HarvardSummer 2021 Law bulletin

Disinformation. Deception spreads faster than truth on social media. Who — if anyone — should stop it? CONTENTS | SUMMER 2021

Oh, What a Tangled Web We Weave

18 Deception spreads faster than truth on social media. Who — if anyone — should stop it?

‘What Can We Do to Help Create 150 Years of Change in 10 Years?’

26 The new Institute to End Mass Incarceration takes aim at ‘one of the LUONG TONY defining civil rights issues of our time’ Andrew Manuel crespo ’08 launches the Institute to End Mass Incarceration. page 26

Katherine Tai Represents

32 In her new role as USTR, Tai ’01 brings legal expertise, political savvy, and a deep commitment to American workers

Off the Bench and into the Breach

36 Merrick Garland ’77 returns to the Department of Justice as the 86th U.S. attorney general DREW ANGERER/GETTY IMAGES ANGERER/GETTY DREW

“This is the highest, best use of my own set of skills.” — Merrick Garland page 36

2 FROM THE DEAN Making meaning

3 LETTERS In search of corporate law lyrics

4 WRIT LARGE: FACULTY BOOKS AND FILMS “On Juneteenth,” “Vice Patrol,” “The Crits!” JESSICA SCRANTON (2) SCRANTON JESSICA

10 Two legendary teachers retire INSIDE HLS Elizabeth Bartholet ’65, the inspiration An activist at home in the world; for countless young lawyers Breyer cautions against Gerald Frug ’63, master teacher, legal the ‘peril of politics’; What Betsy theorist, city lover built; Cities & the teacher P age 14

42 HLS AUTHORS From an American daredevil to an American president

44 CLASS NOTES Finding her voice; Salute to justice; The battle for the ballot box; ‘I’m still

HarvardSummer 2021 Law trying to understand my role in this bulletin complex place’ Harvard Law Bulletin Volume 72 | Number 2

54 Associate dean for communications and Public Affairs In Memoriam Melodie Jackson Editor Emily Newburger

58 Managing Editor Gyaller Linda Grant Editorial Assistance The Pentagon Papers Jeff Neal, Christine Perkins, case today Disinformation. Lori Ann Saslav Deception spreads faster than truth on social media. Who — if anyone — should stop it? design director Ronn Campisi

Cover illustration EDITORIAL OFFICE Harvard Law Bulletin by Adam McCauley 1563 Mass. Ave., Cambridge, MA 02138 Email: [email protected] Website: today.law.harvard.edu/bulletin Send changes of address to: [email protected] © 2021 by the President and Fellows of Harvard College. The Harvard Law Bulletin is published two times a year. FROM THE DEAN | BY JOHN F. MANNING ’85

Making Meaning

The past year was among the hard- tive elements of law school class- here. That’s a new record, and it est our Harvard Law School com- room and clinical pedagogy to the represents a cumulative total of munity has faced in recent mem- best practices of online teaching. 393,384 hours of service for this ory. It was also one in which our At the same time, they continued class alone. A record 91% of gradu- students, staff, and faculty showed to dedicate themselves to teaching, ating J.D.s took at least one clinic, exceptional resilience, commit- research, and new initiatives that and our LL.M.s — pursuing their ment, creativity, and generosity. confront the urgent issues of our studies from every corner of the Like so many others, members time. The Institute to End Mass world — enrolled in clinics at a 50% of our community faced great chal- Incarceration, fea- higher rate than usual. lenges arising from the COVID tured in this edition, This commitment to service is pandemic, including illness and In a world that is one such effort. not only inspiring; it is vital. This loss, significant new child or el- feels broken, And our staff have is, in part, because our newest der care responsibilities, and, for worked tirelessly alumni, like all of you, have cho- some of our students, learning re- with so many and thoughtfully to sen to join a profession that is ded- motely from halfway around the problems to fix, sustain and further icated to guarding the rule of law, checking abuse of power, giving globe. This year also brought sharp your voice, and the law school’s mis- focus to so many grave and per- sion. I am filled with life to equal justice under law, and sistent injustices: racism, abuse of your service, gratitude and pride preserving the hard-fought right power, inequality, poverty, intoler- and those of for what our com- to govern ourselves. It is also be- ance, threats to democracy. All of munity has achieved cause, in a time of division — when this has touched our community our newest and for its members people aren’t listening, when they deeply and has also highlighted graduates, will hard work and com- cannot agree on facts much less the important role law and lawyers mitment. policy — we lawyers have a special play in furthering the rule of law, be crucial. Looking ahead as role to play. Our work consists of equal justice, and democracy. we begin to emerge facts and reason and argument, Even with all of the challenges from the pandemic, we ask: How and we cannot make our best case they faced, our students commit- do we make meaning of this most unless we listen generously to the ted themselves fully to the im- difficult year? Ours is a profes- other side’s. In a world that feels portant work of learning and of sion of service and contribution. broken, with so many problems to meeting the growing needs of vul- A common passion I see in our fix, your voice, and your service, nerable clients. Our faculty, too, students year after year is a deep and those of our newest graduates, worked hard to adapt the distinc- commitment, in many different will be crucial. ways and with many goals in view, Thank you for all you have done to doing something larger than and all you will do to make mean- themselves, to making the world ing of this challenging year, for always better. That aspiration has bringing your best selves to the never been more evident than in worst problems, and for showing this past year. once again the importance of the In the time of COVID, when service lawyers and the law can navigating school and life was render, especially when times are just plain harder, one might have hardest. We will watch with pride thought the extraordinary num- as our newest graduates take their ber of service hours typically per- places by your side, among the formed by Harvard Law School generations of great Harvard law- students would fall off, at least a yers and leaders who have dedicat- bit. In fact, it’s been just the op- ed themselves to making progress posite. Members of the J.D. Class and to doing the always unfinished of 2021 each did an average of 662 work of advancing the ideals of law

JESSICA SCRANTON JESSICA pro bono hours during their time and justice.

2 Harvard Law Bulletin Summer 2021 LETTERS

READER’S QUERY smart pigeons learned to er among them), and some not The retirement tribute to Professor push, which, while deny- so memorable, only John Hart Robert Clark ’72 (Summer 2020 issue), ing the bird a pellet im- Ely’s Advanced Con Law class ap- who wrote and performed music in his mediately, allowed the proached Tribe’s every-single-day- classes to help students remember the wise pigeon to collect at-the-top-of-his-game approach principles of corporate law, spurred many more pellets lat- to teaching. memories of another musical corporate er. (This is the lever to Ivan Orton ’77 law class. It also spurred a question. which Kathleen Sullivan Seattle, Washington alluded in her tribute to I was wondering if any reader re- Professor Tribe in the Editor’s Note: We are sorry to report that members or has a record of more Summer 2020 tribute: Ivan Orton passed away in January. verses to “Non-negotiable You,” “His imagery was vivid: which emanated from a Secured A constitution was a pre-commit- FOND FORUM MEMORIES AND Transactions class in my era. The ment against future temptation, CONGRATS TO JERRY RAPPAPORT only bits I remember are “You’re like Odysseus tying himself to the Julia Hanna’s article about the the only note that I endorse,” and mast.”) new Law School Rappaport Forum “I want to be your holder in due Why did that simple allegori- (“Coming Full Circle,” Summer course.” cal scientific article impress me? 2020 issue) awakened some nice Daniel Feldman ’73 Well, like many, I came to Har- memories. In my last semester, New York, New York vard Law School smart but not 1954, I was president of the then very wise. By the time Tribe’s class “Harvard Law School Forum.” We OTHER VIEWS ON THE TRUMP began, I was under the impres- presented, I think, about four fo- ADMINISTRATION sion that I knew con law and that rums each semester, in the same All four professors quoted in “An this would be merely a refresher format described in her article: Election for the History Books?” course, for I had had three con two speakers taking opposite (Fall 2020 issue) offer the same law classes in college, and two in sides of a specific question, with apocalyptic, negative views of the graduate school. Unlike Professor a moderator, usually from the Trump administration found in Sullivan, who came to Professor university faculty. As mentioned, most of the media. There are some Tribe’s class with some feel for we were able to attract prominent opposing views out there, also ex- how magical his class would be, I speakers. Among those during pressed by distinguished scholars. had little sense of his reputation, my tenure, I recall former Vice It would have been nice to see some only the advice of Professor Arthur President Henry Wallace, the col- balance in the article. If opposing Miller, at the end of our first year umnist Dorothy Thompson, and, views cannot be found at Harvard in law school, who, when asked for yes, James Michael Curley. In fact, Law School, that is a shame. advice on classes to take the fol- I remember that 1953 nondebate Jay Kelly Wright ’72 lowing year, admonished us to take wherein Curley, to my recollec- Fort Myers, Florida Tribe’s class — “It may become the tion, simply recounted amusing highlight of your time at HLS,” or anecdotes about municipal gov- Editor’s Note: The following letters first words to that effect. ernment. The Forum also gave me appeared in the Fall 2020 online-only By the time the class was com- an opportunity to personally meet issue of the Bulletin. pleted in December, I was no lon- Dean Griswold, when he called me ger ignorant of the transformative to his office to down-dress me over PIGEONS, CORN PELLETS, AND THE effect Professor Tribe could have what he thought was an inappro- TRANSFORMATIVE EFFECT OF LARRY on a young, impressionable mind priate Forum topic. So congratu- TRIBE’S TEACHING WRITE to seeking enlightenment and knowl- lations to Jerry Rappaport for re- The first lesson Larry Tribe taught the Harvard edge. The pages of the simple di- viving this important structure. me in his Constitutional Law fall Law Bulletin: ary that I kept for my days at law Would it not be a better way for bulletin@law. 1975 class at the start of my second school were filled with praise for presidential candidates to debate, harvard.edu; 1563 year at HLS concerned pigeons Massachusetts this class, “another amazing Tribe instead of the current practice of and corn pellets. I had read the ar- Ave., Cambridge, class” being a common entry. stock, time-limited answers to an- ticle Professor Tribe had assigned MA 02138. Letters Indeed, while I had some other ticipated questions? us to read, about the pigeons and may be edited for wonderful teachers at HLS (the Edmund R. Rosenkrantz ’54 the pellets and the magic lever the length and clarity. aforementioned Arthur Mill- Montclair, New Jersey

Summer 2021 Harvard Law Bulletin 3 WRIT LARGE | FACULTY BOOKS

A Sense of Place Annette Gordon-Reed considers her home state’s complex history / By Julia Hanna

As a child growing up in Conroe, In “On combination of childish celebra- ents a 360-degree view of the his- Texas, in the 1960s and ’70s, An- Juneteenth,” tions and hedonism — and at the tory leading up to the holiday and nette Gordon-Reed experienced Annette Gordon- same time, a sense among older beyond, weaving in her perspec- Reed presents a Juneteenth on different levels. She people that this was something tive as a Black woman with Texas 360-degree view knew June 19 was the day in 1865 of the history important,” says Gordon-Reed roots dating back to as early as the when enslaved African Americans leading up to ’84, the Carl M. Loeb University 1820s. White cowboys and oilmen in Texas were told slavery had end- the holiday and Professor at Harvard and author are an indelible aspect of the Lone ed — two years after the signing of beyond. of six books, including “The Hem- Star State’s mystique, fed by pop- the Emancipation Proclamation. ingses of Monticello: An American ular culture references ranging But it was also a time to run and Family,” which earned her a Pulit- from the Hollywood epic “Giant” play with cousins, throw firecrack- zer Prize in history and a National to primetime television shows ers, eat barbecued goat, and enjoy Book Award. like “Dallas” — yet the reality, as unlimited access to iced-down In the newly published “On Gordon-Reed shows, is far more bottles of red soda. “I remember a Juneteenth,” Gordon-Reed pres- nuanced. Texas, she says, holds

4 Harvard Law Bulletin Summer 2021 ILLUSTRATION BY ELIANA RODGERS

a unique place teachers treated her no differently. pedition made its way across the in U.S. history, The racism she did experience Southwest. “We didn’t spend much with large His- was more puzzling than anything time on Estebanico in school, be- panic and Na- else, as Gordon-Reed recalls. Some cause that story is not tied to our tive American girls who were friends at school, Anglo-American heritage,” says populations, a for example, would ignore her in Gordon-Reed. “But there’s no real shared history town. “You had to wonder, Why is reason to accept those boundar- with Mexico, the it this way?” she says. “It created ies. It’s useful to consider slavery distinction of a detachment, a sort of anthropo- as a global system and not lim- having existed logical approach to dealing with it our understanding to the 20 as an indepen- p e o p l e .” Black people who were brought dent republic, and a history of Gordon-Reed says it’s hard to to Jamestown in 1619.” Esteban- plantation slavery and legalized know how much of that observa- ico also offers the opportunity to Jim Crow. “It’s a place,” she says tional, outsider stance was already consider an enslaved man as an simply, “where a lot of American part of her personality and how individual, she writes, going well things meet.” much was cultivated by circum- beyond the history taught to her as On a more personal level, it’s stance. Either way, she has used a young person. “Seeing Africans also where Gordon-Reed grew up. that power of observation as a in America who were out of the The decision of Brown v. Board historian committed to examining strict confines of the plantation — of Education was nearly a decade the accepted historical record to and seeing them as other than the old when she entered kinder- gain a more complex understand- metaphorical creation of English garten at Booker T. Washington ing of how people lived together. people — would have pushed back High School, the de facto “Black Slavery in early American histo- against the narrative of inherent school” that included students in ry, for example, is typically pegged limitation. Africans were all over grades K–12. Schools in Conroe re- to Jamestown and 1619, she notes, the world, doing different things, mained segregated, for all intents when in fact there is a record of having all kinds of experiences.” and purposes, but Gordon-Reed’s its presence during the period of In the same vein, Gordon-Reed’s father believed younger students the Spanish exploration, when an account goes beyond a dualistic benefited from attending schools enslaved man named Estebanico, understanding of slavery and separate from junior high and originally from Morocco, traveled race relations. “This is not just a high school students — which was in the 1520s from Florida to Texas story of Black and white,” she says. the case for the town’s white chil- to what is now California. Span- “It’s the story of those groups but dren. So it was that Gordon-Reed ish explorer Álvar Núñez Cabeza also Tejanos, Hispanics, and Na- became the first Black student to de Vaca described his invaluable tive Americans.” She hopes “On attend Hulon N. Anderson Ele- ability to speak and translate Juneteenth” will cause readers mentary. Indigenous languages as the ex- to reflect on the complex nature “I learned later that my parents of life — and of love. As awful as and the school district negotiated some periods of its history may about how it would all proceed,” be, she says, Texas is the place Gordon-Reed writes. “No fuss she and generations of her fam- would be made. … I would just ar- ily have called home; recently, rive at school and begin first grade she found her great-great-grand- as if there were nothing to it. There father’s voting registration card, was, of course, something to it. dated 1867. “We tend to set a bi- This was a new thing in our little nary response to loving or hating corner of East Texas.” Her family a person or a place. But in every received death threats; lynchings chapter of the book, there are good and extrajudicial killings of Black and bad things happening at the men were a deep-rooted part of same time,” says Gordon-Reed, the area’s history, with little more who hopes to devote more time to than a generation separating exploring her own family’s roots. one of the more recent cases and “There’s a complexity of emotion Gordon-Reed’s impromptu inte- Annette Gordon-Reed there, a response that is both ra- gration. Even so, she writes, her tional and irrational.”

PHOTOGRAPH BY STEPHANIE MITCHELL Summer 2021 Harvard Law Bulletin 5 WRIT LARGE | FACULTY BOOKS

Vice Age Anna Lvovsky chronicles the policing of gay life in the mid-20th century / By Lewis I. Rice

Sometimes the police could identi- “There’s no Anna Lvovsky ’13, assistant pro- those of gay men. fy a gay man by his red tie. In other question that fessor at Harvard Law School. The “There has long been a certain cases, it could be his tennis shoes. policing was a book, which focuses on the roles of instinct to contain and redress … major shadow Or maybe they just knew one when the police and judges in policing the possibility of deviance by es- in the lives of they saw one. essentially anyone gay life in the mid-20th century, sentially mapping deviance onto As preposterous as it may seem, living a socially originated as her thesis topic (she something that’s conspicuous and the police once relied on such active life in gay received her Ph.D. in the History visible and therefore easily dis- seemingly innocuous clothing or lesbian circles, of American Civilization from tanced from the self,” she said in choices or even a man’s perceived particularly in gay Harvard in 2015). During her re- an interview. “There’s something feminine look to target “suspect- circles,” says Anna search, she was struck by policing deeply reassuring about being able Lvovsky of the ed homosexuals,” as detailed in manuals she discovered from an to both distance oneself from the period her book the new book “Vice Patrol: Cops, covers. era that focused on visualizing deviant body and to assert that Courts, and the Struggle over Ur- the “deviant body” as a way to stop one can understand and grasp ban Gay Life Before Stonewall” by sex-related offenses, particularly and therefore contain — concep-

6 Harvard Law Bulletin Summer 2021 ILLUSTRATION BY CELINA PEREIRA

tually at least — the figure of the the period, but primarily stemmed Anna Lvovsky ‘deviant.’” from institutional pressures with- The book begins after Prohi- in the courts, from judges’ concern bition ends, when laws were en- about their workloads to their pro- acted to regulate how drinking fessional relationships with psy- establishments could operate chiatrists. Yet she also emphasizes their businesses and how their that the frequent leniency judges customers behaved. Enforcement showed toward the accused should often turned on whether or not bar not minimize the harms suffered owners knew that the patrons they by those targeted by the police. served were gay, as shown in ad- “There’s no question that po- ministrative proceedings detailed licing was a major shadow in the by Lvovsky featuring police testi- lives of essentially anyone living mony on “rouged faces,” or the “ef- a socially active life in gay or les- feminate” way a customer spoke. bian circles, particularly in gay

She includes details about the circles, in these years,” Lvovsky SCHOOL LAW COLUMBIA cat-and-mouse game bar owners said. “Even though many judges played with the police: One own- would reduce charges or would er implemented secret signals to sometimes dismiss or acquit, the Although the Changes came later in the de- alert customers upon police entry majority of defendants were still book focuses on cade, as activists and critics pres- to act “in a normal well-behaved convicted of some kind of mis- policing practices sured police departments to limit from the mid- manner,” while another signaled demeanor offense. And being their undercover tactics, judges 20th century, an accepting atmosphere with a brought into the criminal justice according to imposed legal limits on police sign advertising “Pickled eggs laid system is itself a great cost. Even Lvovsky, the surveillance, and courts prohibit- by gay roosters.” when defendants don’t suffer di- history is relevant ed liquor boards from suspending When cited for violations, rect penal consequences, there’s in helping us licenses because of the mere “pres- bar owners contended that they a certain psychological insecurity understand how ence of apparent homosexuals.” couldn’t reliably “recognize a and fear of exposure to friends, police enforce Those changes mirrored growing laws against homosexual” or questioned the family, and employers that come attention to police abuses and marginalized police’s qualifications to do so. In from any close encounter with the populations today. support for sexual privacy, writes time, the owners enlisted expert justice system. So that’s absolutely Lvovsky, but they also “reflected testimony that framed homosexu- a very important part of the story.” a shifting view of homosexuality ality as a disease best addressed by Her book concludes in the itself.” Policing that targets LGBT medical authorities — ironically 1960s, when the popular media people, which spurred the Stone- using rhetoric often remembered began to cover gay culture and at- wall riots of 1969, persisted into for its harm to LGBT communi- tempts by the the vice squads to later decades and still occurs to- ties. regulate it. While press coverage day on a smaller scale, she writes. By the early 1950s, police start- was not necessarily sympathetic to Yet the practice of vice officers im- ed using plainclothes officers and the gay community, Lvovsky writes mersing themselves in gay life and decoys in specialized vice squads that it brought unfavorable visibil- culture was primarily a feature of to initiate arrests. These efforts ity to the manipulative practices the mid-20th century, according to ranged from officers flirting with of vice officers, whose “expertise Lvovsky. That history remains rel- men in bars to decoys exposing in an ostensibly de- evant, she writes, in helping us un- themselves in public bathrooms viant sexual culture derstand how police enforce laws in order to entice solicitations. did not bolster their against marginalized populations, When these cases went to court, standing in pub- in areas such as narcotics, prosti- judges frequently objected to these lic debates about tution, terrorism, and gang activ- tactics, calling them a waste of po- sexual difference. ity: “The painful, contested tale of lice resources or questioning the It undermined the the state’s attempts to regulate gay morality of such manipulation. legitimacy of their life in the United States may be a According to Lvovsky, judges’ operations, casting classic case of history not simply more permissive attitudes partly the specter of devi- showing us a shameful past, but reflected a growing liberalization ance on the experts also casting light into the hidden among the educated and elite of themselves.” corners of the present.”

Summer 2021 Harvard Law Bulletin 7 WRIT LARGE | FACULTY FILM

The Influence of Critical Legal Studies A film by Jeannie Suk Gersen highlights the drama and import of the movement / By Elaine McArdle

By the time Harvard Law School Professor Jeannie With charismatic who blamed liberals not only for the Vietnam War Suk Gersen ’02 was a first-year law student at HLS, founding figures, but also for fomenting an unnecessarily competitive Critical Legal Studies had been pronounced dead. battles over the model for the law school classroom. By the late ’80s, meaning and uses CLS, which emerged in the 1970s from the civil rights the legal establishment had “crushed us like bugs,” of the law, and and anti-war movements, argued that the law is not serious career says Duncan Kennedy, HLS professor emeritus and neutral but rather inherently biased toward main- repercussions one of the movement’s founders. taining the status quo to the detriment of marginal- against CLS And yet “every corner you turned and every closet ized groups. Vilified by the political right, CLS was adherents by you opened at the law school, there it would be, in derided as a “misplaced monster of prehistoric radi- traditionalists, the some sort of zombie or ghost-like form,” Gersen re- calism” by President Ronald Reagan at a 1988 meet- story was “filmic,” calls. Most of her 1L professors, as well as later men- says Jeannie Suk ing of the Federalist Society, but legal liberals were tors such as Kennedy and HLS Professor Janet Halley, Gersen. no fans either. There was a yawning generational gap were adherents of Critical Legal Studies, and its influ- between the old guard and the young upstarts of CLS, ence was still significant. “They didn’t wear their Crit

8 Harvard Law Bulletin Summer 2021 Watch “The Crits!”: bit.ly/thecrits

perspective on their sleeves in the classroom,” says filmmaking partner and friend, Jackie Mow. They Gersen, yet she was drawn to the theory they taught. spoke with key figures including Duncan Kennedy, a An expert in family, criminal, and arts law who has wide-ranging thinker who has educated generations been teaching at HLS since 2006, Gersen was con- of students on the politics of law, among many oth- vinced the CLS story was an important one to share er topics; Kimberle Crenshaw ’84, a leading scholar now. “Understanding in critical race theory who developed the concept of what these fights were “intersectionality” in which gender, race, class, and about affects and shapes “U‌ nderstanding what these other characteristics intersect and affect the expe- the debates we are hav- rience of an individual; and Clare Dalton LL.M. ’73, fights were about affects ing today about the who in 1987 sued and received a settlement for sex legitimacy of law,” she and shapes the debates we discrimination after HLS denied her tenure. Among says, and she set out to are having today.” other dramatic turns, the film describes how the make a film, something movement splintered as new iterations developed. she’d never done before. FemCrits, who were extremely critical of the patriar- She was interested not so much in examining CLS chal foundation of CLS, were themselves critiqued by philosophy, about which numerous law review articles critical race theorists over issues of racial oppression. have been written, but in spotlighting the experiences Yet through these iterations, the “influence of CLS of those who lived through the movement’s spectac- has been incredibly pervasive,” says Gersen. Indeed, ular rise and fall. as she was completing the film, she noticed that for With charismatic founding figures, dramatic bat- the first time in her teaching career a plurality of tles over the meaning and uses of the law, and serious her students were “routinely performing acts of rad- career repercussions against CLS adherents by tradi- ical-left critiques of liberal legalism,” and “asking, tionalists, the story was “filmic,” says Gersen. It was ‘Is law the answer, or is law something that’s only as At left, stills from rich with Freudian overtones of jealousy, aggression, good as the people who are wielding it, interpreting a movie about a patricide — in the sense of killing off the older genera- movement: it, and doing things with it?’” tion — and passionate rivalries among the Crits, even TOP ROW: Mark “There’s something unique about this moment that as they cared deeply about each other. “It was about Tushnet, HLS is making this happen,” says Gersen, who speculates love, it was about violence, it was about sex, it was professor that the #MeToo movement, the Black Lives Matter about death, it was all of those very primal concepts emeritus; movement, and the unprecedented size and breadth — and all of those dynamics fueled the story,” she says. Kimberle of global protests after the killing of George Floyd are Crenshaw, Gersen’s 25-minute film, “The Crits!” which pre- professor of law, prompting a resurgence of the CLS influence. miered at the 2017 HLS Bicentennial, was featured Columbia and “Critical race theory right now, even just in the past at the HLS Film Society’s launch in November 2020. UCLA year, has had enormous salience in our culture both in She is hoping the film can find a sponsor or site as a MIDDLE ROW: David legal culture and in mainstream society,” says Gersen, way for it to be widely seen, as she wants her target Trubek, professor who notes the scholarship of Crenshaw, in particular, audience — people unfamiliar with the CLS story, in- emeritus, for critiquing “politically neutral-seeming policies University of cluding lawyers and law students — to see “how in- and laws as having impacts that are racially signifi- Wisconsin Law fluential the movement has been and yet how much School; Robert cant. I think that is everywhere today.” disavowal of CLS has existed, both within law schools Gordon, professor, and the general culture,” she says. Stanford Law When she began the project, Gersen’s outreach to School Jeannie Suk Gersen Crits met significant resistance. “A lot of them didn’t BOTTOM ROW: even return my calls,” she says. She doesn’t want to Peter Gabel, whose career speak for them but adds, “I will just speculate that in academe has those were painful times and painful experiences for included heading those individuals, at least some of them, and that to New College remember it or to have somebody nosing around af- of California; terward to try to unearth or resuscitate some of those Clare Dalton, painful experiences might not have been so welcome.” professor emerita, She did her first on-camera interview, in 2014, with Northeastern University one of the movement’s founding figures, Peter Ga- School of Law; bel ’72, former president of New College of Califor- Duncan Kennedy, nia. Over the next several years, with funding from HLS professor Harvard University and HLS, she worked with her emeritus

PHOTOGRAPH BY NINA SUBIN INSIDE HLS | STUDENT SNAPSHOT

An Activist at Home in the World With roots in Algeria, Ikram Ais works for change — in her home country and beyond / By Julia Hanna

10 Harvard Law Bulletin Summer 2021 PHOTOGRAPHS BY MICHAEL DANNER/GETTY IMAGES

Ikram Ais LL.M. ’21 was 8 years old when she realized her mother could not read or write. “I asked for help with my homework and she just sat there,” recalls Ais, who grew up in a small town outside Oran, Algeria. Ais learned that her mother’s parents hadn’t believed in education for young girls, which made her sad, she says — and angry. “I’m one of 11 siblings — our house was always crowded,” she recalls. “My mother says I would get up on a table with a hairbrush and shout about how everyone should be treated equally. I had no clue what I was talking about, but I knew there Focusing on the Janet Halley as just one of many favorite HLS courses: was some discrimination against women and I did connections “She wouldn’t give her opinion but would challenge not like it.” She taught her mother Arabic, letter by between you to understand how different scholars could view constitutional letter. Without realizing it, she had found her life’s an issue, as a way to improve your thinking and point structures, mission as an advocate for human rights. government, of view.” Comparative Constitutional Law with Pro- That moment took on more meaning as Ais grew business, and a fessor Vicki Jackson was another highlight. And older. “My [female] cousins were dropping out of healthy human Ais wrote her LL.M. paper, supervised by Professor school and getting married at the age of 16, which is rights climate has Martha Minow, on how women’s rights and domestic the norm in Algeria,” she says. She also witnessed — been a through violence rates changed after constitution-building ef- and experienced — domestic violence and abuse. “It line of Ikram Ais’ forts in Algeria and Japan. work at HLS. made me scared of what the future looked like for all Focusing on the connections between constitution- of these women.” al structures, government, business, and a healthy The summer after she graduated from high school, human rights climate has been a through line of Ais’ Ais became involved in Amnesty International; after work at HLS; in the International Human Rights participating in a human rights training program in Clinic, she and others drafted a critique of the United the capital city of Algiers, she returned to Oran to Nations’ guiding principles on business and human launch a group of student activists at her university, rights, which currently center on state, judicial, and leading them in some corporate responsibility. “Our critique adds a fourth of the same training pillar to the document to include community and the exercises and boosting Ais has been immersed people themselves,” she says. “It’s been an amazing female involvement. In in a blend of advocacy, learning experience.” time, she was elected to Ais would like to return to Algeria at some point the executive board of legal scholarship, and to contribute to her home country’s progress in hu- Amnesty International community building. man rights, and more broadly, to the Middle East and Algeria — its youngest North Africa region. This spring, as co-director of ac- board member to date tivism for HLS Advocates for Human Rights (a new- — and found herself taking the train 250 miles from ly created role), she worked to bring attention to the Oran to Algiers for meetings. “I was harassed count- fate of four Yemeni journalists detained since 2015 less times for traveling by myself,” she says. Yet it did and sentenced to death in April 2020 in a campaign not diminish her resolve, as she went on to post-uni- that included reaching out to President Joe Biden. versity stints at several Berlin-based nonprofits fo- Intrigued by the intersection of activism and aca- cused on conflict resolution and human rights. demia, Ais plans to continue to find ways to expand Berlin, as it happens, is where she’s spent her LL.M. her knowledge of the role constitutions and legis- year; while she wishes it could have been otherwise, lation play in preserving regional stability and, by Ais, who was an HLS class marshal, fostered a sense extension, human rights. In the meantime, she con- of virtual community through a number of efforts, tinues the work begun when she was just 8 years old, including a movie club. Members voted for the 1966 teaching her mother Arabic letter by letter. “I keep classic “The Battle of Algiers” for the first screening. educating every single woman I communicate with After watching together on Kanopy, Ais says partic- from Algeria, whether on the phone or online, of how ipants debated which group could be considered the important it is to raise her voice and not accept op- oppressors — the Algerians, the French, or both? pression,” she says. “I really would like to continue “The movie and the discussion lasted four hours,” the sort of advocacy and legal scholarship work that she says, “but no one was bored, not for a minute.” will bring stability and improved human rights to my Ais cites Feminist Legal Theory with Professor home region.”

Summer 2021 Harvard Law Bulletin 11 INSIDE HLS | ON THE COURT

Breyer Cautions Against the ‘Peril of Politics’ Justice Stephen G. Breyer says changes to the Supreme Court could erode public confidence / By Rachel Reed

At Harvard Law School’s annual Scalia Lecture in April, Stephen G. Breyer ’64, associate justice of the Supreme Court of the Unit- ed States, warned against alter- ations to the nation’s highest court that could erode the pub- lic’s long-standing confidence in the judiciary, instead inviting the American people, and the Court itself, to work together to main- tain and build trust in the rule of law. Justice Breyer’s wide-rang- ing two-hour lecture, which was brimming with quotations from the likes of Cicero, Shakespeare, and Camus, and which cited more than 20 Supreme Court decisions spanning two centuries of Ameri- can jurisprudence, was titled “The Authority of the Court and the Peril of Politics.” In it, he traced itable, nor did it become accepted In his address — sometimes unpopular ones — the history of the judicial branch’s without a long struggle.” In fact, at in April, Justice that are accepted by the general hard-won credibility since the times the Court has encountered Breyer cautioned public and politicians alike, even would-be Court nation’s founding, and implored active resistance, as when Pres- if sometimes begrudgingly. reformers to would-be Supreme Court reform- ident Andrew Jackson refused consider how In return, he said, the Court es- ers, like those who spoke at the to obey its ruling in favor of the changes could chews personal political beliefs for HLS Rappaport Forum in March Cherokee Nation in Worcester v. impact one of time-tested interpretive methods (see story at bit.ly/1RapSC), to Georgia (1832). the nation’s in making decisions, attempting confront how changes could im- Following Brown v. Board of most trusted to “minimize the number of cas- pact one of the nation’s most trust- Education (1954), and with the institutions. es likely to produce strongly felt ed institutions. help of civil rights leaders and political disagreements,” and de- “This lecture … reflects my own President Dwight D. Eisenhower, ciding cases on narrow grounds effort to be certain that those who the Court “won a major victory where it can. debate [reform] proposals also for constitutional law, for equali- As a result, Americans have consider an important institu- ty, and above all for justice itself,” come to accept the Court’s judg- tional point, namely, how would he said. “Justice itself, the justice ments, even when they dislike ‘court packing’ reflect and affect of the Court’s integration deci- them. “Put abstractly, the Court’s the rule of law itself?” he said. sions, helped to draw respect for, power, like that of any tribunal, The justice began his lecture and increased the authority of, the must depend upon the public’s by recounting the Supreme Court Court.” willingness to respect its deci- cases that led to our modern def- That respect and authority, ar- sions, even those with which they erence to the rule of law. Although gued Justice Breyer, are the result disagree and even when they be- Marbury v. Madison (1803) is of- of an ongoing partnership be- lieve a decision seriously mistak- ten understood as establishing tween branches of government, a en,” said the justice. But we should judicial review, he said, “the ac- delicate give-and-take that has not take this acceptance for grant- ceptance of this view was not inev- enabled the Court to issue rulings ed, he added.

12 Harvard Law Bulletin Summer 2021 PHOTOGRAPH BY MARTHA STEWART

Today, Gallup polls show that counseled, “do not look for or ex- Americans’ confidence in the na- HLS Affiliates Serve pect popularity,” and try to reach tion’s courts remains much higher on Court Reform decisions through reasoned delib- than in the executive or legislative Commission eration and compromise. branches. Yet, said Justice Breyer, Justice Breyer suggested that the “we see a growing public suspicion In April, President Joe Biden appoint- Court think deeply about its audi- and distrust of all government ed 16 members of the Harvard Law ence when drafting decisions. “An institutions … [and] a gradual School community to a newly creat- opinion that will have a broad pub- change in the way the press … un- ed presidential commission studying lic audience requires writing that is derstand the judicial institution,” Supreme Court reform. The 36-mem- simpler and more direct than does with journalists routinely affixing ber panel includes seven HLS faculty an opinion about bankruptcy,” he labels such as “conservative” or members and nine alumni. (Read more said. “liberal” to judicial nominees. at bit.ly/SCcomHLS.) The commission He also had ideas for the public. These changes have led to an will consider “the length of service and Because the rule of law relies on increased perception of the Court turnover of justices on the Court; its people’s understanding of its pro- as a political body — a view that membership and size; and the Court’s tections, “[w]e need to explain it to he strongly rejects. Justices are case selection, rules, and practices.” our children and to our grandchil- not “junior-level politicians,” he The panel is expected to release its dren, hoping that they too will un- said. Instead, “I believe jurispru- findings and recommendations within derstand its importance,” he said. dential differences … account for 180 days of the first meeting. “I keep in mind the fact that we most, perhaps almost all, judicial are a nation of nearly 330 million disagreements.” people of every race, every religion, Justice Breyer noted that the uphold the constitutionality of many different national origins, Court occasionally overturns it- Obamacare, the health care pro- and holding virtually every possible self, as it did during the 1930s gram favored by liberals. It did point of view,” he said. “I regularly when it finally gave President reaffirm precedents that favored see … these highly diverse groups of a woman’s right to an abortion. It people trying to work out their dif- did find unlawful certain immi- ferences through law, rather than “‌‌The Court’s power ... must depend gration, census, and other orders, in more brutal ways.” upon the public’s willingness to rules, or regulations favored by a He added that Americans might conservative president. But at the rededicate themselves to civic par- respect its decisions, even those same time it made other decisions ticipation — including voting, run- with which they disagree.” that can reasonably be understood ning for office, and serving in local as favoring ‘conservative’ policies organizations — and to the values and disfavoring ‘liberal’ policies.” of cooperation and compromise. Franklin D. Roosevelt a victo- These perceptions matter, said Instead of risking “further ry for his New Deal legislation, the justice, because “If the public eroding [the] trust” of the pub- causing him to abandon his own sees judges as ‘politicians in robes,’ lic through changes to the Court court-packing scheme. When its confidence in the courts, and in that could be perceived as polit- such change occurs, he observed, the rule of law itself, can only di- ically motivated, Justice Breyer it is not necessarily due to a change minish, diminishing the Court’s recommended a more democratic in the political makeup of justices, power, including its power to act solution: an ongoing affirmation but rather “reflect[s] to a degree as a ‘check’ on the other branches.” of the American experiment by the changing political views of a To retain the public’s trust, he its citizens. He said, “Trust in the majority of this nation’s citizens.” argued, changes should come not Court, without which our system He also challenged the idea of a from political reform, but in re- cannot function, requires knowl- politically charged modern Court. commitment to ideals within the edge, it requires understanding, it “Bush v. Gore is often referred Court itself and in the American requires engagement — in a word, to as an example of its favorit- people. it requires work.” ism of conservative causes. But With that in mind, he implored the Court did not hear or decide justices to “do [their] job,” using Justice Breyer’s full lecture is ex- cases that affected the political the interpretive tools and estab- pected to be published in Septem- disagreements arising out of the lished legal conventions available ber 2021 by Harvard University 2020 election,” he said. “It did to them. More importantly, he Press.

Summer 2021 Harvard Law Bulletin 13 INSIDE HLS | ENDURING LESSONS

Elizabeth Bartholet has deeply influenced countless young lawyers What Betsy Built

In her 44 years on the HLS faculty, Elizabeth Bartholet ’65, the Morris Wasserstein Public Interest Professor and faculty director of the Child Advocacy Program, which she founded in 2004, has deeply influenced the law of child welfare while teaching and mentoring budding lawyers in the areas of family law and civil rights. Bartholet, who before joining the faculty in 1977 co-founded the Legal Action Center in New York City and worked at the NAACP Legal Defense Fund, will retire this year. The Harvard Law Bulletin asked several former students, and alumni who have worked closely with Bartholet, to reflect on her influence.

14 Harvard Law Bulletin Summer 2021 PHOTOGRAPH BY JESSICA SCRANTON

P aULO Barrozo S.J.D. ’09, associate engage early on with topics that led me I not only discovered exactly why I was professor, Boston College Law School to law school in the first place, which there, but learned everything I needed Betsy Bartholet broke ground in le- laid a strong foundation for years to to know to become an attorney advo- gal education — as a student and as a come. Her warm welcome for my fam- cating for children when I graduated. professor. What most strikes me about ily at graduation was a testament to Professor Bartholet’s passion and ded- Betsy is how she welds forceful intel- our relationship and her devotion to ication continue to inspire me to this lectual honesty, principled consis- students, for which I was immensely day, and it is with her in my mind and tency, and inclusiveness. For her, one grateful. Professor Bartholet’s charac- heart that I now work to mentor current virtue does not survive, and does not ter and knowledge have impacted me in law students interested in public inter- deserve to survive, without the other ways that cannot be expressed in words. est work and child advocacy. two. Thus, relentlessly, she deprives of oxygen around her prejudices as well as Brad S. Karp ’84, chair, Paul, Weiss, Bryan Stevenson ’85, founder and ex- underexamined attitudes and opinions. Rifkind, Wharton & Garrison ecutive director, Equal Justice Initiative At the same time, she grows around her I first met Betsy in 1982, as a 2L, in her and author of “Just Mercy” an inclusive forum of principle, bring- Employment Law class. Betsy, then as Studying with Betsy Bartholet was ing together persons and organizations now, was a brilliant, dynamic, and car- life-changing. She was way ahead of whose paths would hardly cross, much ing professor. [Later] I had the privilege her time by integrating clinical expe- less engage as they do in years of con- of joining the board of the Legal Action riences with classroom instruction. She structive dialogue and collaboration in Center, an extraordinary public inter- used Harvard’s January term to send and outside of the classroom. As Betsy est organization that she co-founded us across the country to work with the steps out of regular teaching, I’m filled in 1973. Betsy has been devoted to the poor and underserved. She facilitated with anticipation for the ground she work of the center for nearly 50 years, my work with an organization provid- will next break. serving as its first president and exec- ing legal services to condemned peo- utive director. I’ve had the privilege of ple on death row, and that shaped my C lAIRE Houston LL.M. ’10 S.J.D. ’17, serving as a board member with her for life and career. Studying how the law professor, Western Law in London, On- almost 30 years, and it was Betsy who is supposed to work in Cambridge was tario ultimately persuaded me to become incomplete; Betsy made it possible for Professor Bartholet is the reason I chair. I have never met a finer, wiser, us to witness how the law was applied chose Harvard Law School for my or more thoughtful director in my pro- to vulnerable people in the Deep South, graduate studies and the reason I am a fessional career. Finally, over the past and it changed everything I understood law professor today. Betsy showed me decade I have been privileged to lecture about the study and practice of law. that advocacy can be married with ac- in Betsy’s Employment Law and, more She inspired students to not just think ademia, modeled how to unapologeti- recently, her Art of Social Change class- about the law but to also think about cally take a stand, and taught me how to es at HLS. I have watched firsthand her justice. write a (good) law review article. I can devotion to teaching and her rare abil- only hope in my career to have the same ity to motivate her students to strive to Jonas Szanyi ’09, deputy director, the impact on students and those on whose make a positive difference in the world. Center for Children’s Law and Policy behalf I advocate as Betsy had in hers. Betsy has inspired me, along with thou- There is no way of quantifying Betsy’s sands of HLS students and LAC clients remarkable impact on those working in H a RyONG (Michael) Jung ’18, legal and countless others, to make our world the public interest, particularly those officer, Legal Aid of Cambodia; tech- more just, more fair, and more equita- advocating for vulnerable children. As nical adviser, Child Rights Coalition ble. There can be no greater legacy. founding faculty member of the Child Cambodia Advocacy Program, she created an Simply put, I would not have been able Emily Kernan ’07, associate director, incredibly special space for students to become the child rights lawyer that I Public Interest Law Center, NYU School to learn, build skills, and ultimately am now if not for the existence and pas- of Law join the community of lawyers who are sionate support of Professor Bartholet. I came to law school to pursue a career advancing the well-being of children She was an instrumental mentor to me in child advocacy, and I was incredibly around the country and around the for all three years in law school and fortunate to meet Professor Bartholet world. I wouldn’t be doing the work I am beyond, providing me with invaluable during my 1L year, as she was initiat- without the benefit of Betsy’s commit- guidance and countless words of en- ing the Child Advocacy Program, and ment to child advocacy. I will be forever couragement in my academic, clinical, at a point when I was questioning my grateful to her for her career and dedi- professional, and personal endeavors. decision to go to law school. With her cation to advancing work in the public Her trust in me as a 1L enabled me to instruction, mentorship, and guidance, interest.

Summer 2021 Harvard Law Bulletin 15 INSIDE HLS | ENDURING LESSONS

Cities & the Teacher Master teacher, legal theorist, city lover Gerald Frug / By David Barron

I can still see the scene vividly. rist, city lover, mentor (a word he Gerald Frug, who formed. It is also an occasion to He is pantomiming what it would does not like one bit) and, to me, has been writing reflect on his contributions. mean to act with “deliberate indif- great friend (a word he likes a lot and teaching in If there were a law school version the field of local ference” — purposely rushing for- more), basically ever since I took of “Name that Tune,” called “Name government law ward only to slow down abruptly that class — his signature, Local for more than That Law Professor,” it would not like he did not have a care in the Government Law — in 1993. And 40 years, will be take more than saying “decentral- world. It was just one more at- now, nearly three decades later, retiring this year. ization” in Jerry’s distinctive way tempt to convey to his students and more than four decades af- — the word rising to a crescendo in the contradictions, the tensions, ter he began teaching at Harvard the middle, then falling sharply at the at-times-hopeless effort to Law School, he is stepping down. the end — for his former students give content to competing inter- It is a great loss for the school and to know it was “Frug.” ests in one legal test by Jerry Frug for the field of local government But it is not just how he says that [’63], master teacher, legal theo- law, which he revived and trans- word. It is the word itself — one he

16 Harvard Law Bulletin Summer 2021 PHOTOGRAPH BY JESSICA SCRANTON

has made the focus of his teaching tinctive ideas that are hard to cate- and writing and, in turn, the focus gorize — one of his best articles was of the teaching and writing of so called “Decentering Decentraliza- many after they encountered what tion” — and, in consequence, hard he has had to say about it. to forget. For Jerry, all the assumptions I ended up joining Jerry at HLS about where power should reside, and teaching Local Government what power is, who should wield it, Law in the semesters he didn’t. We whether it should be wielded and talked every day — usually more for whom, are wrapped up in that than once. I never made an import- word and attitudes about it. He was ant decision without his advice. He convinced when he started teach- is a friend for life. ing that much more attention He also was — and still is — a needed to be given to it — and to close collaborator. I never wrote all the questions that it provoked CHAPIN JOHN a word he didn’t see first. We co- — than were being given in law taught seminars; I joined his case- schools, especially national law Frug, the Louis D. that Jerry achieved something book (Calvino is still there). We schools like HLS. Brandeis Professor only the most creative performers co-wrote two books. We also worked It was not that there was no tra- of Law, in 1981, ever do — true crossover appeal, on two long projects to make home the year he joined dition of thinking about decen- making his work as influential in rule work better for Boston and the HLS faculty tralization at such places. There design, planning, and urban theo- Massachusetts. certainly was at Harvard, thanks ry circles as within legal academia. That class 30 years ago set the to Frank Michelman in particular. And not only in the United States trajectory for my own career. I am But, Jerry, who served as a top ad- but all over the world. one of many former students of his ministrator in New York City be- Why? who could say that. fore teaching, was convinced there It is in part because he comes at But, Jerry’s work does not focus was so much more to say. When he the topic so distinctively, mixing only on cities. He wrote a defining came to Cambridge as a professor, history, close doctrinal analysis, piece on bureaucracy and another cities were still in the midst of and theory (his is the first — and powerful one about argument and decades of decline, suburbs were probably the last — casebook to character. He also taught Contracts booming, and the civil rights start each section with a quotation to generations of students, who got from Italo Calvino) in a thrilling the full benefit of his humor and his mix that keeps you questioning insight. And along the way, he has Few have looked at cities what is real — the observed facts assembled a world-class collection on the ground or the ideas that we of contemporary photography that with as much care or creativity generated to describe them? fills every inch of wall space in his as Jerry Frug has. It is also because he writes about house. cities and the way that judges and It won’t surprise you to know that legal thinkers talk about them almost all of the photographs are of movement had understandably with verve and a sense of irony cities. And it won’t surprise you to given localism a bad name. But he that is anything but dogmatic, know either that no two of them de- was convinced that had to change. while keeping his eye at all times pict the city the same way — a visual Only in close proximity could peo- on what cities mean to us, who they testament to Jerry’s belief in how ple of different backgrounds learn are serving, who they are failing, much there is to see in them if you from each other and grow together and how they could be made to be are willing to look. Few have looked in ways that would make life mean- more just and more fun — City- at them with as much care or cre- ingful. making! ativity as he has. Few who’ve seen The result was a dizzying array I think it is also because he so how he has seen them have looked of writings on the topic, from his evidently loves the topic and is so at them the same way again. seminal article — “The City as a Le- obviously enthused to find anyone gal Concept” — to his award-win- who might come to love it as much David Barron ’94 is a judge on the ning book, “City Making: Building as he does. U.S. Court of Appeals for the 1st Communities without Building In other words, I think it is be- Circuit and the Louis D. Brandeis Walls.” That last writing ensured cause Jerry is an original, with dis- Visiting Professor of Law at HLS.

Summer 2021 Harvard Law Bulletin 17

Oh, What Deception spreads faster than truth on social media. Who — if anyone — should stop it? a By Elaine McArdle / Illustrations by Adam McCauley TANGLED Web We Weave

19 Summer 2021 Harvard Law Bulletin day after a deadly riot in the U.S. than Zittrain ’95, who is also on the faculty at the Harvard Capitol following a rally in which John A. Paulson School of Engineering and Applied Sci- then-President Donald Trump and ences and at the Harvard Kennedy School. Author of the The others repeated false claims that influential 2008 book “The Future of the Internet — And the 2020 election, which Congress was about to certify, had How to Stop It,” Zittrain is now working on a new book that been stolen from him, Facebook took the stunning action he jokingly calls “Well, We Tried.” of indefinitely suspending the president from its platform. “I feel we’re really at an inflection point where things Twitter, Trump’s favored means of communicating, went are getting more heated,” says Evelyn Douek, an S.J.D. stu- a step further and banned him for life, and other social dent and lecturer on law at HLS who co-hosts Lawfare’s media sites followed suit. “Arbiters of Truth,” a weekly podcast on disinformation Suddenly, the leader of the free world was, if not si- and online speech. “The next few years,” she adds, “are lenced, certainly muffled — and by a handful of private going to be very interesting.” companies whose immense power was undeniable. Trump’s outraged supporters insisted his deplatform- FREE SPEECH VS. PUBLIC HEALTH ing proved that big tech is biased against conservatives. Facebook has 2.8 billion users across the globe; Twitter, But even those who have been critical of President Trump, 192 million daily users. They and other social media outlets such as German Chancellor Angela Merkel, were troubled offer a reach and speed of communication that provide that these corporations had clearly demonstrated that, in limitless possibilities for actors both good and bad. In some ways, they had more power than the president of the March 2021, the Biden administration revealed that Rus- United States. sian state media and the Russian government were using Still, the unprecedented actions seemed to achieve the Twitter to convince people that the Pfizer and Moderna desired effect. A week after Trump was barred from social COVID-19 vaccines could cause Bell’s palsy — a lie — in media, The Washington Post, citing the online analytics order to promote sales of the Russian Sputnik V vaccine. firm Zignal Labs, reported a 73% decrease in online disin- That same month, Russia announced it was slowing down formation about the election. Many people believed that the uploading of photos and videos to Twitter because the the social media giants were taking long-overdue action company refused to remove content banned by the Russian and assuming some responsibility for the serious injuries government. In other countries, such as Myanmar, social that disinformation begets. media companies are accused of allowing their platforms In the months since Trump’s deplatforming, concerns to spread state propaganda that has led to serious human about blatant and unchecked falsehoods on social media rights abuses. have only grown. Social media companies, in part from a sense of “It’s inexpensive — and in fact cheaper — to produce self-preservation, are showing a new willingness to lies rather than truth, which creates conditions for a lot of false informa- tion in the marketplace,” says Har- vard Law Professor Noah Feldman, Fake news is 70% more likely to be an expert in constitutional law and free speech who serves as an advis- retweeted than the truth, according to a er to Facebook. “We still collectively widely cited 2018 MIT study. have a tendency to believe things we hear that we probably shouldn’t, es- pecially when they seem to confirm prior beliefs we hold.” self-regulate. Twitter has kicked off 70,000 QAnon con- Fake news is 70% more likely to be retweeted than the spiracists since January, and in March, Facebook banned truth, according to a widely cited 2018 MIT study. If a Myanmar’s military leaders after years of public criticism healthy democracy relies on an informed populace — or at for its failure to do so. At Feldman’s suggestion, Facebook least one not deliberately disinformed by malicious actors created an Oversight Board, designed to be an indepen- — then the prevalence of disinformation is an existential dent body that reviews its content moderation decisions, threat. Social media is hurting people, society, even entire including the one to deplatform Trump. At the same time, systems of government in ways unforeseen 20 years ago. there is a flurry of proposed laws to regulate social media, What, if anything, can or should be done? Whose re- a type of governmental interference unimaginable in the sponsibility is it to moderate social media content? Can early days of the internet. social media be trusted to self-regulate? If not, should gov- This rapidly changing landscape shows how drastically ernment be involved? How to strike a balance between free public opinion has shifted from a strongly pro-free speech speech — a bedrock of American democracy — and other stance. critical interests like safety, privacy, and human rights? “I think there’s been this turn away from ‘just let the “This is a problem that is complex and pressing. There tweets flow’ into thinking more about what harms are aren’t silver-bullet solutions,” says HLS Professor Jona- caused by this ecosystem and what guardrails we need on

20 Summer 2021 Harvard Law Bulletin free speech to make [the internet] a healthier and more on the factors that incentivize people to spread disinfor- positive space,” says Douek. mation, and who — if anyone — should be responsible for Zittrain divides digital governance into three eras, regulating the online ecosystem. starting with the “rights era” from 1994 to about 2010, One of its current projects is Disinfodex, a publicly when free speech reigned and the protections of the First available and searchable database of disinformation cam- Amendment prevailed. “There was this idea of the inter- paigns by social media platforms created by a group of net as a really open space,” he says, “a free-expression par- cross-disciplinary experts who serve as Assembly fellows. adise. It just couldn’t be regulated and that was inherently Within a cohort of student fellows, a group is examining democratizing.” the for-profit model of social media platforms, where com- Around 2010, growing concerns about the sometimes panies push content — and make more money — by lever- deadly consequences of unfettered online speech led to aging a user’s personal data to develop sophisticated algo- what Zittrain calls the “public health era.” It was a name rithms that keep them online and scrolling. How? Often, he meant as a metaphor, but in 2020, it became very clearly by presenting them with increasingly extreme content, literal when disinformation about the COVID-19 pandem- some of which is not only false but potentially dangerous. ic, including bizarre “cures,” led to actual deaths. A more Assembly student fellow Isabella Berkley ’23 is working absolutist view of the First Amendment began to give way with her team on a project that’s looking at promoting a as more voices asked whether private social media plat- values-driven approach among social media companies. forms had a social responsibility to interrupt the broad- “What if the onus of preventing passive scrolling wasn’t cast of (and profit from) unhinged conspiracy theories on users but on the creators, where you might have a sit- that could hurt or even kill people. uation where the disincentive to limit disinformation is Today, the metaphor of the marketplace of ideas, where higher because it would go against the creative values of truth eventually emerges as the winner, no longer works, these companies?” suggests Berkley, who worked at Face- says Mark Haidar J.D./M.P.P. ’23, who is studying the im- book as a child safety investigator. She is also interested pact of disinformation on voting rights and U.S. democ- in finding ways to encourage people, particularly minors, racy in an HLS/Harvard Kennedy School program. “We to view themselves as in control over their use of social have an ‘information disorder’ where we’re flooded with media rather than feeling powerless to decline whatever information and it’s hard for people to sort between high- is pushed on them. and low-quality information or false information,” he says. Haidar, a student fellow on a different team, wants state As a result, the “hands-off-my-free-speech” model no governments to encourage digital literacy, and nonprofits longer satisfies many people. Social media companies are such as AARP and similar groups to mount tailored cam- “under enormous public pressure because they have power paigns to combat disinformation. Feldman says educators to amplify messages that can turn the course of an election and media have a role in drawing public attention to the or affect the path of a communicable disease, and everyone is aware of the power they have,” says Zittrain. “And the choice not to intervene is as much By amplifying a message, social media com- an exercise of power as the choice to intervene.” panies can change the course of an election or Today there are signs that we are affect the path of a communicable disease. entering what he calls the “legitima- cy era,” with more acknowledgment of the need to balance free speech and other interests like safety, and attempts to create process- prevalence of false information but notes that alone isn’t es to do so. Facebook’s Oversight Board is an example. “I enough. think we’ll be seeing more and more of that,” Zittrain says. It was in 2018 that Feldman first proposed to Facebook But if we turn away from the “just-let-the-tweets-flow” the idea of an independent body to review the company’s model, as Douek calls it, where do we go? content decisions. So far, the board, which is purely advi- sory, includes 19 lawyers, human rights experts, and oth- SEARCHING FOR SOLUTIONS ers from around the world, and has heard seven cases — This question is at the heart of the work of the Assembly: most recently issuing its assessment of the deplatforming Disinformation program at the Berkman Klein Center for of former President Trump. On May 5, it upheld the ban, Internet & Society at Harvard. Established by Zittrain, the at least temporarily, but said that an indefinite suspension program is convening a broad range of thought leaders wasn’t appropriate and gave Facebook six months to de- from academia, industry, government, and civil society cide Trump’s status. Although the decision has been met to explore the problem of disinformation in the digital with criticism from those on both the left and the right, public sphere and try to forge solutions. In the past, the Feldman says, given the challenges of this case — which is Assembly program examined cybersecurity and artificial likely to be the biggest it ever decides on — he believes the intelligence, but for the past two years it has been focusing board did remarkably well. “They correctly told Facebook,

22 Summer 2021 Harvard Law Bulletin if it’s going to infringe on free expressions values, it has Social media plays a secondary role to the real purvey- to do it through clearly stated rules, not in an ad hoc way.” ors of disinformation, he says, those whom he calls “elite Outside of the U.S., many countries are considering actors,” including both politicians like Trump and others strict restrictions on social media. These efforts are more in the GOP leadership and media elites, primarily Fox likely to succeed in countries where free speech doesn’t News and talk radio, which Benkler argues have spread enjoy the protections of the First Amendment, Douek untruths to their advantage. Beginning in the 1980s, he and others note. But even in the United States, many are says, white identity and evangelical audiences had formed pushing for legislative change. There are currently dozens a distinct market segment, and Rush Limbaugh and later of proposals to reform or repeal Section 230 of the Com- Fox found that “it’s a really lucrative business model to munications Decency Act, which protects social media supply identity-confirming, outrage-stoking narratives companies from liability for user-generated content. John that reinforce their identities and systems irrespective Palfrey ’01, former HLS professor and executive director of of their truth.” the Berkman Klein Center, who now heads the MacArthur It’s a conclusion Benkler reached after analyzing mas- Foundation, is among those who believe it is time to amend sive amounts of data during both the 2016 and 2020 elec- Section 230, as he said in this year’s HLS Klinsky Lecture. tion cycles, resulting in an October 2020 paper he co-wrote The protection it provides companies has led to growth, with others at Berkman Klein, “Mail-In Voter Fraud: Anat- competition, and innovation, he said, but it’s also “led to omy of a Disinformation Campaign,” which analyzed over many bad acts and to many companies turning the other 55,000 online media stories, 5 million tweets, and 75,000 way when law enforcement or aggrieved parties come call- posts on public Facebook pages. ing.” (Watch the lecture at bit.ly/Klinsky21.) “The pattern is very, very clear,” says Benkler. “It’s a How proposals for reform will fare against the First combination of active disinformation on the right and a Amendment is as yet unknown, and, in general, conser- large component of the mainstream press not being suf- vatives and liberals have different views of the problem, ficiently well trained to deal with an asymmetric propa- let alone of the best solutions. ganda system.” Some 20% to 30% of the population, who are “Clearly there’s a lot of appetite for statutory reform, “mostly politically inattentive because they are busy with but people don’t really know what they want, and they have other things,” get their news from local and network TV, conflicting goals for potential reforms,” says HLS Pro- and/or regional and local newspapers, not social media. fessor Rebecca Tushnet, an expert in copyright law who “I’ve been saying this since the book I wrote in 2018 — writes the false-advertising-focused legal blog 43(B)log. the people with the most power to do something useful “There’s a group that wants the internet companies to take are mainstream reporters and editors and mainstream down more content and a group that wants them to take down less con- tent,” particularly regarding divisive issues such as the 2020 election and “The people with the most power to do some- COVID-19 vaccines. Still, there is bi- partisan support in the Senate for the thing [about disinformation] are mainstream Honest Ads Act, which would require reporters and editors and mainstream media.” more transparency in digital political ads, similar to that required for those on TV and other traditional media. To Tushnet, the real problem with social media compa- media,” says Benkler, referencing his book “Network Pro- nies is that they are monopolies. “If we had a revitalized paganda: Manipulation, Disinformation, and Radicaliza- anti-monopoly approach throughout the economy and not tion in American Politics.” just in big tech, we might make some progress on the issues Only since last August and September, he says, have dividing us,” suggests Tushnet, who would start by break- traditional media such as the major newspapers and net- ing up Facebook. “Just to be clear, that wouldn’t get rid of works been willing to explicitly call out untruths and lies. a lot of awful speech, but it would change the ways awful “The traditional media outlets need to practice a much speech got distributed.” There are pending antitrust suits more aggressive policing of propaganda and disinforma- against both Facebook and Google, she notes, although tion,” he urges, “which is not being anti-Republican or “whether those suits will go anywhere is a good question.” politically biased; it’s about being explicitly focused on evidence and objective truth to the extent it is achievable, SOCIAL MEDIA ISN’T THE BIGGEST PROBLEM and being explicit when one or other party lies or gets it While there’s a role for social media outlets to make chang- really wrong, and putting that right up front.” es, focusing on them is missing the real culprits, argues There is one thing on which all seem to agree: The situ- HLS Professor Yochai Benkler ’94, faculty co-director of ation is becoming more urgent by the day. Berkman Klein, and “no amount of intervention and reg- “Nothing will solve everything,” says Douek. “We have ulation of social media will make a meaningful dent on so many problems, and we’ll need lots and lots of different misinformation in America.” solutions.”

24 Summer 2021 Harvard Law Bulletin

‘What Andrew Manuel Crespo and Premal Can We Dharia, leaders of the ambitious new Institute Do to to End Mass Incarceration, Help take aim at ‘one of the defining civil Create rights issues of our time’ 150 By Erin Peterson Years of Change in 10 Years?’‌ hen they were public defenders in Wash- Rikers continue at the same rate for 150 years before num- ington, D.C., early in their careers, Island, New bers reached even those of the 1970s. Andrew Manuel Crespo ’08 and Premal York City’s To Crespo and Dharia, however, the crisis goes be- Dharia saw the full weight of the crim- main jail yond numbers. They do not want to merely shrink the inal legal system bear down time and complex, number of people harmed by the system. They want again on the people they represented. holds around to help end that harm — by supporting and strength- W Navigating that system often left deep 10,000 people ening communities that are working to radically de- scars on their clients. The loss of self-determination a day. In carcerate the United States. the U.S., and basic liberty routinely upended families’ lives. “Mass incarceration is a monumental injustice roughly 2 Frequently, the process itself caused the people they in its own right and also a symptom of much deeper million represented to miss work and rent payments, lose structural injustices in our society,” says Crespo. “It’s people are jobs, and get evicted from their homes. The psycho- behind bars a metastatic cancer.” logical impact could last a lifetime. every day, Crespo and Dharia knew that what they saw on a outstripping A SHARED VISION daily basis only scratched the surface of mass incar- the incarcer- Crespo and Dharia followed different paths in their ceration in America, where roughly 2 million people ation rates efforts to create social change, both carrying the are behind bars every day. The rate of incarceration of every lessons learned from the people they represented. today is nearly four times higher than it was in the other country Dharia stayed in public defense for nearly 15 years, early 1970s, outstripping every other country on on Earth. practicing in Washington, D.C.; in federal court in Earth. And while incarceration numbers have drifted Baltimore; and before the military commission at

NINA BERMAN/NOOR/REDUX NINA down over the past decade, the declines would have to Guantánamo Bay. Crespo joined the Harvard faculty

Summer 2021 Harvard Law Bulletin 27 in 2015 and became an influential scholar in the field criminal system’s structural harms gained momen- of criminal procedure. tum in the summer and fall of 2020, Crespo and In 2019, Crespo and Dharia were independent- Dharia’s ongoing conversations about their work took ly exploring the roles public defenders can play in on a different shape. “Lots of people have been tack- the broader movement to end mass incarceration. ling issues of systemic injustice for a long time, but Dharia, who has also engaged in civil rights litigation the recent broader reckoning opens up more paths to and broader advocacy work, had recently started an potential change,” Dharia says. “Alongside the deep organization called Defender Impact Initiative to pain, this is, in some ways, a hopeful moment.” engage public defenders in support of community They mapped out a plan. With the support of HLS organizers and movement coalitions. In that work, Dean John F. Manning ’85, Crespo moved forward she collaborated closely with longtime community with plans to transform the Impact Defense Initia- organizers, including Pilar Weiss, director of the tive into a new research and advocacy center ­— the Community Justice Exchange, which hosts the Na- Institute to End Mass Incarceration. And in February, tional Bail Fund Network. “Premal brings a unique Dharia brought the strategies and work of Defender depth of experience in public defense to the project Impact Initiative to Harvard Law, teaming up with of reevaluating and shifting the role of lawyers and “We’re not Crespo to help lead the new institute, where Crespo litigation in social movements,” Weiss says. “That is merely serves as faculty director and Dharia serves as exec- a sorely needed project.” studying utive director. At the same time, Crespo was launching a project mass incar- Preparing for a formal launch this summer, Cre- with a similar name: a new in-house clinic at the law ceration,” spo and Dharia have brought together a diverse set school called the Impact Defense Initiative, which says HLS of collaborators and advisers to help guide and build focused on helping public defenders play a larger sys- Professor the work to come. Reflecting the institute’s driving temic role in the fight against mass incarceration. He Andrew values, many of the core advisers embedded in its con- saw the clinic as a force multiplier and as a central Crespo, struction and strategy have themselves been direct- faculty component of a broader research and advocacy in- ly impacted by the penal system. “The institute has director stitute he hoped to build at the school to tackle mass fresh and exciting ideas and strategies to help build of the new incarceration head on. In its first two years, the clinic institute. collective power from the ground up, and to support litigated a complex challenge to a federal charging “We’re on that power with new models of lawyering and orga- policy that doubled prison terms for hundreds of a mission nizing,” says David Ayala, a formerly incarcerated people in Washington, D.C., almost all of them Black to end it.” community organizer who was central to the push to men. restore voting rights for convicted people in Flori- “Professor Crespo and the students worked tire- da, and who serves on the institute’s advisory board. lessly to craft a strategy that went beyond individual “I’m excited to be able to help guide and shape this cases,” says Carlos Vanegas, a federal public defend- important work,” Ayala says. er who is co-counsel in the clinic’s cases. “Their aim has been to take down a sweeping policy that burdens Propelling Dramatic Change many hundreds of people with unjust and draconian prison sentences and that results in long-term sepa- The institute’s bold mission is in its name. Working ration from their families and communities.” closely with existing community organizations, Cres- po and Dharia are determined that it will play a role in Joining Forces radically decarcerating the United States and in dis- mantling the harmful practices that fuel mass incar- As their separate projects developed, Crespo and ceration. “The institute is guided by a firm belief that Dharia were regularly in touch. They soon realized the way our country deals with harm and approaches that an emerging insight in their parallel work rang punishment is one of the defining civil rights issues true for them on a personal level as well: There is of our time,” Crespo says. “We’re not merely studying power in the collective. They decided to deepen their mass incarceration. We’re on a mission to end it.” impact by joining forces, creating a team with com- Crespo says the ambition to bring swift and com- plementary expertise. prehensive change to the American penal system is “I created Defender Impact Initiative to fill what I nothing short of a moonshot: “What can we do to help saw as a gap in the landscape of the movement to end create 150 years of change in 10 years?” he asks. mass incarceration,” Dharia says. “The insights and The answer to that question is simultaneous- roles of public defenders could be activated toward ly groundbreaking and time-tested. Crespo and broader change, to support organizers and advocates Dharia believe that organized and strategic social working in social movements in addition to the rep- movements, leveraging broad collective action, can resentation of individual people within the criminal achieve profound social change. Thus the institute legal system.” When national discussions about the will work to build community power, to support orga-

28 Harvard Law Bulletin Summer 2021 PHOTOGRAPH BY TONY LUONG Summer 2021 Harvard Law Bulletin 29 30 Harvard Law Bulletin Summer 2021 PHOTOGRAPH BY JARED SOARES nized collective action, and to train and guide lawyers organizers both at Harvard and on the ground. “This — including public defenders — to support collective project embraces collaboration between communi- community-driven efforts. ty leaders, organizers, lawyers, and the people most To start, Crespo and Dharia have combined their directly affected to help build power,” says Marshall experience and insight as lawyers to identify struc- Ganz, a senior lecturer at the Harvard Kennedy tural components of the penal system where col- School and a leading expert on community organizing lective action holds the greatest potential for rapid who serves on the institute’s advisory board. “That decarceral change. Their targets include the power power will be necessary to end the harms of our deeply imbalances defining the plea-bargaining system, the unequal and unjust system of justice.” Fellow board inherent coercion surrounding police custody in the member Dawn Harrington is the executive director period after arrest, and the structural impediments of Free Hearts and a leader in the National Council of stifling the power of juries. Incarcerated and Formerly Incarcerated Women and The focus on plea bargaining builds on Crespo’s pri- In all Girls. “I’ve been a grassroots organizer for five years,” or scholarly work and teaching, which emphasize the of its Harrington says. “It’s so important for people coming extent to which plea bargains are the engine of mass initiatives, into this space to center the need for meaningful pow- incarceration. Ninety-five percent of all criminal con- says Premal er-building in communities. I am heartened and ex- victions arise from guilty pleas, which prosecutors Dharia, cited that that’s a core part of the institute’s agenda.” frequently obtain by exploiting sky-high statutory executive As for lawyers, Crespo and Dharia see their role as punishments, he says. To avoid these catastrophic director buttressing social movements, not leading or being sentences, people facing prosecution typically plead of the at the center of them. “It’s not lawyers who are going guilty in exchange for sentencing discounts. As a re- institute, to save the day,” says Dharia. But they “can bring deep it aims to sult, cases that might otherwise take days to resolve expertise that can be critical in this particular move- model a via a trial get pushed frictionlessly through the sys- ment as communities themselves take action based form of tem in a matter of minutes, with dozens of people advocacy on what they need and want.” incarcerated in a single courtroom in just one hour. in which To disrupt this process, the institute will work to organizers Structured to Succeed implement and support a collective action strategy and lawyers highlighted nearly a decade ago by civil rights lawyer operate in The institute will be built around three interlocking and New York Times contributor Michelle Alexander, tandem. components. Its innovation hub will bring together based on an idea shared with her by Susan Burton, a people with different types of expertise — academics, formerly incarcerated organizer: People facing pros- advocates, activists, people who have been incarcerat- ecution might demand, collectively, to invoke their ed or impacted by the system — to share ideas about right to a trial. achieving bold decarceral goals. The organizing and In theory, the deluge of trial requests would over- advocacy center will include an in-house legal clinic whelm the system and lead prosecutors to abandon where students will learn and help develop the orga- charges against a significant number of people. “Can nizing-oriented legal practice described above and this work?” asks Crespo. “No one has ever put that deploy it toward systemic change. Finally, a research idea to the test or fully explored its ramifications. But component will study a broad variety of efforts in real if it can work, it could be a game-changer.” time to pinpoint and promote what’s working and re- A related initiative aims to use collective action consider what’s not. and community intervention to eliminate the “black The mix of academic and advocacy elements draws hole” between a person’s initial arrest and first court on Crespo and Dharia’s distinctive strengths and appearance — a time of intense isolation when co- their unique career trajectories and relationships ercive police tactics feed into the plea-bargaining — and, they hope, represents a powerful model for process described above. A third major initiative will creating change. “We think it is possible to commit work to activate the power of the community through to taking concrete action in the world while also being juries, reducing systemic barriers to fully empowered self-reflective and analytical about the action we take. jury service in the communities that are most directly We need to be both bold and humble about how we ap- impacted by the penal system — communities that proach all of these problems,” Crespo says. have long seen and lived the injustices brought to the And the moonshot that Crespo described — dra- surface in 2020. matically reducing the number of incarcerated peo- In all of these initiatives, according to Crespo and ple in the country in a decade’s time — is really just Dharia, the institute aims to model a form of advocacy the tip of the iceberg. Indeed, their goal is not simply in which organizers and lawyers operate in tandem, to pursue decarceration, but also to address the struc- each leveraging a distinct set of skills and practices tural problems that led to this crisis to begin with. in support of a common overarching mission. To- “We want to end mass incarceration in all senses of ward that end, they are partnering with community the phrase, root and branch,” Crespo says.

Summer 2021 Harvard Law Bulletin 31 GETTY IMAGES/POOL In her new role as USTR, Tai brings legal expertise, political savvy, and a deep commitment to American workers

By Julia Hanna KATHERINE TAI REPRESENTS

April 15, one month after the Senate con- firmed her appoint- ON ment 98-0 as U.S. trade representative, Kath- erine Tai ’01 spoke at a virtual conference, “Greening U.S. Trade Policy,” hosted by the Center for American Progress, a prominent D.C. public poli- cy organization. Her address reinforced what was already widely understood: The Biden administration’s strategy for doing business with other na- tions would be fully integrated with its approach to a range of other issues, from the environ- ment to national security to workers’ rights. “For too long, the tradition- al trade community has resist- ed the view that trade policy is a legitimate tool in helping to solve the climate crisis,” said Tai, in her first public address

33 Summer 2021 Harvard Law Bulletin as USTR. “As we have so often seen its seven-person appellate body, another wrinkle to confront when with labor issues, there is a certain essentially neutralizing the orga- considering how to proceed with refuge in arguing that this is all a nization’s ability to hear disputes China — as well as violations to the question of domestic policy, and brought by member countries. “No renegotiated version of NAFTA that we need not tackle the daunt- one’s really missed it,” said USTR (known as the United States-Mex- ing task of building international Robert Lighthizer, Tai’s prede- ico-Canada Agreement) that Tai consensus around new rules. But cessor, in December 2020; at the led through a contentious approval that dated line of thinking only time, the U.S. had also declined to and reapproval process from 2018 perpetuates the chasm that exists support two-time Nigerian finance to 2019 in her prior role as chief between the lived experiences and minister Ngozi Okonjo-Iweala as trade counsel of the House Ways expectations of real people on the the WTO’s new director general, a and Means Committee. one hand, and trade experts on the stance reversed in early February. The list of potential concerns is other.” There are a host of other head- endless, really, with it all boiling “Daunting” is also a good word line-grabbing issues as well. One down to a simple yet overwhelm- to describe the overall complexity of the most immediately pressing ing question: What will the future confronting Tai in her new role as — a 17-year dispute between the architecture of the world trading USTR. In a mind-boggling laundry United States and the European system look like? list of concerns, trade between the Union regarding illegal subsidies United States and China looms to aircraft manufacturers Boeing large, as does U.S. engagement and Airbus — has resulted in re- with the World Trade Organiza- taliatory tariffs from both sides on all accounts, Katherine tion. Both relationships might Katherine Tai billions of dollars’ worth of goods, Tai appears to be in a best be described as “frosty” un- is sworn in as including everything from French rare position to address der the Trump administration, United States wine to U.S. tractors. The conflict BY that question. Ask any- with significant tariffs imposed on trade repre- took one step toward resolution in one enmeshed in trade’s legal Chinese goods from 2018 onward sentative as March, with a four-month morato- and political minutiae about her (those tariffs remain in place, at her husband, rium on those same tariffs opening qualifications, and prepare to be least for now). As for the WTO, Robert Skid- the door for negotiation. There’s buried in superlatives. “It would the United States blocked the more, holds also the long-standing issue of be hard, if not impossible, to find appointment of new members to the Bible. protecting intellectual property — anybody better equipped to do this job at this time in history,” says Harvard Law Professor Wil- liam Alford ’77, director of the East Asian Legal Studies Program. Noting the unanimous support her nomination received (“Why Everyone Likes Katherine Tai,” read a Foreign Policy headline), Alford highlights Tai’s combina- tion of political savvy, negotiat- ing skills, and deep knowledge of the issues, a viewpoint echoed by Lori Wallach ’90, director of Pub- lic Citizen’s Global Trade Watch, who calls Tai “the unicorn USTR for this moment.” “There are typically two kinds of USTRs,” she continues. “Political figures or trade wonks. Katherine is the unusual person who knows about the WTO and free trade agreements and anti-dumping law, and, and, and … she led the renegotiation of NAFTA under Trump, which had the biggest

majority support in the history of IMAGES O’LEARY-POOL/GETTY BILL trade agreements.” Connecticut and grew up in the Meanwhile, the clock is ticking Tai accomplished this, Wallach D.C. metro area, where her father as other nations form trade alli- adds, with a listening, calm, re- worked as a researcher at Walter ances and move forward without spectful demeanor; yet “the fact Reed; her mother still works at the the United States. Beijing’s 15-na- that she was not screaming and National Institutes of Health, re- tion Regional Comprehensive pounding the table did not mean searching opioid addiction. After Economic Partnership in Asia, she was not incredibly strong and graduating from Yale University negotiated just last year, includes formidable.” in 1996 with a history degree, Tai, significant partners such as Ja- “Katherine is tenacious and who is fluent in Mandarin, lived in pan and South Korea, for exam- creative; she will find the way Guangzhou, China, for two years, ple. Whatever shape U.S. trade to solve a problem. If the door is teaching English at Zhongshan policy takes, it will follow in the shut, she’ll crawl in the window if University as a Yale-China Fellow. footsteps of previous administra- she has to,” says Claire Reade ’79, When she was introduced as tions that also walked the delicate who worked with Tai at the Office President Biden’s nominee on Dec. line between reaping the economic of the USTR when Tai was associ- 11, 2020, Tai recalled a moment advantages of open trade and en- ate general counsel (2007–2011) from her previous stint at USTR. “DAUNTING” suring American workers don’t and chief counsel for China trade She and colleague Shubha Sastry suffer its consequences. “There’s enforcement (2011–2014). “Her were appearing before the WTO’s IS A GOOD no silver bullet,” Alford says of that ability to get along with people appellate body in Geneva to pres- balancing act. “These are difficult and keep them at the table is very ent a case against China, which WORD TO trade-offs, and when you get to the important — with trade issues, it’s had put illegal export limitations DESCRIBE politics — you can just imagine.” policy, politics, and ego. You have on the rare earth minerals used in Yet the rewards of that work are to be deft in your handling of so lithium batteries. “We sat down at THE lasting. Reade, now senior counsel many diverse needs. You’re part the table — she, whose parents had OVERALL at Arnold & Porter, recalls the Of- wise legal counsel, part Obi-Wan emigrated from South India, and fice of the USTR as “an amazing, Kenobi.” I, whose parents had come from COMPLEXITY overwhelming place to work when Tai will also have HLS Professor Taiwan — and my heart swelled CONFRONT- you consider the decisions being Mark Wu at her side as a senior ad- with pride as we raised our plac- made, the level of responsibili- viser to the USTR. Wu’s extensive ards and stated that we were there ING TAI IN ty, and the fact that your work is research and publications in the to present the case on behalf of the never done. But you do feel as if area of international trade encom- United States of America,” she HER NEW you’re participating in a process pass areas including digital tech- said, her voice clear and strong. ROLE. of moving forward on meaningful nologies, the impact of emerging “Two daughters of immigrants, issues,” she adds, “and that life will economies on global governance, there to serve, to fight for, and to be made better when you do. Who and the environment. Currently reflect the nation that had opened can not want that?” on leave from HLS, Wu is in his doors of hope and opportunity to Whatever shape U.S. trade poli- second stint at the Office of the our families.” cy takes in the months and years to USTR, too: Earlier in his career, he That lawsuit against China was come, it’s clear that Katherine Tai served as director for intellectual largely successful. Yet it, and oth- is driven by a similar sentiment, property, leading negotiations for ers that will no doubt be brought holding the “lived experiences the IP chapter of several free trade to the WTO, can’t get at the larg- and expectations of real people” negotiations. “For someone like er structural issues that put a referenced in that first public ad- Mark, who has spent his career free-market economy at odds dress on climate at the forefront of immersed in these issues — issues with one in which state-owned her thinking as she navigates the that are now really front burner — enterprises are the norm, notes domestic and international com- it could not be a better time to be Alford. That fact has driven much plexities of her work. “Trade is like at USTR,” Alford says. of the skepticism facing the WTO’s any other tool in our domestic or ability to enforce established trade foreign policy,” she stated, when agreements, particularly where President Biden introduced her as China is concerned — a sentiment his nominee last December. “It is parents were predating the Trump administra- not an end in itself. It is a means to born in main- tion and signaled by Tai as well, create more hope and opportuni- land China and who cited the need to work togeth- ty for people, and it only succeeds TAI’S moved to Taiwan er on reforms to the organization’s when the humanity and dignity of before immigrating to the United appellate body when questioned every American and of all people States. Katherine Tai was born in during her confirmation hearing. lie at the heart of our approach.”

35 Summer 2021 Harvard Law Bulletin Off the

Bench and

into the

Breach

36 Harvard Law Bulletin Summer 2021 Merrick Garland returns to the Department of Justice as the 86th U.S. attorney general By Lana Barnett ’15 In the early morn- to pay back, and this is the highest, best use of my own set of skills.” ing hours of Jan. 6, 2021, Garland, who was confirmed as attorney gener- al on March 10 by a 70-30 Senate vote, made the rumors began to leak that unusual choice to leave a lifetime appointment on the nation’s second most influential court President-elect Joe Biden to instead lead a federal agency with roughly 115,000 employees. Unusual, but not surprising, had selected Merrick Gar- say those who know him well. The role is a cap- stone, a coming full circle for a man whose values land ’77, a judge on the U.S. and deep commitment to public service have re- mained rooted in the Department of Justice even Court of Appeals for the Dis- after decades on the federal bench. “For those of us who spent our first jobs at DOJ, you leave trict of Columbia Circuit, to a piece of yourself there, professionally but also personally,” said Harvard Law Professor Richard serve as his attorney general. Lazarus ’79, who has known Garland since his early career days in Washington, D.C. “Return- The highly anticipated pick ing to DOJ as attorney general — it must fill his heart with pride to walk through those doors, to should have dominated the feel all the responsibility but also all the history of that building and that place.” day’s news, but it was almost Garland’s path took him from the suburbs of Chicago, where he was his high school’s vale- immediately overshadowed dictorian and head of student council, through Harvard’s college and law school, where he was a by a violent riot at the U.S. star student and editor on the Law Review. From there, he clerked for the 2nd Circuit’s Judge Hen- Capitol. ry J. Friendly ’27 and Supreme Court Justice Wil- liam J. Brennan Jr. ’31, and alternated between Later, at his confirmation service in the federal government and member- ship in the D.C. law firm of Arnold & Porter. hearing, Garland drew on his Yale Law School Professor Kate Stith ’77, who served with Garland on the Law Review and lat- er clerked alongside him on the Supreme Court, family’s history to explain said he had appeared to her to blend seamlessly into a world of legal insiders. Garland had been why he felt motivated to “so attuned and so smart and so aware of the com- plications of law and judging when we were in serve as attorney general and law school, that I just assumed he came from a family with a bunch of lawyers,” Stith said. “Oh, why the Jan. 6 attack had so how wrong I was!” In fact, his father had run a small advertising business out of the family profoundly affected him. “I home, and his mother was a community volun- teer and school board president. Garland worked come from a family where my a summer job as a shoe store stock clerk to help pay for college, and in law school he lived with grandparents fled anti-Sem- and advised undergraduates in Matthews Hall to cover room and board. itism and persecution,” he Greg Rosenbaum ’77 met Garland in 1969 when both attended the summer National High said. “The country took us in School Institute in Speech at Northwestern Uni- versity, an elite program that attracted the top and protected us, and I feel high school debaters in the country. In rooms of competitive noisemakers, Garland stood out to

an obligation to the country Rosenbaum even then for his ability to sit back, IMAGES ANGERER/GETTY DREW 39 P. IMAGES; HARNIK-POOL/GETTY ANDREW 36 P.

38 Harvard Law Bulletin Summer 2021 think carefully about an issue, and then “ask had understood the conversation. None had. He Merrick Gar- the question, the one that just takes the air wasn’t the type of person who was “just so smart land testifying out of the room,” Rosenbaum said. “To this you couldn’t talk to them about normal things,” during his day, watching him testify at his confirmation said Olian. To Olian, he came across as “a very confirmation hearing, as soon as I hear his voice, I just think normal, down-to-earth” guy, but beneath the hearing before back to ... the way that he pierced the heart of unassuming exterior, Garland “was brilliant.” the Senate the matter.” After completing his clerkships, Garland Judiciary joined the DOJ as a special assistant to U.S. Committee Attorney General Benjamin Civiletti before In both college and law school, Garland’s leaving for Arnold & Porter. He made partner reputation for quiet brilliance preceded him. in four years. As he considered becoming an as- “When Merrick talked, people listened,” said sistant U.S. attorney, Garland called Stith for Rob Olian ’77, his college roommate. Even so, advice. She pointed out to him that as an AUSA it took Olian until law school, when he shared a in D.C., he would begin his career by prosecut- class with Garland for the first time, to realize ing low-level local crimes rather than major what exceptional talent his friend had. One day federal ones. “I’ll never forget that phone call,” in class, Garland and the professor began dis- she recalled. “I said, ‘You’ll leave a partnership cussing a topic that utterly eluded Olian. Try- at a fancy law firm to become an AUSA at the ing to determine if he was simply being dense, lowest rank?’ And he said, ‘Yeah, I think it’ll be Olian asked several classmates afterward if any really interesting.’ That was impressive.”

Summer 2021 Harvard Law Bulletin 39 very difficult because he was my right arm, but it was the right decision.” Garland was adamant that the DOJ consistently and transparently prose- cute the case by the book at every step. Decades later, he remains visibly affected by memories of the prosecu- tion. While speaking pub- licly about his role at the White House Rose Garden in 2016, his voice cracked as he recalled, “We promised that we would find the perpe- trators, that we would bring them to justice, and that we would do it in a way that hon- ored the Constitution.” Before leaving for the fed- eral bench in 1997, Garland supervised one more head- line-dominating case — that of Theodore Kaczynski, bet- ter known as the Unabomb- Merrick Garland returned to private practice for just er, who planted more than a dozen bombs that Garland, then one year in 1992, before being tapped by Jamie killed three people and injured 29 over the principal Gorelick ’75 to be part of a team that prepared course of 17 years. associate former Attorney General Janet Reno ’63 for deputy attor- her confirmation process, and later to serve as ney general Gorelick’s principal associate deputy attorney On the D.C. Circuit, Garland was known for at the Justice general, his last position before his nomination his wise and principled decision-making and Department, to the D.C. Circuit. Gorelick, who has known his commitment to rule of law. Jenner & Block addressing the Garland since college, supervised him at the partner Ishan Bhabha ’09, who clerked for him, press during Justice Department during his career-defining recalls that even when other judges on the court the Oklahoma prosecution of Oklahoma City bomber Timothy disagreed with Garland on hard-fought, contro- City bombing McVeigh. versial issues, they would nevertheless seek his investigation, Gorelick recalls being with Garland in 1995, counsel to try to understand how he approached which he shortly after learning that a bomb had explod- a particular issue. “The D.C. Circuit’s loss is the headed ed at the Alfred P. Murrah Federal Building in Justice Department’s gain, but it’s a real loss,” Oklahoma City, killing 168 people, including Bhabha said. 19 children who had been in the building’s day Bhabha was particularly impressed by Gar- care center. Garland and Gorelick both had land’s unwavering work ethic, noting that his young children at the time, and each was hor- law clerks always knew they had a long night ror-struck by the images they saw on television. ahead of them when Garland reached for a 5 Garland immediately volunteered to head what p.m. bowl of Cheerios. “He really dealt with ev- was sure to be an intensive, months-long inves- ery single case with the [same] level of intensity tigation. He turned to her and said, simply, “I and care and focus,” Bhabha said. “He would have to go.” spend hours and hours and days agonizing over Garland’s responsibilities in the deputy at- word choices and case analysis and outcome, torney general’s office did not include directly even for cases where there was no dispute about supervising individual cases on the ground. But how it would eventually resolve.” within days of the attack, he moved to Oklaho- Since 1998, Garland has volunteered twice ma to oversee the operation. “He was very mo- a month as a tutor for elementary school stu- tivated by what he saw and heard and asked to dents. During the pandemic, he has doubled

be sent,” Gorelick recalled. “For me, that was his commitment, meeting weekly with sixth BOWMER PHOTO/RICK AP

40 Harvard Law Bulletin Summer 2021 graders via video. Though his tutoring became and overriding adherence to basic principles well-known when he was nominated for the of fairness.” Supreme Court, Garland never otherwise dis- The task Garland now faces invites compari- cussed it. Lazarus said he was blown away when sons to former Attorney General Edward Levi, he learned about it through news articles, not- who was appointed by President Gerald Ford ing that the tutoring “told me a lot about his to restore public confidence in the DOJ after fundamental decency and character.” the Watergate scandal. Garland implicitly ac- Given Garland’s reputation, his name had cepted the mantle in his first speech to his staff been repeatedly mentioned in past years as on March 11, when he referenced the former a possible Supreme Court nominee. When in attorney general and assured career prosecu- March 2016 Barack Obama ’91 selected this tors that they would no longer face pressure to jurist who was highly respected on both sides enforce “one rule for friends and another for of the aisle to fill the Supreme Court seat va- foes, one rule for the powerful and another for cated by the death of Justice Antonin Scalia the powerless, [or] one rule for the rich and ’60, the biggest surprise appeared to be only another for the poor.” his age, which at 63 bucked the recent trend of appointing young justices whose influence on the Court can be expected to last for decades. Garland now has his work cut out for Garland himself may have thought that “his him, as he tackles politically tricky and legally chances for getting nominated were behind challenging investigations, including how to him,” said his friend Olian. Garland became a address the underlying criminal allegations household name, however, when the Republi- that led to both impeachments of President can-led Senate refused even to hold a hearing Trump; a tax probe of the current president’s on his nomination in an election year, scuttling son, Hunter Biden; and the Jan. 6 attack on his Supreme Court aspirations. the Capitol, which is sure to be one of the most Rosenbaum, who had been overjoyed to see complex and scrutinized federal prosecutions his old friend nominated for the position, was in DOJ history. Garland has stated publicly that “just devastated” by the long, drawn-out polit- he expects total independence in each of these ical process that ultimately ended in January investigations. As he said at his confirmation 2017 when Garland’s nomination expired after hearing: “The president made abundantly clear 293 days without congressional action. Speak- in every public statement before and after my ing at a May 2016 high school graduation at nomination that decisions about investigations Skokie’s Niles West High School, his alma ma- and prosecutions will be left to the Justice De- ter, Garland appeared humbly resigned to how partment. That was the reason that I was will- his nomination might end. “When you are fac- ing to take on this job.” ing the unanticipated twists and turns that life Garland will face at least one more major shall surely take, when the bad things happen, challenge: building public trust in the crim- it should be of tremendous solace to get outside inal justice system after the death of George yourself and focus on someone else,” he told the Floyd, which sparked nationwide protests and young graduates. a national reckoning over the roles of police and Garland returned to the front pages in Janu- prosecutors. Indeed, the day after the convic- ary, when President Biden nominated him for tion of Officer Derek Chauvin for the murder attorney general and after the events of Jan. of George Floyd, Garland announced that the 6 transformed overnight what the country Justice Department will investigate whether expected from a role often referred to as the the Minneapolis Police Department engages nation’s “top cop.” in a pattern or practice of unconstitutional or Garland’s supporters can think of no one unlawful policing. better to inherit a Justice Department left If anyone can rise to these crucial challenges, shaken both by recent national events and by Gorelick believes, it is Garland. He has viewed what many viewed as a dismantling of norms in the department from every angle, she said, and recent years. Given the urgency of reviving the has always recognized that “the awesome pow- department’s morale, Lazarus said, Garland is er to prosecute must be undertaken with great “central casting for what an attorney general care and indeed empathy, that the dedication should be after what we’ve been subject to. He of the department to civil rights is absolutely just exudes professionalism and integrity.” critical, and that the role the department can Bhabha agreed: “He’s just somebody who can play in society is unlike that of any other ele- restore so much through his extraordinary ment of the government.”

Summer 2021 Harvard Law Bulletin 41 HLS Authors Recent Alumni Books

“American Daredevil: Comics, Communism, and his frailty took up arms and died in battle; and Louisa May the Battles of Lev Gleason,” by Brett Dakin ’03 Alcott, whose work as a volunteer nurse influenced her (Chapterhouse) writing, in particular “Little Women.”

When Brett Dakin set out to learn more about Lev Gleason, his great-uncle who died five years before he was born, he “Subway: The Curiosities, Secrets, and Unofficial History was stunned to find many references to him in The New of the New York City Transit System,” by John E. Morris York Times index under the heading “U.S. — Espionage ’83 (Black Dog & Leventhal) — Treason.” Thus began the author’s journey to explore the life of Gleason, a comic book publisher who made and Understanding New York City requires an understanding lost a fortune, but also, Dakin learned, a war veteran in- of its subway system, writes John Morris, who provides vestigated by the FBI and called to testify before the House a colorful history of the people who created it and have Un-American Activities Committee, and a progressive shaped it since its inception in 1904. Filled with images, activist who put on showy displays of wealth. Even the the book explores the “horse-drawn gridlock” that com- “Daredevil Battles Hitler” comic book Gleason published, pelled people to seek a less congested means of navigating which encouraged U.S. intervention in World War II at a the city; the massive construction effort; and the subway’s time when many Americans favored isolationism, reflected role in popular culture, ranging from the 1912 vaudeville his convictions. hit “The Subway Glide” to a “Seinfeld” episode revolving around strange encounters on a subway train. For all its faults, the subway serves to bring together a diverse array “The Anointed: New York’s White-Shoe Law Firms — How of riders and “still ranks as one of the greatest shows on They Started, How They Grew, and How They Ran the earth,” Morris writes. Country,” by Geoffrey S. Stewart ’76 and Jeremiah D. Lambert (Lyons Press) “Why the Innocent Plead Guilty and the Guilty Go Free: Focusing on three firms, Cravath, Swaine & Moore, Davis And Other Paradoxes of Our Broken Legal System,” by Jed Polk & Wardwell, and Sullivan & Cromwell (Geoffrey Stew- S. Rakoff ’69 (Farrar, Straus and Giroux) art worked at Davis, and Jeremiah Lambert at Cravath), the book traces their evolving roles not only in the legal A general faith in the justice system has caused many peo- world but also in the nation’s social and economic life. For ple to overlook its shortcomings, contends Jed Rakoff, who most of their existence, the firms recruited mostly white calls for reforms to address mass incarceration, the death Protestant men from Ivy League institutions and elite penalty, and access to courts, among other issues. The Eastern prep schools, and operated in exclusive New York senior U.S. district court judge, who previously served as a social and business circles. By the 1960s, their “starchy so- federal prosecutor and criminal defense lawyer, criticizes cial reputation” became a liability, leading to more diverse the plea-bargaining system, which he contends pressures recruitment and eventual expansion to global practice. most defendants — including innocent ones — to accept The firms remain highly profitable and preeminent, the prison time in order to avoid more punitive sentences. authors write, because of their ability to accommodate both He also cites the lack of prosecutions against white-collar continuity and change. crimes, the frequent inaccuracies of eyewitness testimony, and a Supreme Court that is too deferential to the executive branch. Legislatures have the power to improve the system, “A Worse Place Than Hell: How the Civil War Battle of he writes, provided that they are spurred by voters who Fredericksburg Changed a Nation,” by John Matteson ’86 recognize that changes should be made. (Norton)

Fredericksburg is not one of the more important battles “Dress Codes: How the Laws of Fashion Made History,” by of the Civil War from a military perspective, according to Richard Thompson Ford ’91 (Simon & Schuster) John Matteson. Yet its cultural impact was immense, he ar- gues, and was exemplified by the experiences of five people Far from merely a surface matter, fashion is tied to political who were shaped by the battle: Oliver Wendell Holmes Jr., struggles for equality and individual dignity, and offers a Harvard Law School graduate and Supreme Court justice, important lessons about status, sex, power, and personal- whose belief in the sanctity of duty was upended by his ity, argues Richard Ford, a Stanford Law School professor. wartime experience (including being wounded and nearly Surveying the history of fashion from the Renaissance era dying in battle), leading him to view “skeptically the very to today, he cites examples such as the provision in the nature of authority”; John Pelham, a West Point cadet and Negro Act of 1740 that sought to prevent Black people from Southern soldier, whose death, called an irreparable loss by wearing clothes “above the condition of slaves,” and the Confederate Gen. Jeb Stuart, toppled assumptions about androgynous style of the flappers that challenged norms the invincibility of the Confederacy; Walt Whitman, who of “virtuous femininity.” Though acceptance of individual traveled in search of his brother wounded at Fredericks- choice in fashion is far more prevalent today, clothing still burg, later writing poetry and a memoir on the war; Arthur reflects the social class, race, religion, and sex of the person B. Fuller, a chaplain and abolition supporter who despite wearing it, Ford writes.

42 Harvard Law Bulletin Summer 2021 A Presidential Journey In the first volume of his presidential memoirs, Barack Obama writes about his campaign and events during his first term

The first of two planned volumes, “A Promised Land” (Crown) find Osama bin Laden, which ends the volume. And he shares the provides candid details of the relationships and decisions that content of many one-on-one conversations with close advisers shaped the life and presidency of Barack Obama ’91. He writes of like David Axelrod, Rahm Emanuel, and Valerie Jarrett. his political journey, including the mistakes he made in his first, In addition to the historic decisions that define a presidency, unsuccessful campaign for Congress and the initial resistance Obama points to myriad small moments that make up the job of a of his wife, Michelle ’88, to his running for president. He covers president: He holds a practice session on the proper way to salute well-known moments from that presidential campaign, such as at the behest of a staffer; he discovers all his clothes perfectly the controversy that arose over his relationship with the Rev. Jer- pressed and displayed by White House valets; he attends White emiah Wright, and lesser-known ones, such as a tense exchange House shows by famous performers like Paul McCartney, who with his then-rival Hillary Clinton on a tarmac. sang the Beatles song “Michelle” to his wife. His presidency began in the midst of a fi- Through the successes and disappointments of his tenure, he nancial crisis, requiring Obama to assess di- retains his belief, as the title suggests, in the promise of Ameri- vergent opinions on what stimulus package ca. “If I remain hopeful,” he writes, “it’s because I’ve learned to to propose that would both pass Congress place my faith in my fellow citizens, especially those of the next and restore a cratering economy. He also generation, whose conviction in the equal worth of all people provides full accounts of other significant seems to come as second nature, and who insist on making real events of his time in office, particularly re- those principles that their parents and teachers told them were lated to health care reform and the mission to true but perhaps never fully believed themselves.”

ILLUSTRATION BY ELLEN WEINSTEIN Summer 2021 Harvard Law Bulletin 43 Gallery The Pentagon Papers Case Today Does the First Amendment still protect the press when it lawfully receives classified information unlawfully obtained? By Lincoln Caplan ’76

he First Amendment shields the press, analysis of the Espionage Act, explaining the law’s Justice Hugo L. Black wrote 50 years ago “fundamental problem”: It is “in many respects in- in a concurring opinion in the Pentagon comprehensible.” In a concurring opinion in the case, Papers case, so the press can “bare the Justice Byron R. White had read meaning into the T secrets of government and inform the law, suggesting that it might be a crime for a news- people.” In that historic ruling, the Supreme Court paper to publish information classified as secret — put an end to a temporary injunction against pub- and suggesting that the paper could be punished for lication of the Defense Department’s secret history doing so. The law review called White’s opinion “dicta of the American involvement in the Vietnam War. amounting to admonition” — “a loaded gun pointed at The Court allowed The New York Times, The Wash- newspapers and reporters who publish foreign policy ington Post, and other newspapers to carry on pub- and defense secrets.” lishing excerpts from the Papers’ 7,000 pages, reveal- That gun was also pointed at leakers. The Justice ing how the government used secrecy to deceive the Department charged Daniel Ellsberg with espionage American people about the nation’s disastrous role and theft for leaking the Pentagon Papers to the in the war. The advocates for the Times and for the Times. At his trial in Los Angeles, Ellsberg was repre- government were eminent members of the Harvard sented by Leonard Boudin, a renowned civil liberties Law School community: alumnus Alexander M. Bick- lawyer who was a visiting lecturer at HLS, and Charles el LL.B. ’49, a Yale Law School professor; and Solicitor R. Nesson ’63, then a junior professor at HLS, now General Erwin N. Griswold LL.B. ’28 S.J.D. ’29, who in his 55th year teaching at the school. Their client was HLS dean from 1946 to ’67 until he joined the Jus- might have been convicted and sentenced to prison if tice Department. The ruling legitimized the media’s another secret had not become public — the burglary status as what historian Stanley I. Kutler called “the of the office of Ellsberg’s psychiatrist in people’s paladin against official wrongdoing.” The impact of a search of embarrassing material at the The ruling rests on the principle that free speech, historic ruling, behest of President Richard M. Nixon. embodied in a free press, is an essential element of Those “bizarre events,” as the judge called 50 years out American democracy. Except when publication would the incident, led to the end of Ellsberg’s do grave and irreparable harm to the nation, the risk case and helped propel the end of Nixon’s of damaging democracy by publishing information presidency. But it did not restrict the government’s is preferable to the risk of undoing it by allowing the authority to prosecute future whistleblowers. government to decide what citizens can know. When In 1985, a federal trial court applied White’s logic a government for itself supplants government for the from the Pentagon Papers case and convicted Sam- people, the misrule of power displaces the rule of law: uel Loring Morison, a government analyst, for espio- Autocracy takes over democracy. nage and theft, for providing Jane’s Defence Weekly The government based its case against the newspa- with photographs taken by a U.S. spy satellite of the pers on the Espionage Act of 1917. That old law aimed Soviets’ first nuclear-powered aircraft carrier. Mor- mainly to curtail spying by punishing disclosure to ison’s lawyer portrayed him as a whistleblower, who foreign enemies of secrets about national security. In let the Western world know about the Soviet carrier. 1973, two years after the Pentagon Papers decision, The lawyer contended that the benefit of publication the Columbia Law Review published an exhaustive outweighed the harm, since the Soviets already knew

58 Harvard Law Bulletin Summer 2021 ASSOCIATED PRESS ASSOCIATED

Summer 2021 Harvard Law Bulletin 59 Gallery

about the satellite. The U.S. Court of Appeals for the 4th Circuit upheld the convictions, rejecting the argu- ment that leaks to the press were ex- empt from the Espionage Act. In January of 2001, before leaving office, President Bill Clinton par- doned Morison, after Sen. Daniel Patrick Moynihan told Clinton that the prosecution had been unfair, for “an activity which has become a rou- tine aspect of government life: leak- ing information to the press in order to bring pressure to bear on a policy question.” (In the Pentagon Papers case, Max Frankel, the Times’ Wash- ington bureau chief, made a similar point: “Without the use of ‘secrets’ that I shall attempt to explain in this affidavit, there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.”) Still, the precedent of Morison’s conviction for disclosing classified information to the press remains valid law. In the Obama and Trump administrations, the government indicted a dozen Daniel Ellsberg, uments. As former Justice Department spokesman people for leaking secrets to the press, with the for- who leaked the Matthew Miller told the Post, there would have been mer normalizing the practice and the latter building Pentagon Papers, “no way to prosecute him for publishing information was acquitted on the norm. The 2013 case against U.S. Army Private without the same theory being applied to journal- after a judge Chelsea Manning for leaking a huge number of secret declared his ists.” That created a “New York Times problem”: If documents to WikiLeaks was among the most promi- case a mistrial. the government indicted Assange, it would have to nent examples. She was convicted and sentenced to 35 The decision indict the Times and other news organizations and years in prison and dishonorably discharged (though did nothing to journalists that published the classified information. President Obama commuted most of her sentence). protect future That impediment, however, didn’t stop the Trump ad- The Constitution, including the First Amendment, whistleblowers. ministration, which indicted Assange in 2019 ­­(the does not protect leakers against prosecution and first time the government has prosecuted a publish- punishment for unauthorized disclosures. But does er based on the Espionage Act), saying that Assange it protect members of the media when they receive “is no journalist” and that the administration took in a lawful manner classified information unlawfully “seriously the role of journalists in our democracy.” obtained? The Assange case underscores how different the In 2013, The Washington Post reported, the Obama world is today from 50 years ago. The terrorist attack Justice Department decided not to indict Julian on the United States on Sept. 11, 2001, led to the ex- Assange, the founder of WikiLeaks, for conspiring pansion of the power of the executive branch and to with Manning because Assange did not leak the doc- the magnification of national security as an American

60 Harvard Law Bulletin Summer 2021

they were in 1971 and the ensuing decades.” They conclude that while national-security experts worry about too much disclosure and civil liberties experts warn about too much secrecy, their “profoundly important collec- tive judgment” is that the current sys- tem of law and practices “has worked reasonably well.” In the Bollinger-Stone volume of essays, Harvard Law Professor Jack Goldsmith contends that the small number of prosecutions of leakers compared with the large quantity and breadth of leaks since 9/11 re- flects “an unprecedented growth in press freedoms in the national secu- rity context” — and that the Trump indictment of Assange confirms the norm of “greater protection of jour- nalists” because the administration stressed that the indictment was no threat to the press. Jameel Jaffer ’99, executive direc- tor of the Knight First Amendment Institute at Columbia University, ar- gues that the U.S. has “paid a stagger- ing price for excessive secrecy” since 9/11; that leaks have exposed some of that price in the form of abuses at Abu Ghraib, the National Security concern, leading to a large increase in the number of The prospect Agency’s massive collection of Americans’ telephone people with security clearances and access to classi- of prosecuting records, and other violations of law, and have led to fied information. It also led to exponential growth in WikiLeaks founder “significant adjustments to policies relating to inter- Julian Assange the amount of classified information — a realm “so rogation, detention, surveillance, and extrajudicial for publishing large, so unwieldy and so secretive,” as The Washing- classified killing”; and that, in addition to clarifying that Amer- ton Post explained, “no one knows how much money government ican law distinguishes between leaking to the press it costs, how many people it employs, how many pro- documents has and to foreign spies, the law should provide much grams exist within it or exactly how many agencies do been described stronger protection for leakers who are whistleblow- the same work.” New technology has led much of the as a threat to ers, because developments in the past two decades information to be digitized, making it much easier for press freedom. have made Americans “more reliant on whistleblow- secret information to be copied, leaked, and commu- ers even as they have made whistleblowing more dif- nicated over the internet — and for the government ficult and more hazardous.” to track down leakers. Goldsmith and Jaffer disagree fundamentally This April, First Amendment scholars Lee C. about how much secrecy American democracy needs Bollinger and Geoffrey R. Stone published “National and whether the balance now unduly favors secrecy Security, Leaks and Freedom of the Press,” subtitled or free speech. They agree as deeply about the need “The Pentagon Papers Fifty Years On.” They write: for the press’s bright light to bare secrets of govern- “[T]he risks of both too much secrecy and too much ment. To Jaffer, that’s “crucial to our democracy.” To

P. 60 AP PHOTO; P. 61 DOMINIC LIPINSKI/PA WIRE (PRESS ASSOCIATION VIA AP IMAGES) AP VIA ASSOCIATION (PRESS WIRE LIPINSKI/PA DOMINIC 61 P. PHOTO; AP 60 P. disclosure are arguably very different from what Goldsmith, it’s “vital.” Harvard Law Bulletin Nonprofit Org. Harvard Law School U.S. Postage Paid 1563 Massachusetts Ave. Burlington, VT Cambridge, MA 02138 05401 Permit 347

COMMENCEMENT 2021 In cap and gown, at home, or out in the world, graduates and their families and friends celebrate. Top row: Aashiq Jivani with his parents and sister; Mark Gillespie with his son; Vanessa Rodriguez’s proud parents Middle row: Alexis Alvarez; Sean Quirk and his wife; Mo Light’s cousins and aunt watch Commencement ceremonies Bottom row: April Xu; Rory Torres and her daughter; Sheila Kose Bamugemereire For more coverage of Class Day and Commencement, go to: bit.ly/hlscommencement2021. MARTHA STEWART LAST ROW RIGHT; ALL OTHER IMAGES PROVIDED BY STUDENTS BY PROVIDED IMAGES OTHER ALL RIGHT; ROW LAST STEWART MARTHA