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Home , Andrew Klaber, Cassandra Butts, Erwin Griswold, Jeremy Bash, Lawrence Lessig, Robert Barnett (lawyer)

april 2009 4 Howell Jackson ’82 is appointed acting dean of .

Congressional Oversight Panel Salute to a general Chairwoman Elizabeth Dean Kagan becomes U.S. solicitor general Warren testify- ing before the Senate Finance On March 19, 2009, Dean Committee on ’86 was Capitol Hill in March confirmed by the Senate as the 45th solicitor general of the United States—and the first woman solicitor “To lead the Solicitor

GETTY IMAGES general in U.S. history. General’s President ’91 Office is the Warren overseeing Treasury’s honor of a nominated Kagan in early January, lifetime.” economic bailout plan and on Feb. 10 the Senate Judiciary —ELENA KAGAN ’86

Committee held a hearing to consider DOOHER KATHLEEN n November, Harvard Law The panel, charged with examining her nomination. integrity. That is due, in large measure, ISchool Professor Elizabeth Warren the Treasury Department’s plans for In her opening statement to the to the people who have led it.” was appointed to a five-member the $700 billion economic bailout committee in February, Kagan said, Kagan served in the White House Congressional Oversight Panel to package, known as the Troubled “To have the opportunity to lead the during the Clinton administration, first monitor the Treasury’s economic Asset Relief Program, has issued five Solicitor General’s Office is the honor as associate counsel to the president rescue plan. Warren was one of three reports on the effectiveness of the of a lifetime. As you know, this is an (1995-96) and then as deputy assistant experts nominated to the bipartisan regulatory structure now governing office with a long and rich tradition, not to the president for domestic policy and panel by House Speaker Nancy Pelosi the country’s financial system. only of extraordinary legal skill but also deputy director of the Domestic Policy and Senate Majority Leader Harry The panel also submitted a special of extraordinary professionalism and Council (1997-99). >>4 Reid. report on regulatory reform to >>5

Two more renowned scholars head to HLS Smith and Lessig join faculty

Henry E. Smith Lawrence Lessig Professor of Law Professor of Law, Director of Harvard’s Edmond J. Safra Foundation Center for Ethics In January, Smith, an expert in , natural resources, property and Lessig, an expert in constitutional law, taxation, joined the HLS faculty from Yale, contracts and the law of cyberspace, will join where he was the Fred A. Johnston Professor the HLS faculty in the fall. He is currently a of Property and Environmental Law and a professor at , where he professor in the Program in Cognitive Science. founded the Center for Internet & Society. Prior The co-author of the casebook “Property: to joining the Stanford faculty in 2000, he was Principles and Policies,” Smith has published on the faculties of the University of numerous articles on the law and economics of Law School and HLS. property, and intellectual property. He serves As director of the Safra Foundation Center,

MARTHA STEWART MARTHA on the board of advisers for the Journal of >>6 Lessig will expand on its work >>6

Harvard Law Today Nonprofit Org. INSIDE Harvard Law School U.S. Postage 125 Mount Auburn Street PAID , MA 2 3Ls win 54K verdict for tenant Cambridge, MA 02138 Permit No. 54112 3 Taxing issues 5 HLS reunion on Ave. 7 A master of the skill of negotiating 8 Digitizing a 20th-century justice

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BRIEFS Students win $54K verdict for tenant Enhancing child safety Best books of the year

HLS Professor ’01, co- Two books by HLS professors were director of the Berkman Center for included on The Economist magazine’s Internet & Society and vice dean, library list of “Books of the Year” for 2008: and information resources, chaired a Noah Feldman’s “The Fall and Rise of task force of academics, child safety the Islamic State” (Princeton University experts and executives of technology Press, 2008) and ’s companies—including Microsoft and Google—to assess “Nudge: Improving Decisions About the risks faced by youth on social networks. Created in Health, Wealth, and Happiness” (Yale 3Ls Eli Schlam February 2008 by the Attorneys General Multi-State University Press, 2008), with Richard and David Working Group on Social Networking, the task force Thaler. An essay by Feldman, “Orthodox Haller, of the Harvard Legal issued a report this January, “Enhancing Child Safety Paradox,” published in the July 22, Aid Bureau and Online Technologies,” with recommendations for 2007, edition of The Times helping keep minors safe on the Internet. Magazine, was also selected for inclusion in this year’s “The Best American Spiritual Writing” anthology. In its n November, two HLS students landed a Sander CLEO award Jan. 5 issue, in an article titled “The Power of Ideas,” $54,000 verdict against the Bank of New York Newsweek magazine named Sunstein one of four I for cutting off the water and heat of a man it was During its 40th anniversary celebration, thinkers “whose seem to have captured trying to force out of the home he rented. The landlord the Council on Legal Education the intellectual moment.” had failed to make mortgage payments. Opportunity celebrated Professor The verdict—which was reached by the 12-person Emeritus Frank E. A. Sander ’52 and his Student participates in Leaders Summit jury in Boston Housing Court after four hours of efforts to increase minority students’ deliberation—may yet be doubled or tripled under the presence in law schools. In the mid- Andrew Klaber J.D./M.B.A. ’10 at- state’s consumer protection law. 1960s, Sander and former Dean of Admissions Louis tended the ’s third annual The case was tried by 3Ls David Haller and Eli Toepfer ’43 organized a summer seminar program for Asia Young Leaders Summit in Tokyo in Schlam of the Harvard Legal Aid Bureau, under the minority students interested in law. The seminar led November. Chosen from among nearly supervision of Verner Moore, and the WilmerHale to the formation of CLEO and Sander became CLEO's 1,000 nominees, Klaber was one of 160 Legal Services Center, with Eric Levine ’08. first chairman. More than 7,000 students have since emerging leaders from 30 Asia-Pacific “Students are hopeful that the size of the award will participated in CLEO programs nationwide. countries and the U.S. who met with leaders from busi- encourage banks to improve treatment of tenants in ness, government, academia, media, civil society and the properties they acquire through foreclosure and Glendon honored with Laetare Medal the arts to address crucial issues facing the Asia-Pacific to consider maintaining properties instead of evicting region. Klaber is the founder of Orphans Against AIDS, people,” said Haller. HLS Professor Mary Ann Glendon was a nonprofit that provides academic scholarships and HLS clinics are involved in 50 to 100 similar cases, named the recipient of the University basic healthcare for children orphaned or affected by now pending, he added. Haller co-founded No One of Notre Dame’s 2009 Laetare Medal. HIV/AIDS throughout seven Asian and African coun- Leaves, an organization Glendon, who was the U.S. ambassador tries. THE SIZE of that advises tenants to to the Vatican in 2008, is the 133rd the award will remain in foreclosed recipient of the award, which was Immigration work honored encourage banks dwellings until the established in 1883 to honor Catholics “whose genius to improve legal process has been has ennobled the arts and sciences, illustrated the Clinical Law Professor Deborah Anker exhausted. ideals of the church and enriched the heritage of LL.M. ’84, director of the Harvard Im- treatment of William Allen had humanity.” Glendon will receive the award on May migration and Refugee Clinical Program, tenants.” lived in his Dorchester 17 during Notre Dame’s commencement ceremony. was recognized by the Central American David Haller ’09 apartment for four President Barack Obama ‘91 is scheduled to deliver the Refugee Center in New York for her pio- years. In December commencement address. In 1994, Pope John Paul II neering work on behalf of immigrants 2007, he learned that the owner had lost the property appointed Glendon to the Pontifical Academy of Social and refugees. The author of “Law of Asylum in the Unit- in a bank foreclosure a month earlier. The city turned Sciences. She was named president of the academy in ed States,” Anker has focused much of her work on gen- the water off, cutting off heat to Allen’s home. 2004. der and gender-related violence as a basis for asylum. After Allen turned to Legal Services, Levine contacted the Bank of New York, which owned the Urs Gasser joins Berkman Center property, to notify them that Allen was living in the apartment. The bank responded by changing the locks HARVARD LAW TODAY Urs Gasser LL.M. ’03, an associate professor of law at and reporting Allen to the police as a squatter. Executive Editor Editorial Office the University of St. Gallen in Switzerland, has been Allen, who is on Social Security disability, lived Robb London ’86 Harvard Law Today named executive director of the Berkman Center for Editor 125 Mount Auburn St. without water or heat for four months. Students filed Christine Perkins Cambridge, MA 02138 Internet & Society. He succeeded John Palfrey ’01, who 617-495-3118 a restraining order with the Boston Housing Court to Managing Editor [email protected] was appointed vice dean, library and information re- force the bank to turn on the water. The court ordered Linda Grant Send change of address to sources, at HLS. In 2005, Gasser was a faculty fellow Design Director Alumni Records the bank to pay for Allen to live in a hotel until the Ronn Campisi 125 Mount Auburn St. at Berkman, where he worked on topics ranging from water problem was resolved. Contributors Cambridge, MA 02138 digital institutions to interoperability to youth and tech- Emily Dupraz, Stephanie [email protected] When the bank filed an eviction claim, Allen Ehresman ’10, Emily Newburger, Volume 8 Number 2 nology, including the creation of the annual “Learning a counterclaimed, alleging that the shut-off of his water Lia Oppedisano, Lori Ann Saslav Harvard Law Today is published by Harvard Law School Foreign Language” seminar. From 2002 to 2004, Gas- and heat amounted to a forced eviction. © 2009 by the President and ser was a research fellow at Berkman, where he worked Fellows of The jury returned a verdict of $4,000 in actual primarily on the Digital Media Project. ø harvard law today april 2009 today law harvard damages plus $50,000 for emotional distress.

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a program called the Child Trust Fund You wrote about your personal experience which creates a stake for every baby dealing with your son’s health in “No born in Britain: The government puts Exit.” Did that experience affect how you in a certain amount of money for each think about public policy problems and child, with larger amounts going to solutions? poorer children. The money compounds My son was hospitalized seven weeks in in an investment account until the child seven months as a 3-year-old, and that reaches age 18, when she’s permitted to experience really immersed me in the “People in this withdraw the funds and use them as she world of people who have children with country are looking for new likes. serious illnesses and disabilities. I went ways to address without sleep many nights, and when I the maldistribu- How much difference was there in the did sleep, I had a suitcase under my bed, tion of wealth way liberals and conservatives talked in because on any given night if his breath- and opportunity Congress about tax cuts during the debate ing crisis got bad enough, I knew we that our current over a stimulus bill this year? institutions have would head to the hospital for an indefi- produced.” What’s interesting is that both sides nite stay. My employer was incredibly in the stimulus debate favor tax cuts. gracious and generous about giving me They’re just debating what form they leave time, and colleagues helped by tak- should take. This really reflects a ing on some teaching. But in the middle kind of American exceptionalism. of those hospital nights, I used to think The tax code in the U.S.—far more so about what would happen to me and my than in other countries—is the locus children if I were someone earning $7 of enormous concentrations of public an hour without health insurance and policy—including health care, pensions, with the kind of job that if I didn’t show income support and jobs creation. The up to work, they’d fire me. A family in competing stimulus plans and President that circumstance can find themselves Obama’s campaign promises reflect evicted, homeless, bankrupt. A chapter FACULTY Q&A that reality. So, for example, the Obama of “No Exit” came out of this experience; proposals emphasize flat tax cuts for it proposes special assistance to parents Using tax law to slice the low- and middle-income workers, while of children with severe chronic illnesses Republicans have sought cuts in the and disabilities. My son is fine now, but pie more equitably top marginal tax rate. Both sides want at a very human level, I continue to have tax cuts—they just want them to go to perhaps a higher degree of empathy, in PHIL FARNSWORTH different people for different purposes. addition to my academic sympathy, for Professor Anne L. Alstott, a tax and social welfare pol- families with children with very high- Is the current recession a new opportunity care needs. icy expert, joined the faculty in 2008 as the Manley to use the tax system to reduce inequality? O. Hudson Professor of Law and director of the Fund Taking a historical perspective, You’re currently working on an article deep recessions probably create two about improving social insurance for low- for Tax and Fiscal Policy Research. She previously countervailing forces in tax policy. income workers. What would be required? taught at Columbia and then , and On the one hand, populism tends to My article responds to the common earlier worked as an attorney-adviser in the Treasury become politically ascendant, and claim in the political realm that the politicians can gain support for more Earned Income Tax Credit “makes Department’s Office of the Tax Legislative Counsel. radical redistribution than is possible work pay.” The EITC, as you recall, was Co-author with Bruce Ackerman ’70 of the 1999 book during boom times. On the other supposed to be the humane side of the hand, recessions tend to produce tax 1996 welfare reforms; it was supposed “The Stakeholder Society,” she is also the author of shortfalls, because as incomes and to ensure that working families would “No Exit: What Parents Owe Their Children and wages drop, so does tax revenue. So not be poor. But a closer look suggests politicians find themselves in need of that as a nation we haven’t delivered on What Society Owes Parents,” which was published in new revenue to fund the programs they that promise. My work suggests that 2004. She also wrote “Equal Opportunity and Inheri- want to enact, and sometimes—as in the public policy should not only subsidize tance Taxation,” 121 469 (2007). Great Depression—the result is that very wages while people are in work—as the progressive rhetoric can be accompanied EITC does—but should also consider by relatively regressive tax policy the risks of life that everyone faces and In “The Stakeholder Society,” you propose country are looking for new ways to overall. Of course, it’s important to keep that middle-class people tend to cover providing every American who graduates address the maldistribution of wealth in mind that taxation is only half the through savings. In 2004, 17 percent of from high school a one-time grant of and opportunity that our current game when it comes to the progressivity Americans had zero or negative wealth. $80,000 upon reaching adulthood to be institutions have produced. A decade of government. Even a regressive tax, That means that a period of unemploy- financed by a 2 percent wealth tax. Has the ago there was a certain amount of like the value-added tax, or VAT, that ment or underemployment, which is current economic collapse brought new skepticism that the United States could is common in European countries, can very common among low-income work- attention to the problems you were trying stomach a new initiative of $250 billion. contribute to progressive redistribution ers, can be catastrophic. And that’s just to highlight in that book? Now, every day’s newspaper talks about if it’s used to fund highly progressive one example. My article will sketch a In the present economic climate, corporate and financial bailouts that spending programs—for instance, holistic approach to improving social in- people are looking for new solutions are two or three times that size. It’s unemployment benefits for low-income surance for low-income workers across and bigger solutions. For the first worth saying that other countries have workers, food stamps, disability, an the board—in realms including health time since we wrote “The Stakeholder been more open to stakeholding. The expansion of health insurance for the insurance, disability and family care, as ø Society” a decade ago, people in this United Kingdom, for example, now has uninsured, and so on. well as unemployment. april 2009 today law harvard

HLT_april09.v2_03.indd 3 4/14/09 4:04:05 PM 4 Elena Kagan ’86 and Thomas Perrelli ’91 (nominated as associate attorney general) at their joint confirmation Kagan hearing in February Howell Jackson ’82 continued from page 1 is appointed acting dean of Harvard In those positions she played a key role in the executive branch’s formulation, advocacy, Law School and implementation of law and policy in areas ranging from education to crime to public health. pon Elena Kagan’s departure for the In 1999, she joined the HLS faculty as a USolicitor General’s Office in mid-March, visiting professor, and she was appointed dean HLS Professor Howell Jackson ’82 became in 2003. During her deanship, she oversaw a acting dean of Harvard Law School. period of remarkable growth at HLS, including Jackson, who has been on the HLS faculty since a headline-making reform of the curriculum, 1989 and served as the school’s vice dean for ad- an impressive expansion of the faculty, a major ministration and budget from 2003 to 2006, was initiative to support public service and the appointed by President Drew design of a new building complex now under Gilpin Faust to lead the school until a search for Ka- construction. gan’s replacement is completed. Kagan will be on leave from the faculty “Howell Jackson is a first-rate scholar and teach- during her service as solicitor general. With her TIMES JEFF JEFFREY/LEGAL er who has been a core member of the law school’s confirmation, HLS Professor Howell Jackson ’82 became eight former solicitors general, who served in Democratic leadership team in recent years,” said Faust. “Espe- acting dean of the law school. and Republican administrations, and others from law cially at this moment After President Obama nominated Kagan to be solicitor school deans, HLS Iraq War veterans, and the National Howell Jackson ’82 in the life of the law general, the Senate Judiciary Committee received many Association of Women Lawyers. Four HLS professors school and the univer- letters in support of her nomination from her colleagues submitted letters, including , who was sity, we are fortunate at the law school, alumni, former students and others. solicitor general from 1985 to 1989 during the Reagan to be able to turn to an The committee also received a letter of endorsement from administration. acting dean who not only is a distinguished academic, but also has “LETTERS OF deep experience with HLS SOLICITORS GENERAL: “In the middle RECOMMENDATION” the school’s adminis- of everything that’s legal” Excerpts from 2 of 35 trative and financial letters commending Kagan matters and a close Dean Elena Kagan ’86 made history in March when she became the first woman working knowledge of confirmed as solicitor general of the United States. Supreme Court Justice Charles Fried: the ambitious initia- (for whom Kagan clerked) called the solicitor general’s post— “She is a superb lawyer tives the school has which he held from 1965 to 1967—“maybe the best job” he ever had. As solicitor and an awesomely been pursuing. I’m general, he said, “[you’re] in the dead middle of everything that’s legal and you intelligent person. ... very grateful to How- have your two cents to put in.” Kagan, the 45th solicitor general, joins a long line of [S]he has a deftness, a ell for his readiness to solicitors general with ties to Harvard Law School. They are as follows: quickness and an aptness take on this interim of phrase ... that show she will be able to argue to the role.” 1 JR. ’12 1929-30 Court with consummate Jackson’s research Herbert Hoover interests include skill. … She is a rare and PHIL FARNSWORTH regulation of financial 2 ’11 1940-41 wonderful person, direct, institutions and financial markets, international Franklin Roosevelt honest and fearless. I shall ;w ;e miss her and consider finance, Social Security reform and federal budget 3 WALTER J. CUMMINGS JR. ’40 1952-53 policy. He is co-editor of “Fiscal Challenges: An Harry Truman our loss a sacrifice we Interdisciplinary Approach to Budget Policy” and Dwight Eisenhower make for the good of the co-author of “Analytical Methods for Lawyers” and country.” 4 ’37 “Regulation of Financial Institutions.” 1961-65 John Kennedy In January, Jackson testified before the U.S. Sen- Letter from 11 law Lyndon Johnson ate Committee on Homeland Security and Govern- ;r ;t school deans: mental Affairs. He called for the Federal Reserve 5 ERWIN GRISWOLD ’28 S.J.D. ’29 1967-73 “Her skills in legal Board to become the primary regulator of financial Lyndon Johnson analysis are first-rate. Her risk, citing the lack of a central regulatory body as writings in constitutional a contributing cause of the current economic down- and administrative law 6 WADE H. McCREE JR. ’44 1977-81 are highly respected turn. He has also served as a consultant to the U.S. ;y ;u and widely cited. She is Treasury Department, the Develop- Ronald Reagan ment Programme and the World Bank/Interna- an incisive and astute tional Monetary Fund. 7 CHARLES FRIED 1985-89 analyst of law with a deep A board assembled to assist in the search for a Ronald Reagan understanding of both new dean is made up of Professors William Al- doctrine and policy. She is 8 ’92 2005-08 superbly qualified to fulfill ford ’77, Anne Alstott, Richard Fallon, Mary Ann George W. Bush Glendon, John Goldberg, Randall Kennedy, Reinier ;i ;o the role of representing Kraakman, Daryl Levinson, Robert Mnookin ’68, the United States in the ø Supreme Court.” harvard law today april 2009 today law harvard Carol Steiker ’86 and George Triantis.

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HLS alumni and faculty join ranks of Warren new administration continued from page 1 Since his election as the 44th president of the United Congress at the end of January. States, Barack Obama ’91 has been tapping Harvard In testimony before the Senate Finance Committee on March 31, Warren said the Treasury Department must do more to address the lack of oversight of Law School alumni and faculty members in filling key its economic rescue plan to ensure that taxpayers’ dollars are properly spent. jobs and judgeships. Nominees and appointees include: She said a framework of accountability needs to be in place in order to measure the success of the 6 TO READ REPORTS and testimony of the TARP. She blamed the Treasury Department for not Congressional Oversight FACULTY DANIELLE C. GRAY ’03 Associate counsel, Panel, go to www.cop. cooperating with Congress. senate.gov. Office of the “In a crisis, transparency, accountability and a DAVID BARRON ’94 Principal deputy coherent plan with clearly delineated goals are necessary to maintain the public assistant attorney general, Office of Legal SCOTT BLAKE HARRIS ’76 General counsel, confidence and the confidence of the capital markets. Sophisticated metrics to Counsel, Department of Justice Department of Energy measure the success and failure of program initiatives are also critical. Assuring JODY FREEMAN LL.M. ’91 S.J.D. ’95 Counselor EMILY HEWITT ’78 Chief judge, U.S. Court that the TARP reflects these elements underlies all of our oversight efforts,” for energy and climate change, White of Federal Claims Warren testified. House Office of Energy and Climate In February, Warren told a Senate panel that Treasury had overpaid by $78 ’83 Change Chairman, Democratic billion for TARP-related bank stocks and warrants. She said that the group’s National Committee valuation study on the $254 billion in TARP transactions in 2008 found that ELENA KAGAN ’86 Solicitor general of the HELEN KANOVSKY ’76 Treasury received assets worth only about $176 billion. ø United States General counsel, Department of Housing and Urban DANIEL J. MELTZER ’75 Principal deputy Development counsel to the president, Office of the Warren helps create Financial JULIETTE KAYYEM ’95 White House Counsel Assistant secretary for intergovernmental programs, Product Safety Commission CASS SUNSTEIN ’78 Administrator, Office Department of Homeland Security IN MARCH, Elizabeth of Information and Regulatory Affairs, Warren, a leading Elizabeth Warren ’87 Chief of staff to the vice with Sen. Charles Office of Management and Budget bankruptcy expert, president Schumer ’74 ALUMNI was on hand as U.S. (D-NY) in March HAROLD HONGJU KOH ’80 Legal adviser, senators advocated for PREETA BANSAL ’89 General counsel Department of State legislation to create a and senior policy adviser, Office of new government agency, DAVID KRIS ’91 Management and Budget Assistant attorney general, the Financial Product head of National Security Division, Safety Commission, to JEREMY BASH ’98 Chief of staff for CIA Department of Justice help regulate financial Director STUART A. LEVEY ’89 Undersecretary of products and services and CHARLES BLANCHARD ’85 General counsel, the Treasury for terrorism and financial to protect consumers from Department of the U.S. Air Force intelligence predatory or deceptive financial practices. CASSANDRA BUTTS ’91 Deputy White ’91 White House Cabinet Warren conceived of the House counsel secretary idea for the commission several years ago, and LOUIS CALDERA ’86 (’87) Director, White ROBERT MALLEY ’90 Envoy to Egypt and modeled it after the House Military Office Syria Consumer Product Safety NANCY-ANN DePARLE ’83 Director, White RAYMOND MABUS ’76 Secretary, U.S. Navy Commission. House Office for Health Reform Sens. Richard Durbin GETTY IMAGES DAVID W. OGDEN ’81 Deputy attorney (D-IL) and Charles financial products and Obama, on “The Tonight NORMAN L. EISEN ’91 Special counsel for general, Department of Justice Schumer ’74 (D-NY) services. Show” in March, backed ethics and government reform, Office of TOM PEREZ ’87 introduced the measure In the essay “Protect Warren’s financial product the White House Counsel Assistant attorney general, head of the Civil Rights Division, in the Senate. The Financial Consumers,” commission and used ’91 Deputy assistant Department of Justice commission would have published in the Nov. 7, the same terms: “When to the president and deputy national rule-making authority 2008, issue of Harper’s you buy a toaster, if it THOMAS PERRELLI ’91 security adviser for international Associate attorney and would coordinate Magazine, Warren wrote: explodes in your face, economic affairs general, Department of Justice enforcement with “Go into any appliance there’s a law that says SAMANTHA POWER ’99 other federal and state store in America and look your toasters need to JOCELYN FRYE ‘88 Senior director for Deputy assistant to regulators. According for a toaster with a one-in- be safe. But when you the president for domestic policy and multilateral affairs, National Security Council to the senators, the five chance of exploding. get a credit card or a director of policy and projects for the commission would not You won’t find one. But at mortgage, there’s no first lady BLAKE ROBERTS ’06 Deputy associate take powers away from any mortgage brokerage law on the books that JULIUS GENACHOWSKI ’91 Chairman, counsel to the president, Office of the existing agencies. It in the country it has been says if that explodes in Federal Communications Commission White House Counsel would be responsible possible to purchase a your face financially, for identifying practices loan with a one-in-five somehow you’re going to ANNE-MARIE SLAUGHTER ’85 Director of MICHAEL J. GOTTLIEB ’03 Associate counsel, that undermine sound foreclosure rate, and the be protected. So this is policy planning, State Department Office of the White House Counsel markets and would broker doesn’t even have the need for getting back TODD D. STERN ’77 Special envoy for educate consumers on to tell you the odds.” to some common-sense

climate change the responsible use of President Barack regulations.” april 2009 today law harvard

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Smith Justice Ginsburg continued from page 1 at the “Gender and the Law” Law, Economics & Policy. in . He also received a John M. conference in Before joining the Yale faculty in Olin Faculty Fellowship and was a March 2002, Smith taught at the Northwestern Fulbright Scholar at the University of University School of Law, where he Oslo in Norway. won the Dean’s Teaching Award in He holds an A.B. from Harvard, 1998. He was a visiting professor at the an A.M. in German and a Ph.D. in Law School and linguistics from Stanford, and a J.D. was a visiting professor at HLS. from Yale. Smith also clerked for Judge In 2003, Smith received a Berlin Prize Ralph K. Winter, U.S. Court of Appeals Fellowship from the American Academy for the 2nd Circuit. ø TONY RINALDO TONY Lessig continued from page 1 GINSBURG TELLS CONFERENCE ATTENDEES: “I wanted the country to see there is a supporting teaching and research on and the American Academy ethical issues in public and professional in Berlin. In 2000 and 2006, he was woman on the Supreme Court.” life. He will also launch a five-year study named to The National Law Journal’s of the effects on public institutions of “100 Most Influential Lawyers in hen Supreme Court project, and she argued a number of money from sources that may be affected America” list. WJustice Ruth Bader cases before the U.S. Supreme Court. by the work of those institutions. Lessig holds a J.D. from Yale, an M.A. Ginsburg ’56-’58 was a At that time, “the Supreme Court The author of five books, including in from the University of student at HLS, she was one of nine never saw a gender classification it “” (2008), Lessig has published Cambridge, and a B.A. in economics women in a class of more than 500. As didn’t like,” she said. numerous articles in leading law and and a B.S. in management from the the featured speaker at “Gender and In the 1970s, as the fight for technology journals as well as in the University of Pennsylvania. the Law: Unintended Consequences, women’s rights gathered momentum, popular press. He writes a monthly He clerked for Judge Unsettled Questions,” a conference at reformers needed to find a legal column for Wired Magazine. In 2006, ’62 of the U.S. Court of Appeals for the the Radcliffe Institute for Advanced strategy to challenge such injustices he was elected a fellow of the American 7th Circuit and for Associate Justice Study co-sponsored by HLS, Ginsburg as public school teachers being Academy of Arts and Sciences. ’60 of the U.S. Supreme recalled her HLS years. ousted from their jobs when their He is a board member of Creative Court. ø Ginsburg famously never received pregnancies became apparent. an HLS degree, refusing that option “The obvious choice was the Equal after transferring to Columbia her Protection Clause,” Ginsburg said. third year to be with her husband, But, when the 14th Amendment Martin Ginsburg was passed in THE HARVARD LAW SCHOOL CAREER STUDY— ’58. But, she added, OUR NOTION of the 1868, women DON’T FORGET TO TAKE THE SURVEY! in recent years Equal Protection “weren’t part HLS has repeatedly Clause is that it of the political J.D. Classes of the 1960s, 1975, 1985, 1995 and 2000—the Harvard offered to bestow evolves over time to fit community at Law School Program on the Legal Profession needs your feedback! that honor upon all” and strict her. society as it exists.” constructionists An overflow argued that Last fall, the 1960s. The study will returned their crowd gathered for the two-day those protections should not apply Program on the Legal evaluate patterns of completed surveys are conference. In the opening panel, to women. “It was clear the framers Profession launched significant investments encouraged to do so Ginsburg—the second woman to had no idea they were changing any the Harvard Law in work at various as quickly as possible. serve on the nation’s high court—was of that, but they planted an idea—the School Career Study, stages of legal careers Detailed findings joined by Linda Greenhouse, former idea of equality,” Ginsburg said. a project designed and also whether (and from the study will be legal reporter for The New York “Our notion of the Equal Protection to document and why) personal and published in the fall of Times; Judge Nancy Gertner of the Clause is that it evolves over time to fit compare the careers professional transition 2009. U.S. District Court in ; society as it exists.” of HLS graduates. patterns vary between and Chief Judge Sandra Lynch of the Said Greenhouse: “We are all of In an effort to study women and men. The More 1st Circuit Court of Appeals, who us in Justice Ginsburg’s debt, for her the legal profession study also aims to information can all recalled early fights for gender career and for being with us today, empirically—especially understand the impact be found at www. equality. which most of us didn’t expect.” issues relating to of globalized social and law.harvard.edu/ Later panel discussions covered Many people had also been surprised gender and work/ economic relations on programs/plp/pages/ topics ranging from the rights of that Ginsburg, hospitalized in early life balance— legal practice settings, career_study.php, domestic workers in Egypt to the February for pancreatic cancer, questionnaires were client relationships, or contact Gabriele growth of same-sex public schools in was present several weeks later at sent to 3,000 alumni and the training Plickert, research fellow, the U.S. Professor Janet Halley led a Obama’s State of the Union address. from the classes of and development of at careerstudy@law. panel that addressed issues related to Greenhouse said that Ginsburg, asked 1975, 1985, 1995 and lawyers. harvard.edu or 617-496- economic rights. why she rallied to attend the address, 2000, as well as some Individuals 2522. Among many experiences in her replied, “I was there because I wanted graduates from the who have not yet storied career, Ginsburg was chief the country to see there is a woman on ø harvard law today april 2009 today law harvard litigator for the ACLU women’s rights the Supreme Court.”

HLT_april09.v2_03.indd 6 4/14/09 4:04:37 PM 7 Pragmatic advice from a master negotiator HLS Negotiation Workshop hosts Robert Barnett, Jack and Suzy Welch

or 35 years, Robert B. at the end of the 2008 Barnett offered students some other pragmatic advice Barnett has been one of campaign. “I suppose there F on the art of negotiation, including: the nation’s most sought- was nothing more challenging after lawyers, representing than putting the Clinton and KNOW MORE ABOUT YOUR CASE THAN ANYONE. “Know major corporations including Obama campaigns together, more even than your own client knows.” . He is also the because there was a lot at “TRY TO TREAT YOUR ADVERSARY FAIRLY, and pride world’s premier representative stake, a lot of strong feelings,” yourself on always treating them the same way you hope they’d of authors, with a star-studded Robert Barnett Barnett said. “It worked out discussing treat you.” client roster that includes fine. [S]he did everything the the art of ASSESS YOUR LEVERAGE. “I try to figure out how important Barack Obama ’91 and Tony negotiation Obama campaign wanted, Blair. And for decades, he’s and she’s now secretary of what I’m selling is to the buyer, or what I’m buying is to the helped Democrats prepare state.” Answering a student’s seller.” for critical debates, including question, Barnett clarified, PRESENT YOUR BEST STORY FIRST. “I want to be able to preparing Hillary Rodham “Secretary of state was not part influence the first offer, not just receive it.” Clinton for all 23 debates in of the negotiation.” FOUR INVALUABLE PHRASES: 2008. Barnett told the students 1 “‘Please correct me if I’m wrong’ means you’re asserting your Barnett, a partner at that in any situation, the first position but you’re appearing humble and you’re leaving the Williams & Connolly, is also negotiation is always with your other side open to correct you in a way that might inform you or a mentor to HLS Assistant own client, managing what’s get you something you want.” Clinical Professor Robert reasonable for them to expect. Suzy and 2 “‘I appreciate your offer, but … ’ shows gratitude and respect Bordone ’97, director of the “The goal of most negotiations but is not obsequious.” Harvard Negotiation and at HLS is not to get yourself and your 3 “Say, ‘Let me see if I understand,’ then repeat what they said.” Mediation Clinical Program. '10 GLOVER KYLE client totally pleased but 4 “Don’t take a position but say, ‘One solution might be … ’ You In March, Barnett appeared as master at the art of negotiation, pleased enough. If you can haven’t offered anything, aren’t stuck with it, and it hasn’t been a guest lecturer in Bordone’s having learned from the best: leave the field of play with no approved by your client yet. But it furthers the dialogue.” Negotiation Workshop. The his law partner, the legendary enemies, for the client and for audience included two special Edward Bennett Williams. “He yourself, that’s a victory.” “DON’T BE AFRAID TO SAY, ‘LET ME GET BACK TO YOU.’ ‘A guests, Jack Welch, the former had the most amazing ability to Jack Welch told students, continuance is as good as an acquittal; it just doesn’t last as long,’ CEO of General Electric, and convince and persuade,” said “Bob is the only person I know, Edward Bennett Williams used to say.” his wife, Suzy Welch, co- Barnett. as a litigator of all kinds of ALWAYS BE THE DRAFTER OF THE AGREEMENT. “Williams authors of the international The biggest challenge of cases, who … never has an en- used to say, ‘He who drafts, wins.’” best-seller “Winning.” his career, Barnett said, was emy,” adding, “No one on either Whether litigating a case or helping broker the agreement side of a negotiation has any- NEVER LIE. “It isn’t worth it, it isn’t ethical, it’s grounds for sealing a book deal, Barnett is a between Obama and Clinton thing but respect for Bob.” ø disbarment, In the end, you’ll always get caught.”

6 COMING SOON: View conference videos on the Project on Law and Mind Sciences At HLS, a conference on the free market mindset Web site, www.lawandmind.com.

arvard Law School’s Project on Law and Capitalism: The Crisis of ’08 and the Descent into HMind Sciences held its third annual conference, Depression,” due out from Harvard University Press “The Free Market Mindset: History, Psychology, in May. and Consequences,” on March 7. In his own talk, titled “Regulation Reactance,” Close to 200 people attended the daylong event Hanson tested his theory that there are certain policy at HLS, bringing together leading scholars in law, stereotypes ingrained in American culture. Through economics, social psychology and social cognition the use of advertising clips and snippets of political to discuss their research on the historical origins, speeches, he showed that Americans tend to try to psychological antecedents and policy consequences of establish a freedom to choose when they perceive that the free market mindset. their liberty has been inhibited. In politics, this tends According to HLS Professor Jon Hanson, director to mean that people think markets lead to freedom, and of the school’s Project on Law and Mind Sciences, the government regulation is coercive. conference’s topic was originally intended to be moral Hanson and his collaborators (including 3L psychology, but after the market collapse in October, Mark Yeboah) are currently studying these implicit organizers decided that free market ideology was too policy associations and how they might affect policy important to ignore. recommendations. “We did not anticipate the extent to which this topic Professor Later in the spring, edited versions of videos from would be as salient today as it is,” said Hanson. Jon Hanson the conference will be made available on the Project on Hanson said he hoped the conference would be an Law and Mind Sciences Web site (www.lawandmind. opportunity to examine the free market mindset in In a lunchtime keynote address, Judge Richard com). Hanson is also working with a group of 3Ls on light of where we are, to explore why free markets have Posner ’62, U.S. Court of Appeals for the 7th Circuit, a book, “Ideology, Psychology and Law,” which will been so alluring to economists, scholars and policy- offered remarks focusing on the “current depression,” include chapters discussing some of the themes from ø makers, even amidst the current financial turmoil. based on his forthcoming book “A Failure of this year’s conference. april 2009 today law harvard

HLT_april09.v2_03.indd 7 4/14/09 4:04:40 PM 8 L OLIVER WENDELL HOLMES JR. A ribbon medal from the Military Order of the Loyal Legion of the J Death mask created just hours United States, a U.S. after Holmes’ death in 1935 patriotic order formed by officers of the U.S. Army, Navy and Marine Corps Gone digital after the assassination of President Abraham Lincoln

n a new collection, the HLS Library is providing I Z Holmes’ a rare glimpse into the life wooden and mind of the most widely gavel cited U.S. Supreme Court justice in history. The library’s collection of

materials on Justice Oliver H 1720 Eye Street, N.W., Washington, Wendell Holmes Jr. LL.B. D.C., residence of Justice and Mrs. Holmes (photo taken in 1930) 1866—including the letters he sent his parents when he was a 23-year-old lieutenant colonel during the Civil War, and the PHOTOGRAPHS: HLS SPECIAL COLLECTIONS HLS SPECIAL PHOTOGRAPHS: death mask that was made just hours after he died—is now available online as part of a multiyear digitization project. The first phase of the project, which included the digitizing of manuscript items related to Holmes’ service in the 20th Massachusetts Volunteer Infantry Regiment of the Union Army as well as Holmes’ annotated copy of his seminal work “The Common Law,” was D Excerpt from Holmes’ D A painted tin completed this March. The Civil War diary: “There are a ammunition great many things of course, box that project’s second phase is in thoughts, occupations, and Holmes used events during which I wish I’d as a lunch box development and will include kept memoranda during my when he served past life. ...” on the U.S. the digitizing of additional Supreme Court manuscript materials and the creation of an interpretive Web presentation. L A Civil War-era Funding for the Holmes American Telegraph Digital Collection comes from a L Container used by the Company generous gift from Norman B. Pow-Wow telegram Superior Tomlinson Jr. ’51. ø Court, an HLS moot court club, in 1882-83, when Holmes was an HLS faculty member

L A page with notation from G A Civil the chapter on War portrait “Early Forms of Holmes at of Liability” in age 22 “The Common Law” by Holmes, 1881

G Supreme Court Justice Holmes wearing robes of office, 1903

Z American Civil War uniform patch, worn by Holmes during his service in the 20th Massachusetts Volunteer

harvard law today april 2009 today law harvard Infantry Regiment of the Union Army

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