Election Season at HLS Shows LSAT Tests Intellect, Not Intellectual Honesty

Several months ago a friend and I discussed the differences between Harvard Law School and our undergraduate universities.  One story he told me involved an answer he gave to a professor’s question during his 1L year at HLS—one that was not bulletproof, but one which his undergrad classmates would have accepted or dismissed without protest.  At HLS, another student responded and proceeded to dismantle the argument, picking apart every piece of porous reasoning.

That was the major difference, he and I decided, between HLS and our previous schools.  Here, half-baked arguments don’t get a pass and faulty analysis gets called out.  For that reason, HLS students tend to think before they speak or, more commonly, share on Facebook.  For some, however, such self-restraint becomes an impossibly herculean task during election season.

In one scene from Disney’s “Finding Nemo,” Bruce and two other sharks raise their fins and pledge “fish are friends, not food” during a “Fishaholics Anonymous” meeting.  Bruce hasn’t eaten a fish for three weeks, and he appears to have undergone a sincere change of heart.  However, it only takes one sniff of blood for Bruce, like HLS students, to cast aside all discipline and self-restraint, and revert to more base instincts.

In Bruce’s case, it means “I’m having fish tonight!”  In ours, it means saying—or on Facebook, writing or reposting—arguments taken from the Huffington Post, Drudge, or another partisan website or Facebook page that clearly lack reason or a grounding in fact.  My argument isn’t against general opinion statements like “Romney’s handling of women’s issues shows he’s out of touch.”  I argue against specific statements, or adoptions of statements through “likes,” “shares” or oral repetitions, so devoid of rational analysis that I can hardly believe they come from an HLS student.

The statements and postings from HLS students that best illustrate my point come largely from the political left, which is to be expected given the school’s demographics.  Not only do left-leaning individuals have a numerical advantage, but groupthink and unchallenged grandstanding resulting from a largely one-party student body tends to facilitate the abandonment of critical thought.  However, the political right also has its share of perpetrators.  I reproduced statements from HLS students on both sides to illustrate the point:

A banner with a quote from Mitt Romney saying that he didn’t fight in Vietnam because he was “too important.”

The first Google search result of this quote discredited it as coming from a satire piece.  Apparently Iran and Fox News aren’t the only ones that can be duped by The Onion and others who write headlines so titillating to partisans they can’t possibly be true.

Accusations that Todd Akin claimed that women cannot become pregnant from rape, or that he was implying that the commission of rape could be legitimate.

Todd Akin said: “It seems to me, from what I understand from doctors, that’s really rare. . . .  If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”  What Mr. Akin said was wrong enough without warping his words.  He may have based his statement on junk science, and he may have been trivializing the horror of rape with his words, but he did not make either of the above statements, nor can they be inferred.   I suspect the students saying so knew this but wanted even more shock value.

A statement that “When Obama took office, gas prices were half of what they are now!”

There’s a good reason for that.  The world economy was in freefall.  That tends to affect gas prices.

A picture of President Obama and Mitt Romney reads under Obama “I passed a law allowing women to get equal pay,” and under Romney “I hired a woman once.”

Both statements mislead, but the one under Mr. Romney in particular fails to accurately or honestly ground itself in what the candidate claims as his credentials on women’s issues.  “I hired a woman once” likely stems from Mitt Romney’s hiring of a large number of women into his cabinet, which he argued showed his support for women in the workplace.  One can argue with that premise without distorting what he said.

A side-by-side comparison of various statistics of President Bush at the end his first term (2004), and President Obama after his (2012), including the GDP growth rate, unemployment rate, and median income, each favoring President Bush.

There was a very important series of events in 2008 that make these sorts of comparisons useless.

A post telling Mitt Romney not to blame gun violence on single parents.

This would be legitimate, except Mitt Romney never did this.  In the second presidential debate, Mitt Romney said (in relation to gun violence): “Wherever possible we need benefit of two parents in the home raising kids… and that’s not always possible—there are a lot of great single moms and dads—but if there’s a two parent family, the prospect of living in poverty [and being involved in gun violence] goes down dramatically.”  If you disagree with his reasoning, attack that.  Don’t make a caricature of his position.

Criticism implying that Barack Obama’s “you didn’t build that” statement means he thinks business owners didn’t work for what they had.

I think we can all agree that President Obama meant to insert “by yourself” into that sentence.  If you want to say the statement reveals his hostile attitude toward the private sector in general, fine, but make that argument.

An unqualified claim that Mitt Romney wanted to “Let Detroit go bankrupt.”

The words are those of the New York Times, not Mitt Romney.  What Mr. Romney actually said is: “A managed bankruptcy may be the only path to the fundamental restructuring the industry needs. . . .  In a managed bankruptcy, the federal government would propel newly competitive and viable automakers, rather than seal their fate with a bailout check.”  Criticize his plan, but don’t suggest he wanted to shut every factory and put the workers out on the street.

The next time a presidential election rolls around, none of us will be HLS students.  We won’t have professors like Joseph Singer or Benjamin Sachs, who politely hint when we’ve made a flawed argument.  We won’t have a room full of students eager to correct or counter any errant statements.  By then we will have to have developed, by ourselves, an instinct that extends beyond the controlled classroom environment and compels us to research that Moveon.org banner with the too-good-to-be-true quote, to leave statements in context and debate the merits of the ideas they propose, and to refrain from misrepresentations, misquotations and distortions even when they hang like pieces of red meat, ready for political exploitation.

I don’t want to merely criticize the disappointing level of discourse, although such criticism is certainly deserved.  I want to help change that discourse to one where we make sure we’re arguing against the true position of the opponent, instead of what we wish it would be; one where we make worthwhile the three years we spend here learning to analyze, argue and reason in both an effective and intellectually honest manner.  We attend one of the best law schools in the world alongside hundreds of incredibly intelligent and insightful classmates.  The bar should be higher here, and it’s not difficult to raise it.

Darren Gardner is a 2L. 

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Record.

How the GOP Stole Christmas

“This liberal opposition has just got to stop!”

Shouted the furious, put-upon Gop,

“The natural order suffers awful distortions,

Like health reform, gay marriage, safe, legal abortions,

Environmental regs favored by the Lorax,

And, worst of all, rich people asked to pay tax!”

The Gop, you can see, was very distraught,

So he sat, and he thought, and he thought, and he thought.

That’s when the Gop had an idea.

An awful idea.

A wonderful, terrible, rule-changing idea.

“I’ll buy the election!” the Gop gave a shout,

“With unlimited corporate money, we’ll surely win out!”

So he put on his suit, and he went to the Court,

And he made an argument of the following sort:

“This campaign spending, limiting law

Features an unconstitutional flaw.

For each person first has the right to make speeches

To convince America what the right sort of Sneetch is,

And money and speech are one in the same

In this televised, national election game.

Lastly, a corporation’s just a big group of people,

So, if anything, its right to speak should be three-ple.”

Soon the court handed down Citizens United,

And the Gop’s feelings changed from mad to delighted.

He got his list of friends and gave each one a call

“Finally, there’s room for the contributions of all,

Restore Our Future, Freedomworks, Red, White & Blue,

Winning Our Future, Crossroads and GPS, too.”

But then somethings happened the Gop didn’t expect,

Some possibilities his plan had seemed to neglect.

PACs gave money to pols with no chance of winning

Because they were too crazy or had done too much sinning.

The primary pushed Mitt so far to the right

What should have been easy turned into a fight.

And the liberals started their own SuperPACS

To counter and make their own TV attacks.

These groups got donations from the rich and the poor,

So the Gop’s people wouldn’t have quite so much more.

They took Romney’s time as a leader at Bain

And made it a layoff and bankruptcy stain.

Gop’s candidates talked far too much about rape,

Leaving sane women voters rather agape,

and Romney wrote-off half the nation, on tape.

It seemed the Gop was really hurting his chances

With his old-fashioned and economically austere stances.

However much airtime the Gop’s money bought,

There were too many voters who just couldn’t be got.

The Gop faced the election, his big plan’s day,

And he watched the returns with growing dismay.

“They vote without hope! They vote without change!

Unpaid volunteers act irrationally strange!

They brave the weather, the hot and the cold,

To get out the vote of the young and the old.

For nothing, they go out and hold up big signs,

And their voters wait through the extra long lines!”

For a moment, a thought struck the Gop, an idea that was funny

Maybe democracy’s about more than corporate money?

But after a minute, the Gop shook it away,

“Those moochers just want to keep government pay.”

Cultural Literacy and the Law is a humor column written by an anonymous Harvard Law student. The column runs every other Monday.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record.

Don’t Blame Mitt

We live in a world where people often get judged based on results. We celebrate winners and criticize losers.

In the coming months, Mitt Romney will likely face great criticism, especially as the Republican Party engages in “soul-searching” at its “crossroads.” Journalists and commentators will argue that Romney was a flawed candidate who ran a flawed campaign. Everybody will take turns telling stories about why Romney lost: Where did Mitt go wrong? Was it Big Bird? Binders full of women? The 47 percent? His tax returns? Or Clint Eastwood’s empty chair?

Now that the election is over, and with the benefit of hindsight, many people will blame Mitt Romney. Such is the nature of our consequentialist ethic.

But I prefer to offer an alternative perspective.

Remember the candidates running in the Republican primaries? Mitt Romney was probably the most credible candidate that the GOP could have put up. Herman Cain was dogged by scandals. Ron Paul was unelectable. Rick Santorum would have won few states outside the old Confederacy. Newt Gingrich had too much baggage from the 1990s. And then there was Donald Trump.

Romney is an admirable man: wealthy, handsome, and well-liked. He was educated at America’s best schools. He has a beautiful wife and five children. He has had an extraordinarily successful life: Olympic organizer, Bain Capital co-founder, Mormon bishop, Governor of Massachusetts.

The primary voters were right to pick Romney. The fastest horse doesn’t always win, but you should still bet on it.

Although Mitt Romney lost, he still put up a credible fight. He chose a smart, articulate running mate who did a decent job of debating Joe Biden. And notwithstanding the Electoral College landslide, Romney still got 57 million votes, or about 48 percent of the electorate.

The Republicans probably lost for reasons bigger than Mitt Romney’s errors. True, America has suffered from 8 percent unemployment and $4-per-gallon gas. But negative memories of George W. Bush remain strong, and many Americans remain reluctant to give another Republican the keys to the White House.

Just as the American people once gave eight years to Reagan, Clinton, and Bush II, so too have the people decided that Obama should be given a second chance to determine if his governing ideology can deliver long-term results. Although the initial romance of Hope and Change has faded, Uncle Sam wants to give the marriage a second chance.

In science, we accept evolution. So let it be with politics. The excesses of the Nixon Administration begat the Carter era. The failures of the Carter era begat the Reagan Revolution. The Reagan Revolution begat Clintonian centrism. Clintonian centrism begat Bush Republicanism. And Bush Republicanism begat the backlash that led to the Obama era. Each iteration improved on past problems, although introducing new ones. Whatever one thinks about Obama’s policies, America’s current trajectory still serves a function: to help our democracy figure out what approaches work and what doesn’t.

Chris Seck is a 3L. His column runs on Wednesdays

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Record. 


Ten Things Romney and Obama Should Do Instead of Debating

Soon, it will be October, which means shorter days, all sorts of pumpkin-flavored shit, atrociously reffed football games, and the beginning of a seemingly interminable series of debates. Is anyone looking forward to these debates except to catch Mittens finally losing it and cussing out poor people? Despite the fact that Romney’s job for two years was to convince people to believe in a religion based on some golden plates found in upstate New York (do you know what kind of homunculi live in upstate New York?!) and that we are all the “spirit-children” of God, he is surprisingly terrible at debating. Also, while Barack is fairly charismatic, he’s probably fresh out of promises to break in his first year of reelection.  Thus, even though this season’s television has already proven to be terrible (Lucy Liu as Dr. Watson, a whole mess of shows about gays that are indistinguishable from one another, and—as Ryan Lochte-cum-Seth MacFarland said—Goon), there are still things I’d rather see than Romney and Obama debating this Fall.

Ten things I’d rather watch Romney and Obama do this October:

1. Rap Battle: As Eminem has shown, the whiter you are, the better your chances, so I would put my money on Mittens. I mean, he even has a ballsy rap name all ready to go. Also guys, he grew up in Detroit and he had to deal with all those poor people (who were his servants)!

2. Beer Pong: I gotta say, this one is slanted to Barack. Romney probably hasn’t had a drink in decades, which explains so many things. On the other hand, if they’re playing doubles with their running mates, good money’s on Ryan, who can fratstar it up with the best of them. Hill Dog plays winner.

3. Dance Off: A myriad of possibilities here. We could do a Zoolanderesque model-off, a Magic Mike-style strip-off, or just a plain old DDR dance battle (assuming we can get that long-haired, middle-aged, greasy fatty off the DDR console).

4. Spelling Contest: Just don’t give Mittens “America.”

5. A Fight to the Death: How convenient would this be? Think of all the campaign money we could save if we just churned this election out Mad Max style. Also, we can feel good about the fact that POTUS is a bonafide killer. In a Hunger Games-like twist, we could make Sasha and Malia go up against the Mormon Boys and let God sort them out.

6. Mechanical Bull: If for no other reason than to see either of them wearing cowboy boots. Maybe even chaps.

7. Scavenger Hunt: First one to find Barack’s birth certificate, Romney’s tax records, Barack’s long-lost son and Romney’s other three wives wins.

8. Foxy Boxing: Finally, a way to involve the potential First Ladies that doesn’t involve baking. While Michelle has some pretty scary arms, Ann Romney has battled cancer, MS and women’s rights. This one would be a toss-up.

9. A Literal Pissing Contest: Don’t cross streams!

10. Gay Chicken: Everyone loses.

 Lisa Wang is a 3L. Her column runs every other Thursday.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Record.

Election League America

It’s an election year, and October is almost upon us, so it’s finally time to tear ourselves away from Hulu and Netflix for a few minutes to learn a thing or two about some of the major candidates. The upcoming elections will impact issues important to the Harvard legal community, like whether the judicial nomination landscape will be such that Justice Ginsburg can finally escape the indignity of being captioned another four years (JK—we love Ginsburg too much to ever stop captioning her). Now, this column doesn’t trade in the high-flying, Shakespearean allusions that usually get thrown around in political coverage, so we’ll be teaching you about the candidates in the vernacular of pop culture: DC Comics superheroes.

Barack Obama—Aquaman (JLA)

There’s no doubt that when Democrat Barack Obama was first elected President, his Justice League analogue would have been Superman. He was a symbol of hope, progress, and the American way. He seemed like he could do more than his peers, and even his otherness, like the Kryptonian’s, signaled American greatness (at least to enough people to get him elected).

However, over the last four years it’s become apparent that Obama cannot fly the world backwards rapidly enough to undo our economic problems, and he’s come to be regarded as lame in a similar way to Aquaman. There’s nothing wrong with him per se, but he does not seem have abilities or achievements as cool as a superhero should and therefore has become the butt of a lot of criticism. After a previous election and four years of presidency, no one is really interested in Obama’s biography anymore, just as no one cares what happens in Aquaman’s solo title. The important stuff Aquaman does probably occurs beneath the ocean, and therefore doesn’t seem to have a lot of import for people on land. Similarly, we’re pretty sure Obama is doing something important to try and help the economy or other presidential stuff, but only a couple of things prominent enough to get our attention. Obama also gets criticized for worrying about the oceans too much.

Mitt Romney—Batman (Christopher Nolan Films)

A lot has been written about Batman being conservative and Nolan’s films in particular being a case for Neocon policies, but Republican presidential candidate Mitt Romney shares more than a political wing with Batman. Like Batman, Romney doesn’t have the special abilities that usually qualify someone to be a successful politician/superhero like tact, stage presence or heat vision. Instead, wealth inherited from his parents, like Bruce Wayne’s, is Mitt’s superpower. Both grew up as children of privilege in crumbling, once-great cities and were seemingly driven to greatness by the wrongs done to their parents (losing an election is a death to these political types). And both seemed to get their father’s legacy somewhat twisted—Batman followed his father’s mission of helping the financially desperate by punching them in the face, and Mitt followed his father’s legacy of serving the auto industry and releasing his tax returns by not doing either of those things. Finally, both Batman and Romney are trying to head off a dangerous attack on society from the people who complain about starving while other people live like Bruce Wayne/Mitt Romney, and Batman and Mitt are both pretty sure those whiners are in league with foreign terrorists.

Elizabeth Warren—Wonder Woman (Wonder Woman)

Democrat Elizabeth Warren is running for a Massachusetts Senate seat against Scott Brown, and is the token female candidate people have decided to care about in this election, like Wonder Woman in the Justice League. Both women also have difficulty communicating with the constituencies they wish to help. One has trouble connecting with normal people because she comes from a classical, insular society with modes of communication and values different from the world at large; the other has a similar problem because she’s an Amazon. Warren and Wonder Woman share another common narrative problem—shitty villains. Compelling Wonder Woman stories were easy in the Golden Age of comics when she was fighting the Nazis, but since the end of WWII, the Amazon has been stuck fighting lame villains like Cheetah, who is so non-iconic nobody notices when the writers change its gender or species. Similarly, Warren made a name for herself in the fight for a Consumer Protection agency against some solid villains: the rich bankers popularly blamed for making everybody poor. In the Senate election, however, she’s up against Scott Brown. Difficult to hate or fear because of his seeming moderateness, and occasionally naked and furry, Scott Brown is the Cheetah of political opponents.

Paul Ryan—Ozymandias (Watchmen)

In light of Paul Ryan’s love of Ayn Rand’s philosophy (shared by Cult. Lit. for different reasons), the most obvious Watchmen comparison for the Republican vice-presidential candidate would be Rorschach (or his more explicitly Randian predecessor, The Question). However, Ryan’s story parallels Ozymandias’ arc much more closely. Ryan and Ozymandias are both motivated by obsessions with figures from their early studies. They are also well known for being in peak physical condition and performing amazing feats, such as running sub-three marathons, climbing all the tall mountains, and catching bullets with their bare hands. Ozymandias used this renown to pimp his own exercise program to fund his plans to save the world, and Ryan won’t shut up about P90X. Ozymandias and Ryan share a commitment to plans rejected by their colleagues as too drastic, whether or not they’ll save the world. Even if his colleagues flinch at the outrageous nature of cutting Medicare, Ryan, like Ozymandias, knows the right incentives for a better tomorrow can only be created by subjecting us to the giant, killer, psychic squid of fiscal austerity. We’ll have to wait for election day to find out whether Ryan will match his comic book counterpart in seeing his plan through.

Cultural Literacy and the Law is a humor column written by an anonymous Harvard Law student. The column runs every other Monday.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record.

HLS Alum Fails Con Law Exam

At one of the January presidential debates, moderator George Stephanopoulos posed the single best legal hypo of the entire Republican primary campaign to Willard M. Romney, Harvard Law Class of ’75: “Do you believe that states have the right to ban contraception or is that trumped by a constitutional right to privacy?”

Before we see how the HLS alum did on this exam question, let’s establish a very basic idea that I think just about everyone agrees on: There are unconstitutional good ideas and constitutional bad ideas. To use non-partisan examples, the Smoot-Hawley tariff was a thoroughly constitutional bad idea. The line-item veto was a thoroughly unconstitutional good idea.

The Constitution says nothing about contraception, making its proscription a constitutional bad idea. However, if you are a proponent of magical substantive due process, all bad ideas suddenly become unconstitutional. Thus, the entire purpose of the contraception question is to establish whether Romney believes in substantive due process, something that any Republican who cares about getting good justices on the Supreme Court should be deeply interested in.

So, how did ol’ Willard do?  Did he stand up for originalism?  Did he say something logical like, “States can do that constitutionally, but it would be a terrible idea that I would never support”?

Not so much.  Romney played dumb, insisting that because no state was trying to ban contraception, he couldn’t possibly answer the hypothetical.  Flummoxed by Romney’s obtuse failure to comprehend the nature of a hypothetical question, Stephanopoulos noted dryly, “You went to Harvard Law School.”

The crowd, very Romney-friendly voters, booed the line of questioning, presumably because they didn’t want their preferred candidate to have to break tradition by saying something that is simultaneously (a) true and (b) unpopular.

This wasn’t the only time Romney flunked a Con Law exam.  Perhaps more egregious than the contraception example is his repeated claim that people should not criticize him for Romneycare because the Tenth Amendment allows states to do things that the federal government can’t.  No one has yet pressed home the objection that while his plan was undoubtedly constitutional, that does not make it a good idea.

It should be noted in Romney’s defense that politicians regularly betray total ignorance regarding the Constitution. No candidate is guiltier in this regard than Ron Paul.

At another presidential forum, Paul was asked which amendments he considered to be mistakes. The moderator, perhaps anticipating an attack on the income tax or direct election of senator amendments, suggested Paul should limit his response to only a few amendments.  He needn’t have bothered with the hortatory admonition.  The only amendment Paul could come up with was the prohibition amendment, which was already, er, repealed before Paul was born.

He’s not much better when talking about the original Constitution. He talks endlessly about Afghanistan and Iraq being unconstitutional wars, but Congress authorized both of those actions. He voted against NAFTA because of the supposedly unconstitutional creation of a regulatory body to oversee cross-border trade (which is the third enumerated power in Article I, Section 8).

Since Paul didn’t go to law school, I would normally go easy on him for not knowing all that much about the Constitution. However, since Paul declares himself a “constitutionalist” (whatever that means) and Romney explicitly deferred to him as part of his evasion of the contraception question, Paul also warrants a failing grade in Con Law.

The common theme in Paul and Romney’s Con Law failures is the refusal to acknowledge that there is such a thing as a constitutional bad idea. I understand the temptation to think that the Constitution solves all problems.  If that were the case, no Republican politician would ever have to make difficult policy arguments. However, if you’re running for president, you should at least be able to articulate the benefits of limited government without waving a spurious constitutional canard at the voters every fifteen seconds.

John Thorlin is a 3L. His column runs Thursdays.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record. The comments posted on this Website are solely the opinions of the posters.