Letters from Berkeley: The final analysis

BY COLLEEN CHEN

As I near the end of my semester at Boalt, I thought it would be a good time to evaluate my experiences here as compared to life at HLS. I’ve been asked quite often by professors and fellow students if I like it better at Boalt or HLS, and what the differences are. My response has generally been positive towards my current situation, although that doesn’t say a lot considering I tend to validate the choices I make.

What I really like about Boalt: The classes are tiny, and the professors are incredibly accessible and friendly with the students. These two factors create intimate, warm and very interactive classes, where people talk because they are passionate and engaged.

I don’t encounter very much of the near-frightening brilliance of many HLS students, but then again, I also don’t encounter a lot of the emotional and other hangups, or the weird competitiveness, that often comes with that sort of brilliance. I have also encountered a lot less apathy at Boalt — at least a couple of my classes are full of activists embroiled in political situations. There are also a lot more women at Boalt, which really changes the communication dynamic in the classroom, and there are a lot more people who’ve taken time off before going to law school. Both of these have been refreshing to me, as a woman and as a person who has taken time off. I’ve also gotten a lot of permission to explore some very unconventional paper topics in my classes, and in presentations no one’s even batted an eyelid when I’ve shared my views — instead they have been met with enthusiasm and genuine interest.

I have experienced a lighter workload at Boalt, and much more blackletter law as opposed to the “thinking like a lawyer” kind of training HLS offers. One of my professors last week was talking about Harvard students failing the bar because “other schools teach answers, Harvard only teaches questions.” This dynamic could be seen as a benefit or a disadvantage, depending on what one individually wants from a legal education. I’ve enjoyed it as a change — it’s allowed me to live an active life outside of school, which I think is good training for my post-law-school career (which I don’t want to dominate my life either).

Weather? Berkeley wins hands down. Food? Much easier to eat healthy here, and the eats are cheaper and of a bigger variety. Drink of choice for law students? Here, everyone brings water bottles to class. At HLS, everyone has a big Starbucks coffee. San Fran versus Boston? What can I say except — Massholes!

On the other side, there are things to dislike about Boalt, too. The major thing that’s been glaringly evident is that this law school is much poorer than Harvard. There are fewer fancy dinners and freebies from firms. The career services office is nothing like what HLS provides in terms of resources and sheer coddling. The swimming pools here have restricted hours and at least five people per lane at any given time; at the gym, I have to wait a half-hour to an hour to use the elliptical machine. The rooms at Boalt are old, dirty, ugly, smelly and have limited electrical outlets, which results in students having to bring in power strips to share available outlets. The chairs are incredibly uncomfortable and often broken, making me realize how little I appreciated the plush seating at HLS. I won’t get started about the bathrooms, and the library here is such an eyesore compared to Langdell, I haven’t even gone in yet.

The professors at Harvard have a star quality to them that makes it worthwhile to take their classes even if they’re too busy to have lunch with you. At HLS, nearly every professor I’ve had a class with has blown me away with the sheer brilliance of their minds and the charisma of their presentation. The hierarchy and elitism and the intimidation game perpetuated by the atmosphere at HLS is worth learning from. And of course, there are some pretty awesome students at HLS too.

I found being in Cambridge and at Harvard incredibly intellectually stimulating and fast-paced, but rather emotionally cold. That context allowed me to really focus on some things I wanted to do and learn in those two years. Here, I cry a lot more, I have more trouble thinking, but this space allows me to focus on some other issues I want to work on. Yes, it’s all so perfectly synchronicitous!

My short answer to the question about whether I like Boalt better than Harvard is that I don’t know or really care. I’m glad to be where I am and in this context, and that seems to be enough.

Look Both Ways Before Crossing the Street

BY ALLISON WHITE

“You’ve been screwed. You’ve been bludgeoned, skewered, crushed, mutilated by the stock market. …. You think the stock market must have been rigged. And you’re right.”

To hear that these days is hardly original. But hearing it from a man who’s dedicated to getting you back into the market, to beat the hell out of the market — that’s original. Of course, if you’re a regular listener or reader of James Cramer (HLS ’84), you know better than to be surprised.

Cramer — who claims to have spent his HLS years ignoring class and rehabbing the portfolios of Profs. Fried and Nesson, among others — is a busy man. Besides writing books, he is the centerpiece of TheStreet.com, hosts a daily radio show and co-hosts a nightly CNBC news analysis hour. He returned to HLS Tuesday to discuss his memoir, “Confessions of a Street Addict”; but while that book is retrospective, his current tome, “You Got Screwed! – Why Wall Street Tanked and How You Can Prosper”, offers prospective advice for the investing classes.

Just over 100 pages, the book barely matches up to a Duncan Kennedy vehicle – but what it lacks in size it makes up in accessibility and fire-branded enthusiasm. Still enraged at the actions of Jack Grubman and the rest of Wall Street’s johnny-con-latelys, Cramer spends three-quarters of the book reviewing what went wrong – the familiar litany of “Investment banks hungry for deal work forced analysts to trump up the stocks of prospective clients, whose execs played shady with the books, thanks to the aid of ‘auditors’ who did more consulting than auditing, all under the nose of boards of directors that were too distracted/ignorant/complicit/corrupt to blow the whistle.”

Still, Cramer’s treatment of history comprises an efficient summary for investors who aren’t black-fingered Wall Street Journal readers or manic-depressive CNBC addicts.

The core of “Screwed,” though, is Cramer’s advice to those re-entering the market. His overarching commandment is get diversified. Cramer, who dedicates every Wednesday’s radio show to a game show style call-in, “Am I Diversified?”, repeats this mantra for the benefit of those who sank all of their 401(k)s into the stock of their employers — and watched as collapse eviscerated net income and nest egg alike.

He also reviews the fundamentals of financial literacy. Eschewing “buy-and-hold,” he endorses what he calls “buy-and-homework”: Invest in value companies but never get complacent. He highlights the importance of dividends and the role of cash and bonds in the well-diversified portfolio. All very characteristic of Cramer’s playbook – as essential to rookies as it is familiar to his regular audience.

A second, equally-compelling take on investing is former SEC chief Arthur Levitt’s “Take On The Street.” Levitt offers the perspective of a long-time regulator in lengthy reviews of his attempted Wall Street reforms throughout the 1990s (much of which was stifled, allegedly, by GOP congressmen (and a few Dems) in the pocket of Big Finance). Levitt spends more much time detailing the inner workings of Wall Street exchanges, tracking a trade from the mouth of the investor, through the broker, into The Market — to highlight for the reader the importance of timing (and the compounding effect of fees and “rebate” kickbacks) in choosing investment vehicles. Like Cramer, he also cites the importance of diversification, and — HLSers! — the necessity of starting early — in your twenties, if possible. He finishes his book with an appendix of letters from congressmen who stifled his SEC reform efforts, and a letter from Enron CEO Ken Lay touting the company’s relationship with Arthur Andersen.

Levitt’s book reads like the memoir of a regulator (particularly, a Clinton regulator) — there are few problems that cannot be regulated away. As one who demanded increased “board independence,” his obsession shines through in his description of the ideal Board of Directors, enumerating quality proxies such as independence, overcommittment, compensation and perks, but never… competence per se.

That, to a large extent, is the failing of much of Levitt’s reform plans. In a time marked by audit malfeasance, it’s easy to focus on audit-related reforms — but costs of independence cannot be ignored. “Insiders” on the board may be less valuable at audit time, but they are valuable in the regular operations of the board of directors — namely, directing the company.

Finally, the lengthy indictments of corporate wrongdoers on the part of Levitt and, to a lesser extent, Cramer, hide an equally-important indictment: that of willfully ignorant investors. After their manic investing in vacant tech stocks, filling 401(k)s with employer stock, and taking for gospel the recommendations of clearly conflicted analysts, it’s hard to feel sympathy for those who bought into the scheme with such lucre-lust or astounding ignorance. Some investors did indeed get screwed – they deserve Cramer and Levitt’s advice. But countless others — those that screwed themselves with all of the vigor of Grubman et al. —need to take a long look in the mirror before pointing the finger elsewhere.

Two hours to a new perspective

BY ALEX GORDON

Throughout the course of the Israeli-Palestinian conflict, each side has succeeded in casting the other in the worst possible light. Pro-Palestinian groups show Israel as a cruel occupying power that randomly attacks innocent civilians who merely want to live on their own land. Israel portrays Palestinians as rock-throwing, hate-mongering terrorists, whose sole ambition is to stomp out every last vestige of the State of Israel. The mutual achievement of successfully bashing the other side has only deepened the rift between the two groups. Neither side should take much satisfaction in this dubious achievement.

A conspicuously absent aspect, at least for me, was the alternative view of Palestinian people. No rational person could honestly believe that every Palestinian is a terrorist, or evil in some way. It is simply impossible that an entire people could be completely devoid of goodness, much the same way that it is impossible that an entire people could be completely untouched by evil. Still, I had never been presented with the “good” side o f the Palestinians, although logically I knew it was there. The primacy and saliency of terrorist attacks had succeeded in pushing the desire to find this view far to the back of my mind.Last week, while returning from writing my open memo — an assignment that actually is utterly riddled with evil — I noticed an advertisement for a film at the Kennedy School of Government entitled A Wedding in Ramallah.

It seemed that I had finally come across an opportunity to see that “other view” of Palestinians which previously had so eluded me. After seeing the film on Tuesday, I walked away with one of the more rewarding two viewing hours I’d had in recent memory.The most striking feature of the film was its human element. Within the first ten minutes, nearly every preconception I held regarding Palestinians came under visual attack. Watching the family members interact and engage in hilarious dialogue, I found it difficult to associate them with the terrorists of whom I so often read. The true irony of the Arafat-led “resistance” efforts is that it obscures the image of Palestinians as people. Every bomb that goes off in a crowded square, every family that is murdered by terrorists further diminishes the desire to look beyond the terrorists and see the Palestinian people as a whole.

Unquestionably, the reverse is true for the Israelis. The effort to demonize each group has yielded precisely what was sought, and at great expense. The conflict in the Middle East shows no signs of ending any time soon. Hatred is deeply entrenched, and while there are “good sides” in both groups, terror, retaliation and fear dominate the landscape. Despite the pain and suffering, I would hope that ultimately, the ugliness of violence would one day bow to the beauty that each group, Palestinian and Israeli, has to offer.

At HLS, I can point to nothing that has been done to help push back the ugliness. Instead of using its prestige to make a positive difference, Harvard’s main contribution to the conflict has been the preposterous and hate-ridden petition for divestiture. Supporters of this petition do nothing to help the people they claim to support. Casting Israel as evil only further entrenches Israeli supporters, who are quick to cast Palestinians in the same way. To engage in this activity is only to pointlessly retread old ground.

A Wedding in Ramallah gives more hope for possible grounds for peace, does more to demonstrate the presence of goodness in Palestinian people in two hours than divestment or any other mudslinging activity could hope to achieve in a lifetime.

1L Experience: Giving thanks for break

BY JEREMY BLACHMAN

For many 1Ls, Thanksgiving break next week may be the first time to see families since starting law school. One of the most common questions my family asks me about law school is, “So, what exactly are you learning?” (The other most common questions I’m asked by my family include, “Are you eating enough vegetables?” “Have you met a nice Jewish girl yet?” and “Have you figured out a way for me to get out of that felony murder charge?” (My uncle Elmer. He’s got some problems.)

Usually, I just respond to the question about what I’m learning by dropping some big complicated words I’ve heard in some of my classes. For example: “I’m learning a lot, Grandma. I now know that given the precedent set in the landmark case of promissory estoppel v. appellate restitution, the jurisdiction of the exclusionary rule is an intentional infliction of emotional distress. But only if the action is brought in a federal district court in reliance on the expectancy nudum pactum de novo res judicata assumpsit.” That usually shuts people up pretty quickly.

I’ve recently begun to wonder, however, if I am in fact learning anything useful, or at least anything useful for Thanksgiving conversation. I’ve already thought of a few good lines I’ll hopefully be able to use at the dinner table. When my little cousin throws up on the floor, I can exclaim that he was simply performing a restitution remedy and disgorging the benefit the festive meal had conferred upon him. Or, when my aunt throws out the burnt sweet potatoes, I can gently warn her that even under the Fourth Amendment, her trash can be searched without a warrant, and the whole world will know she can’t cook.

But more seriously, I wonder if there’s anything substantive I’ve picked up in 11 weeks of law school. And when I really think about it, I realize that there is quite a bit I’ve learned. I’ve learned that highlighters don’t last very long. I’ve learned that getting called on in class isn’t as scary as it first seemed. I’ve learned that you can always read more carefully. And, I’ve learned that for every argument on one side of a policy issue, there are four counter-arguments, two counter-counter-arguments, and one random side that can be categorized in the world of ancient Greek mythology.

I’ve also noticed law school has started to make me think differently. I now send e-mails with numbered bullet-points: “ The movie was (1) a dramatic masterpiece, (2) with stirring performances by (a) the pretty blond girl, (b) the overly-precocious child, and (c) the giraffe, but (3) I was distracted by the German subtitles.”

Furthermore, I’ve started to recognize the opinions of certain Supreme Court justices: “The rhetorical flourishes in the first section makes me think it’s Justice Jackson, but the wavering between federal and state common law smells a lot like Justice Ginsburg.” And, the most dangerous knowledge of all, I’ve begun to actually recognize the names of law firms: “White and Blue. Yes, I know them very well. They specialize in international export law, yes? And the esteemed firm of Chance, Luck and Happenstance. 3600-hour-a-year billing requirement. Excellent firm.”

My family thinks it’s pretty cool that I’m at law school. Frankly, so do I. I think it’s pretty cool that last week in Civil Procedure, we had to read page 1000 of our casebook. “Let’s turn to page one thousand and four” is something I never thought I’d hear anyone say. I think it’s pretty cool that three months ago I would have said that UCC was some fringe cable network (the United Cheese Channel? Urban Cinema Channel? The (always-exciting) University Choir Channel?), and now I know that it stands for the Unenforceable Contract Channel and, without looking, I know that UCC 2-205 refers to “firm offers.” (But please don’t ask me what a firm offer is!)

Valuable knowledge? Maybe not. But enough to impress my relatives at the Thanksgiving table. I’ll be sure to tell my grandmother that I’m eating lots of vegetables (well, lots of one vegetable, anyway — it always seems to be squash week at the Hark). And if you’re that nice Jewish girl I’m looking for, send me an e-mail — I’ll be sure not to introduce you to Uncle Elmer.

ReDo: Lipper column of November 14

BY MRE@POST.HARVARD.EDU

In his column of November 14, Greg Lipper casually remarked that for every photo of a dismembered fetus, there’s another photo of a suffering baby who should have been aborted. Accepting for sake of argument his claim to know whether a person’s life is worth living, I’ll point out that Mr. Lipper overlooks a key distinction between life and death: life is fleeting, death is forever. The harm done to the aborted fetus can’t be undone, she is dead and can be alive no more. But the putative cause of the suffering baby’s pain – that she’s wasn’t killed and is still not dead – can be remedied. If it’s really better that the baby not live, that can be arranged. No reason to fret.

Of course, I don’t believe anyone knows which lives aren’t worth living. And while we all react differently to seeing a victimized or despondent child, regretting a child’s existence is brutal. Instead, our response should be to remove them from abusive homes, relieve them of physical pain, surround them with love, and celebrate their priceless, inherent beauty.

Matt Evans, ’01

Lipper column of November 14

BY MRE@POST.HARVARD.EDU

In his column of November 14, Greg Lipper casually remarked that for every photo of a dismembered fetus, there’s another photo of a suffering baby who should have been aborted. Accepting for sake of argument his claim to know whether a person’s life is worth living, I’ll point out that Mr. Lipper overlooks a key distinction between life and death: life is fleeting, death is forever. The harm done to the aborted fetus can’t be undone, she is dead and can be alive no more. But the putative cause of the suffering baby’s pain – that she’s wasn’t killed and is still not dead – can be remedied. If it’s really better that the baby not live, that can be arranged. No reason to fret.

Of course, I don’t believe anyone knows which lives aren’t worth living. We all react differently to seeing a victimized or despondent child, but regretting the child’s existence is brutal. Instead, our response should be to remove them from abusive homes, relieve them of physical pain, surround them with love, and celebrate their priceless, inherent beauty.

Matt Evans, ’01

Gunther Team wins Ames Competition

BY HUGO TORRES

Inside the Ames Courtroom,
Greg Lipper (L) and
Mark Freeman (R)
prepare for oral argument.
The White Team moments before the Ames Finals began.

Proving wrong all who said otherwise, 3L Greg Lipper and the Gerald Gunther Memorial Team took home the team award for “Best Overall” in the Ninety-First Annual Harvard Law School Ames Moot Court Competition, arguing before a panel of three judges that included Supreme Court Justice Stephen Breyer. The Gunther team also took home the award for “Best Oralist,” given to Mark Freeman. Opposing counsel, the Byron White Memorial Team, took home the award for “Best Brief.”

“It was a tie,” said Justice Breyer right before announcing the results and explaining how difficult it was to choose between the two teams. Joining Breyer as associate justices were the Honorable Diarmuid O’Scannlain of the Ninth Circuit and the Honorable Ann Williams of the Seventh Circuit.

“First rate,” O’Scannlain said after the justices announced the award winners.

Indeed, the evening presented an exhibition pitting two of Harvard’s finest groups of students in a case that revolved around discrimination and First Amendment issues. The White Team consisted of 3Ls Carlos Lazatin, Jeffrey Lerner, Rita Lin, Mary Catherine Martin, Nathaniel Reinsma and Matthew Stephenson. The White team argued on behalf of Plaintiff-Petitioner Christina Morales, a landlord who refused to rent to unmarried couples on the grounds that such cohabitation violated her religious principles.

Meanwhile, the Gunther Team, representing the respondents, consisted of Norina Edelman, Mark Freeman, Beth Harrison, Joshua Solomon, Louis Tompros and the sometimes-derided but never underestimated Lipper. The Gunther team argued on behalf of the State of Ames Commission for Human Rights, which is charged with ensuring that no discrimination occurs in regards to housing.

The oralists for the White Team were Stephenson and Lin, with Freeman and Lipper representing the Gunther Team. Each team presented itself firmly, responding with poise to questions posed by the judges and engaging in sophisticated rhetoric and legal argumentation that was applauded after the competition was over.

At one point Freeman defended the respondent’s motion to dismiss by posing the question, “Why would we ask this court to wade into the swamp of hybrid constitutional rights?”

The teams debated two central questions: Whether petitioner Morales even had standing to bring the claim, and whether an unconstitutional burden was placed on Morales’s rights to free exercise and free speech.

For their part, the justices were relentless in challenging each team to clarify its arguments and consider the ramifications of what they were saying. When the White Team began arguing based on precedent, Breyer pointed out that, “not all of our precedents are perfect,” and challenged the team to explain why the case stood on its own merits. During the Gunther Team’s time to make arguments, Breyer challenged their desire to dismiss the case, suggesting they consider the impact of their argument. “You want to force her to face jail to challenge the statute,” Breyer noted, leading the Gunther Team to clarify under what circumstances they believed such a case should hold up.

“I just thought it was a fabulous display from four talented Harvard students,” said 1L Mark Barrera. “It made me proud to be a Harvard Law student.” Barrera went on to mention that the fine performances of the oralists inspired him to aim to be a better oralist himself: “Makes me want to try harder every time a professor calls on me in class.”

This year’s Ames format differed little from previous years, with the competition mirroring the appellate process to give students a taste of the appellate experience. Each team had to compose briefs and argue before judges through quarterfinal and semifinal rounds, argued in the fall and spring respectively. Winning the competition entailed a cash prize, as well as being immortalized in Harvard Law lore as Ames Competition winners.

The evening was not all serious arguments, however. At one point, Breyer posed a hypothetical which he began to answer himself, then, recognizing he was giving the answer, paused and turned towards oralist Matt Stephenson, saying, “Well, you respond.”

At another point, Stephenson was asked a question by Williams. Stephenson, who had just ended his presentation, pointed out, “Your honor, I see my time is up,” to which Judge Williams, making sure her question was not evaded so easily, replied, “Oh no, you may answer.”

Meanwhile, as arguments over constitutional issues went on inside the Ames courtroom, a more festive atmosphere pervaded the rest of Austin Hall, as students filled up the overflow areas to watch the competition on screens in the Austin classrooms. The beer, laughter and heckling that filled the Austin classrooms stood in sharp contrast to the more subdued and reverent atmosphere inside the Ames Courtroom.

Despite not being physically present in the courtroom, those in the overflow rooms were treated to scenes that were missed by most in the courtroom, such as when the camera panned to a professor sleeping through the arguments.

One-L Franz Cheng, who was watching the proceedings in the overflow area, found it to be an enjoyable vantage point. “We had a good time. It was a casual and surprisingly non-drunken atmosphere.”

One-L Lee Rowland, a fellow student watching the proceedings in the overflow area, agreed with Franz’s assertions if not his conclusion. “There wasn’t nearly enough heckling or drinking.”

The Changing Role of BSA

BY JON LAMBERSON

The Board of Student Advisers has had a major impact on the first year education of Harvard Law students for over 90 years. Yet despite featuring luminaries like Supreme Court Justice Anthony Kennedy in its ranks over the years, the history and purpose of the Board remains a mystery to most students, whose only contact with BSA comes in their First Year Lawyering (FYL) workshops and perhaps when they watch the yearly Ames competition.

Opinions of BSA were further confused recently when a 1L Law School Council representative expressed concern that BSA instructors were told not to give negative evaluations of professors to 1L students when helping them select courses for the spring semester — a charge which turned out to be only partially accurate.

The role of the BSA at the Law School has been continuously re-examined, especially with implementation of the new FYL program. The truth is that the Board walks a fine line: attempting to serve as instructors and friends to incoming 1Ls while trying to stay relevant and involved in the new First year Lawyering program.

A Storied History

For almost 150 years, HLS students organized themselves into “law clubs.” These small and elitist groups (examples included the Marshall Club, the Kent Club and the Pow-Wow Club) were formed to discuss and argue cases, as well as to provide a social atmosphere for their members. Many clubs established their own moot courts which were run in parallel with the faculty-run HLS moot court.

By the turn of the twentieth century, enrollment at HLS had dramatically increased, which led to the cancellation of the faculty-run moot court, which had become too burdensome to administer. The law clubs became the only places where HLS students could receive training in court practice.

A number of new clubs were formed during the early part of the century, but they still included only a small minority of students. So in 1910, a concerned faculty passed a resolution establishing a Board of Student Advisers, “for encouraging among first year students early and intelligent use of the law library and also for rendering the work of the law clubs more efficient.”

The Board was originally an honorary society, with membership chosen by the faculty (students whose grades were directly below those of the Harvard Law Review editors were invited to join). They focused mainly on the Ames competition, writing the cases to be argued, teaching legal research and organizing independent law clubs so that any first year student could participate in the moot court.

Though its student-centered teaching methods were lauded, the Board ran into its share of difficulties, especially as it had trouble finding faculty who were willing to take responsibility for training its teachers. In addition, participation in the Ames competition steadily declined over the years. By 1970, most of the law clubs had disappeared. The Board was in need of a new role.

In response, the BSA began taking on duties such as offering courses (including Gambling, Bartending and Bicycle-Care), organizing social activities and leading orientation.

But that led many to conclude that the Board had drifted away from its dedication to legal research and education, which led the faculty to redefine the organization’s role again in 1993. The faculty agreed to directly oversee selection of BSA applicants, who then were enlisted to teach the 1L “Introduction to Lawyering” course. This course was later renamed “Legal Reasoning and Argument” (LRA), the precursor to today’s FYL.

The Move to FYL

The LRA program had several flaws. Again, there were not enough full-time professors willing to teach the class, and for those who did, there was no central curriculum, leading to widely diverging experiences between sections. In the fall of 1998, an LRA Committee was formed to explore ways to reform the program. These proposals would eventually lead to the First Year Lawyering program in place today.

From the beginning, the use of BSA instructors was questioned by the LRA Committee. Some proposed that they be replaced by independent student-teachers, while others felt that only professional lecturers should be used. In the end, a compromise was reached: only 3L BSA instructors would teach workshops. When a 3L was assigned to teach two small sections, he or she would have assistance from 2L instructors.

The BSA was initially hesitant to make any changes.

“BSA students were used to a system where they worked without real oversight from full-time teachers, and obviously they developed their own way of doing things,” said FYL Director Michael Meltsner.

Today, most changes have been gradually accepted. As BSA President Kati Robson, a 3L, explained, “I think it’s a great thing, personally. When you have a 2L and a 3L in the course, you have more chance for feedback. It also gives 2Ls the chance to spend a year with someone who really knows the curriculum and knows how to give feedback. [The 2Ls] can take on as much or as little responsibility as they want until they feel ready to take on the job.”

Today there are 62 BSA instructors — 32 3L’s and 30 2L’s. Students are selected each spring based on grades, brief-writing, editing and feedback skills, and an essay. Selection is made by current BSA members, but the faculty are responsible for reviewing their choices. Positions are paid: Second year instructors are paid $2500 per year, while third year instructors are paid $5000 if they teach one class and $7500 if they teach two.

The exact role of BSA instructors varies from section to section. “[BSA instructors] are an important liaison to the students. Sometimes I won’t hear about problems that have come up, but the BSA instructors will bring them to my attention,” said Section III Lecturer Elizabeth Frumkin.

Mixed Opinions

Student opinion on the value of the BSA workshops is mixed. Some students believe that the BSA instructors need more training. As one first year student stated, “my BSA is only a year or two older than I am. Does one summer worth of firm experience really make them qualified to teach me legal writing?”

BSA instructors currently receive only three days of training in the summer before first year students arrive. However, 2L instructors are expected to take a class in the spring where they are instructed in legal teaching methods. Also, BSA instructors are required to meet once a week with their FYL lecturers in order to organize and coordinate materials.

An often-expressed concern among students is that material covered in the FYL lecture and the BSA workshops is redundant.

Frumkin explained that she attempts to make the two as complementary as possible, but that some overlap can be beneficial. “Just getting exposure to these basic skills is helpful. A lot of this development is going to happen over the course of a clinical program, a job, a lifetime.”

One final concern that surfaced recently questioned the independence of the BSA instructors. As Section IV representative Mike Ghaffary explained, “a first year student representative at the last law school council meeting expressed concern that the BSA instructors were told not to say bad things about professors. He was worried that their advice wouldn’t be worth much if they couldn’t speak honestly with their students, and that 1Ls were not being told about this.”

Third year BSA instructor Jenny Ellickson defended the policy, saying, “We’re not professors, but we do try to act as colleagues to the faculty. One professor wouldn’t criticize another professor’s class, and we want to follow the same professional guidelines. And our opinions about classes aren’t as important because people have such different views of professors anyways.”

Despite these concerns, most students seem to agree that the BSA instructors play a valuable role in their first year education. For many, BSA instructors are the only resource st
udents have for real-world information about electives, Ames and upper-class activities. Finally, some students simply prefer having student instructors. As one first year student stated, “I would pick my BSA instructors over my FYL instructor any day.”

The Future of BSA

The BSA has several challenges facing it in the future. Its students’ role as both teachers and advisers can be difficult to maintain. As Meltsner said, “On the one hand, a 2L or 3L can talk to a 1L in a way that may be more meaningful at times than a member of the faculty. On the other hand, to be an effective teacher you sometimes have to say things that people don’t want to hear. It’s often difficult for BSA instructors to be at the appropriate distance from their students.”

Another ongoing concern is whether the BSA will be able to maintain its independent voice, even though the organization needs to continually convince the faculty that it is relevant to first year education.

“I wouldn’t say we’re less independent now, but we are working as hard as we can to cooperate and work with the FYL lecturers, to make sure we serve a complementary role and meet the students’ needs,” Robson said. “We take the responsibility of our workshops very seriously, and we have a mechanism in place to tell the lecturers if there are problems.”

The largest source of uncertainty, though, remains the FYL program itself.

“We’re still in a state of transition in this relationship,” Meltsner said. “It’s not until next year that the 3Ls will have actually emerged from a 1L year where they took FYL. It’s not until then that we’ll have a firmer sense of the way the relationship has evolved. Our experience has been generally positive, but I don’t think you can ignore that the transition is difficult for everyone.” Robson added that, “I’ve seen major improvements just from last year to this year. I think some of these changes have made a huge difference in making sure students have the practical skills they need when they enter the workplace.”

When asked if she was concerned that the role of the BSA in first year instruction would eventually disappear, Robson said, “I worry about it in the sense that I think we provide something very unique and valuable to 1Ls. I would hate to see BSA phased out for that reason.”

Much of the background material for this piece is found in the third-year paper by Katherine M. Porter ’01: Learning by Doing: A History of the Board of Student Advisers 1910-2000, available in the BSA Office.

Human Rights group gets to work

BY YONI ROSENZWEIG

General (erin).jpg

Among the many types of expertise developed and exercised at Harvard Law School, those of the Student Working Group on Human Rights occupy a unique niche. Members of the group spend their days communicating with Latin American human rights activists and using the applicable law to aid human rights victims in the region.

Of particular focus for the 20 students in the Working Group are violations in El Salvador, where hundreds of untried atrocities of the Reagan-backed military junta remain unsettled. The legal framework to hear these and other cases regarding heath care and workers’ rights resides in Washington D.C., at the Inter-American Court of Human Rights.

Though located here in the U.S., the Court’s laws and rules are worlds away. The student advocates, operating out of the Human Rights Program office, must research applicable international law and procedures to file petitions on behalf of human rights victims.

Two-L Dan Schlanger emphasized how HLS students’ relatively easy access to legal resources can prove invaluable to those seeking redress in foreign countries. “There was untapped interest among students in Latin American affairs,” he said. Drawing on that interest, he decided launch the Student Working Group on Human Rights this year.

“Things really took off,” said HRP director Peter Rosenblum, “when Jim Cavallaro came to join the HRP as associate director. Jim has extensive knowledge of the Inter-American system.”

Yet the effort of students such as Schlanger and Mary Holder — who are fluent in Spanish and dedicated to enforcing human rights laws in the hemisphere — provides equally needed vitality. “On a typical Friday afternoon,” Rosenblum said, “you can find as many as 20 students involved in the work… many working pro bono and without receiving credit.

The Group’s first achievement will be an amicus brief to the Inter-American Court regarding disparate treatment of Mexican foreign workers. The Mexican petition of the parties includes reference to a recent D.C. Circuit case, Hoffman v. United States, in which illegal workers were held ineligible for statutorily guaranteed back pay during protected labor strikes.

Much of the Working Group’s time, however, is consumed by learning the rules and regulations of the courts themselves so they can file petitions for those that they have met and learned about in the region. In an effort to learn about regional difficulties and individual trauma, a group of HLS students recently flew to El Salvador, where they met with activists and determined their potential role as American students.

Most have also traveled to Washington, D.C. to watch the court in action and to meet key figures in this unique venue.

Though well-established human rights advocacy organizations exist in Latin America, the Working Group has elected to work with the less well-known Commission on Human Rights in El Salvador. This is part of an effort, as Schlanger terms it, to work with grassroots organizations that can themselves effect more change, perhaps after HLS resources are unavailable. Furthermore, he emphasized, there is still an overload of potential cases.

The Working Group is structured around the nation-based research it is conducting. Typically, one J.D. pairs with an LL. M. — who has often practiced law in the specific country — to research the viable options for litigation and set out the legal standards and relevant practices. Though the work consumes volumes of time, many students receive no clinical credit, instead anticipating a lasting engagement in the field more valuable than any transcribed evaluation.

Harassment Policy Proposal Draws Fire

BY JONAS BLANK

Prof. Jon Hanson´s suggestion
for a second Diversity
Committee with a broader
mission prompted
a response from Prof. Randall
Kennedy (middle).
Prof. Martha Field talks to students and faculty at Monday´s town hall.

The Diversity Town Hall Meeting held by the Law School’s Committee on Healthy Diversity kicked up a furor Monday night when a Black Law Students Association-backed proposal for a new racial harassment policy drew fire both from professors in attendance and national news outlets that deemed the proposal a thinly-veiled version of a speech code. Though Dean Robert Clark said he is firmly opposed to curbs on free speech, he is keeping all options open until the Committee makes its final recommendations.

Formulating a policy

Prof. Martha Field, who chairs the Committee on Healthy Diversity and moderated Monday’s town hall meeting, said the committee hopes to formulate a harassment policy that does not ignore free speech principles.

“The policy would ask students to be respectful of each other and be civil, if there is a way to delineate this issue with free speech,” she said.

Field said the proposed policy would focus on ascertaining a specific intent to harm a person. She offered the example of a student who followed another student around campus barking a racial slur.

Field defended the Law School’s right to maintain a harassment policy, despite the fact that such policies have generally been held unconstitutional at public universities and other government institutions. “We are looking to separate hurtful things from the mainstream of free speech,” she said. “When the government can’t do that… an institution like Harvard Law School can still tell students to respect each other.”

An incident such as the recent events at the Business School, where the editor of the student newspaper was threatened with sanctions by administration officials over a cartoon calling Career Services employees “incompetent morons,” would not be contemplated under the policy, Field said. Similarly, a performance like the Law School Parody would not fall under the policy’s purview, as it is has no specific intention of harassing anyone.

The proposed harassment policy sparked outrage both from national free speech groups and the editorial pages of several major newspapers.

“[The harassment policy] is a speech code by another name,” said Harvey Silverglate ’67, a Boston attorney who attended the meeting. Silverglate is a co-director of the Foundation for Individual Rights In Education, a group that seeks to protect First Amendment rights on college campuses.

“One does not need a code to outlaw true harassment,” Silverglate added. “That is a violation of civil and criminal law! [BLSA] wants a code because they want to outlaw points of view that offend them.”

BLSA President Joshua Bloodworth, a 3L, defended the nascent proposal and its purpose. “[The policy] would be something that would allow the school to take disciplinary action against people who harass other members of the community along race, religion, sexual orientation, national origin, creed or disability lines,” he said. “What it is not is a call for a speech code, which seems to be the prominent misinterpretation that’s going around.”
Although BLSA supports the call for a harassment policy, Bloodworth noted that the organization has not formulated a formal plan of its own. Instead, BLSA is seeking a policy that reflects what Bloodworth called, “a community effort.”

Dershowitz dominates the Town Hall

At the Town Hall meeting, Prof. Alan Dershowitz was extremely critical of students advocating a harassment policy. In one exchange, Dershowitz chastised a student who suggested that the Committee vote on the existence of the policy first, then decide its specifics.

“That’s like asking someone to first vote for censorship, and then figure out later what is censored,” he said, challenging the student to provide specific examples of incidents that would be covered.

That prompted a retort from Prof. Randall Kennedy, who said, “I don’t think students should feel embarrassed to have to come back with a response,” he said.

“I treat students as equal,” Dershowitz responded. “All I was doing was challenging the student’s views.”

Dershowitz also challenged students’ notions of diversity. While many called for increased diversity both within the student body and the faculty, Dershowitz argued that most students simply want, “more of themselves,” rather than actual ideological diversity.

“The last thing people want is their views challenged,” he said. “Real diversity is when black people say they want more racists, Jewish students say they want more anti-Semites or pro-Palestinians and gay people say they want more homophobes.”

Two-L Jeri Golbert disagreed. “People who are asking for ‘more of themselves’ do so because their views are not being represented,” she said. Golbert added that the Law School should implement mandatory diversity training. “If you are really committed, you should make it mandatory. So what if students complain?”

The Diversity Committee has other proposals besides a speech code to consider, including the creation of a faculty committee that could respond to racial incidents. “When something like last spring happens, we want to give the students someone to complain to,” Field said.

Another proposal that BLSA hopes the Diversity Committee will adopt is the creation of an office of multicultural affairs. A variety of missions are contemplated, including providing social programming, handling racial harassment complaints and providing what Bloodworth called “institutional memory.”

“Because students pass through here so quickly, and the school doesn’t appear to be taking these issues seriously, there is no institutional memory. In addition to serving as a place for students to go when they have problems, the office would also provide some institutional memory.”

Clark considers options

Dean Robert Clark said that at this early stage, he was still considering all options, though he expressed strong hesitation at the implementation of any form of speech code.

“I’m extremely cautious about getting behind a regulatory policy with disciplinary sanctions that might infringe on free speech and free expression,” he said. “I’m close in agreement with Alan Dershowitz on that.”

As he has in the past, Clark said his primary goal is finding a way for students to interact more openly and get along with each other. “My desire is to come out with something that will work, not a thing that serves as merely a symbolic or political victory for any group,” he said. “I want to build a community that furthers academic values and doesn’t hinder them.” Clark will likely not receive the Committee’s final recommendations until this spring.

Clark praised the Committee’s current work, including the recent Diversity Festival and the Difficult Conversations workshops, which help students understand how to communicate more respectfully across a range of topics, from breaking up with significant others to dealing with racial issues.

Clark also said he is considering a plan to provide a centralized location for student organizations to be headquartered, with shared common areas, that might improve interaction on campus. Such a proposal, he added, would not likely be implemented until the Law School’s Allston plans are finalized.

As for the harassment policy, the most difficult question is likely to be one of drawing a line between mere speech and actual harassment. Clark said that the Law School’s Sexual Harassment Guidelines, implemented in 1995, differs from most racial harassment policies because it includes an “action component” that typically involves a real or implied physical threat.

However, Bloodworth said that harassment does not necessarily have to involve physical threats. “This policy addresses harassment, not speech,” he said. “Speaking for myself, I can definitely see how there is speech which could be considered harassing and could reach the level of har
assment…. We do know that verbal harassment has in many cases led to physical harassment.”

Today, Clark said, verbal incidents are typically subject to “informal sanctioning processes,” which he argued are effective. “Why doesn’t this happen more often here? Because people tell someone to stop, they tell them to ‘back off.'” He added that physical threats at HLS are extremely rare, and are already easily punished. “That verges on conduct that would be tortious.”

While Clark did not entirely reject a sexual harassment-style code to deal with racial incidents, he said he did not want to see a repeat of the Business School’s problems, which centered around a set of “Community Standards” that establish no clear guidelines as to what constitutes acceptable speech.

“That could be the worst of all worlds — a statement of values that’s vague and general,” he said. “The question is prevention of these types of incidents, rather than sanctioning after the fact.”

Any final form of a racial harassment policy would have to be approved by a vote of the entire HLS faculty, which could occur this spring at the earliest.

Additional reporting by Clinton Dick.


The RECORD initially reported on this controversy in our April 11 issue.
http://www.hlrecord.org/news/320068.html

Professor hopes to write history of HLS

BY CLINTON DICK

Have you ever speculated why grading is anonymous or why a casebook is used in law classes? Have you ever wondered who were the first African-Americans or women to graduate from Harvard Law School? Are you curious as to why Austin Hall was built to accommodate so many students in one classroom?

These are the type of questions that Visiting Prof. Daniel Coquillette hopes to answer as he completes his research on the history of HLS. Coquillette’s office could double as an archive of HLS memorabilia: every yearbook published at HLS, mid-nineteenth century HLS catalogs (with only two professors listed), even eighteenth-century legal documents with stamps attached (as prescribed by the Stamp Act). Fortunately, there is more to Coquillette and his work than his yearbook collection.

Coquillette graduated from Williams College in 1966 and secured a Fulbright Scholarship to attend Oxford for the next three years. “That was a wonderful experience for me,” Coquillette said. “The porter at Oxford said there was another American coming to the college, and he was a Baptist from Arkansas.” Though he said he didn’t have high expectations for his fellow American at the time, he turned out to be pretty impressive company. When the porter first called Coquillette to tell him that William Jefferson Clinton — the Arkansan in question — had just been elected governor of his state, he remarked, “Clinton? Isn’t that like being elected king to a country with two men and a dog?”

After Oxford, Coquillette returned to the United States, where he graduated from HLS in 1971. He remembers it as a turbulent time to be studying law.

“The law school was in the middle of uprisings about Cambodia and Vietnam,” he recounted. “You came in and people were questioning everything, from placement programs to the mission of the school.”

Upon graduation, Coquillette clerked for Robert Braucher at the Supreme Judicial Court of Massachusetts, and later for the Burger Court during the time Roe v. Wade was decided and Watergate was heating up.

“I remember sitting in Byron White’s office watching the Watergate hearings and listening to him make jokes now and then,” Coquillette said. “There is a theme in all this in that I lived through tumultuous times. It made you think hard about change and what causes it.” That questioning, he said, led him to think hard about a career studying legal history.

Coquillette started his academic career as a visiting professor at Boston University, and later took up the same position at Cornell. He was offered a permanent position at Cornell, but was told by his English wife (much to his amusement) that if he stayed in Ithaca, “she would go back to her country and her people.” Coquillette moved back to Boston, where he eventually became a partner at Palmer and Dodge.

After teaching briefly at HLS in 1984, Coquillette was named Dean of Boston College Law School, a position he held from 1985 to 1993. He returned to HLS in 1995, where he was named a visiting professor in 2000. He also serves as a reporter to the Standing Committee on Rules of Practice and Procedure Judicial Conference of the United States.

“I am the expert that advises the federal judiciary on drafting rules of civil procedure, evidence, appellate procedure, criminal procedure and bankruptcy,” Coquillette said. He continued with a chuckle: “In short, I am responsible for a lot of the misery of first year students.”

Currently, Coquillette’s history of HLS is his biggest unfinished project. “The project is coming to a close and the book is well underway. It will be more complete and candid than any history of HLS in the past,” he said.

Providing a taste of the work to come, Coquillette added that, “Langdell invented everything you love to hate about law school,” he said. “He invented big classes, three-hour exams, the Socratic method, class rankings and the case method,”

Aside from its historical value, Coquillette also stressed the importance of studying Langdell’s methods for the present: “The core of the school is still based on a model that was invented in 1871. We are studying that model… and it is clear to everyone that his model will have to be changed in order to deal with… a global economy, to emphasize more skills training and because Langdell’s formalism has been rejected by some, particularly legal realists.”

‘First Monday’: Even better than the real thing

BY KEN WALCZAK

It’s been a tough year for Erin Bernstein. My good friend, the RECORD photographer, has had to suffer immensely, as one major media outlet after another has scandalously appropriated her ideas and then developed them into profitable cultural products, without awarding her a penny for her creative troubles. First, Erin had to suffer the terrible indignity of paying to sit through someone else’s film version of Fellowship of the Ring. Bringing Tolkien to the screen had been Erin’s lifelong dream, not Peter Jackson’s! And now CBS-TV has gotten into the Erin-biting act, nabbing her most inspired primetime-drama concept for their fall lineup. For shame!

Still, one look at First Monday, and you can’t help but sympathize with the Big Eye’s Puffy-esque development strategy. Erin’s idea, after all, is a real winner. Inspired by a year of tutelage by connubial Supreme Court clerks – Profs. Schlanger and Bagenstos – she envisioned a drama that would thrillingly highlight both the political friction and the sexual tension running roughshod through the High Court. For politics, there’s the impassioned, timely debate among members of the Big Nine. And for sex appeal, there’s always the clerks! (I’ll spare you any jokes about eschewing examination of what really goes on “under the robes…”) Yes, sexy Supreme Court clerks. Brilliant, sleep-deprived twenty-somethings working themselves into a lather over pressing, hot-button issues. Who wouldn’t want to watch?

Clearly, CBS was thinking just the same way. Their take on Erin’s idea for a TV-show, First Monday, has both hot-button issues and hot, buttoned-down clerks. And, like Puffy adding Biggie Smalls to a Diana Ross beat, they’ve done Erin Bernstein one better. There’s sexual tension between the clerks, and sexual banter between the Justices!

Let’s start with the clerks: Hedy Burress, who you probably don’t remember as the sultry Nurse Practitioner Money Raspberry Dupree from Gideon’s Crossing, is even sultrier in First Monday as Justice Novelli’s headstrong female law clerk. Show creator Donald P. Bellisario (he of Quantum Leap fame) has apparently laid down the law: Hedy should dominate as many scenes as possible, including several set in the Supreme Court gym, where she can trade in the relatively conservative working duds for tiny Stanford Athletic Dept. T-shirts. And Hedy must attract attention from her co-workers: In last week’s episode, she rejected the advances of two men (one of them the Chief Justice’s bow-tied Bramwellian clerk) in favor of co-clerk Miguel (Randy Vasquez). The two of them seemed on the verge of getting it on – right in the boss’s chambers, no less! – when a pesky ruling on California’s three-strikes law got in their way.

As for the oddly hormonal Justices: To avoid your concerns about old-people ogling, CBS has had to young things up a bit. Camille Saviola plays Justice Esther Weisenberg, and while she’s no sex symbol, she looks about 70 percent as old as Justice Ginsburg, her obvious real-life counterpart. The real babe on the bench is apparently Justice Deborah Szwark (Gail Strickland), who looks closer in age to Sandra Dee in the ’60s than Sandra Day in the ’90s. Last week Justice Szwark was the subject of a remark guaranteed never to have been uttered by one real-life Justice about another, namely that she has “one fine ass.”

Which brings us, happily, to Charles Durning. He plays Justice Henry Hoskins, who in the “Crime & Punishment” episode proves that he is First Monday’s finest character. Justice Hoskins is a wheelchair-bound Southern buffoon, who does no visible work, and also manages to act crude and offensive at every possible opportunity. Besides the ass comment, he also spouts dirty limericks! (“There once was a man named Clark/ Who made love to a woman in the dark …”; “a woman came over/ Breasts like the white cliffs of Dover”) These are guffaw-inducing in and of themselves; they’re downright hilarious if one starts to play guessing games as to which current Justice Hoskins is meant to “represent.”

Of course any attempts to find precise analogues for these fake Supremes quickly proves futile. The Chief (James Garner) has Rehnquist’s politics, but also a sense of humor; the token black Justice (James McEachin) is more Marshall than Thomas, falling in step with Justice Weisenberg’s left-wing votes rather than behind any apparent Scalia analogue. And of course Joe Mantegna’s Justice Novelli is pure dramatic convention: the neophyte whose politics are so dead-center that he is destined to be the swing vote on every major decision. (Incidentally, I can’t help but feel perpetually bad for old Joe, who is called on not only to portray “indecision” for 40-some minutes every week, but also to recite dialogue so poor as to induce immediate and powerful longing for his appearance in another David Mamet film. The guy is just at a loss; case in point: “Don’t be ‘sorry,’ Ellie. Bring me case law,” (with inexplicable accent on the word “law”).

Surprisingly, the relationship between the legal issues grazed over in First Monday and those faced by the actual Supreme Court is not quite so remote. I wouldn’t hold my breath over next week’s major plot-line (Novelli’s family has mob ties!), but episodes to date have dealt with execution of the mentally retarded, parental-consent requirements for abortion and (as mentioned) three-strikes laws for repeat offenders. The stories vary widely in terms of their grounding in actual constitutional law, but most do give accuracy the “old college try” (old law school try?). The few truly painful moments, from a law student’s standpoint, come either from awkward delivery (words clearly uttered with zero knowledge of their actual meaning) or an endless repetition of certain key phrases – cruel and unusual, harmful working conditions, double jeopardy – which are obviously included to give the lay viewer some sort of basic foothold. On the whole, I’m sure a doctor watching an episode of E.R. would experience far more per-capita cringing. Plus, it is rewarding just to hear the verb “to grant cert” used appropriately now and again.

Of course some moments fail so miserably, it’s priceless. I’m thinking here of two in particular. (1) Just before hearing oral arguments for the first time, the Chief declares, “Let’s make some history.” All nine justices gather in a circle, pile their hands on each other, and then raise them triumphantly into the air: “Supreeeeme Court!!” (2) The process for obtaining one of Justice Novelli’s old Cook County opinions requires no fewer than three separate scenes, and coordinated action by four separate people, a telephone and a fax machine. This despite the fact that Novelli’s clerk has the docket number and a perfectly functional computer in front of him. What, was the Supreme Court’s Lexis bill overdue?

But, as I’m sure I’ve made clear, this is all way beside the point. Any overly thorough and accurate treatment of legal work, or legal issues would take away from First Monday’s most important quality; namely that it’s a great show for {ahem} getting drunk to. Too much plot-induced thinking, especially about law, and you just couldn’t drink to it. On a Friday night (where CBS has wisely placed First Monday), a show you can’t drink to unwisely risks blurring the line between study and relaxation, work and play. And while that sort of line-breaking might be OK for some, I have a feeling a lot of regular law students will take beer and dirty limericks any day. And why not? It’s not like we need to prepare for the breakneck pace of Supreme Court clerkships. For those of us pulling solid “Bs,” First Monday is the closest to that gig we’re going to get.

Girls on film: From grunge to simple luxe

BY RENEE KAPLAN

With Heidi Klum party-hopping between the Four Seasons and the Waldorf, Naomi Campbell appearing on a panel and young mogulettes reportedly wearing trendy halter tops at the Goldman Sachs Superbowl party, the World Economic Forum was probably more fashion than the new exhibit at the Institute of Contemporary Art on fashion photography. That is, if – by fashion – you mean brand-name supermodels and unironic glamour.

But fashion has evolved dramatically in the past decade. Gone is the kitsch and unembarrassed consumption of the ’80s. First, in the early ’90s, came grunge – fashion as unfashion – which gave way to a more stylish simplicity; then, towards the later ’90s and during the time of the IPO’s, came simplicity + luxe (don’t let them see that it’s Cartier, but make sure it is). And then came something of an implosion.

As the accompanying wall text on the exhibit, called “Chic Clicks,” aptly puts it, the latter half of the ’90s ushered in an “uneasy ‘fin-de-style,'” a sort of counter-rhetoric to the conventional vocabulary – pretty, pleasing, literal – of fashion. Fashion photographers in the late ’90s began to turn to rawness and realism. In Dmon Prunner’s 2001 editorial for the British magazine The Bible, the black-and-white image “Fanny, NYC” shows a model – 18 or so? – with mussy, long dark hair, wearing nothing but boyish black briefs and a heavy diamond necklace, and casually bending over against what looks like a backdrop of cheap hotel-room curtains. Dirty. Young. Bohemian. Sexy.

Another editorial by Alex Cayley, called “Last Resort” and commissioned by the magazine Dutch, takes a more ironic approach. The two images feature a clothed model – it’s still sort of about the clothes – covering her face, shot at night in front of a back entrance to an unidentified building. As the caption explains, in 1999 the BBC aired a now- notorious documentary about the modeling world behind-the-scenes. It showed a general blur of sexual exploitation and drug use. Only one model – the one in these pictures – was actually identified doing drugs. She was subsequently black-balled by the industry, until now. This photographer rehabilitated her for her first fashion spread since the debacle. It is an insider’s commentary on the back-stabbing of the world’s most insider industry. The ICA exhibit does an excellent job of documenting this still-evolving fashion zeitgeist of irony and realism.

Interestingly, that is not exactly what “Chic Clicks” purports to do. It claims to show the interaction between the two allegedly polar forces of photography: creativity and commerce. For that purpose, the show is divided into two sections of work by 40 different contemporary photographers, some fashion photographers and others more creators of fine art. The first floor displays images by the 40 that were commissioned by various fashion magazines or by major labels for their advertising campaigns. The second floor shows photos by those same photographers produced as independent works of art. Not surprisingly, the two floors blur almost indistinguishably.

But the exhibit’s division between commerce and creativity is not entirely honest. Nearly all of the editorials featured on the “Commerce” floor were commissioned by a new generation of avant-garde fashion magazines, mostly created in the 1990s: Spoon, Big, self-service, Purple, Dutch, Visionaire, Numéro, Citizen K. If you’ve never heard of them, and the Coop does not sell them, you know just how commercial they aren’t. They do not feature clothes that will take you straight from the office to after-work drinks or the top ten must-buys for spring. These magazines’ premise is to blend fashion and art, to reconceptualize the use of fashion as a medium. Many of them appear only quarterly or bi-annually, and most of them – unlike InStyle or Marie Claire – explicitly consider themselves arty books. Much of this fashion work has been commissioned as much as pseudo-art as fashion editorial.

But in 2002, bona fide commercial fashion photography is beginning to catch up with this more esoteric avant-garde, and the exhibit includes these new examples, too. Anders Edström’s 2001 ad campaign for Miu Miu shows a precocious teenager walking through London streets wearing baggy socks and high heels, grungy little dresses and messy hair, the kind of quirky, unpretty street chic characteristic of the avant-garde’s editorials. Many of the recent creative works now look just like the editorials – or the kind of editorials the magazines would publish if they were a little less fashion and a little more art. Corinne Day – who discovered Kate Moss in her cockney London suburb in 1990 – is among the pioneers of the “dirty realism” that has influenced so much of the current editorial. Her “Tara and Tim” images from 1999 feature a series of snapshots of a strung-out boyfriend and girlfriend partying together, their noses crusted in coke, their eyes turned up in the beatific raptures of some other high.

The “Creative” pictures tended more toward the conceptual and a little less toward the figurative. But not so much more. Many of these images illustrate most literally the exhibit’s point about the interaction of the creative and the commercial, actually evoking mainstream ad campaigns that – initially – probably took inspiration from these photographs. Collier Schorr’s giant close-ups of unsmiling teenage boys “Matti” and “Ralph,” one wearing a hooded sweatshirt, and the other a white tank-top and a dog-tag chain, capture the same adolescent anomie and street fashion of Calvin Klein’s CK ads.

On the whole, there is a lot of anomie and irony on both floors of the exhibit, which as a whole does justice to a very current moment in fashion, in which the commercial mainstream, the semi-commercial avant-garde and the veritably creative are in fact becoming increasingly indistinguishable. And if there is also a lot of sex and bare breasts, that’s probably because that always will be very “fashion.”

Capitalizing on September 11

BY HAROLD ROGERS

I love the Super Bowl, especially when the home team is playing and the game isn’t a blowout. Mix that with the fact that U2 is my favorite band, and I could have had, perhaps, the greatest day of my life on Sunday. But it was partially spoiled when U2 performed at halftime while listing all the names of those who died on 9/11. Although I attended their show in Providence, where they used the same scrolling screen while performing, and commented in the RECORD on the power of the Dublin boys in singing about terrorism, the combination of the biggest commercial money-maker of the year and the highest grossing band this century left a bad taste in my mouth. It was much like John Lennon’s interview during the Super Bowl, so many years ago, where he espoused his social ideals from capitalism’s annual capital.

In the five months that have passed since arguably the single greatest tragedy in American history, I have become gradually more cynical because of the cold cash the event raised for America’s big business. An article in The New York Times on February 2 listed several ways big business was capitalizing on 9/11 to make millions. Such capitalization seems to happen under two auspices: Business executives reason that: 1) these campaigns raise money for victims or 2) the best way to respond to this tragedy is to restart the economy.

In the first case, money raised from commercial sales rarely reaches the victims. This is exemplified by Steve Madden’s campaign to sell American flag sneakers for $49.95, where profits were supposed to go to a New York charity. Still, nothing has gone to any organization, and the company only pledged ten percent of profits after being pressured to do so (as reported in The New York Times). Or how about the book Brotherhood, which states on its cover that all profits were to go to charity, when in fact only about one-eighth of the profits will go to any fund? Then there’s Sony’s CD “God Bless America,” which pledges profits to charity but has yet to cut a check and has no written contract or even oral agreement with any organization. Here, the reference to charity was done without notifying the specific fund named and with a deceptive decree as to how much money they would receive. Already, non-charitable profits off 9/11 have reached over $100 million, The New York Times stated.

Considering the second rationale, I am reminded of a sign I saw in New York over the holidays. As we drove down Seventh Avenue, we saw signs that read: “Support America, go to a show;” “Fight back, go shopping;” and finally, “Help America, spend money.” The pleas became less and less subtle – the way to fix America is to spend. Although I agree that a way to combat the terrorist attacks is to get the economy going, I still have to wonder at the audacity of those who use unity in to turn the best profits of their lives.

Perhaps it is not the specific rationale used for such profiteering that is so distasteful, but the manipulation of our country’s new found patriotism and fallen citizens to make a profit. The Super Bowl was a reminder of how low business will stoop to fill its wallet. The patriotic overtones were not done with a pretense to any charity or economic rebuilding; they were simply used because they sell. Those with a financial stake in Sunday’s contest knew that patriotism sells right now. Much as they sell us sex and violence, Sunday they sold us America. From Paul McCartney’s maudlin new song, “Freedom,” to the over emotional quoting of Abraham Lincoln by ex-presidents Carter, Bush and Clinton, and Nancy Reagan in the pre-game show: Everyone made a buck off a quick tearjerker.