 2005 – It all started with a lie. The annexation of Austria. The invasion of Poland. The foray into Russia. The genocide of six million Jews and elimination of six million others, and the abuse of millions more who survived long enough for the Allies’ liberation of the concentration camps and the countries occupied by Adolph Hitler’s Germany sixty years ago this year. This is the city from which the villains of the Third Reich ruled. Fifty million people died in World War II, and it all happened because of the lie that is racism.

Walking the streets of this city reunified in 1990 after the Cold War intersession, I was constantly reminded of the destruction and despair characterizing the 12-year reign of terror under-girded by the lie. Informed by “The Last Days of World War II,” a powerful History Channel documentary series airing this year, I imagined what life must have been like for those Berliners on whom Hitler turned after his demise was assured: for instance, the ragtag regiment of old men and boys ill-fatedly enlisted to defend this city that was supposed to have served as the governmental seat of a thousand-year Reich. Misinformation and historical inaccuracies were the currency of the war-waging era, and also of the communist period that kept millions of East Germans disconsolate for 45 years after the war.

Lies can be so costly.

For one thing, Hitler claimed that his volk were Aryans. They more accurately were Slavs. Not that it mattered, though; if he had known better, Der Führer simply would have asserted the superiority of the Slavic people – the way bigoted leaders in other parts of the world have done since World War II in other parts of the world. Fabrications and ethnocentrism are equal-opportunity visitors among cultures.

As disciplined liars, the Nazis corrupted the attributes of science and industry to build an edifice of evil the world had never known. Tens of millions of ordinary people facilitated the terror. And, although brave and brilliant German dissidents like Admiral Wilhelm Canaris and the Rev. Dr. Dietrich Bonhoeffer fought the regime, even orchestrating an assassination attempt on Hitler himself, they had little popular reinforcement. They were captured and executed.

The demise of fact

Before shuttling to Berlin on the cheap for three days during our annual fly-out week, I attended a lecture across campus titled “The Demise of Fact in Political Discussion.” Delivered on Tuesday by the highly regarded communications expert Kathleen Hall Jamieson of the University of Pennsylvania and sponsored by the Radcliffe Institute for Advanced Study, it presented her argument that today’s political partisans are challenging what once would have been considered fact, molding their readings of fact to political goals and preventing real deliberation from taking place. Critiquing both major American parties, she convincingly called out the new tendency to disrespect facts in favor of manipulating evidence such that we “alter the deliberative domain” in a way favorable to our own policy positions.

Jamieson lamented adherence to facts “as convenient to ideology” and questioned the media’s “split-the-difference relativism,” which lazily reports as though certain facts are disputed simply because one side says that they are. The result is a political process flawed because adversaries are “anchored in their own ideological enclave, regardless of the facts.” (For an example of how this problem can play out, compare HLS Lambda President Jeffrey Paik’s denials (A Response to Amos’s Sermon, October 20, 2005) to the facts presented in my last sermon (On Carter G. Woodson and the Lambda-sponsored ‘sit-in,’ October 13, 2005). For the paradigm for intentional omission as the manufactory of self-exculpating evidence in the black-history context, see Dred Scott.)

While de-Nazified Germany and the world have risen above the treachery of Hitler, a new generation of Germans contends with the baggage of their forebears, whose actuality presents disputes over ill-gotten gains and reparations for what was stolen in the first place. As historian Brian Ladd emphasizes in his 1997 book, “The Ghosts of Berlin: Confronting German History in the Urban Landscape,” although the contemporary crisis of historical confidence is not unique to Germans, they may lead the world in agonized self-examination. The upside is that virtually everybody now agrees on the most elemental historical facts.

The costs of correcting

We can thank a number of dedicated journalists and historians for ensuring that the truth has come out. In many cases, it has taken them years to correct distorted records. Sometimes chroniclers of fact have found it necessary to confront and fight liars publicly. Exposing these most intransigent wretches rarely goes unpunished.

The cover of the current Emory Magazine features a triumphant Deborah Lipstadt, that Southern university’s Dorot Professor of Modern Jewish History and Holocaust Studies, who in February released “History on Trial: My Day in Court with David Irving.” In this book, she recounts the landmark libel trial in the United Kingdom that resulted five years ago in her being cleared of charges brought by a famous Holocaust denier who claimed that she defamed him inasmuch as the Holocaust never occurred. The British legal system essentially required Professor Lipstadt, an unimpeachable authority on the Holocaust, to prove in court that the Holocaust happened. The trial was five years ago. She won.

A recent obituary in The Economist pays tribute to Simon Wiesenthal, a famed Nazi hunter who died on September 20 at the age of 96. The article began: “One of the stranger conversations in Simon Wiesenthal’s life occurred in September 1944. He was being taken by SS guards, in his faded striped uniform, away from the advancing Russians. Somewhere in the middle of Poland, he and an SS corporal scavenged together for potatoes. What, the corporal asked him mockingly, would he tell someone in America about the death camps? Mr. Wiesenthal said he would tell the truth. ‘They wouldn’t believe you,’ the corporal replied.” We know the rest of the story. Wiesenthal, a successful architect prior to the Holocaust who lost 89 family members in The Final Solution, eventually was released from the Mauthausen concentration camp, opened the Jewish Documentation Centre in Vienna, and helped to track down more than 1,100 Nazis. Since 1945, hundreds of Nazi escapees all over the world have been outted as fugitives, called to account for their actions, and punished. Wiesenthal’s concurrent pursuit was to remind the world about the dangers of Nazism and to warn on the lecture circuit and in books about motivating trends in far-right politics. Insisting that world leaders had a duty to combat racism, he faced constant threats. In 1982 neo-Nazis blew up his house. Yet Wiesenthal pressed on, because, according to The Economist, “his survival of the Holocaust gave him a duty to seek justice for the millions who died.”

On Monday, our own country paid tribute to Rosa Parks, the civil-rights pioneer who rejected white racism fifty years ago, December 1, when she refused to leave her seat for a white man on an Alabama bus. As E.R. Shipp of the New York Times wrote last week, black Americans had been arrested and killed for disobeying bus drivers. Inspired by Parks’s stand and directed by the Rev. Dr. Martin Luther King, Jr., blacks in Montgomery took the heat and fought the power, coordinating an impressive and sacrificial 381-day boycott that succeeded. Over the next thirteen years, the Civil Rights Movement forced America closer to fulfilling the promises it claimed on paper. The dark side of the story too often forgotten is that progress came at a significant cost. As the cradle of the movement, nearly ten of Montgomery’s black churches were firebombed the evening the court order forcing desegregation of the buses was announced. Once i
ntegrated, many buses were shot at terrorism-style. Within weeks of the integration, the Parks family had to leave Montgomery for good because of white people’s violent retaliation against them. The family would settle in Detroit, where Rosa Parks died at the age of 92, on October 24.

Respecting honesty

It was predictable that Lipstadt, Wiesenthal, and Parks would make bold enemies on their righteous missions to reconcile the human family. History reveals that liars hate the truth and the people who tell it. Recall that prophets tend to be murdered. Yet ordinary people, the backbones of mass social movements, often understand the challenge and appreciate the response.

Gazing at the Rosa Parks bus exhibit in the Detroit area’s Ford museum during chilly weather last week, 75-year-old Ruth Matthews, a black American, remembered the days when she could not sit at certain tables or in certain seats. She paused at the bus draped in black and purple bunting in Parks’s honor. “For once,” she told the New York Times, “somebody had the courage to stand up for the truth.” Marty Smith, who answers visitors’ questions as a guide in the Ebenezer Baptist Church, a King-district tourism site in Atlanta, said of the early civil rights activists, “In today’s time, you can’t find people who will stand up and do the right thing for the causes they stood up for.”

Bill Pretzer, a curator of political history at the Ford museum, revealed how student visitors today often are in disbelief that what happened on the bus could have occurred in America: “They say, ‘What do you mean can’t sit there? That’s impossible,'” he told a reporter. “Which is why we need to keep looking at this. There is a danger that if we don’t spark peoples’ imaginations as to what in fact happened, we risk it one day happening again.”

Amos Jones is a 3L from Lexington, Ky. Reach him at amosjonescomment@aol.com.

Firm Flexibility

I’m grateful for the opportunity to share some OCI expertise with you, 2Ls. After a full year at a law firm, it’s about time that I speak with expertise on something.

Let’s call a spade a spade: OCI is chaotic. Each of you has the opportunity to interview with dozens of law firms. Among those firms, you’ll select one or two for your 2L summer. And spending a summer with a law firm leads, more often than not, to post-HLS employment. Facing a major career decision, you’re narrowing a lot of law firms down in a very short amount of time, too often on too little information.

Right? Maybe. But it needn’t be that way. At least, it wasn’t that way for me. So here’s a bit of free advice, for what it’s worth.

First, a quick recap of how I ended up where I am:

I came to law school sure that I’d graduate, move to the West Coast, and practice Intellectual Property law. Well, to be more specific, “Internet Law.” (It didn’t seem so ridiculous at the time. Honest.) But within a couple months, I lost interest in the subject, and started to broaden my pursuits.

Sending out forty-odd resumes, I landed a 1L summer spot at an international law firm based in Chicago, doing tax litigation. It was a great firm, with great people. Had I wanted to do tax litigation in Chicago, I would have ended up there. But I didn’t. So I didn’t.

My 2L year, I was sure I wanted to practice securities and antitrust law in Washington. So I interviewed with a good number of D.C. firms; got a callback with my number one pick; but didn’t get an offer. I went with my number two pick, one of the two or three “elite” Beltway firms. I had a fantastic time, got an offer, and planned to return after graduation.

But I wanted to clerk, so the following fall I sent out a handful of resumes. As luck would have it, the only judge I heard back from was the judge I wanted to clerk for most of all. As luck would further have it, I got the job. Per my judge’s request, I politely declined the firm’s offer.

The clerkship was a real joy. And it was in that clerkship that I found an area of law that sparked my interest: Energy Law.

Most D.C. Circuit clerks do their best to avoid FERC (i.e., Federal Energy Regulatory Commission) cases; they find them complicated and boring. But for whatever reason-probably my background in economics and my interest in Administrative Law, lousy course grade notwithstanding- I loved them.

So when it came time to think about firms, I knew what I wanted: A firm where I could practice Energy Law, and Appellate Law more generally. A firm that was smaller than my 1L and 2L summer firms, yet had a range of quality practice groups, and one that put a lot of responsibility on new associates. I looked around, asked around, and quickly found a firm I thought fit my criteria. I couldn’t have picked a better firm to suit me.

My point is not to advertise my firm to you. (You’re getting more than enough advertisement this month, and I’m not going to waste your time with a shameless promo for my employer.)

My point, rather, is what I think my experience exemplifies: the need for you to maintain your flexibility and open-mindedness as you meet with law firms and pick your 2L summer firm.

You may be dead-set on what kind of law you want to practice. (If so, I’d bet dollars to donuts that you’re an ex-engineer who wants to practice IP.) But unless you’re absolutely sure, then I can’t stress enough how important it is to avoid fixating yourself on a narrow practice.

My interests shifted from Intellectual Property to Securities to Antitrust to Energy. Had you told me at the beginning of my 2L year that I’d be doing what I’m doing today, I wouldn’t have believed it; in Fall 2002, Energy Law had never occurred to me. But by keeping my mind open, even as I worked through my 2L, 3L, and clerkship years, I managed to find a subject matter that (unexpectedly) fit me.

So take the subject or two that already interests you, and look for a firm that will let you work in those areas. But also look for a firm that will let you try other things. And during your summer, try a few different things.

Flexibility in figuring out what you want in a firm has an added benefit: It vastly reduces the pressure you’ll put on yourself in picking a firm. As I noted above, I don’t work today at either of the firms I summered at. And I’m not the only one. Go into OCI knowing that if you decide that your 2L firm isn’t the right fit, you’ll have plenty of opportunities to look around again.

Or, as in my case, even the firm that feels right may not be the firm you end up with after all. Trust me, things could be worse.

Best of luck this week.

Adam White ’04 is an associate at Baker Botts L.L.P. in Washington, D.C. and was editorial page editor of The Record. The views expressed in this essay should not be taken to represent the views of his employer.