Travel: As winter approaches, Austria’s Alps beckon

BY MATTHIAS KETTEMANN

The Maerchental (Valley of Fairy Tales) in the Loiblpass region of Austria’s Carinthia region
austria2

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

BY JESSICA CORSI

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

BY JESSICA CORSI

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

BY MATTHIAS KETTEMANN

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.

The Garment District: it’s not a district, it’s a store

BY

Outside the Garment District in Cambridge

Are you rushing to cobble together a costume for next week’s Halloween party? Whether you need to find an entire costume or just need to add the finishing touch to your outfit, look no further than The Garment District, a Cambridge Halloween hotspot with two floors full of costumes and accessories. The store carries an array of ready-to-wear costumes, ranging from Grecian goddess outfits to pirate get-ups to flapper dresses. Customers on a budget can check out the Garment District’s second floor, where the store sells a variety of vintage clothes that can be paired together to make a retro Halloween costume.

“We have a bunch of used clothing that we have in a big costume room, which is mix and match,” Garment District assistant manager Ryan Olenick said. “You can make something from the 50s to Space Age stuff.” Olenick said he encourages customers who ask for his advice to put together their own costumes. “I say make your own for the most part, because it’s more fun that way,” he said. “You won’t be walking down Comm. Ave. [in Boston] wearing the same thing as a girl 15 feet away from you.”

Costume rentals are available through Boston Costume, located within the first floor. The selections are pricier, but more elaborate, and customers can even choose to rent matching his-and-her costumes, such as the Cinderella and Prince Charming set or the medieval Romeo and Juliet ensemble. Boston Costume has 5,000 costumes available for rental, manager Terry Anderson said. “They go anywhere from Roman and Egyptian to mascot type ones, like grizzly bears and lions,” Anderson said, noting the rentals range in price from $45 to $175, with an average cost of $95.

This year, the store took its first Halloween rental order in February and probably will take its last the day after Halloween for parties being held on Sunday, he said. This year, the most popular rental choices have been storm trooper, Batman and grizzly bear costumes, he said. Because it is late in the Halloween season, Anderson urged costume seekers to keep their options open.

“The easiest thing is to come in with a couple of ideas, not just one set idea,” he said. “If you can leave your field open a little bit, you’re going to have a much better time and not stress in the crowds.”

Be prepared to encounter crowds during the week leading up to Halloween — The Garment District does double to triple its usual business in October, said Olenick, the assistant manager. The store is open from 11 a.m. to midnight Sunday through Friday and from 9 a.m. to midnight on Saturday through Oct. 31. The Garment District is located at 200 Broadway, four blocks from the Kendall-MIT T stop on the Red Line.

 

Other Halloween costume Hot spots:

Dorothy’s Boutique

190 Massachusetts Ave., Boston
Mon – Sat: 10 a.m. – 6:30 p.m
Sunday from 12 to 6 p.m.
T Stop: Hynes Convention Center (Green Line)

Goodwill Retail Stores

520 Massachusetts Ave., Cambridge
Mon – Sat: 10 a.m. – 7 p.m.
Sunday from 12 to 6 p.m.
T Stop: Central Square
(Red Line)

965 Commonwealth Ave., Boston
Mon – Sat: 10 a.m. to 8 p.m.
Sunday from 12 to 6 p.m.
T Stop: Pleasant Street
(Green Line)
 

Obama’s Nobel: The powerful light of hope

BY ALFONSO PABLO

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

BY MOHAMMED HELAL

“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.

Ogletree on Obama’s Nobel: “A Triumphant Moment in History”

BY PROF. JR.

I was surprised and pleased to learn that President Obama had won the Nobel Peace Prize.

His humility and deference in receiving an award that has been presented to such luminaries as Mother Teresa, Dr. Martin Luther King, Jr., and Nelson Mandela, among others, illustrates both his uncanny ability to focus not on awards but actual progress, and a commitment to work tirelessly to establish a safer and more collaborative world. His aspirations to close Guantanamo, negotiate peace in the Middle East, talk with leaders of other countries even when we have massive differences in priorities and objectives, demonstrates his firm commitment to continue working around the clock so that, in time, we will all see what the Nobel Prize committee saw in honoring him now. The expected criticism, because he is so new in office, also ignores the almost immediate transformation of global excitement concerning his election alone and it reinforces a global commitment to end all forms of conflict and unite in a collaborative effort to pursue world peace.

It is hard to imagine anyone else with such a broad and deep commitment, and the same Barack Obama who changed history here at Harvard Law School two decades ago by being elected the first African American to be the President of the Harvard Law Review, is committed to doing the same on the world stage. I applaud him and Michelle Obama ’88 for their commitment to public service. It is a triumphant moment in Harvard Law School’s history.

Charles J. Ogletree, Jr. ’78 is the Jesse Climenko Professor of Law at HLS and founder of the Charles Hamilton Houston Institute for Race and Justice.

Obama’s Nobel Prize money: five ideas

BY MATTHIAS KETTEMANN

Harvard should be proud. Its graduate, President Barack Obama ’91, is the first statesman to prophylactically receive the Nobel Peace Prize (the most recent president to be strongly associated with Yale, George W. Bush, is rather unlikely to receive any Nobel Prize in the immediate future). Unfortunately, this adds another issue to the President’s to-do-list: (1) reform health care; (2) make peace in the Middle East; and (3) decide what to do with the $1.4 million Nobel Prize money. Space does not allow me to sketch out my solution to the Middle East puzzle, and my European mind capitulates in face of the political flaying over Obama’s health care plan, but I am happy to help with regard to the third issue. Mr. President, here’s a list of five projects you could spend the money on:

1) $680,000 to bridging the digital divide between Internet-haves and have-nots, by ensuring that developing states are better represented in the multi-stakeholder Internet Governance Forum in December in Egypt.

2) $680,000 to study the importance of “human security”, a new security concept that focuses on individuals and not on states, thereby providing new insights on how to combat sources of insecurity, including failing states and over-‘securitization’.

3) $30,000 for a study analyzing the effects of Harvard students’ air conditioner-induced colds and flus on the U.S. health system.

4) $9,000 to reintroduce warm breakfast in Harvard dining halls.

5) $1,000 to make sure Chauncy Street gets a bike path facing westwards.

Since this is settled, Mr. President, you can now channel your forces towards making peace in the Mideast and having Congress pass health care reform.

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

 

History shows promise, prescience of Obama’s Nobel Peace Prize

BY MATTHEW HUTCHINS

nobel

Each year a committee of Norwegians is convened to decide what person will receive the prize endowed by Alfred Nobel to recognize “the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.” Past Nobel Peace Prize honorees have ranged from visionary leaders like Martin Luther King Jr. and Lech Wa

Lisbon Treaty points way to a new EU

BY MATTHIAS KETTEMANN

A BRIGHTER FUTURE? | After it is finally signed by the last holdout, Czech President Vaclav Klaus, the Lisbon Treaty looks set to make Europe stronger.

In seven days, the European Union will take a big step forward. After a painful process that overshadowed European policy debates for years, the Lisbon Treaty, intended to overhaul the Union’s institutional infrastructure, will most likely be ratified by Vaclav Klaus, the Czech Republic’s Euroskeptic president, at the EU summit in Brussels. Klaus is the last one to hold out. 26 of the 27 member states have already ratified the treaty, some of them as far back as last year.

Faced with enormous pressure from other EU member states, notably from French President Nicolas Sarkozy, the unpredictable Czech leader indicated his willingness to ratify the Lisbon Treaty, provided that the Czech Republic is allowed to opt out of certain provisions, including the binding Fundamental Rights Charter (Slovakia’s Prime Minister Robert Fico has also taken up this idea). President Klaus expressed his conviction that the treaty was not “a good thing in Europe – for freedom in Europe and for the Czech Republic”. When asked by a Czech newspaper whether political considerations had influenced his behavior, Klaus admitted: “It is true that I have next to me a personal letter written personally by [British Conservative Party leader David] Cameron from July which is suggesting [to hold out], but I cannot wait until the British election and I will not.”

Provided they win, David Cameron’s Conservatives have vowed to hold a referendum on the Lisbon Treaty, which would be a sure way of sinking it. But as it stands now, the Lisbon Treaty will enter into force on January 1, 2010, despite a proliferation of myths on its contents. It is time to dispel some of these myths and to clarify its main points.
The Lisbon Treaty amends the current EU and EC treaties, but does not replace them. It aims primarily at providing a more democratic, transparent and effective decision-making framework.

Under the Lisbon treaty, the role of the European Parliament is strengthened. The Parliament receives new powers over EU legislation, including the EU budget and international agreements. The so-called “co-decision procedure” will make the Parliament an equal partner of the Council, representing Member States, for almost all of EU legislation. National parliaments will also play a larger role in EU decision-making trough a new monitoring mechanism to ensure subsidiarity, or the principle that the Union can only act when local action to solve a problem is insufficient. Through the “Citizens’ Initiative”, one million citizens from a certain number of Member States will be able to request the Commission formulate policy proposals. The Lisbon Treaty also recognizes the right of each Member State to withdraw unilaterally from the Union.

Importantly, the Treaty of Lisbon gives binding force to the provisions of the Charter of Fundamental Rights, which includes innovative economic and social rights provisions and covers all EU actions, including member states implementation legislation.

The treaty also provides for more effective and efficient decision-making in EU institutions. What is known as “qualified majority voting” will be extended to cover most policy areas governed by the Council. This will mean that, after 2014, the passage of a legislative act will require a “double majority” of Member States and EU citizens. Thus 55% of the Member States representing at least 65% of the Union’s population will have to unite behind an act to for it to be passed in the Council.

Importantly, the Treaty of Lisbon ensures institutional stability by creating the function of President of the European Council. The President will be elected for two and a half years (Tony Blair is the current front-runner) and will be the one to pick up the proverbial red phone, should President Obama decide to call.

The Treaty also extends the Union’s competences to certain sensitive policy areas including combating terrorism and tackling crime, and, to some extent, energy policy, public health, civil protection, climate change, services of general interest, research, space, territorial cohesion, commercial policy, humanitarian aid, sport, tourism and administrative cooperation.

The Lisbon Treaty will also ensure that the role of the EU as an actor on the global stage is enhanced. A new High Representative for the Union in Foreign Affairs and Security Policy, who is – at the same time – Vice-President of the Commission, will ensure the visibility of EU external action, even though his interaction with the EU President is yet to be defined. The High Representative will be supported by a new European External Action Service, an EU diplomatic corps.

Contrary to some popular myths, especially rampant in Ireland before the its first referendum on the Treaty, and in the United Kingdom, the new Treaty does not impinge on the neutrality of member states, does not put public services at risk, does not weaken the social achievements of member states, does not change Irish or Polish laws on abortion, nor does it take away the British pound, change Czech laws on German-held property after WWII, change tax laws, or create a European super-state, or a European army poised to strike in conflict zones, take away member states’ right to formulate their foreign policy within the framework of prior treaty commitments, or aim to take away Security Council seats of Permanent Members.

Unfortunately, the Lisbon Treaty will also not make the EU treaties easier to read. But, if they were, who would need lawyers?

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

The controversy over the UK’s new Supreme Court: much ado about nothing?

BY PETER WICKHAM

UK Supreme Court seal
Middlesex Guildhall, retrofitted to serve as home for the new UK Supreme Court, sits across from Parliament in Westminster, London

If it ain’t broke, the saying goes, don’t fix it. So why the need for a UK Supreme Court? The claim that there was a need to supplant the House of Lords’ hundreds of years of tradition as Britain’s highest judicial body merely to create a court with the same powers and membership as the old one seems like a lot of fuss about nothing. To some, it even seemed like the whole proposal was the result of a political dispute between Tony Blair, the Prime Minister who proposed the change, and the head of the former Law Lords, the Lord Chancellor. Perhaps, though, we should not be so quick to condemn.

Aside from political arguments, the main impetus for change was that no one other than lawyers really understood what the final court of appeal was or who the elusive judges were; it existed in the shadow of the much  more visible Royal Courts of Justice. Although it shared its name with the upper house of Parliament, the Law Lords consisted of 12 judges, and since 1945 had not heard cases in the chamber itself. The problem was that the Law Lords were still members of the legislature, with the Lord Chancellor in fact being the speaker of the upper house as well as a cabinet minister and the most senior judge. The old system was aloof and, like so much in a system without a written constitution, offered great (if, as it turned out, only theoretical) potential for abuse.

The new Supreme Court firmly establishes judicial independence. It is now housed close to, but separate from the Houses of Parliament. Most importantly though, members will no longer be elevated to the peerage, and, thus, become members of the legislative House of Lords. At the same time, the substance of the court will not change. It will carry on the all the work of the House of Lords as well as some functions of the Privy Council. The same Law Lords have been transformed into the new Justices and differ only in name, and it is hoped the same high standard of legal analysis and detachment from politics will remain.

This all sounds pretty good, save for the new court’s £90 million start-up check. Still, the old Law Lords maintained their judicial excellence by remaining rather aloof from the political scene. The danger is that with live TV feeds and a more public profile, the new court might lose this and become more like the U.S. Supreme Court. Deadlock in a partisan court is not good for the law. Politics harms legal reasoning, it stifles judicial law making and at its worst leads to injustice. The creation of a Supreme Court is to ensure that there can be no interference from the politicians. Thankfully, the appointment process gives the executive, and the legislature virtually no say, so the problems of the U.S. seem unlikely, and the same high calibre judicial minds will still be present. If the court is to be a success, though, the justices must remember that, first and foremost, they are lawyers. They should not be swayed by public opinion; a court based on this is no court at all.

The need to follow the law rather than the ebb and flow of the public mood should not mean that the court is dissuaded from developing the law. At present there is no jurisdiction to strike down statute yet many ask whether the new court might over time move in this direction. This would be a constitutional enormity, destroying the concept of parliamentary sovereignty, yet in days of little legislative scrutiny it is not a wholly bad thing. Our system has almost complete fusion of executive and legislature, the voting system leaves us with huge majorities, and the rule of law is often left in a precarious position. If the new court were to step into this accountability breach they should be welcomed, not castigated. Those who call for judges to apply the law, rather than to say what it should be, are at odds with the very nature of the common law and seem consumed in theories of mob justice rather than in legal reasoning. Judicial activism does not mean the end of the rule of law; in fact, a strong judiciary is necessary to give it effect. Given the choice of a judge or a politician, I know which one I’d pick.

Despite its garish emblem, its hideous building and its astonishing price tag, the new Supreme Court should be welcomed. It ensures true separation of powers. It buttresses judicial independence while offering the possibility of a more accountable executive. After the swearing in, as the Justices take off their new black and gold robes, they should be proud of themselves. In their own, relatively understated British way, they have created a truly independent final court, which became largely of their own design once the politicians became bored with the project. The name grates, parts of the court are rather tacky, and some of the old world charm has gone, but behind this we are left with a true and independent instrument of justice, and that’s something with which we shouldn’t quibble.

Peter Wickham is an LL.M. student from the United Kingdom.

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

BY JESSICA CORSI

JD student on a typical Saturday night?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The immortal essence of October baseball

BY MARK SAMBURG

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

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

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

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

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

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

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

Guinea: has a nascent democracy lost its way?

BY JEAN-LOUIS

Guinean soldiers in Conakry

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

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

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

A brief history of power in Guinea

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

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

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

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

How did we get to this bloodshed?

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

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

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

The crossroads ahead

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

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

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

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

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