2 revolving door: From m a r c h 2 0 1 0 Hauser Hall to the halls of D.C.

New Public Service Venture Fund launched at HLS

arvard support for graduating law school J.D. students who hope Hannounced in to pursue postgraduate February the creation work at nonprofits or of the Public Service government agencies in Venture Fund, which the United States and will start by awarding $1 abroad. million in grants every “This new fund year to help graduating is inspired by our This fund is an students pursue careers students’ passion for investment that h

rt in public service. justice,” said Harvard will pay dividends o

w The first program Law School Dean not only for our ns r

a of its kind at a law Martha Minow. “It’s an students, but also f school, the fund will investment that will pay for the people phil offer “seed money” dividends not only for whose lives they judicial branches offered hints of spring ahead, as budding lawyers took for startup nonprofit our students, but also refuge from snow in the warmth of Langdell. will touch.” ventures and salary for the countless >>8 Dean Martha Minow

Prosecution on the world stage Seminar explores policies of the ICC’s first prosecutor

his january, in a war crimes and crimes against seminar taught by Dean humanity. Discussion ranged TMartha Minow and from the court’s approach to Associate Clinical Professor gender crimes and charging Alex Whiting, 15 students at policies, to the role of victims, Harvard Law School discussed and the power of what Minow the policies and strategies of the called “the shadow”—outside

prosecutor of the International actors who magnify the court’s n te

Criminal Court. Also in the impact. as classroom: the man most In a presentation to the class, f ah e l

directly connected to those Helen Beasley ’11 described y b policies, Luis Moreno-Ocampo, the prosecutor’s approach to

the ICC’s first prosecutor. charging as focused, selective aphs gr o

Two-thirds of the way and aimed at deterrence. t

through his nine-year mandate, Naira Der Kiureghian ’11, pho Moreno-Ocampo came to who interned last summer at ICC Prosecutor Luis Moreno-Ocampo Cambridge from The Hague the International Criminal discussed policies and strategies of the International to participate in the seminar, Tribunal for the former Criminal Court in a seminar he co-taught at HLS this in which students reviewed Yugoslavia during the trial of January with Dean Martha Minow. As part of the policies and proceedings of the former Serb leader Radovan course, students reviewed policies of the ICC and first permanent, independent Karadzic, recalled how Moreno-Ocampo’s approach as prosecutor to cases involving genocide, war crimes and crimes against international court set up to prosecutors struggled under humanity. hear cases involving genocide, the pressure to narrow >>5

Harvard Law Today Nonprofit Org. inside Harvard Law School U.S. Postage 125 Mount Auburn Street PAID Boston, MA 3 Decoding the death penalty Cambridge, MA 02138 Permit No. 54112 4 Assessing the Roberts Court 6 In the zone with Carfagna 7 In Brazil, whispers of the lost 8 Breaking down barriers for women 2

briefs D.C.59 swap Presidential adviser on health care Tribe now senior counselor After serving in the White Robert Greenwald, lecturer on law and director of the Health Law and Policy for access to justice in the House, Freeman returns to Clinic and the LGBT law clinic at the Department of Justice Harvard Law School WilmerHale Legal Services Center, was appointed to the Presidential Advisory aurence tribe ’66, the Carl M. Loeb rofessor jody freeman L.L.M. ’91 S.J.D.

Council on HIV/AIDS. The 24-member University Professor at Harvard Law School, ’95 returned to the Harvard Law School faculty council provides advice to the president through the Lbecame senior counselor for access to justice Pthis month, after serving in the White House secretary of Health and Human Services on domestic and in the Department of Justice, where he leads a newly as counselor for energy and climate change for more global HIV/AIDS policy issues. Greenwald founded launched initiative aimed at improving access to civil than a year. Harvard Law School’s Health Law and Policy Clinic, which and criminal legal services. Freeman, a leading scholar of administrative was awarded a two-year $200,000 grant from the Ford In launching the initiative, and environmental law, was appointed to Foundation in December. Justice Department officials an endowed chair in public law named for say they hope to elevate the Watergate special prosecutor and former Lessons from ancient Athens importance of legal access Solicitor General Archibald Cox ’37 and issues and to take concrete will work at the law school and across the On Dec. 14, at Columbia University, steps to address them. The university to harness Harvard’s talent and Professor Adriaan Lanni gave the annual primary focus of the initia- resources toward shaping global energy policy. Kyriakos Tsakopoulos Lecture on tive is to improve indigent She resumed her role as director of the law Aristotle and the Moderns, focusing on defense, enhance the deliv- school’s Environmental Law Program, which Aristotle’s relevance to contemporary ery of legal services to the she founded in 2006 and which houses one of

debates. The title of Lanni’s talk was poor and middle class, and the nation’s top environmental law and policy “Reconciliation after Mass Atrocity: Lessons from identify and promote alter- clinics. Ancient Athens.” An expert in ancient law and criminal natives to court-intensive “I’m thrilled to welcome Jody back after her law, Lanni is the author of “Law and Justice in the Courts and lawyer-intensive solu- tremendous service in the White House,” said of Classical Athens” and a forthcoming book, “Law and tions. Harvard Law School Dean Martha Minow. “In Order in Ancient Athens.” “We at the law school more than a year of intensive policy review and salute Larry Tribe’s willing- implementation, she made major contributions Souter to speak at Harvard ness to advance the dream of true access to justice for to the shaping of bold and innovative new initiatives all. We will miss him while he’s in Washington, but it in environmental and energy policy, and she will now David H. Souter ’66, who served nearly helps to know he will bring his enormous talents and bring the lessons and insights from that experience two decades on the U.S. Supreme Court energy to such a vital task,” said Harvard Law School here to the law school and to the wider university. before stepping down in 2009, will be Dean Martha Minow. Her knowledge will be invaluable to students the principal speaker at the afternoon As senior counselor, Tribe is a primary liaison to and colleagues engaged in the critical search for exercises of Harvard University’s 359th the federal judiciary and works with federal, state, solutions to the staggering environmental and energy

Commencement on May 27 in the and tribal judiciaries in strengthening fair, impartial challenges we face nationally and globally.” Tercentenary Theatre of Harvard Yard. and independent adjudication. He also exchanges In her role as counselor to Carol Browner, director information with foreign ministries of justice and of the White House Office of Energy and Climate New president of the Harvard Law Review judicial systems regarding efforts to provide access to Change Policy, Freeman contributed to a variety justice, as part of the DOJ’s existing international of policy initiatives on Zachary Schauf ‘11 was elected the 124th efforts to promote fair and impartial law enforce- American energy and president of the Harvard Law Review in ment and adjudication. climate change issues, January. Schauf has a B.A.S. in history and Tribe began his tenure at the DOJ on March 1 including the pursuit of mathematics from Stanford University and and officially reports to Associate Attorney Gen- comprehensive energy an M.Phil. in modern Middle Eastern eral Thomas Perrelli ’91. and climate legislation

studies from Oxford University. He worked Tribe is a renowned professor of constitutional that would place a market- as a writer and editor in Washington, D.C. before starting law. He joined the Harvard Law School faculty in based cap on carbon. The law school. 1968, received tenure in 1972 and held the Ralph OECC has supported the S. Tyler, Jr. Professorship of Constitutional Law Obama administration’s from 1982 to 2004, when he was appointed Uni- efforts to reduce versity Professor—the highest academic honor dependence on oil, cut harvard law today that Harvard University can bestow upon a fac- greenhouse gas pollution,

Assistant Dean for Editorial Office ulty member, reserved for just a handful of pro- n advance energy efficiency

Communications te Harvard Law Today fessors throughout the university. and spur American

Robb London ’86 125 Mount Auburn St. as Editor Cambridge, MA 02138 Tribe is the author of more than 100 books f leadership in clean energy 617-495-3118 ah Christine Perkins e [email protected] and articles, including “American Constitutional l manufacturing, including Managing Editor Linda Grant Send change of address to Alumni Records Law,” “On Reading the Constitution” and “The Invis- efforts undertaken in the Recovery Act. The OECC Design Director 125 Mount Auburn St. ible Constitution.” He has argued 35 cases before the helped to facilitate the president’s national auto Ronn Campisi Cambridge, MA 02138 Contributors [email protected] Supreme Court of the United States—including the policy, which represents a historic agreement among AsliEmily Bashir, Dupraz, Emily Stephanie Dupraz, Ehresman Stepha- Volume 9 Number2Number 3 historic Bush v. Gore case in 2000 on behalf of presi- the auto industry, California and key stakeholders nie’10, EhresmanCarolyn Kelley, ’10, Carolyn Emily New Kelley,- Harvard Law Today is published burger,Elaine McArdle, Lewis Rice, Emily Lori Newburger, Ann Saslav, by Harvard Law School dential candidate Albert Gore Jr.—and has testified to support the most ambitious federal fuel efficiency JeriLori ZederAnn Saslav, Marc Steinberg, © 20092010 byby thethe PresidentPresident andand Amy Wyeth Fellows of Harvard College frequently before Congress on a broad range of con- standards and the first-ever federal greenhouse gas

harvard law today march 2010 stitutional issues. ø standards. ø 3

to assist the institute in evaluating its re- What do you expect will be the long-term sponse to the motion. ALI Director and impact of this decision? former Harvard Professor Lance Lieb- For the first time since the 1960s, man [’67] engaged me and my brother the United States is seeing growing Jordan Steiker [’88], a professor at the doubt about and discomfort with the University of Texas School of Law and death penalty. In the past few years, co-director of its capital punishment a number of states have rejected clinic, to prepare that report. The ALI capital punishment legislatively—New also convened a group of experts, in- Jersey and New Mexico through cluding judges and lawyers in addition straightforward legislative repeal and to academics, to attend a conference to New York through the Legislature’s discuss a preliminary draft of the report. refusal to reauthorize the death After this conference, at which a wide penalty after the state’s highest court variety of views were aired, Jordan and I invalidated New York’s capital statute revised our paper and submitted a final on grounds that were easily fixable. draft to the ALI. After considering our A growing number of other states are report, the Council of the ALI recom- currently considering measures to mended that the institute withdraw the study, limit or repeal their death penalty death penalty provisions of the Model statutes. Penal Code. At the ALI’s annual meeting In this context, the decision of the in May 2009, two years after the initial ALI to withdraw the death penalty motion, the body of the ALI discussed provisions of the Model Penal Code— the paper for several intense hours and provisions that provided the template voted for withdrawal, but with an even for the majority of the states’ modern stronger statement about the problems death penalty statutes—gives the in the administration of the death pen- proponents of repeal new strength and faculty q&A alty than our report had detailed, ap- thoughtful support. The ALI is known proving a motion that stated: for its careful and unbiased approach to “For reasons stated in Part V of the legal reform, and its concerns should be Taking aim at the er Council’s report to the membership, the and will be taken quite seriously.

dooh Institute withdraws Section 210.6 of the

n Model Penal Code in light of the current Does this portend an eventual nationwide ee hl

death penalty t intractable institutional and structural abolition of capital punishment? a k obstacles to ensuring a minimally ad- As my brother Jordan and I have written equate system for administering capital (in a chapter of a book co-edited by HLS A recent study by HLS Professor Carol Steiker ’86 and her punishment.” Professor Charles Ogletree [’78] titled brother, Jordan Steiker ‘88, a professor at the University of In October 2009, the Council ap- “The Road to Abolition?” NYU Press, Texas School of Law, has led the American Law Institute to proved this stronger state- 2009), we doubt vote to withdraw the capital punishment section of its Model ment, and the withdrawal that all of the 35 Penal Code. of the MPC’s death penalty The ALI is known states that The study, which was requested by the ALI, examined the provisions—along with for its careful and currently authorize effectiveness of the code’s death penalty provisions, which the accompanying state- unbiased approach the death penalty were enacted in 1962 and were designed to make the admin- ment about “the current to legal reform, and will repeal their istration of the death penalty less arbitrary. The Model Penal intractable institutional its concerns should statutes anytime in Code’s provisions were cited by the U.S. Supreme Court in and structural obstacles to the foreseeable ensuring a minimally ade- be and will be taken future. However, 1976 when it determined that the death penalty could be ad- quite seriously.” ministered in a constitutional way. quate system”—became the we also believe that official policy of the ALI. a strong movement The Steikers’ study examined whether or not the death by enough of these penalty was in fact being administered in compliance with What was involved in the study? states toward abolition could lead the the Constitution. They found that there are too many ob- Our study collected and evaluated the United States Supreme Court to declare stacles, both structural and institutional, to administering most recent information about the most capital punishment unconstitutional the death penalty in a nonarbitrary way, and recommended significant issues surrounding the ad- under the Eighth Amendment as that the ALI avoid any attempt to come up with new rules ministration of capital punishment in inconsistent with “evolving standards of regarding its proper administration. the United States. The topics addressed decency”—the Court’s description of its In a Q&A with HLT in January, Steiker discussed the re- included the limits of constitutional constitutional test for “cruel and port’s findings. regulation of capital punishment, the unusual punishment.” Nationwide politicization of the death penalty, racial abolition thus will happen judicially, In October, the American Law Institute the Model Penal Code was adopted in discrimination in the administration of rather than legislatively, if it happens at withdrew the capital punishment section the early 1960s. Initially, the question capital justice, juror confusion in capital all. We are by no means certain that of its Model Penal Code, based largely on of capital punishment was set aside cases, the inadequacy of resources (espe- constitutional abolition will occur (or a report by you and your brother. How did as outside the scope of the sentencing cially defense counsel services), the er- that it will not provoke a backlash if it the report come about? reform project. But at the ALI’s annual roneous conviction of the innocent, the does occur), but we think that the The American Law Institute has been at meeting in May 2007, some members inadequate enforcement of federal con- chances of such abolition are much work since 2001 revising the sentencing moved that the institute take a position stitutional rights and the death penalty’s greater now than at any time since the provisions of the Model Penal Code—its against the death penalty. In response, effect on the administration of Court’s short-lived attempt at abolition

first major criminal law project since the ALI decided to commission a paper noncapital criminal justice. in Furman v. Georgia in 1972. >>6 harvard law today march 2010 4

Eye onbriefs the Court Citizens United, Supreme Court divided

“I share neither the jubilant sense that the First Assessing the Roberts Court Amendment has scored a major triumph over through the lens of Citizens United misbegotten censorship nor the apocalyptic sense that the Court has ushered in an era of corporate dominance.” v. Federal Election Commission Laurence Tribe ’66

Harvard Law professors weigh in with reactions to the Supreme Court’s Jan. 21 decision in Citizens United v. Federal Election Commission. In the 5-4 ruling, justices rejected corporate spending limits on political campaigns. Former HLS Dean Elena Kagan ’86 argued the case, her first oral argument as solicitor general of the United States.

Laurence Tribe ’66 Mark Tushnet Jed Shugerman Scotus Blog, Jan. 25 Harvard Law online, Jan. 25 “Judging the campaign finance ruling” “There is no doubt that Citizens United v. Federal Q: If Congress wanted to draft limits on campaign Harvard Gazette, Jan. 21 Election Commission marks a major upheaval contributions or spending, how should they do it now in Q: Is there anything to be read into the fact that this in First Amendment law and signals the end of the wake of Citizens United? began as a fairly narrow case but wound up having whatever legitimate claim could otherwise have “People interested in campaign finance reform and such broad implications? been made by the Roberts Court to an incremental worried about the corrupting effects of money in “The Supreme Court had in front of it a potentially and minimalist approach to constitutional politics probably should shift their attention from narrower and more minimalist way to resolve adjudication, to a modest view of the judicial role the kind of direct regulation involved in McCain- this case without overturning precedent. This is vis-à-vis the political branches, or to a genuine Feingold to other methods. The most promising, the big deal about this case. This sends a larger concern with adherence to precedent. I think, is one proposed many years ago by our signal about the Roberts “The masterful dissent by Justice Stevens, colleague Victor Brudney, who saw the problem Court. When Chief which merits close reading by anyone interested from the perspective of a specialist in corporate law. Justice [John] Roberts in the Supreme Court as an institution or in the Professor Brudney argued that it was well within the was confirmed in the Constitution as a source of law, shreds any serious ordinary scope of the law of corporations for states confirmation hearings, claim to the contrary. It also gravely undermines (and possibly Congress) to impose requirements he talked about deference the First Amendment of shareholder approval for specific categories of and a cautious approach analysis offered by the corporate spending. He suggested that states and and seeking more majority and concurring Congress, to the extent that it has the power to do consensus. And we have opinions, doing so so, could require that corporate expenditures on seen that that is not his thoroughly enough that campaigns gain shareholder approval. Requiring approach in practice. So today what we’re looking anyone who (like me) shareholders to approve a general power in the at is an irony. To pass a law in Congress takes a regards the issues in this corporation to spend money on campaigns probably 60-vote supermajority in the Senate. But to strike case as close and difficult wouldn’t accomplish much. Requiring them to down a law today takes a one-vote majority in the has to wish that Justice approve specific expenditures—in advance—would, Supreme Court—and a decision that overturned Kennedy, joined by the probably to the point of making such expenditures precedent. … The larger context of the Roberts Chief Justice and by Justices Scalia, Thomas, and impossible for large general-purpose corporations. Court’s aggressiveness and lack of concern about Alito, had been less emboldened by the knowledge (It probably wouldn’t affect small corporations or consensus is something that we should be paying that the votes were there for what they all deemed ideological ones like more attention to. the right result and had taken greater care to Citizens United much, “The next question is whether the Supreme respond, point by point, to the largely unanswered which is an attractive Court will move beyond outside political critique launched by Justice Stevens, joined in his feature of the proposal.) advertising, issue advocacy, or independent dissenting opinion by Justices Ginsburg, Breyer, Or, you could require that spending, and move from striking down and Sotomayor. some supermajority of regulations on outside spending to striking down “But there will be plenty of time to dissect shareholders approve a regulations on direct donations. That’s a big deal. the several lengthy opinions in this case and general power to spend So if a corporation can go today and now spend to opine on the merits, and it’s not my purpose money on campaigns— money on its issues, that’s one thing. But there are in this brief comment to add to that growing say, two-thirds or three- longstanding precedents that set limits on what body of commentary. I would say only that I quarters—and treat spending in the absence of such individuals and groups can donate to candidates. share neither the jubilant sense that the First approval as ultra vires the corporation. As with all If there’s now an ability to make direct donations Amendment has scored a major triumph over reform proposals, the details matter. But, I think, the to candidates without limits, that will be a major misbegotten censorship nor the apocalyptic sense decision in Citizens United should spur the kind of change.” that the Court has ushered in an era of corporate creative thinking about campaign finance reform dominance that threatens to drown out the that Professor Brudney’s proposals represent.” voices of all but the best-connected and to render

harvard law today march 2010 representative democracy all but meaningless.” 5

Read complete ! responses at http://bit.ly/ facultyoncitizens

HLS Assistant Professor Gabriella Blum LL.M. ’01 S.J.D. ’03 weighs in on ICC strategy. Mark Roe ’75 Lawrence Lessig “Corporate consequences of the Supreme “Institutional Integrity: Citizens United and Prosecution on the world stage Court’s speech decision last week” the path to a better democracy” continued from page 1 Financial Times, Jan. 25 The Huffington Post, Jan. 22 “Last week, the U.S. Supreme Court ruled that the “Whatever else one believes about the Supreme legal blocks on corporations and labour unions Court’s decision striking down limits on corporate their case. “I think they wanted to hold Karadzic advertising for and against political candidates speech in the context of political campaigns, there’s accountable for everything he had done and didn’t violate free speech principles. one thing no credible commentator could assert: want to leave out any pieces of the story.” “Constitutional law scholars, the media and the That money bought this result. We can disagree Beasley said the narrow approach to charging “is public will debate whether corporations are entitled with the Court’s view of the Framers (and I do); connected to the policy the ICC has adopted of not to free speech protections and Congress may revisit we can criticize its application of stare decisis trying to write history.” campaign contribution limits and public funding. (as any honest lawyer should); and we can stand Minow commented that although there may be “But the potential corporate, business and dumbfounded by its tone- great pressure for courts like the ICTY and the ICC to economic consequences of the decision, assuming deaf understanding of the write history, the criminal framework is only roughly it stands, are profound. Conservative and business nature of corruption (as appropriate to the task. media have thus far favoured the decision as anyone living in the real “It’s of course focused on the defendant,” she said, helpful to business; but it is not at all clear that world of politics must). “connecting the defendant to specific harms, not it is favourable to the economy. It is likely to hurt But we cannot say that telling the whole big story.” In fact, one critique of the dynamism of the American economy, perhaps somehow, the influence of the Nuremberg Trials, she said, “was that they were severely. money has produced this boring, with too many documents and no room for the “The Court’s decision will strengthen the hand extraordinary result. The victims.” There was a desire for a trial that gives people of incumbent interests over unorganised emerging Court jealously guards its a chance to tell the story. But maybe, said Minow, that’s interests. That is not good. Incumbent business own institutional integrity. Two hundred years of not what should be expected from the trial process. interests often see upstarts as competing unfairly, careful doctrine, defining the economy of influence Moreno-Ocampo agreed, saying that although trials as needing to be regulated, and as deserving of under which it does its work, has produced an have a historical dimension, to bring charges, he needs being suppressed. Incumbent businesses like institution whose decisions we can disagree with sufficient evidence, and too often he just can’t get it politicians to squelch new entrants. With their strongly, but whose integrity we can’t fairly doubt. within the necessary time frame. “So if I am writing chequebooks now opened up, they will support Maybe liberal or conservative politics sometimes history, it is wrong history,” he said. politicians who seek to gets too much mixed with constitutional law. But One student asked the prosecutor about the genocide regulate and suppress money is no where even close. charges he brought against the president of Sudan, upstarts. … “Thursday’s decision by the Supreme Court Omar al-Bashir. Although the ICC pretrial chamber “The campaign finance denies to Congress the same institutional integrity in March of last year issued an arrest warrant for decision will encourage enjoyed by the Court. The vast majority of Bashir for crimes against humanity and war crimes, it pernicious corporatist Americans already believe that money buys results declined to include genocide. tendencies. Consider the in Congress. This Court’s decision will only make Whiting—a former senior trial attorney at the ICTY— most recent example of that worse. The Wall Street bailouts, the caving urged the class to consider the risk of not convicting. these tendencies: unions to insurance and pharmaceutical interests in And why charge genocide at all, Minow asked, when and incumbent corporate health care reform, the ability of coal companies to you might be able to get Bashir on a lesser charge, the interests in the motor industry managed to get stop Congress from addressing even profoundly way Al Capone was convicted of tax evasion? “What’s about $80bn in subsidies last year. Even without important questions like global warming lead most wrong with that?” she probed. the ruling in favour of direct campaigning, the to the view that it isn’t reason or even constituent Moreno-Ocampo insisted that charging genocide was steel industry has often been able to suppress politics that determines what Congress does or a legal decision. “It’s not that we are writing history international competition. If incumbent industries’ doesn’t do. It is instead the siren of campaign but we are representing the evidence we have,” he corporate and union leaders see a common cause funding. Now a second siren walks onto that stage, asserted. Bashir, he said, is holding millions of refugees in Washington, we should expect them to use promising, ever so indirectly, more campaign from specific ethnic groups in camps under genocidal the campaign process further to increase their support from corporate treasuries. Who could conditions. friends in Congress. There was always a public- doubt that this will further distract Members of By the beginning of February, ICC judges seemed oriented rationale—the economy needs this or Congress from what their constituents want? And closer to agreeing with him, when the appeals chamber that industry—but now there will be more muscle who could believe it won’t make Americans even ordered the pretrial chamber to reconsider the

behind the campaign.” more cynical about what Congress does?” ø genocide charges. ø harvard law today march 2010 6

In thebriefs Classroom

Lecturer on Law Peter Carfagna ’79 Sports law: “very sophisticated lawyering is required”

Lecturer on Law Peter Cleveland Browns quarterback Brady Carfagna ’79 has been Quinn (right) was one of several athletes, 3L Ashwin Krishnan’s a practicing sports law sports agents and members of league attorney for nearly 30 management who were guest speak- legal playbook years. Senior counsel at ers in Carfagna’s January term course, Representing the Professional Athlete. Calfee, Halter & Griswold in When he was a stu-

Cleveland and an owner of dent at Harvard Col- e ic two minor league baseball lege, Ashwin Krishnan Off teams, Carfagna has built ’10 wrote about sports s New

the sports law program at for the Crimson. d r HLS into a series of courses This year, as a 3L at a rv a

and clinical externship Harvard Law School, H opportunities for students. he found himself the economic down- During January term, he writing about sports turn is affecting the taught Representing the again—this time not sports industry, and Professional Athlete. We about a team but for a later tapped Krish- recently spoke with him team. nan for the clinical

about some of the trends in z As part of his clini- position. Last year, a r cal work in sports law Krishnan worked for

his field. up

y D this January, Krishnan Michael Zarren ’04,

What are some of Emil drafted briefs for the Boston Celtics’ the big changes the Florida Marlins associate counsel, you’ve witnessed? baseball franchise, mainly on contracts lot about contract law but fact that they are athletes is requires a full range of skill compiling information with sponsors and on Just an explosion of sports also intellectual property almost incidental to how sets, which means knowing on why arbitration-el- legal research. He also law course offerings both rights. So, I would say one careful the lawyering has to your client intimately so igible players merited participated in a moot at the undergrad and at the of the biggest changes be in order to represent you get him or her the right the salaries the team court competition at law and business school would be the understand- these high-net-worth resources to celebrate the proposed. Tulane involving an levels. A proliferation of ing of publicity rights or clients. Every word, every success on the field and on Krishnan is a found- antitrust case, Ameri- literature on the subject, intellectual property rights, clause for these guys can be the court so they don’t have er and editor-in-chief can Needle v. NFL, and and a passion and devotion social media rights, inter- a six- to seven-figure swing, to worry about post-career of the new Harvard served as a teaching to it as a field of study. That active multimedia rights— depending on how it’s success. That involves Journal of Sports and assistant for Peter would be one of the biggest all the way across the drafted. Those who call it counseling on post-career Entertainment Law, Carfagna ’79. changes: the emphasis on spectrum—and who can frivolous have never done it planning early on, which which debuts this Krishnan hopes to students knowing early on monetize them. or experienced it. It none of them want to talk spring, and president one day work as an that they can and will get requires expertise in so about. What’s it going to be of the Committee on attorney for a sports into this field. … Represent- Can you offer many different areas, like when you can’t play Sports and Entertain- team or league. While ing athletes and teams in a sense of the including counseling anymore? Is it broadcast- ment Law. he knows there’s negotiations has become complexity of sports athletes on the four stages ing? Is it coaching? If you’re The general coun- plenty of competition a very, very specialized, law practice? of their career, from really good in this area, sel of the Marlins, for jobs in the sports high-price, high-risk, amateurism to you’re really doing career Derek Jackson ’99, business, he feels his high-reward, corporate, Very sophisticated, professionalism to their planning through the four participated in the immersion in sports commercial area of practice complicated, commercial mature years to their stages of an athlete’s committee’s 2009 law at HLS will keep where you need to know a lawyering is required. The retirement years. That career. ø symposium on how him ahead of the field.

Carol Steiker continued from page 3

What issues are being litigated in death penalty cases summer in the case of Georgia death row inmate Troy Relatedly, in these difficult economic times, now? Davis of ordering a lower court to “receive testimony the same resource constraints that contribute to There remains a great deal of litigation about and make findings of fact as to whether evidence that inadequate representation also can create extensive modes of execution and whether current protocols could not have been obtained at the time of trial clearly delays in resolving capital cases. The Supreme for administering lethal injections are sufficiently establishes petitioner’s innocence.” And questions Court recently granted review to consider a Georgia humane, especially in light of recent cases of botched about the adequacy of defense counsel performance, capital defendant’s claim that his constitutional executions like that of Romell Broom in Ohio this past especially in the investigation of capital cases, are right to a speedy trial was infringed by the absence September. Concerns about the possible innocence constantly an issue, reaching the Supreme Court with of any funding for his defense for two years, and the of death row inmates are always compelling. The great frequency (three times in the past few months absence of representation altogether for a period of 14

harvard law todaySupreme march 2010 Court took the highly unusual step this past alone). months. ø Clara Long ’11 and Fernando 7 Delgado ’08 record conditions at Brazil’s Urso Branco prison. Overheard, under oath Professors testify

The reason for the rescues during the crisis, such as AIG, or the TARP injections to forestall failures, was not to protect depositors of banks or the FDIC insurance fund. The reason was rather to avoid a chain reaction of failures set off by interconnectedness. Furthermore, this need for rescue does not depend on what activity gives rise to the potential bank failure. We will have to rescue banks whose failure will endanger other banks even if these failing banks are engaging in traditional activities. Mr. Volcker seems to imply that it is acceptable to rescue banks engaging in traditional activities. I disagree. Quite frankly, I do not think a taxpayer would feel better about rescuing a bank that made risky loans than he would rescuing a bank that engaged in less Amazon mission: Urso Branco prison traditional risky activity.” Hal Scott testifying before the Senate HLS team documents human rights abuse in Brazil Committee on Banking, Housing, and Urban Affairs on Feb. 4 regarding the Volcker Rules, which aim to address some failings in the t the southwestern Over a two-day financial regulatory structure brought to light tip of the Amazon, in Por- period, the HLS by the recent financial crisis Ato Velho, Rondônia, Bra- team, led by zil, stands Urso Branco, a prison James Cavallaro, Standard compensation arrangements in publicly notorious for deadly human conducted in- traded firms have rewarded executives for depth interviews rights violations. It’s nowhere with more than short-term results even when these results were anyone would choose to be. But 100 prisoners. subsequently reversed. Such arrangements have it was into this dank, dark and provided executives with excessive incentives volatile world that Clara Long ’11; to focus on short-term results. … In financial Fernando Delgado ’08, a fellow firms, where risk-taking decisions are especially with the Human Rights Program; important, rewards for short-term results provide and James Cavallaro, executive executives with incentives to improve such results director of Harvard Law School’s even at the risk of an implosion later on.” Human Rights Program, insisted Lucian Bebchuk LL.M. ’80 S.J.D. ’84 on going. testifying before the House Financial Services Urso Branco has a violent his- Committee at a hearing titled “Compensation tory. Two prisoner uprisings in in the Financial Industry” on Jan. 22 2002 left at least 38 people dead. Another massacre occurred in 2004. These events earned Urso Branco an injunction, known as “provisional measures,” from the Organization of American States’ Connect. Inter-American Court of Human Rights in San José, Costa Rica. Our students need you! Please The HLS group spent two their cells; some prisoners still also monitoring the prison, the volunteer a little of your time to serve days in September investigating had bullets lodged in their bodies court ruled, on Dec. 14, 2009, to as an alumni adviser. Explore the the prison in preparation for months after being hit; and maintain the provisional mea- updated Online Directory and Advising a court hearing to consider torture was systematic. sures imposed. It ordered Brazil Network for HLS Alumni. Search for whether to lift provisional They were assisted by clinical to implement all necessary mea- other alumni, expand your network. measures. Entering more than student Alexia De Vincentis ’10, sures to guarantee the life and 20 cells, they spoke with more who did legal research off-site physical integrity of the prison- Connect. Please sign up now — it’s easy! than 100 inmates, and amassed and later joined them in Costa ers and prison staff. https://hlsalumni.publishingconcepts.com/ documentary evidence that Rica, where the team prepared a It was a significant win. “We corroborated the prisoners’ case against the prison. were mostly fighting an uphill allegations of gunfire and torture. Based on their findings and on battle in a context in which the They documented that guards presentations by attorneys for court had lifted provisional routinely fired live rounds at Justiça Global and Comissão de measures in similar cases,” says

prisoners as they cowered in Justiça e Paz, two Brazilian NGOs De Vincentis. ø harvard law today march 2010 8

womenbriefs in law Breaking down barriers in the courtroom, workplace and community

he women’s law association at THLS hosted “Women for Women: Advocating for Change,” on Feb. 19, a conference showcasing the contributions of women in the rt courtroom, workplace and a tew

community. Speakers included s

Illinois Attorney General Lisa ha Madigan, the New York Stock rt ma y b

Exchange’s Peggy Kuo ’88 and former Secretary General of aphs

Amnesty International Irene gr o Khan LL.M. ’79. t pho

9 “It doesn’t matter 3 “Women for women, 3 “You need to be able your color or your advocating for one to beat the ‘old boys’ gender—you just another, is the only at their own game ... have to expect to thing that is going If you want to think work twice as hard, to change things in outside of the box on or three times as this world. We need your strategy, I think hard. … Intelligence to each remember that’s great, but ... is going to get that the success of know the rules, plan you just so far. ... women rises and falls your strategy and then “Eventually you on our ability to band execute your strategy will find that you together to demand in a way that can make will hit a wall equality, and when you successful.” unless you roll up we divide against Sharon Jones ’82 your sleeves and each other, we divide President of Jones work really hard. … against ourselves and Diversity Group and Put yourself in the weaken our cause.” incoming president of path of lightning Diane Rosenfeld HLSA … don’t be afraid ll.M. ’96 to take risks. Put HLS lecturer on law yourself out there and take a chance.” Valerie Jarrett Senior adviser to Silda Wall Spitzer ’84, founder of Children for 5 President Barack Children (top right), was one of five panelists, Obama ’91 including Janet Benshoof ’72, Page Gardner, Irene Khan LL.M. ’79 and Jessica Neuwirth ’85, discussing “Change in the Community.” (Bottom right) Laura Jarrett ’10, daughter of keynote speaker Valerie Jarrett, was one of hundreds of students who gathered in the John Chipman Gray Room in Pound Hall for the Women’s Law Association conference.

Venture Fund support for students interested at HLS.“It’s also in sync with The Public Service Venture HEALTH and winner of a continued from page 1 in public service has increased the values emphasized in our Fund will be governed 2009 MacArthur “genius by $2.75 million this year. curriculum, and with our pro by a board of senior grant” number of people whose lives To obtain support from the bono ethos and our strong administrators, faculty they will touch during their new fund, applicants will submit emphasis on clinical education, members and alumni. Paul Rosenberg ’79, a public service careers.” proposals explaining how the all of which encourage students Advisers helping as the partner at the Bridgespan The creation of the Public postgraduate grants will help to think creatively about design­ school launches the fund Group in Boston Service Venture Fund is the latest them get started in public ing interesting projects and are: step taken by the law school to service. Minow said the fund will approaches to helping people.” Ken Zimmerman ’88, offer new forms of assistance bolster the creative thinking of “When jobs are especially hard Susan Butler Plum, a partner at Lowenstein to students who are interested publicly-spirited law graduates to come by, the fund may provide director of the Skadden Sandler and chairman of the in public service careers. In at a time when the legal fellowships in order to create Fellowship Foundation Lowenstein Center for the November, Minow announced profession itself is becoming jobs,” said Alexa Shabecoff, Public Interest an increase in the availability more entrepreneurial. HLS’s assistant dean for public Alan Khazei ’87, founder of financial aid overall and a “The new venture fund is service. “It will also supplement and CEO of Be the Change Alan Jenkins ’89, co- broadening of eligibility for the exactly in sync with that,” said salaries for graduates hoping and co-founder of City Year founder of The Opportunity school’s loan relief program. Professor David Wilkins ’80, the to work for nonprofits that can Agenda and former director She also established 12 new faculty director of the Program afford to pay for only part-time Rebecca Onie ’03, co- of human rights at the Ford Holmes Fellowships for students on the Legal Profession and positions. The fund will offer our founder and CEO of Project Foundation interested in postgraduate public the Center on Lawyers and the students the ability to land the job

harvard law todayservice march 2010 work. All told, financial Professional Services Industry of their dreams—or create it.” ø