Harvard’s patent policy limits access to drugs by world’s poor



About a third of the world’s population, or roughly two billion people, lacks even the most basic access to essential medicines. Each year an estimated 25 million individuals, 10 million of them children, die of treatable and preventable diseases. A large share of those deaths could be averted by low-cost access to pharmaceuticals developed and patented by U.S. universities. University patents are found in a quarter of HIV/AIDS drugs and a fifth of high-impact drugs approved between 1988 and 2005.  The number of university patents has been on the rise since the 1980 passage of the Bayh-Dole Act, which gave universities title to patents arising from federal funding.  Once a university obtains a patent, it will typically license the patent to pharmaceutical companies for further development and commercialization. However, unlike pharmaceutical companies, which are tied to profit margins, universities are non-profit actors whose work is largely financed by public funding. Therefore, universities have a special obligation to ensure access to their research. 

In 2001, a group of Yale students learned that d4T (stavudine), an HIV antiretroviral drug patented by Yale and licensed to Bristol-Myers Squibb, was being sold at outrageous prices overseas, blocking off access for HIV patients living in South Africa and other developing countries. Troubled that Yale-developed drugs were being priced out of reach for HIV patients, the students joined in a publicity campaign that eventually pressured the university and pharmaceutical company into reducing the price of the drug and making it available for generic production in South Africa. Today, the organization those students founded, Universities Allied for Essential Medicines (UAEM), continues to advocate making university-developed drugs available to poor countries at low cost. 

On November 9th, the campaign for increased access scored a significant victory when Harvard and five other research universities signed a statement of principles pledging to “promote the availability of health-related technologies in developing countries for essential medical care.” The policy represents an important step forward for Harvard, which is both a research powerhouse for diseases such as AIDS and malaria, as well as a leader in the global technology access movement. However, the policy does not go far enough in several important ways. 

First, it is not clear the new policy represents an improvement over current licensing practices. Harvard has included global access provisions in only 5 of the 62 licenses concluded over the past two years. However, these licensing agreements are secret, so the nature of the access provisions, the number of medical licenses, and even the identity of the drugs covered, remain opaque. The new policy promises that Harvard’s intellectual property will not pose a barrier to essential medicine access in the developing world. It also commits to applying “meaningful metrics” to evaluate the success of its efforts.  This commitment is extremely vague. It does not address what the metrics are or how they will be applied in the context of individual agreements. How meaningful will the composite, retrospective metrics be, especially when so few agreements are concluded each year? 

Second, while the policy also sets out a menu of licensing options, it does not assemble these options into a coherent plan that would facilitate access to Harvard licensed drugs.  University licenses can impose global access conditions on pharmaceutical licensees in a variety of ways. Some of the most discussed options include: (1) Requirements that NGOs receive the rights to distribute discounted or donated drugs for humanitarian purposes (though NGOs rarely have the capacity to meet the needs of all patients in poor countries). (2) Tiered pricing for low-income and high-income patients in countries with a significant income gap, such as China or India (a difficult policy to administer and enforce). (3) “March-in rights” which allow the patent holder to revoke the licencee’s rights and license the patent to another company, if, for example, a global access condition is breached. (4) Financial incentives, such as forgiveness of university royalties, for licensees in exchange for providing low-cost drugs in the developing world. (5) Mandatory sub-licenses to specific generic manufacturers in developing countries. (6) Non-patenting policies, where the university simply does not patent in poor countries, allowing any manufacturer to make generic versions of the drug without a license.

The new policy requires universities to select among these options with the goal of “align[ing] incentives among all stakeholders.” This is a vague standard. Future policies should instead guarantee that a minimum level of access is negotiated into all relevant licenses; alternately, universities should commit to making access a primary consideration in negotiating global access provisions. A mandatory policy would reduce the need for transparency and oversight and might also give universities greater leverage and credibility in negotiating agreements with pharmaceutical licensees. As it stands, however, the policy does not articulate a clear, access-based strategy.

Third, under the new policy, Harvard will continue the practice of asserting patents in the so-called “BRIC” countries (Brazil, Russia, India, and China), in addition to patenting in developed regions such as Europe and North America. The BRIC countries produce over 40 percent of the active ingredients in the world’s generic and over-the-counter pharmaceuticals, and remain the only source of generic drugs outside the developed world. The effect of patenting in BRIC countries would be to close the “pharmacy to the developing world,” shutting down all sources of generic production bound for developing countries. Generic manufacturing represents the most sustainable option for delivering drugs to the poor, compared to the relatively stopgap measures of sublicensing and royalty forgiveness.

Finally, Harvard has stated that the policy will not apply to drugs for non-communicable diseases, even though these diseases are major killers in the developing world. The developing world now accounts for 80% of the world’s deaths from non-communicable diseases such as heart disease, cancer, and diabetes. While HIV/AIDS and malaria are often the first things to come to mind when thinking about global health, the problem of access extends beyond those two high-profile causes. 

The policy for non-communicable disease drugs might be explained by a deference to three pharmaceutical company concerns. The first concern is “parallel importation” – the idea that discounted or generic drugs meant for distribution in the developing world will be smuggled back to the developed world and sold through black markets. Unlike malaria or tuberculosis drugs, non-communicable disease drugs have significant markets in both the developed and developing worlds. There is scant evidence that parallel importation of donated or discounted drugs exists or poses a threat to industry profits. HHS estimates that about 10 million shipments of unapproved prescription drugs entered the U.S. in 2003; however most of these originated in Canada or Mexico.  It is not clear what percentage, if any, of these imports represented discounted or donated drugs that were destined for poor countries. A fair portion of these parallel imports consist of counterfeit or illegal drugs, rather than legitimate generic or brand-name drugs, according to HHS. The European Union allows parallel importation among its member states, but even the EU has experienced very few instances of parallel importation of drugs destined for the developing world. After incidents like the one in 2002 when GlaxoSmithKline discovered a trader had diverted 44,000 packs of HIV/AIDS medications from five African countries, governments have cracked down on these types of shipments. Manufacturers have also  adopted techniques like color-coding and special pa
ckaging to counter smuggling. As long as drugs are sold at a lower price in the developing world than the developed world, there will be an incentive for parallel importation. However, the solution is not to sell drugs to the developing world at the same price as the developed world, but rather to combat the smuggling. 

The second concern is that pharmaceutical companies, and by extension universities, will lose profits by forgoing potential pharmaceutical sales in the developing world. Pharmaceutical companies have publicly stated that they will seek to recoup any profits lost as a result of healthcare reform by raising prices in poorer nations (see, for example, “Drug Firms See Poorer Nations as Sales Cure,” Wall Street Journal, July 7, 2009).  Medications for chronic, long-term diseases like heart disease, cancer, and diabetes, are lucrative pharmaceutical sellers, and thus represent the best way for pharmaceutical companies to maintain their double-digit profit margins.  However the developing world represents a miniscule portion of pharmaceutical profits. PhRMA, the industry lobby, concedes that Africa comprised only 0.5% of sales in 2007, with China and India at 0.6% and 0.2% respectively. By comparison, the U.S. represented 67.7% of 2007 world sales. With the developing world accounting for such a small percentage of overall sales, pharmaceutical companies cannot claim that global access provisions would drastically alter their R&D incentives or lower their profit margins. Moreover, universities rarely make money off of their licenses. In 2007, Harvard University had about $1.88B in total research expenditures, but only $12M in license income.  Universities will occasionally hit the jackpot with isolated blockbuster drugs – New York University and Columbia had the highest licensing revenues in 2007 with $791.1M and $135.6M respectively, each from single deals. These amounts are almost never high enough to offset universities’ research expenditures.

The third concern is that global access provisions will serve as a “poison pill,” discouraging pharmaceutical companies from licensing with universities that require such provisions. This risk is probably overstated. Pharmaceutical companies will still compete to license promising drugs. Furthermore, licenses are primarily made with small companies (49.9% of deals) or start-ups (16.5%), many of them formed by the researcher who originally discovered the technology. These companies take the drug a bit further down the development pipeline before licensing to a big pharmaceutical company. Global access provisions are unlikely to change the first licensee’s decision to license, especially if the licensee has discovered the drug. For the second licensee, often a large pharmaceutical company, global access provisions are unlikely to discourage licensing for a drug with demonstrated value.

Since these concerns remain unproven, they should not serve as a basis for unnecessary concessions to pharmaceutical companies. If Harvard continues to enforce its patents in a way that prevents generic manufacturing of essential medicines, it will create a real barrier between these drugs and the people in developing countries who need them the most.

Maria van Wagenberg is a 2L.

Cambridge, USA: Punch-drunk hate at Harvard-Yale



The time had come in my HLS career to show some school spirit: I was going to Harvard-Yale.  I’m not normally a school spirit person, and even growing up in Texas had not made me interested in socializing around football.  But my year at Cambridge University had changed me into a person who enjoyed engaging in petty rivalries alongside hordes of affiliated University revelers.  So, I decided that there was no time like my last semester to engage in this supposedly quintessential Harvard experience.  And with that, we were off to New Haven, dressed in Crimson and ready to wave our white and red pompoms.  I didn’t even have to feign excitement; I was genuinely psyched to go.

We arrived late.  We had ambitiously promised a friend that we would drive down at dawn to catch the traditional 9am Harvard-Yale Law Review game of (flag) football.  We were obviously hallucinating when we said this.  We hit the road around ten, and began seeing signs for New Haven around kick-off time.  No problem, we said to ourselves.  We’ll still see plenty of action, if there was any action to be seen; after all, Harvard and Yale are not the country’s premier football schools.  But whatever happened, we were going to be there, screaming and chanting while juggling our funnel cake and beer.

There is something inherently hilarious about a football rivalry between Harvard and Yale.  The real rivalry between the schools is of course the question of who is smarter, more elite, more prestigious, more likely to take over the world.  There’s also the Cambridge-New Haven rivalry, in which we hate on each other’s cities.  But, fine, let’s pretend its about football for a minute.  However you want to classify it, we were looking forward to acting like pro-Harvard anti-Yale jerks for a few hours.

It was a stunningly sunny day—an auspicious beginning. We walked into the stadium grounds (the Bulldog’s den!) and were met by civilized teasing.  A golf cart of blue clad men trundled by, clutching Budweisers.  “Go back to Boston!” they yelled, laughing. Come on, that was all they had in them? “We will!” I yelled back. “In about five hours!”  As we left the tailgating area, a few couples attempted to come up with something witty and harsh and could only stutter, “Ew, is that Crimson?”  I turned around. Were we being referred to as a personified color? “Barf!” they giggled.   I waved my pompoms in their face and they broke out laughing.  On the way into the stadium, two Yale men asked me to pose for a picture with them in front of the giant inflatable Bulldog.  Just to show they meant business, they attempted to give me bunny ears. 

This was hardcore rivalry, alright. Across the stadium, a friend of mine doing a PhD at Yale was at the Forestry School’s barbeque. She gushed to me that they were roasting oysters sprinkled with cilantro. 

Arriving late was the accidentally smart thing to do.  We loaded up on fried food and piled into our seats at the end of the third quarter.  Depressingly, the score was Yale: 10, Harvard: 0, and the mood was pessimistic.  My friend turned to me in angst. “What do you think they’re going to do?” he said, gesturing at Harvard’s team.  I am not the right person to ask about these questions.  I follow the game by mimicking what the rest of the crowd is doing.  “I think they’re going to play football,” I said. “I mean what will they DO?”  I stared back at him, and then I offered up a distraction.  “Funnel cake?” He does love funnel cake.

We tried getting serious about footstomping, but the mood was not contagious.  A group of our LL.M. friends abandoned hope just before the start of the fourth quarter and left to tour Yale’s campus.  What they missed was a surprising and triumphant comeback. Harvard capitalized on poor playcalling by Yale to win the game 14-10. 

This was it! This was the reason we drove all the way down to New Haven on a Saturday morning! The crowd poured onto the field.  We filed out to the funnel cake stand, again.  No sense in getting in their way.

We shuffled back into town with the masses, high on the victory and sugar, and I was feeling particularly obnoxious. “Stinks to be you!” I laughed at a man in a Yale shirt.  “Do you want to get punched in the face right now?” he asked, glaring at me.  Uhm, NO.  “Do you want to learn to take a joke right now?” I asked.  This man was threatening to punch a girl in the face because she was lording a football victory over him?

He wasn’t backing down.  “I play on the team,” he growled. Well that explained things.  I sized him up.  Apparently, Yale had recruited some very small football players that like to punch girls in the face. But victory had been destined to be ours from the very beginning.  “Yeah, okay,” I responded.  “So you play on the team. Sorry.”  He kept glaring.  “Hey man—don’t worry!” one of my friends reassured him, in a cheery voice.  “You’ll come back next time!”

Traitor! Why was he even speaking to him? This little person had just threatened to hit me! He was psychotic! “Whatever,” the small angry football player spit out, stumbling into the forest on the side of the road.

“What the hell was that?!” we asked each other, before deciding to head for pizza, the one thing that New Haven may do better than Cambridge.  But the day was ours.  Victory was delicious, and not even hostile miniature football players could take that away from us.

Switzerland’s minaret ban about more than xenophobia


The controversial poster displayed around Switzerland in support of a ban on new minarets.
A Turkish mosque in Wangen bei Olten, Switzerland sports one of the country?s four minarets.

Switzerland’s vote to ban the construction of minarets, the prayer towers of mosques, was greeted with a mixture of astonishment and disbelief around the world. The impact of this decision was certainly magnified by the fact that – coincidentally – it occurred on the last day of the “Festival of Sacrifice” (Eid al-Adha), a holiday celebrated by Muslims worldwide. Some commentators have already suggested that the vote will spark a backlash similar to the one triggered in 2005 by the publication in a Danish newspaper of cartoons representing the Prophet Muhammad. This makes it critical to shed light on the legal and political process that led to this vote.

Switzerland takes pride in a century-old political system which allows its citizens to have the last word on almost any important issue regarding their country. The Swiss Constitution grants each citizen the right of initiative, i.e. the right to propose a constitutional amendment which, if signed by at least 100,000 citizens, is then submitted to a popular vote.

In July 2008, a minor conservative political party announced that it had collected the required number of signatures to force a vote on the prohibition of the construction of minarets in Switzerland. This proposal was immediately opposed by three of the four main political parties that share power within the Swiss government. The fourth main political force endorsed the initiative, but only half-heartedly. At the outset of the political campaign, a number of Swiss cities, citing concerns under Swiss anti-racism laws, announced their intent to ban from their streets the posters the proponents of the initiative  printed, showing missile-shaped minarets piercing a Swiss flag. This proved to be a costly strategic mistake by the initiative’s adversaries. From then on, the public debate focused essentially on the limits of freedom of expression and touched only very superficially on the significance of this initiative for the interfaith relationship in Swiss society. All the polls published in the weeks preceding the vote suggested that the initiative would be solidly rejected. Sunday’s result therefore came as a colossal surprise for the country and for the entire world.

Against this background, it is worth noting that the initiative does not ban the construction of mosques or the exercise of the Muslim religion as such, but only the construction of minarets on mosques. The four minarets that currently exist in Switzerland are not affected by the vote, nor are the approximately 400,000 Muslims living in Switzerland restricted in any way from practicing their faith in their places of worship. That being said, this formalistic approach to the scope of the initiative fails to reflect the symbolic power of the message sent by a majority of Swiss voters this Sunday.

Some commentators have argued that this initiative might be contrary to the liberty of religion, as guaranteed by the European Convention on Human Rights, to which Switzerland has been a party since 1974. But the practical consequences deriving from the conflict between Switzerland’s duties under an international treaty and a constitutional amendment ratified by an overwhelming majority of Swiss voters are unclear, and are currently the subject of a heated debate among Swiss law professors and politicians. 

More importantly, this vote cannot and should not be seen as the ultimate proof of a predominantly anti-Muslim sentiment within the Swiss population, despite the fact that this decision casts a shadow on Switzerland’s image as an open and tolerant country. This vote rather reflects a sentiment of fear and uncertainty that recently grasped this country. In the past months, some of the fundamental pillars that defined the Swiss society over the past century were shaken to the core, particularly following the disclosure of the dire financial situation of its flagship banks and the relentless attacks on the Swiss banking secrecy. Furthermore, an on-going diplomatic row with Libya following an incident involving the Libyan leader’s son in Geneva may also have been on voters’ minds when they cast their ballots.

But it is also worth pointing out that , until recently, the Swiss Constitution contained a provision whereby the creation of a new Catholic diocese was subject to the approval of the federal government. Given the Protestant alignment of the Swiss government at the time this provision was introduced in 1874, the requirement for a prior approval was tantamount to an outright ban. In 2001, Swiss voters decided, again in a popular vote, to remove this discriminatory legal provision. Sadly, the blank line left in the text of the Constitution by the 2001 vote will now be filled with the new provision banning the construction of minarets.

Sunday’s vote will probably be seen around the world as a step backwards on the road towards the peaceful cohabitation of religions. This notwithstanding, this decision – which was taken democratically in a sovereign country and therefore ought to be respected – must be considered as a unique opportunity to initiate a profound dialogue with the Muslim communities, both in Switzerland and elsewhere in the Western world, in order to define the necessary preconditions of a peaceful and harmonious coexistence.
Philipp Fischer LL.M. ’09 is a Swiss national who currently works in New York.


Copenhagen climate summit will fail due to poor U.S. commitment


A tugboat on London’s Thames River pulls an ice floe with a polar bear stuck on it to illustrate the effects of climate change.

From December 7 to 18, the representatives of 192 nations will gather in Copenhagen, Denmark, to decide the fate of the human race. Will we continue to live in a world with a stable climate, or will we condemn ours and future generations to a world with steadily decreasing amounts of food and water as the population is set to dramatically increase? 

Among the attendees will be President Barack Obama ’91 and the heads of state of close to 100 nations, including Australia, Brazil, Canada, China, France, Germany, and the UK.

The original goals of the summit was to try to reach an agreement to keep temperature increases to less than two degrees Celsius; thereby forestalling what scientists said would be the worst consequences of global warming.  This two degree goal was based on a report by the Intergovernmental Panel on Climate Change, the Nobel-winning body charged with summarizing all of the available scientific literature on global climatic disruption.

This body was not empowered to make recommendations, but their analysis revealed that to have a 50% chance of avoiding two degrees, we would need to stabilize emissions at 450 parts per million (ppm) of Carbon Dioxide in the atmosphere.

In order to earn that 50% chance, developed nations like the US would need to reduce their emissions between 25-40% below 1990 levels of emissions by the year 2020, and by 80-95% by 2050.  Since most heads of state will not be in office in 2050, the 2020 goals are much more telling of the current state of affairs:

The European Union has pledged to reduce emissions across the block by 20% below 1990 levels by 2020, and increase that pledge to 30% if other nations similarly follow suit.  Some European nations have pledged even more:  Norway has pledged to reduce its emissions a full 40% by 2020 (what most developing nations are now calling for); and our strong ally the UK has pledged to reduce its emissions 34% below 1990 levels by 2020.  Japan, too has stepped up, with a 25% below 1990 levels pledge by 2020.

So how is Obama ‘reclaiming’ American leadership and returning us to good-standing in the international community?  He is going with a pledge of 17% below 2005 levels by 2020.  While this sounds fairly close to what other nations are doing, it is indeed a national embarrassment.  In 1990 levels, when most of our rich peers are in the 20-40% range, Obama is going to Copenhagen with a pledge to reduce emissions by only 3% below 1990 levels by 2020.

Canada and Australia are using U.S. intransigence as an excuse to refuse to be less aggressive, but they would quickly fall into line if we stepped up to the plate.  But more frustrating and damning is that developing nations can also use our failure to lead as an excuse.

All observers recognize that China, India, and other major developing nations will have to agree to binding emissions reductions if we to avert catastrophe.  Yet with Obama coming to the table with such a measly pledge, it is hard for those nations to go back to their people having made any substantial commitments themselves.  So, despite the courageous leadership of developing nations like the Maldives, Brazil, Mexico, Ghana, and others, which are willing to make significant emissions reduction pledges, China and India are looking to only pledge to reduce the rate of growth of their emissions.

To make things even worse, leading scientists now believe that the 450 target that countries are failing to even have a 50% chance of hitting is outdated and overly conservative.  NASA’s leading climate scientist, Dr. James Hansen, Director of the Goddard Institute for Space Studies, has determined that the highest safe level of CO2 in the atmosphere is 350 parts per million (ppm).  We are now at 390ppm and climbing quickly, on pace to hit over 900 by the end of the century.  The world has not had CO2 levels stabilize at 400ppm for some 13 million years, long before human beings walked the planet, much less rode on it in carts or cars.  This goal has even been endorsed by the chair of the Intergovernmental Panel on Climate Change.

So, basically, the world is screwed.  Almost every major environmental organizations in the United States is so excited to have President Obama actually doing something, after decades of inaction in the hands of Reagan, Bush, Clinton, and another Bush, that they forget that science actually does care about the numbers.  We are not negotiating with Republicans, we are negotiating with Physics and Chemistry, and they do not handle negotiations well.  We get no credit for recessions, for filibusters, or for good intentions.

Copenhagen will fail to reach a deal that will safeguard your future.  If you are planning to have children, you might want to reconsider.  Some scientists estimate that we may have enough food and water left on the planet for less than one billion people by 2100.  A recent report funded by the United States Army, the World Bank, and UNESCO stated that, without dramatic action “billions of people will be condemned to poverty, and much of civilization will collapse.”  Scientists estimate that as early as 2035, melting glaciers in the Himalayas would see the water supply of over 400 million people (more than the entire populations of American and Canada combined) completely dry up, leaving the nuclear-armed nations of China, India, and Pakistan scrambling to find, buy, or steal enough water to quench a thirst the size of North America.

Here in Massachusetts, the Leadership Campaign is leaning on the state government to embrace the goal of 350 parts per million by committing to repower Massachusetts with 100% Clean Electricity in ten Years.  The campaign is led by students at over twenty schools across the state, but is conducted in partnership with the Massachusetts Council of Churches, the Massachusetts Climate Action Network, and the Sustainable Business Network.  Twenty-five legislators (representing 1/8 of the entire state legislature) have already pledged their support. 

Craig Altemose is a 3L pursuing a joint degree with the Kennedy School. He is also a statewide coordinator of the Leadership Campaign, a Massachusetts-based organization dedicated to “protecting humanity from the unprecedented threat of global destablization as a result of rapid climate disruption,” which is online at www.theleadershipcampaign.org. Anyone with a desire to assist their efforts can contact Craig directly at caltemose@jd10.law.harvard.edu.


Mumbai attacks: One year later, questioning a poorly handled aftermath


A vigil marks the anniversairy of the November 26, 2008 Mumbai attacks

I remember November 26, 2008. I remember, vividly, the smell of terror surrounding Mumbai when 10 young jihadis with guns in their hand and hate in their eyes took over my city and declared war on my country. The dastardly events took place in two well-known luxury hotels, a 20-year-old railway terminus traversed by thousands every day, a popular cafe filled with foreign tourists and locals, an unknown place of refuge, and a common maternity hospital. Terrorists opened fire and cut down men, women and children of every social stratum of the city and from every corner of the globe.

The attacks raised a lot of questions in the minds of all Indians. Are we living in callous times? Are we being run by a bunch of corrupt and inept politicians who can’t even have in place a basic game plan to manage a crisis of this magnitude? Do we need to change our mechanism of intelligence gathering?

Now that the first anniversary of the attacks is here, it might be a good time to revisit the same questions to know how much has really changed since, Mumbai and India were held ransom by ten terrorists.

Sadly, not much has changed. A year down the line no individual has been held accountable or punished for such a heinous act. It was only yesterday that the Pakistan Anti-Terrorism Court formally charged seven suspects, including Lashkar-e-Taiba commander Zakiur Rehman Lakhvi, with planning and helping execute the Mumbai attacks. It is better late than never, but one only hopes that this indictment will be taken to its logical conclusion without any further delay.

In India itself, the trial of Ajmal Amir Kasab, the lone jihadi captured alive, has been turned into a prolonged circus that is serving no one. Kasab initially pleaded not guilty, but later, on July 20th, admitted his guilt. The court accepted his plea and placed the confessional statement on record, but dubbed the admission of guilt as a partial admission and let the trial proceed.

By all reckoning, Kasab’s is an open and shut case. So why not get on with it and reach the inevitable end? I am not suggesting kangaroo courts and summary trials, but delays like this don’t translate into justice. It is especially distressing to see such problems continue to emerge after the discomforting maze of the Indian judicial system was so badly exposed to the whole world when the Trial Court took thirteen years to bring down curtains to the 1993 Bombay Bomb Blast case.

In the immediate wake of the attacks, there was a change in guard at the Ministry of Home Affairs, with the appointment of P. Chidambaram, a lawyer and a Harvard Business School graduate, as Home Minister. Regional hubs of the country’s elite anti-terrorist force, the National Security Guard (NSG), were also established. A National Investigation Agency was set up by him to probe and pre-empt any terrorist attempt. But, the fact is that Mr. Chidambaram needs to recognize is that India has never lacked agencies–in fact, it is the multitude of intelligence agencies, and their lack of cooperation, that has been the reason for the failure to prevent terrorist attacks like those of November 26, 2008. The lack of co-ordination between the Intelligence Agencies, the Naval Agencies, the Coast Guard Agencies and the local police was what enabled the terrorists to slip through and land on Bombay’s beaches that day.

It is the Indian local police that are entrusted with the duty to implement strategies to prevent terrorist attacks at the ground level. The Maharashtra state government’s support for their capabilities, however, has been shoddy, to say the least. Even today, the local police are grossly unprepared to deal with terror attacks, because of an acute shortage of weapons and ammunition. Official records show that for a force of well over 180,000, the home department procured a meagre 2,221 weapons, 577 for Mumbai and 1,644 for the rest of Maharashtra, in the last six years. In the absence of a firing range and ammunition for practice, local policemen have not opened fire in the last 10 years. The newly-created Indian Marine Police (IMP) has set up some of the planned seven dozen coastal police stations but, they have only received about four dozen of the total of 20 dozen small five-tonne and 12-tonne-high speed boats. The IMP needs more than 500 small high-speed boats and about 12 dozen coastal police stations for more effective patrolling.

Substandard bullet-proof jackets are supposed to be one of the many reasons that caused the death of many brave policemen during the terror strikes. A year after the attacks, the Maharashtra chief minister Ashok Chavan said last Sunday that he would investigate reports that policemen remain easily exposed to bullet wounds. But these reports have been circulating for almost a year, and the question could well be asked: what exactly Maharashtra’s Chief Minister and Home Minister have been doing for the last 12 months?

Why is the Maharashtra Government so insensitive and apathetic? And when will its so-called policy makers stop hiding behind the veil of anonymity? After the last bullet was fired in Mumbai, there was an outpouring of anger and much dismay at the “political system”: the whole country ranted, raved, and took to the streets to protest against a political leadership that had wholly mismanaged internal security.

A year later, the same political leadership has returned to power, and the section of the population that had taken to the streets one year earlier were nowhere to be seen on voting day. The voter turnout in Bombay was an abysmal 46% in the State Assembly elections and an even more dismal 43% in the Parliamentary elections. The truth is that the fault lies not only in our politicians and leaders, but also in us. The low voter turnout proves that we Indians have started to believe that the intangible “political system” is demonic and that there is nothing that we as common men and women can do to change it. What we need to realize is that it is only the citizens that can cause real change. The current electoral system in India offers no hope and the need of the hour is urgent changes that will invite engagement, loyalty and pride from all of us.

But the biggest tragedy is that we don’t know how to respect our heroes. We don’t know how to respect, cherish and immortalize their sacrifices. November 26th should mean something for us all. It should mean recognition of the sacrifices that have been made, and that are still being made, by policemen, soldiers, their families and their children. It should mean appreciation for what thousands of brave policemen and soldiers have done for India – not just on that fateful night but in all other wars that my country has fought and is still fighting to preserve our freedoms. I pray that heroes like Major Sandeep Unnikrishnan, Anti-Terrorist Squad Chief Hemant Karkare, Additional Commissioner Ashok Kamte, Senior Police Inspector Vijay Salaskar, Constable Ombale and several others shall not have lived and fought and died in vain.

Karan Singh Tyagi is an LL.M. student from India.


“Mumbai” is terrorized by linguistic chauvanism. Bring back “Bombay”!


On November 9th, Indian democracy plunged to its nadir. Elected legislators of the Maharashtra Nav Nirman Sena Party (MNS) rushed to the floor of Maharashtra state’s Legislative Assembly to stop the elected member of the Samajwadi Party, Abu Asim Azmi, from taking oath in Hindi, the country’s official and most widely-spoken language. They demanded that he take the oath in Marathi, the language of the Marathi people of Maharashtra, whose cause the MNS seeks to espouse. This was followed by MNS legislator Ravi Kadam slapping Azmi in full view of the public gathering – and it follows a similar incident that took place just a few weeks ago, when the same party threatened noted film producer Karan Johar for using the word “Bombay” instead of the Marathi “Mumbai” in his new movie, Wake up Sid.

This linguistic and regional chauvinism is not a new phenomenon. The MNS and its chief, Raj Thackeray, have been making inflammatory and divisive comments since the party’s formation. Last year, members of the MNS resorted to arson and violence in different parts of Maharashtra in protest against outsiders entering and working in the state.

But in assaulting an elected member of the House in the Assembly, the MNS has sunk to its lowest depths. Apart from taking immediate action against the members of the MNS involved in this ruckus, the fact that there is no place for ethnic and linguistic chauvinism in a city like “Bombay” should be driven home once and for all.

At the outset, I would like to point out that the Indian Constitution that allows legislators the freedom to take oath in any official language was written by Dr. Babasaheb Ambedkar, a low-caste native Maharashtrian himself. Further, as was rightly pointed out by Abhinav Chandrachud LL.M. ’09 in the Indian Express, the oath prescribed for members of state legislative assemblies was amended by the Constitution Act of 1963 to include a promise to “uphold the sovereignty and integrity of India”. By stopping Azmi from taking the oath in Hindi, the members of the MNS have not only subverted the Indian Constitution but have also flouted all forms of parliamentary functioning.

The MNS fails to realize that “Bombay” has always had a multicultural character. It was built by the contribution of Parsi and Gujarati entrepreneurs, Konkan mill laborers, Telugu and Tamil industrialists, Koli and Marathi fishermen, and the North Indian-dominated film industry. “Bombay” is the financial capital of India because of the contribution of people from different parts of the country. The city epitomizes the “unity in diversity” characteristic of India. Chattrapati Shivaji Maharaj, the founder of the Maratha empire and the hero of the people of Maharashtra, was known for favoring inclusivity and tolerance of other religions. Thus, the attack on Azmi is not only an attack on Bombay’s famed pluralism, but also on the virtues and teachings of the Marathi hero, Chattrapati Shivaji Maharaj.

The Maharshtra government has always turned a blind eye to the threats issued by the MNS and the violence perpetrated by its members. The government has brazenly succumbed to the threats of the MNS, doling out the excuse that stricter action would lead to bigger “law and order” problems. The fact that this time the Maharashtra Assembly has suspended the members of the MNS involved in the incident for four years is a heartening sign. But the authorities fear a backlash by the MNS political activists, one that would lead to widespread violence and destruction in “Bombay” and other parts of Maharashtra. They need to display the courage exhibited by U.S. President Dwight D. Eisenhower during the “Little Rock Nine” incident of 1957.

At a time when “Bombay” and the state of Maharashtra are overrun with such problems as terrorism, malnutrition, poverty, and rising prices, it is shocking that some members of the Legislative Assembly would engage in a dangerous linguistic war. On some level, these elected representatives are a reflection of society itself. They are in the Assembly because the people have voted for them. For me, this fact is more dangerous than any threat and any violence that can ever be perpetrated by Raj Thackeray and his goons. As a citizen of “Bombay”, it makes me hang my head in shame. The citizens of Bombay cannot afford to let the city be governed by people who propagate fascism. The time has now come public opinion to turn strongly against it.

Karan Tyagi is an LL.M. student from India.

Cambridge, USA: The boy who doesn’t sleep



After spending a relaxing year in the U.K., JESSICA CORSI thought she had re-acclimatized herself to Harvard Law School’s culture of crazed workaholism – until she came upon a 1L who likes to trade the refreshment of sleep for more reading. Is insomnia, she wonders, the secret to securing the Sears Prize?

HE EXISTS. I have met him. There is at least one 1L at HLS who has attempted to give up sleep.  And it shows.  The night we met, at a bar review at Grafton Street, he seemed to be fading in and out of conversation.  His eyes were closing slightly, his eyelids heavy even at his most alert and attentive.  He looked…sleepy. Perhaps he didn’t want to talk to me—I should be kind and give him an easy out.  “You’re either really tired or I’m boring you,” I said. 

“No, I’m not bored; I am actually really tired,” he explained.  “You see, I’ve given up sleeping.”  Genius! Insane! Insane genius? Typical 1L? All of the above? I had to learn more.

“No, come on. You haven’t given up sleeping,” I pressed.

“No, really,” he went on, his head nodding towards his chest.  “I have.”

“WHY?” I demanded.

 “Because I had to,” he replied.  “I didn’t do any reading the first part of the semester. So in order to catch up and not fail I need to stay up all night.”

I wasn’t following.  “But—wait—but—but we’re having this conversation in a bar. At 11:30pm. Why can’t you just—I don’t know, not go to bars instead?”  It seemed like a fair question. 

“That’s the thing,” he replied. “I just seem to waste time during the day.  So I need to stay up all night.”

I began to revise my notion that he was an insane genius, replacing it with the notion that he was just a person with poor time management who doesn’t understand the impact of sleep deprivation on information retention. “Well, okay,” I said. “So, could you try and do things during the day?”

“But I don’t.”

“Okay. So—really? You’re actually not sleeping at all?”

“I tried the no sleep thing two weeks ago.  I stayed up for about three days. And then as I was sitting there studying, I spontaneously fell asleep. I slept for 14 hours. And then I figured out that I couldn’t stay up indefinitely.”

Progress—he has discovered that it is impossible to stay up indefinitely and that insomnia is not an actual study strategy.  “Oh,” I nod, “So you’re actually sleeping now.”

“Yes. I’m on an every other day schedule.” 


“I’m on an every other day schedule. I sleep one night, stay up another night, sleep the next night…”

“And what is tonight?” I wonder. I hope it’s a sleep night; he’s already half there. 

“Tonight is a stay up night.” Wrong again; this does not bode well. 

“No, come on.”  “No, really.” “No.” “Yes!” 

“But—have you been drinking tonight?” I wondered, incredulous.

“Yeah, but I stopped a while ago because I knew I needed to stay up.” Oh. Right.  Of course.

“So how do you do it—how do you stay up all night?”  He was warming to the question. He looked almost awake as he was answering.  He had obviously put thought and planning into his scheme, and he seemed happy that someone had finally uncovered his secret.  “A lot of Red Bull! A lot of energy drinks. I stock up on those. And I eat. I’m going to eat right after we leave this bar.” “Like— what?” I ask. “Chicken wings?”  I’m a vegetarian.

“Yeah, chicken wings would be good.” Ew.

“So what else do you do to stay up?”

“I take smoke breaks—I’m a smoker.” He nods as he says this, like “Only smokers take smoke breaks.” I nod in response, of course. “So that helps; the smoke breaks help. And I have to go to my common room. I have to change locations and move around.  If I sit on my bed I’ll sleep.”


“Yeah—exactly. So I move around.  Yeah. I move around and take smoke breaks outside in the cold. It wakes you up.”

“And you actually think you’re learning things? I mean, you know that you learn best when you’re well-rested, right?” 

“Yeah, yeah,” comes the reply.  I don’t know which part he’s agreeing to.

I have finished my drink. We both want to go home, me to sleep, he to…not.  We walk back to our apartments, which are coincidentally  across the street from each other.   “I’m over there,”?I tell him. “I’m going home.” 

“I’m going to my motorcycle,” he replies.  “I’m driving to Porter Square to get a sandwich.”  Of course he is.  I walked up the steps of my apartment  and shook my head in confusion and amusement as he peeled away down Mass Ave. The things we do to outline Torts.  God bless 1L Fall.

Cross-registration woes: does Harvard “University” even exist?


Another registration season has passed at Harvard Law School, complete with all the trials, tribulations, and technical glitches of the MyPlan system, the arbitrary course caps that will have to be manually adjusted by the Registrar next spring, and the frustration of students who have had to deal with clinical, elective, and “multi-section” course registration periods situated weeks apart. Pity the poor law student who wishes to sign up for all three types of class, for whom registration takes up more time than outlining, and whose Google Calendar is littered with the detritus of unfulfilled classroom hopes and dreams.

HLS’ vast menu of courses is one of the school’s main attractions, a standout reason why many choose this buzzing hive of over 2,000 students, faculty, and affiliates over more intimate law schools – in sunnier climes. As Dean Elena Kagan ’86 never grew tired of pointing out, the options also extend to other schools of Harvard University, offering students the ability to work outside the law school with renowned members of the Harvard faculty as a whole. But sadly, the challenges of registering into law school courses pale in comparison to the daunting feat of cross-registration between Harvard schools.

Consider: to supplement one’s legal education with a Graduate School of Arts and Sciences course, a student must first wait practically until the new semester begins, when GSAS finally releases its course schedules. Then, and only then, can a law student begin to plan when to take such a class, well after he or she will have had to already register for law school courses.

Students must then bring their signed cross-registration form to the GSAS Registrar’s Office. (One might expect it to be an affair similar to the modest office suite that holds the law school’s registrar staff. In reality, it is a palatial, three story building complete with columns and an expansive lobby.) After finally locating the relevant line, and a requisite wait, students are sent away to fill out a bubble sheet similar to those used to fill in answers on standardized tests. Then they must get back in line to submit the completed materials.

A rare example of administrative efficiency ensures students will not have to traipse back to the law school’s registrar to gain approval from that office as well. But such fixes beg the question: if the university was able, recently, to coordinate its exam schedule to facilitate cross-registration, why can’t it coordinate the release of a course schedule? And why can’t the whole process – professors’ approvals included – be moved online?

At least part of the problem seems to be that Harvard’s various schools operate less like organs of a single body than as independent organisms that hardly acknowledge one another’s existence. The schools’ individual approaches to professorial discretion on registration are a case in point. At HLS, professors complain that the system makes it difficult to shepherd in students who they think should be able to take their courses. But at the Kennedy School, professorial discretion reigns supreme.

A shocking example emerged earlier this fall in a Kennedy School class taught by Rory Stewart. Stewart has achieved some fame for trekking across Afghanistan during the opening chapters of the war against the Taliban, and for later serving as governor of a province in Iraq. It was understandable, then, that the relatively small classroom the school had allotted him for his course on interventionism couldn’t accommodate the number of interested students, many of whom had also come from schools with which Harvard has cross registration agreements, such as Tufts’ Fletcher School of Law and Diplomacy.

Stewart’s solution was not to ask the Kennedy School for a larger classroom, but to make aspiring cross-registrants apply for slots as auditors. Of these, he would select only eight (out of the dozens who were hoping to register) who would not only have to give up any seats to interested Kennedy School students, but would not be allowed to participate in class discussion at all.

The plan provoked outrage among the Tufts students, who petitioned their administration. One even emailed Stewart – and the rest of the class – directly, with a strongly-worded message asserting that Tufts would never treat a Harvard cross-registrant as he had treated the visitors from Tufts.

Whether the Stewart case was an illustration of Harvard’s strained relations with other universities, a demonstration that these schools could stand up for their rights better than students from other Harvard schools, or an indication that other universities’ cross-registrants might be taking up class seats that ought to have gone to Harvard students, it is clear that Harvard University as a whole needs to reevaluate its cross-registration system – not only because interdisciplinary studies are the future of many fields, but because without the easy ability for students and faculties to interact across institutional lines, Harvard is no more than a sum of its many parts – and the idea of the “University” as an institution is rendered both hollow and meaningless.

Letter: Obama’s Nobel is the pride of Africa


When Barack Obama ’91 campaigned for and won the U.S. presidential election, he was supported not only by Americans, but by millions of people across the globe who believe in his message of “hope”. For us in Africa, Obama symbolizes the renewal of hope for global peace and security. We see this honor as an encouragement and acknowledgement of his good vision and excellent leadership in making the world a safe and better place, for us and the generations yet unborn. The election of President Obama marks a new era in international relations.

Many young people across the world see Obama as a role model. Undoubtedly, the award which identifies him as an Ambassador of Peace will not only encourage him, as an individual, but also others that look up to him. His ability to reach out to other countries across political, ethnic, religious and cultural divides, within his short period in office, surely made him a hero that merits this award.

Congratulations President Obama. More grease to your elbows. We are proud of you!

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

Travel: As winter approaches, Austria’s Alps beckon


The Maerchental (Valley of Fairy Tales) in the Loiblpass region of Austria’s Carinthia region

True, after a long and dreary December some sun-worshipping law students might prefer to opt for a warm and ‘beachy’ location for their winter holidays. But selecting on the basis of the quality of sun, sand and sangria is a much too easy way out of the difficult question how to best spend your winter holidays (apart from preparing for winter term, that is). 

If the financial crisis has taught us one thing, it is that we should sometimes consider more conservative investment options. Applying this approach to holiday choices, what better to look for that the choices of retirees. Forbes magazine has just published a list of the 10 best retirement havens, including Thailand, Italy, Panama, Ireland, Australia, France, Malaysia, Spain and Canada. Not all the standards applied will help students make their choice, as they include decent and affordable medical care. But the number one retirement haven on Forbes‘ list, Austria, does offer some additional benefits for law students looking for a relaxing winter. Here are five reasons why should you consider choosing mountains over beaches, Europe over the Caribbean, and – once you’ve decided to hit the slopes – the Alps over the Rockies:

1. Europeans love you (again): Now that Barack Obama is US president, go make the most of it and enjoy the love of the world. Just tell your holiday hosts that you went to the same law school as he did and they might throw in a free night (or a free Zirberl, a famed pine schnapps).

2. Global warming is a reality: Enjoy the Alps with their glaciers and snow as long as you can. Boston will offer some Caribbean feeling soon enough.
3. It’s good for your wallet: There are a number of very affordable  European skiing packages The Austrian tourism portal, Austria.info, writes that “for someone on or close to the East Coast, a trip to an Austrian ski resort could be between US$ 100 and US$ 300 less than a trip in a Western ski resort. With lift tickets, transfers, food, taxes and tips factored in, a skier who lives on the West Coast will find that a one-week ski vacation in Austria costs about the same as an equivalent ski trip to a resort in the Rockies.”

4. The Alps are neither too hot nor too cold: Daytime temps in the Alps in winter are around 20 degrees F and make for excellent outdoor conditions. The Alps offer snow for every kind of endeavor, from packed powder snow on the groomed runs to fluffy powder snow off-piste.

5. Harvard on the Alps: For those of you who just can’t get enough of learning, Austrian skiing schools are renowned for their quality of instruction and, as I’m reliably informed by female friends, the attractiveness of the instructors.

For more information on skiing in Austria, visit www.austria.info.

Somalia assassination undermines case for Obama’s Nobel


Many claim that President Barack Obama ’91 was awarded the Nobel Peace Prize to express international support for the U.S.’ reengagement with multilateral peace efforts, including efforts to bring an end to wars in Iraq and elsewhere.  This new U.S. foreign policy stands in contrast to the U.S. Special Forces’ recent targeted assassination of a highly wanted Al Qaeda member in Somalia.  On September 14th, U.S. helicopters opened fire on a convoy of trucks in southern Somalia and shot and killed Saleh Ali Saleh Nbahan, who is said to be responsible for the bombing of an Israeli hotel on the coast of Kenya in 2002, and is suspected to have played a role in two 1998 attacks upon American embassies in East Africa.  Targeted assassinations in the territory of a country whose government is both recognized and supported by the U.S. is a counterproductive way to reengage factions that the U.S. had previously alienated.

We could start by asking the question of whether or not this attack was legal under international humanitarian law, but this is neither the most interesting nor the most pressing question.  Instead of debating whether the war on terror is in fact a war, whether the people shot and killed were enemy combatants, and whether the U.S. had just cause to fly over Somalia and shoot these people dead, we should instead ask: was this a good idea?  The legality of the issue is fuzzy and doubtful, but more importantly, this type of military operation is bad policy: we want to change the world’s opinion about the U.S., and in particular ideas about the U.S.’ use of force, and who is or is not its “enemy”.  If President Obama wants to move away from George W. Bush’s aggressive military posture, a targeted assassination that sends the message “if you cross us, we will take you out” is not a change in tune but simply more of the same. 

There are several other messages the U.S. could send that would fit with the underlying assumptions that prompted the award of the Nobel Peace Prize.  If we want to reengage international institutions, reinvigorate the idea that the U.S. is a team player, and promote the notion of an international rule of law, we could begin with a message that if you break the law, we will do everything in our power to deal with this disagreement through the law.  It is not clear whether the Obama administration has considered this approach.  We have not heard any talk of, for example, capturing Saleh Ali Saleh Nbahan and bringing him to his native Kenya, or to the International Criminal Court, for trial (and now, it’s too late).  It is discomfiting to learn of the assassination after the fact without being assured that alternative international legal strategies designed to strengthen global systems and global security were considered.  

Perhaps the most important message that the Obama administration could have chosen to send instead would have been that, if there are some fundamental differences at issue between the U.S. and people set on attacking the U.S., the country will do everything in our power to understand and better meet the interests of the other side.  Commentators supporting Obama’s Nobel Peace Prize have emphasized the President’s unprecedented engagement with the Muslim world.  But swooping in and shooting suspected terrorists dead undermnines such efforts, which would better ensure the U.S.’ long term national security. In the process, the U.S. fails to learn where terrorists are coming from, why they are fighting, for what they are fighting for, how it is they have come to believe so strongly that the U.S. is an enemy to be attacked, and why it is that terrorist groups are not running out of converts. 

It is both too easy and too flimsy of an explanation to think that all terrorists are madmen that can’t be reasoned with. The story can be written from another angle, and that story is one of an oppressive U.S. that wages war in Afghanistan and Iraq; abducts, tortures, and kills innocent people because they are of Arab descent or are Muslim; and gets away with flouting international human rights standards in torture prisons like Abu Ghraib and Guantanamo Bay.  This story continues to gain strength, as evinced with such recent developments as Wednesday’s Italian conviction of 23 Americans involved in CIA renditions – a conviction that sends a strong message that the world has not forgotten nor is it willing to let the U.S. off the hook for its violence and illegal war on terror strategies.  If we want to change the perception that the U.S. gets to run around the world shooting whoever it wants because it has the biggest guns, we should at least stop sending special forces to assassinate suspects as they drive through remote deserts. 

What is even more eerie is that this represents a significant shift in U.S. foreign policy towards Somalia. Not since the 1993 “Battle of Black Hawk Down” has the U.S. launched a helicopter attack there.  The attack came at a time when Somalia is considered increasingly lawless, and the local Islamist insurgent group, Al-Shabab, which has links to Al Qaeda, continues its attempts to overthrow Somalia’s internationally recognized government.  Since Black Hawk Down, the U.S. has limited its strikes on the country to the use of long-range missiles.  In this attack, we see the capability and willingness of the Obama administration to gather precise intelligence as to the location of wanted terrorist suspects, and to then strike quickly to assassinate them.  As this is the first military action of this sort since Obama took office, it could be an indication that we should expect more targeted attacks in the future, especially as U.S. troops are withdrawn from the ground, in Iraq and elsewhere.  Unlike a prolonged ground war, this attack communicates that the Obama administration intends to attack Al Qaeda officials wherever they are found. 

Knee jerk reactions to this news are often that we can claim victory and a smart strategy.  “We got the guy! He deserved it!” people cry.  It is smarter to fight them where we find them than to keep our troops under fire in any one country, others think.  But this is neither a strategic nor a victorious approach.  It is not peaceful and its not smart, because it doesn’t address the underlying issues that have led us into a fight against terrorists and extremism in the first place.  Here’s hoping the Nobel Peace Prize is enough of a motivational tool to effectuate this much-needed reorientation.  

Jessica Corsi is a 3L and is Opinion Editor of the Harvard Law Record.

Cambridge, USA: Catharine MacKinnon and law as courage, emotion, and social change


When Catharine MacKinnon said goodbye to us at the end of her Sex Equality class on Wednesday October 28, she choked up, and we all choked up with her.  The emotion was evident in her voice as she read us a passage from Virginia Woolf’s A Room of One’s Own that can be found in the center of MacKinnon’s Sex Equality textbook.  The passage entreats us to work: it reminds us of why we work at all, and describes vividly the people for whom we work when we work on sex equality:

“I told you in the course of this paper that Shakespeare had a sister; but do not look for her in Sir Sidney Lee’s life of the poet. She died young – alas, she never wrote a word . . . . Now my belief is that this poet who never wrote a word and was buried at the crossroads still lives. She lives in you and in me, and in many other women who are not here tonight, for they are washing up the dishes and putting the children to bed. But she lives; for great poets do not die . . . they need only the opportunity to walk among us in the flesh.

This opportunity, as I think, it is now coming within your power to give her. For my belief is that if we live another century or so—I am talking of the common life which is the real life and not of the little separate lives which we live as individuals—and have five hundred a year each of us and rooms of our own; if we have the habit of freedom and the courage to write exactly what we think; if we escape a little from the common sitting–room and see human beings not always in their relation to each other but in relation to reality . . .  then the opportunity will come and the dead poet who was Shakespeare’s sister will put on the body which she has so often laid down.

. . . As for her coming without that preparation, without that effort on our part, without that determination that when she is born again she shall find it possible to live and write her poetry, that we cannot expect, for that would be impossible. But I maintain that she would come if we worked for her, and that so to work, even in poverty and obscurity, is worth while.”

Why do we study law? Why do we study Sex Equality and why do we put ourselves through the process of qualifying at the bar and why do we go to work every day?  We do all of these things because Shakespeare’s sister is dead and she never wrote a word, despite all she could have shown us and despite how much she could have enriched our lives and fulfilled the purpose of her own.  And when we sat in our Sex Equality class, we came into contact with all of the girls and women—and boys and men, too; but mostly women and girls—who are dead or too sick or hurt or too poor or too shut out of education or work to write, to share their gifts, to live their lives and to contribute to ours.  In Sex Equality, we engaged in something that often falls by the wayside in legal education:  the reality of the lives of those living under and touched by the law. 

Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class.  Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion.  Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified.  Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should.

And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of discrimination we face in our daily lives.  Why just study the law and obey the law?  If the law makes you unhappy, if the law is grossly disconnected from the realities in which we live, if the law perpetuates rather than alleviates the harms of sex discrimination—do something.  You are more than equipped.  What is a Harvard Law School education good for if not this?

When Professor MacKinnon finished reading from Virginia Woolf, we gave her a standing ovation.  Afterwards, I thought about why.  I thought about why every day her class was full of people auditing—not just other students but other professors, Harvard staff members, and people from the community.  I had received emails from friends of friends who wanted to take off work and come to see her speak.  What attracted these people so strongly to her class, I think, is her courage.  But not just any courage—courage to speak truth not only to the power of our gendered hierarchies but to the power of the law.

Legal education can make us cowed.  We fall into the habit of repeating the law as it is already applied.  We are not innovators, and if we are, we innovate on behalf of clients who have no particular reason to be deserving of legal change other than that they have paid for our services.  But Sex Equality class was about courage to face down and modify the existing legal structure on behalf of vulnerable and marginalized people—women—who do not have billions of dollars to throw down for our services and for whom legal innovation is not a matter of a better and more efficient merger or a more profitable contract but rather a matter of life and death.

And with this move we return a deeper meaning to the legal profession.  Perhaps some of our law school class pursued a law degree for the sole purpose of obtaining a steady, high status job that promises heaps of money.  But other people came to law school because they see the law as a tool and they connect emotionally to people that they would like to help through the law. They want to see social change that eliminates discrimination and gives voice to those on the margins of society.  Sex Equality gives that back.  It reconnects law to emotion and law to courage and law to social change.

We all choked up along with Professor MacKinnon as she read, because we know from our own experiences that what she read is true: we know that Shakespeare’s sister is dead and that she won’t rise up unless we work. We know that Virginia Woolf wouldn’t have been allowed to enter Harvard Law School because it did not admit women at that time. We know it to be true that if we sit here and do nothing women will not advance.  And so we tear up and we jump to our feet and we clap our hands, because we’ve made it inside these hallowed institutions that Woolf dreamed of entering, and so now we have the power to resurrect the poet, to let her be born in great numbers in the next generation.  We felt our own privilege in that moment, but it was not the usual privilege and arrogance regarding Harvard’s rank in the world and our rank along with it; it was privilege with meaning and power to affect change.  It is the privilege to use our law degrees to improve the lives of those who are truly depending on the law for help.

We, the People of Europe: How the Lisbon Treaty makes the EU more democratic


PEOPLE POWER | The Lisbon Treaty is set to give more influence to democratic institutions like the European Parliament when it enters into force

Today, after the Czech Republic’s highest court failed to find any grounds on which it was unconstitutional, Czech President Václav Klaus finally signed the Lisbon Treaty . The treaty’s reforms will now enter into force on December 1, 2010. The debate on its contents, however, is far from over. Reacting to my article on the Treaty in the previous issue of the Harvard Law Record, a number of commenters criticized the undemocratic character of the new treaty and argued that it would make the EU less democratic (or, at worst, no more democratic) than it was before. These arguments are misleading: they are based on a wrong conceptual approach to democracy in the EU’s unique post- and transnational context.

Article 2 of the Treaty on European Union as amended by the Treaty of Lisbon emphasizes that the Union is founded “on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (emphasis added). This principle of democracy, which extends its reach vertically (towards Member States) and horizontally (towards EU institutions), is corroborated in the EU’s different codifications of human rights, such as Article 3 of the First Additional Protocol to the European Convention on Human Rights, the common constitutional traditions of Member States, community practice, and the other democratic principles contained in the amended treaty.

Despite this, it is true that the commitment to democracy, which had already been made in Article 6(1) of the Treaty on European Union as it existed prior to Lisbon, has not prevented the emergence of the “democratic deficit”.

But the Lisbon Treaty’s attempts at reform have at least led to a partial mitigation of portions of EU law that create a gap between the expectation of democracy and its fulfillment. Some problems remain, namely the gap between the amended treaty’s Article 9, which enshrines the principle of equality for all EU citizens, and the voting procedures in the Council, which offer less favourable population-to-voting power ratios to citizens of bigger states.

But the Lisbon Treaty truly mitigates the democratic deficit by increasing the legitimacy of European decision-making processes. First, national governments, responsible to national parliaments, are united in the European Council. Second, there are direct lines of legitimacy from the citizen to the European Parliament, though they are not yet widely perceived.

When Article 10 (2) of the Lisbon-amended EU treaty lays down the democratic accountability of heads of state or governments in the European Council and of the governments in the Council to their national parliaments, or to their citizens, it relies on the powers of national parliaments to influence EU decision-making procedures at an early stage by parliamentary control. Using this control more actively will ensure that the lawmaking process will result less clearly in “laws made in Brussels”, but, instead, in legislation that emerges from a process based on a dialogue between the Commission, national parliaments, national governments on both the national and the Union levels, the Council, and, importantly, the European Parliament.

The Lisbon Treaty also bolsters the significance of the national parliaments’ European counterpart. Article 14 (2) of the amended EU treaty states that the European Parliament is composed of “representatives of the Union’s citizens”. This may seem obvious, but it represents a real change: Article 189 of the old EC Treaty still referred to “representatives of the peoples of the States brought together in the Community”. The new “community” is one where the European citizenry may play a direct role, rather than one mediated by the Union’s collection of states.

Beyond institutional reforms, the Lisbon Treaty not only strengthens the representative dimension of democracy, but actively encourages citizen participation: by embracing civil and political rights, and by further integrating civil society and representative associations into the lawmaking process.

Such support will increase the quality of deliberative democracy in Europe, allowing for the creation of a European public discourse. Beyond the treaty’s new legal framework, however, far-reaching structural changes in citizens’ socio-political approaches to European topics and their (under)representation in the media, need to be discussed. This will take years.

Indeed, arguments over the shape of democracy have been a consistent feature of European intellectual history,. It stands to reason that the European Union should be able to shape a new geometry of democracy that fits its current state. A realistic conception of democracy has to be developed for the Union. The multinational model, in which the member states are the (only) relevant actors, seems anchored in the traditional, nation state-oriented model of democracy. It is essential to realize that the transfer of powers to regulatory entities beyond the nation state needs to coincide with new models for the legitimation of their decisions.

A functional model of democratic legitimacy is needed that combines participative, representative and deliberative elements, in a setting where actors can translate needs into political postulates and develop, propose and pass suitable remedies. This model must make it possible to trace back the exercise of this authority directly – and in an uninterrupted chain of legitimation – to the citizens of the European polity, who need to participate, to the greatest extent feasible, in the process of developing laws and norms.

Now that the Lisbon Treaty will enter into force, it is upon the citizens of the European Union to fill the letter of the law with life and to dispel the myth of the democratic deficit.

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

Obama’s Nobel: The powerful light of hope


In the preface to her book Men in Dark Times (1968), Hannah Arendt wrote that “even in the darkest of times we have the right to expect some illumination, and that such illumination may well come less from theories and concepts than from the uncertain, flickering, and often weak light that some men and women, in their lives and their works, will kindle under almost all circumstances and shed over the time span that was given them on earth….”

President Obama has shed a powerful light of hope upon the dark times in which we live. His accomplishments in the pursuit of peace can hardly be matched: he has inspired millions all over the planet; he has gained back the respect and leadership with which the United States can make a difference on the global stage; and he has set the world on a different path and shared spirit.

Obama’s Nobel Prize is an encouragement for all of us not to let this light dim.

Alfonso Lamadrid de Pablo is an LL.M. student from Spain.

Obama’s Nobel: Judge deeds by their intentions


“Deeds are to be judged by their intentions”: this is an Arabic proverb that reflects an ancient adage that intentions are just as powerful as deeds, and that notwithstanding the fact that not all good intentions lead to fruition they are still worth recognition. 

The Nobel Peace Prize should not be considered an award to President Obama or for his limited achievements since taking office. Rather, it should be seen as an endorsement of a worldview. A vision of the world that realizes the dream of Martin Luther King Jr. not to judge a human being by the color of his skin, a vision where humanity does not live under the phantom of nuclear weapons, a view of a world where religions and cultures are reconciled and where diversity is celebrated, a global community that recognizes the dangers of environmental degradation and is ready to unite to confront it, and a policy that understands that the challenges of today are global and require global responses.

As an Egyptian, Arab, African, Muslim and Mediterranean citizen of the world, I do not see this is as tribute to the American President, but to humanism, multiculturalism, multilateralism, international cooperation and to humility. 



Mohamed S. Helal is an LL.M. student from Egypt and a diplomat with the Egyptian Ministry of Foreign Affairs.