ALSO INSIDE: HarvardThe curriculum focuses on Law problem-solving Summer 2010 bulletin REMIXING LANGDELL
The law library goes digital
c1_HLB_summer10_09 bcg.indd c1 5/6/10 2:24 PM IN THIS ISSUE
volume 61 | number 2 | summer 2010
1 FROM THE DEAN 5 page 41 2 LETTERS 3 HEARSAY 4 INSIDE THE CLASSROOM A first-of-its-kind problem-solving workshop prepares 1Ls for the reality 26a Remixing Langdell of law practice. A new library for the 21st century 8 ABSTRACT Stephenson uses a Legal Realist lens to look at judicial decision-making; 36a Hard Hats Required Alstott defends the inheritance tax as family friendly. The risky business of repairing the U.S. 11 STUDENT SNAPSHOT financial system Three LL.M. students recall their experiences in Afghanistan and share their hopes for its future. 41a A Prescription for Change 15 ON THE BOOKSHELVES Rebecca Onie ’03 created a program that takes Mnookin on bargaining with the devil; a holistic approach to treating low-income It’s politics, says Tushnet, that drives constitutional change; State control of patients; one “genius grant” later, she’s the Web is on the rise, and it’s not just determined to change the health care system. the usual suspects. 20 OUTSIDE THE CLASSROOM 44a HLS clinic helps secure access to A Most Disarming Warrior health care for some of society’s most A U.N. advocate is fighting to protect vulnerable. children from armed conflict. 23 NOW ONLINE HLS clinical students and law firms provide assistance to online journalists. assistant dean for communications 24 THE TEACHING TRACK Robb London ’86 Olin Fellowships pave the way for editor HLS grads who want to teach law. Emily Newburger 48 HISTORY MAKERS managing editor Linda Grant Poland’s first foreign minister after design director the fall of communism deftly straddled Ronn Campisi the divide between East and West. editorial assistance 49 CLASS NOTES Stephanie Ehresman ’10, Bruce Ramer ’58 splits his time be- Emily Dupraz, Jenny Lackey, Christine Perkins, Lori Ann Saslav, tween entertainment giants and pro 5 page 16 Erica Sheftman, Marc Steinberg bono causes; Dan Chill ’70 travels the editorial office world to bring back a forgotten genre; Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138 Paul Butler ’86 spins a hip-hop theory e-mail: [email protected] of justice; Raj Kumar LL.M. ’00 starts website: 5 page 11 www.law.harvard.edu/news/bulletin a global law school; Ory Okolloh ’05 send changes of address to: brings disaster relief to Haiti, from [email protected] The Harvard Law Bulletin (ISSN 1053-8186) is thousands of miles away. published two times a year by Harvard Law School, 1563 Massachusetts Ave., 62 IN MEMORIAM Cambridge, MA 02138. © 2010 by the President and 63 =1,000 WORDS Fellows of Harvard College. A white tern and a life’s turns Printed in the U.S.A. 64 SPRING REUNIONS on the cover: Heather Casteel ’11 66 LEADERSHIP PROFILE Photograph by Kathleen Dooher John F. “Jack” Cogan Jr. ’52
68 GALLERY 30% Night vision: A new building emerges.
c2-01_HLB_Summer 10_09_r1.indd c2 5/11/10 11:07 AM FROM THE DEAN
Solving Problems, Locally and Globally
Creative problem-solving is the hallmark of superb lawyering. The stories in this Bulletin include a profile of Rebecca Onie ’03, whose questions about how best to meet the health needs of low-income patients started during her college years and led to a holistic approach to the problem, a MacArthur “genius” award and a new direction for health care reform.
How to adapt the larg- Byron Georgiou ’74, Norm est private law library in Champ ’89, and Professors the world to the digital Allen Ferrell ’95, Jesse Fried revolution is a problem with ’92, Lucian Bebchuk LL.M. opportunities. Cyberlaw ’80 S.J.D. ’84, Bill Stuntz and visionary Professor John Elizabeth Warren each offer Palfrey’s (’01) leadership of insights into the financial the HLS library has intro- crisis and regulatory op- duced an in-house labora- tions. tory for digital innovation The HLS faculty as a and on-staff statisticians as- whole tackled the problem sisting faculty and students of improving legal educa- with empirical research. tion with the winter term All of Harvard University’s launch of the 1L Problem libraries are now benefiting Solving Workshop, experi- through Palfrey’s ideas and enced for the first time by all advice from his work on a 560 first-year students. Us-
universitywide library ing role-play, teamwork and SHOUT task force. engagement with practicing How attorneys, the workshop “ The workshop challenged students to tackle should we challenged students to tack- cases from the very beginning—when clients make sense le cases from the very begin- walk in the door with a problem.” of the finan- ning—when clients walk in cial crisis the door with a problem— of ’08 and and to use creativity and Grossman ’88 and the no failure to apply sustained ’09? What analytical rigor in generat- Harvard Legal Aid Bureau, thinking will be the cause of solutions can ing real, workable solutions. work that responds directly unsolved problems. work and what measures Here, the workshop moved to the financial crisis. can prevent a recurrence? beyond the hypothetical and A new round of problem- These challenges engage theoretical, and the engage- solving is well under way Dean Martha Minow many HLS faculty, students ment of more than 100 prac- as the faculty involved in and alumni. Professor Hal ticing attorneys in instruct- the successful course assess P.S. As this issue of the Scott has taken his analyses ing and giving feedback ways to make it even better. Bulletin was going to press, to the Senate; Professor proved especially valuable In all of these and other news broke that President Howell Jackson ’82 sup- to students. efforts, we are constantly Barack Obama ’91 had ports a financial services One of the problems testing Voltaire’s wonder- nominated my predecessor, oversight council—and flags studied in the course—how ful maxim: “No problem Elena Kagan ’86, to the U.S. for special attention the to protect tenants living in can withstand the assault Supreme Court. We are monitoring of international foreclosed homes—was of sustained thinking.” Or, immensely proud of our firms that can elude atten- drawn from the vital work at the very least, we are at- former dean, colleague, tion by any single nation. of Clinical Professor David tempting to make sure that teacher and our friend!
GFor more on law schools’ potential for creative problem-solving, see the text and video of Dean Minow’s recent talk “The Past, Present, and Future of Legal Education” at http://tinyurl.com/Minowtalk.
c2-01_HLB_Summer 10_09_r1.indd 1 5/11/10 11:07 AM LETTERS
BY LEWIS I. RICE EMERGENCY EXCEPTION DISTURBING of “Henry Kissinger, On Jan. 22, 2009, President Barack Obama ’91 signed Commendably, Professor Philip an executive order mandating that individuals detained in armed conflict will “be treated hu- Richard Nixon and manely and shall not be subjected to violence to life and person.” The order also established a task Heymann ’60 proposes establishing force to determine, after years of debate over the their cohorts” who treatment of detainees since the Sept. 11 terrorist attacks, the most appropriate way to acquire intel- ligence that would protect the nation. ¶ Harvard “the world’s best noncoercive Law School Professor Philip Heymann ’60 had an he seems to feel answer. And his proposal may soon become the standard for the how the United States handles interrogation body” [“A Question interrogations to prevent future would be well served terrorist attacks. ¶ Last summer, A QUESTION OF INTERROGATION Heymann met with the heads of the CIA, the FBI and the Special of Interrogation,” Winter 2010] and Task Force on Interrogations and Transfer Policies breaking rocks in some to present his idea: that the government should Philip establish “the world’s best noncoercive inter- Heymann stresses that “the United States should rogation body,” he says. It would bring together proposes a federal penitentiary. top interrogators from the FBI, the CIA and the new model for military who would mobilize anywhere in the intelligence gathering always abide by its statutory and treaty in the fight While he’s at it, he against obligations.” But, disturbingly, he also terrorism takes a crack at their favors “an emergency exception that “ideological offspring
would allow the president to authorize 26 harvard law bulletin winter 2010 IllustrationIllust by edel rodriguez winter 2010 harvard law bulletin 27 like … Cheney,
lesser coercive techniques” under c2-37_HLB_Wntr10_03.indd 26 12/14/09 6:30 PcM2-37_HLB_Wntr10_03.indd 27 12/14/09 6:30 PM Rumsfeld and Yoo.” some circumstances. That sounds like SO FAR, ONLY THE WORKING CLASS HELD Mr. Stolzberg’s rancor appears to “torture lite,” which Sister Dianna RESPONSIBLE FOR PRISONER ABUSE be directed exclusively at Republican Ortiz [who was abducted and tortured I can only applaud Philip Heymann’s administrations, but in his call for in Guatemala] calls “an obscenity”; proposal to establish a specialized impartiality he overlooks the Truman and it apparently rests on the popular interrogation unit that would avoid the administration’s atomic bombing but false assumption that coercion systematic use of torture—so-called of Hiroshima and Nagasaki and the elicits accurate, timely information “coercive” interrogation techniques— fire bombing of other Japanese cities more effectively than time-tested, that was our government’s policy for a directed by General Curtis LeMay, all of noncoercive methods do. number of years. But the logic of his which resulted in thousands of civilian The underlying problem seems to notion that those who designed, deaths. be that much of the public, perhaps justified and ordered this policy should No, I would not have wanted because of Bush-Cheney propaganda escape any legal accountability for their President Truman or any of his Cabinet and entertainment like Fox Broadcast- actions because “it’s very dangerous for criminally prosecuted. There was a ing’s “24,” does not appreciate just how members of one administration to war on then, even as there is now, counterproductive coercive methods prosecute members of a prior but I would remind Mr. Stolzberg really are. Educating people to the fact administration for something that the that however harsh the interrogation that lawful, civilized methods make supporters of the prior administration methods of the Bush administration, them safer—and that torture has be- believe was proper” escapes me. nobody was killed and arguably trayed our nation’s intelligence gather- Such political expediency is flatly valuable intelligence information may ing along with much else—may be be- inconsistent with the rule of law. So far, have been gained. yond Professor Heymann’s scope, but it the only people who have been held President Obama is understandably is not beyond that of President Obama answerable for prisoner abuse have reluctant to encourage such ’91. Perhaps he will yet use his bully been working-class enlisted military prosecutions. This is probably due in pulpit to show Americans where their personnel. Our better-educated and part to his innate sense of fair play. true safety lies and, not incidentally, to highly privileged political class should But he must also be all too aware that make it very hard for a future adminis- not escape justice simply because some such proceedings would bitterly divide tration that reverts to torture to enjoy of their supporters still believe that the country along strictly partisan the same impunity that the administra- torture is a good idea. lines. Surely, he does not wish his tion personnel who authorized torture Thomas N. Ciantra ’87 administration to have such a legacy. after 9/11 enjoy today. New York, N.Y. Alfred G. Boylan ’42 Malcolm Bell ’58 Pittsford, N.Y. Weston, Vt. TO AVOID BITTER PARTISAN DIVISION I read with interest Robert LOOKING GOOD Bell is writing a book, titled “Sisters in the Stolzberg’s letter [Letters, Winter 2010] The format, design, layout of the Storm,” about two women who were tortured in which he calls for the prosecution new (to me) Bulletin are excellent. and a third (Jennifer K. Harbury ’78) whose of the Bush administration for “any Congratulations to Ronn Campisi. husband was tortured and murdered in Gua- crimes” they may have committed. He Sydney Michael Rogers ’52 temala. also bemoans our generous treatment Larchmont, N.Y.
† WRITE to the Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138; e-mail [email protected]. Letters may be edited for length and clarity.
02-25_HLB_Summer 10_09_r1.indd 2 5/11/10 10:53 AM HEARSAY SHORT TAKES from faculty op-eds
A Measure of History Ending the Internet’s Trench Warfare Professor Kenneth W. Mack ’91 Professor Yochai Benkler ’94 The Boston Globe The New York Times March 25, 2010 March 21, 2010
“In recent weeks, the Obama administration … “The Federal Commu- sought to mobilize supporters around the country, nications Commission’s after months in which that kind of improvisational, National Broadband Plan, decentralized energy seemed more in possession of announced last week, is the opponents of social reform legislation than of its aimed at providing nearly supporters. universal, affordable “To the extent that the broadband service by 2020. legislative triumphs of the New And while it takes many admirable steps—including Deal and Great Society are held very important efforts toward opening space in the up as inspirational examples broadcast spectrum—it does not address the source in assessing what the Obama of the access problem: without a major policy shift to administration has achieved [in passing health increase competition, broadband service in the United reform legislation], one should also remember the States will continue to lag far behind the rest of the de- structural advantages that Roosevelt and Johnson had veloped world.” in putting their programs through, and the help that they received, willing and unwilling, from political The Best Trial Option for KSM: Nothing and social movement leaders who were beyond their Professor Jack Goldsmith and Brookings Institution control. Senior Fellow Benjamin Wittes “When the definitive history of this political The Washington Post moment is finally written years from now, the ability March 19, 2010 of the administration, and its opponents, to foster innovation in an age of political constraint will surely “[A] military commission trial might achieve slight be one of the central public relations and legitimacy benefits over continued stories.” military detention of [alleged 9/11 co-conspirator Kha- lid Sheikh] Mohammed, and it might facilitate his mar- Obama’s Legacy and tyrdom by ultimately allowing the government to put the Iranian Bomb him to death. But this would add so little to the mili- Professor Alan Dershowitz tary detention that the administration already regards The Wall Street as legitimate that a trial isn’t worth the effort, cost and Journal political fight it would take. March 23, 2010 “Eight and a half years after the Sept. 11 attacks, it is time to be realistic about terrorist detention. The “ … Iran’s construction of nuclear weapons, if it man- number of Guantanamo trials will not, under the best ages to do so in the next few years, [will] become of circumstances, be large. President Barack Obama’s enduring legacy. Regardless Instead of expending of his passage of health-care reform and regardless great energy on a battle of whether he restores jobs and helps the economy over the proper forum recover, Mr. Obama will be remembered for allowing for an unnecessary trial Iran to obtain nuclear weapons. History will not treat of Mohammed and his kindly any leader who allows so much power to be ac- associates, both sides cumulated by the world’s first suicide nation—a nation would do well instead whose leaders have not only expressed but, during the to define the contours of Iran-Iraq war, demonstrated a willingness to sacrifice the detention system that will, for some time to come, millions of their own people to an apocalyptic mission continue to do the heavy lifting in incapacitating of destruction.” terrorists.”
Illustrations by grady mcferrin summer 2010 harvard law bulletin 3
02-25_HLB_Summer 10_09_r1.indd 3 5/11/10 11:51 AM INSIDE THE CLASSROOM
Beyond the Case Method A first-of-its-kind PROBLEM-SOLVING workshop prepares 1Ls for the realities of law practice
By Elaine McArdle It’s a January morning at Harvard BEYOND KNOWING Law School, and in a classroom in WHAT THE LAW IS, Pound Hall, a revolution in legal education is under way. LAWYERS NEED TO Eighty 1Ls watch as a classmate, FIGURE OUT HOW Christina Cruz Chinloy ’12, interviews TO USE IT TO SOLVE a female “client” in a simulated case CLIENT PROBLEMS. involving wrongful termination, in the law school’s new Problem Solving Workshop. “I understand how you feel slighted,” says Chinloy, her voice sympathetic as she leans forward, seeking information to build the case. Professor Todd Rakoff ’75, co- creator of the workshop, which launched this year as a mandatory winter term course for first-year HLS students, stops the interaction. “Client, how’s it going?” he asks Janet Katz, an HLS librarian playing the client. “No one so far has said, ‘Here are Professor Joseph Singer
your options,’” Katz replies. “No one JON CHASE has asked me, ‘If you could go back to your old job, would you?’” And one student, she notes, dodged her question about legal fees. A few more students try their hand at the exercise before Harry T. Daniels, a partner at WilmerHale, steps in to show students how he would proceed, including presenting the client with options: Take the severance package? Leverage questionable behavior at the Deborah Lloyd, manager and senior counsel, General Electric (on right side of table), playing the role of company so it will void the client’s managing attorney, listens to a presentation from (left to right) 1Ls Jason Gelbort, Daniel Cluchey, Steve noncompete agreement? Henrick, Martha McCoy, Christopher Mills. The class is clearly impressed with Daniels. “The biggest difference was the authority with which he spoke, not
WORKING IN TEAMS, JON CHASE MARTHA STEWART only on the law, but in saying, ‘This is students take each case what I’ll do for you,’” says Chinloy. Rakoff praises the students for their from the very beginning, efforts. After all, the members of the brainstorming and Class of 2012 are pioneers, the first to discussing strategy. take this new course that emphasizes
4 harvard law bulletin summer 2010
02-25_HLB_Summer 10_09.indd 4 5/6/10 3:07 PM TEACHING REAL-LIFE LAWYERING— practical skills, creative thinking ambiguities and all and exercising judgment (the course was tested on second- and third-year Law schools have long taught students to “think like lawyers” and to students over the past two years). Mock develop analytic skills through the study of case law. But practicing client interviews, group brainstorming, lawyers today depend on a variety of skills beyond the ones typically decision trees, interactions with emphasized in law school curricula. Equipping students with additional practicing attorneys—even how to skills—including generating creative options, managing media rela- write an effective e-mail and deal with tions, negotiating and working in teams—is the purpose of HLS’s new the media—are not the traditional tools Problem Solving Workshop. of American legal education, which, for Professor Joseph Singer ’81 spent the past two years developing the 150 years, has relied more on analysis workshop with Todd Rakoff ’75 and testing it on upper-class students. of appellate case law. And that’s Instead of looking at a case at its end point—an appeals court deci- precisely the point. sion—the workshop presents cases that begin with the initial contact The Problem Solving Workshop, between lawyer and client. “The students improved radically over the which Rakoff believes is the first three weeks in their abilities to generate workable solutions, drawing course of its kind to be introduced into on theories, facts, interests, ethics and relationships,” Singer says. a law school curriculum, puts students The purpose of the workshop, adds Singer, “is to put students in a in the position of real-life attorneys. very practical setting, of learning how to help clients achieve their goals Over a three-week period, it presents within the bounds of the law and ethics.” He sees it as an essential part them with seven very different clients, of 1L orientation, supplementing the technical skills students learn in from a multinational corporation with regular courses with an emphasis on common sense, judgment, even child-labor issues to a tenant facing wisdom. It also stresses that in real life, unlike in casebooks, ambigui- eviction after the landlord has lost her ties abound—in the law, in the facts, in what a client wants or thinks he home in foreclosure. wants. Working in teams, the students start HLS’s clinical program—the most extensive in the world—enables each case from the beginning—when students to represent clients in real cases under the guidance of prac- the client walks in the door—and ticing attorneys. In a similar vein, the workshop gives students a frame- gather facts, help the client figure out work for approaching problems based on key questions: Who is the short- and long-term goals, devise a client? What are the client’s goals? What facts need to be discovered? range of possible options, guide the What laws are relevant, leading to what constraints and opportunities? client in weighing those choices, and What options can be generated to solve the client’s problem? negotiate with other parties. “It’s the most fulfi lling teaching I’ve ever done,” says Professor John This bottom-up approach mirrors Palfrey ’01. “I think we have, in the Problem Solving Workshop, a real op- what students will face in practice, portunity to fi nd better ways to prepare students to become lawyers.” and it’s an essential part of equipping JON CHASE THE CLASS ATTEMPTS to mirror what students will face in practice to equip them with the tools they will need in today’s legal world.
Professor Todd Rakoff
summer 2010 harvard law bulletin 5
02-25_HLB_Summer 10_09.indd 5 5/6/10 1:29 PM THE COURSE STRESSES that in real life, unlike in casebooks, ambiguities abound—in the law, in the facts, in what Clockwise from front corner: 1Ls Charles Wharton, William Paul Chapman, James Goldschmidt get feedback from Clini- clients want or think they want. cal Professor David Grossman on their recommendations to their client in a summary process eviction case. MARTHA STEWART
them with tools they need to succeed Hadfield, a visiting professor from teams to law offices across Cambridge in today’s legal world, HLS faculty the University of Southern California, and Boston to present their work believe. Curricular reforms voted and William Lee, a litigator and co- on the final project to experienced in by faculty in 2006, and designed managing partner of WilmerHale. lawyers. “I found that oftentimes an by a team led by now-Dean Martha Relying on materials developed approach that may be suggested during Minow and championed by then- primarily by Rakoff and Singer, a theoretical class discussion is not one Dean Elena Kagan ’86, also added the instructors worked in close that a practicing attorney would ever international and legislative and collaboration, meeting daily to compare really employ; likewise, I discovered regulation courses for 1Ls. But the notes and to tweak the next day’s recommendations from the practicing Problem Solving Workshop is the most presentations. The workshop connects attorneys that had never been striking departure from standard legal the classroom to law practice in diverse discussed in class,” Zucker says. pedagogy—and it’s won passionate settings and also opens a door to HLS’s The workshop has drawn intense advocates. clinical program. Clinical faculty, interest, with many other law schools “I think this is the most exciting including Esme Caramello, deputy contacting Dean Minow and the thing not only that we have done, but director of the Harvard Legal Aid instructors. And law firms—including that any law school has done in a long Bureau, participated, as WilmerHale and other time,” says Professor David Wilkins did David Grossman ’88, “THIS IS EXACTLY WHAT Boston firms that donated ’80, director of the Program on the clinical professor and I WISH I’D LEARNED attorney time to help Legal Profession at HLS. He is one director of HLAB, who instruct students—are of seven instructors who taught the also developed one of AND WHAT I WANT MY excited by a new model that workshop this winter. “I think, just as the course problems that ATTORNEYS TO KNOW.” seeks to better equip young HLS made its mark on legal education simulate an attorney’s lawyers to practice law. almost two centuries ago with the case first interaction with a client. Lee, whose experience as a litigator method and Langdell, this could have David Zucker ’12 says the course and co-managing partner of a major an equally transformative effect.” was “most valuable in the ways it law firm were especially valuable to In addition to Rakoff and Wilkins, was different from the ‘typical’ law the workshop, according to the other three other HLS faculty—John Palfrey school class”; instead of individual instructors, says: “Without a doubt, I ’01, Joseph Singer ’81 and Howell reading followed by professor-led am 100 percent convinced that other Jackson J.D./M.B.A. ’82—taught class discussion, the workshop law schools should adopt this because workshop sections, as did Gillian involved “hands-on engagement with it offers a set of skills that lawyers need the legal issues presented” through in the real world.” client interviews and classwide Says Wilkins, “The general counsel l To view an interview with Joseph Singer about the Problem Solving debates. Zucker learned the most from of a Fortune 25 company said to Workshop, go to http://tiny.cc/ interactions with practicing attorneys, me, ‘This is exactly what I wish I’d singerinterview including the final exercise, in which learned—and what I want my attorneys the entire 1L class traveled with their to know about.’” P
6 harvard law bulletin summer 2010
02-25_HLB_Summer 10_09.indd 6 5/6/10 3:08 PM TEAM APPROACH gets high grade FROM STUDENTS
After the fi rst semester of law school—including standing alone under the Socratic spotlight—one of the best aspects of the new Problem Solving Workshop in winter term is learning to rely on classmates while teaming up to resolve complex legal issues, students say.
Erica Harrison ’12 enjoyed the workshop, “especially because it gave me the opportunity to interact with my classmates in a way I wasn’t able to do in a formal setting in the fall.” Working collaboratively, she says, was not only enjoyable but very effective—once each group figured out a working style that fit.
“My favorite thing about [the workshop] was the opportunity to work in groups with other students,” says Abraham Funk ’12, who adds that the wide variety of life experience among his classmates proved fascinating as well as invaluable in working through the problems.
The team approach didn’t necessarily come naturally to everyone, according to Lillian Langford ’12, “especially here at Harvard, where there tend to be very ambitious, very driven people who’ve been successful working alone. A lot of us, myself included, can use that practice of working in groups,” says Langford, who before HLS was an investigator for a public defender’s office in Florida. “You do get a lot more done.”
Photographs by kathleen dooher summer 2010 harvard law bulletin 7
02-25_HLB_Summer 10_09.indd 7 5/6/10 1:35 PM ABSTRACT
How Judges Decide A Legal Realist lens for economists
When judges rule on cases understanding economic outcomes.” American Legal Realists, a group of involving issues such as contracts, In a paper recently published in lawyers, judges and law professors property rights, antitrust or taxes, the Journal of Economic Perspectives who were most influential in the they are not just making legal called “Legal Realism for Economists,” 1920s and 1930s. This movement, he decisions. They are making economic Stephenson examines judicial decision- writes, provides an alternative to policy. Thus, as Professor Matthew making based on the theories of the the two common theories on judicial Stephenson ’03 asserts, it is in the interest of those who study economics to consider how those decisions are Bulletin Back Story: THE FIRE LAST TIME made. “It would be a mistake, if you were Matthew Stephenson joined the Harvard Law faculty in 2004, a year after an economist trying to understand graduating from the school. The Bulletin is, of course, his alumni magazine, how economic policy worked, to but it’s more than that. His mother, Ellen Bernstein, was the editor of the assume that judges are merely neutral Bulletin in the early 1980s. Her most memorable moment there, he says, enforcers of law,” says Stephenson. involved faculty writing—in particular the fi restorm that ensued after she “Judges often have a great deal of published a story by Professor Duncan Kennedy, counseling HLS grads in big discretion when they interpret fi rms “to confront, outfl ank, sabotage, or manipulate the bad guys and build legal documents, and therefore the possibility of something better,” in the event they were asked to take understanding their decision- part in ethically questionable conduct. making processes is important to
8 harvard law bulletin summer 2010 Illustrations by daniel hertzberg
02-25_HLB_Summer 10_09.indd 8 5/6/10 1:35 PM decision-making: Formalism, which belief that while judges could use law an example, he cites John Marshall’s holds that legal questions have a “right to justify nearly any result, they also decision in Marbury v. Madison, which answer” based on canonical legal are constrained by legal sources and favored the chief justice’s political materials, and Skepticism, which says principles. Writing for an audience of opponents, but also entrenched the that judges use the laws available to economists (Stephenson got his Ph.D. doctrine of judicial review that he justify the outcomes they in political science at sought to establish. desire. Realism forgoes Harvard University), Framing judicial decision-making either extreme, attempting LEGAL REALISM LOOKS he also cites the through the prism of Legal Realism to find patterns in judicial FOR PATTERNS IN “opportunity costs” highlights the degree to which judges decisions not dictated JUDICIAL DECISIONS that influence judges are important to economic policy and solely by formal rules or BEYOND FORMAL RULES depending on how the large amount of discretion they ideology. The Legal Realists, OR IDEOLOGY motivated they are to have to shape it, Stephenson says. Stephenson says, showed reach a desired result. And he hopes that economists will “nuanced, insightful “[J]udges,” he writes, take heed, as they consider how these understanding of the interaction “do not automatically select the opinion important legal and economic actors between law and discretion that that is easiest to justify legally, nor the make decisions. seemed like it would be useful to opinion that delivers the most desired “The ultimate goal,” he says, “is to economists.” outcome, but rather the judge balances understand better how both law and In the paper, he describes the these interests, making whatever the economy work in the hopes of Realist idea of legal constraint, the trade-off is optimal in a given case.” As making both work better.” P
EXCERPT: Opportunity costs and judging
“No one, to my knowledge, suggests talent is has developed a fully inversely correlated convincing social with constraint. scientific account of the However, a more incentives that shape the talented judge may also judicial desire for legal face relatively higher persuasiveness and the costs for engaging in differential costliness of more creative legal various legal arguments. arguments because Yet contemporary participants in the legal of the greater attention to detail that such system regularly report that something arguments will demand from a meticulous like this actually does exist. Figuring out judge. As another possibility, judges’ why judges experience law as constraining backgrounds and personal characteristics (assuming that they do) might suggest as well as their method of selection and additional insights into how variation retention may also affect how much across judges may affect case outcomes. they care about legal craft, and what For instance, does a judge’s legal talent sorts of legal arguments they or their affect the degree to which that judge constituencies experience as ‘persuasive.’” experiences law as a constraint? Perhaps From “Legal Realism for Economists,” Journal of Economic a more talented judge will face lower Perspectives
costs in finding a plausible legal argument G To read the entire article, go to http://tiny.cc/ to justify a preferred conclusion, which legalrealism
summer 2010 harvard law bulletin 9
02-25_HLB_Summer 10_09_r1.indd 9 5/11/10 10:54 AM ABSTRACT
A Tax—Not an Attack—on Families The INHERITANCE TAX defended
In recent years, political discourse has often focused on the idea of family values. Another contentious political issue has been the inheritance tax. The two topics commingle in a recent paper by Anne Alstott, in which she considers whether the inheritance tax is compatible with family values. “The estate tax far more than the income tax has been a target for the claim that it compromises family life, probably because the estate tax imposes a large, once-a-generation tax,” says Alstott, the Manley O. Hudson Professor of Law WHY THE the inheritance tax, but “the three ideals and director of the Fund for Tax and Fiscal Policy Research INHERITANCE do have markedly different implications at Harvard Law School. TAX DOESN’T for the terms of inheritance law and in- Alstott contends that while the law protects the right to DISRESPECT heritance taxation,” she writes. use one’s resources for the benefit of the family unit, the im- The ideal of the liberal family—its position of an inheritance tax does not necessarily threaten THE FAMILY right to do with one’s property as one family ideals. In “Family Values, Inheritance Law, and In- wishes—is often cited as contrary to heritance Taxation,” published in the Tax Law Review, she an inheritance tax, according to Alstott. But the state may identifies three different conceptions of the family: liberal, legitimately claim a share of an individual’s wealth and still which values individual freedom; conventional, which up- uphold this individualist theory of the family, she says, as holds traditions of family obligation; and functional, which long as it maintains neutrality; for example, an individual emphasizes the family’s social role in maintaining economic may leave her money to her children or to a home for security. All of these visions of the family can coexist with poodles, without state interference. The conventional conception of the family differs in that Excerpt: ALL IN it favors inheritance remaining within the confines of the family. Yet the state can still take its share of inheritance THE FAMILY taxation without compromising this ideal, Alstott argues. At the same time, the inheritance tax could accommodate the “Inheritance transmission in the broadest conventional family by adopting favorable rules for family taxation of property sense the family bequests and family businesses. is obviously by gift during itself forms part The functional concept likewise can be compatible with a tax matter, life and by of the structures the inheritance tax as long as exemptions are offered that and as such it bequest during of inheritance allow family members to provide economic security for raises familiar death. And that determine each other, Alstott notes. If the goal were truly to ensure issues about the inheritance law what children that family functioned as a source of financial insurance, relationship of is intimately receive from inheritance law could even require people to leave wealth to the individual bound up in their elders.” those family members in the most need, she adds. and his property ideals about Inheritance taxes would endanger family values only if From “Family to the state. At the family: the Values, they confiscated so much wealth that they prevented liberal, the same time, family is, after Inheritance Law, conventional and functional families from carrying out their inheritance all, one of the key and Inheritance ideals—something no one in the political arena is proposing, Taxation,” in taxation also institutions for Tax Law Review she says. Thus, she believes that the inheritance tax as it now forms part of transmitting functions in America does not disrespect the family. inheritance assets, G To read “Within the range of political options on the table, there law—the body knowledge, and the complete remains ample room for individual autonomy and family article, go to of law that values across http://tinyurl. identity transmission to coexist with paying a share of regulates the generations, and com/Alstott wealth at death to the state,” says Alstott. P
10 harvard law bulletin summer 2010 Illustration by ellen weinstein
02-25_HLB_Summer 10_09.indd 10 5/6/10 1:35 PM STUDENT SNAPSHOT From left: Andru Wall, Rebecca Gang and Sayed Mohammad Saeeq Shajjan Three Journeys, One Dream LL.M. students recall their work in Afghanistan and share their hopes for the nation’s future By Lewis I. Rice
Photographs by leah fasten summer 2010 harvard law bulletin 11
02-25_HLB_Summer 10_09.indd 11 5/6/10 1:35 PM STUDENT SNAPSHOT
Sitting in a graduate student lounge at Harvard Law School, Sayed Mohammad Saeeq Shajjan can look to his left and look to his right and see hope for his homeland of Afghanistan. He is flanked by Rebecca Gang and Andru Wall, fellow LL.M. students who, along with Shajjan, have worked to stabilize and strengthen a country racked by war over three decades. They came to the LL.M. program after spending time in Afghanistan in different roles, together representing a confluence of efforts needed for the rule of law to predominate in his country, says Shajjan. “The work that we have all been doing in Afghanistan is very important,” he says. “As an Afghan, I really appreciate that they put their lives at risk in coming and helping us. And I’m looking forward to them coming back there.” Though now far away, Afghanistan is still very much in their thoughts, which they share with the Bulletin not long after U.S. and Afghan troops have mounted a major military offensive in the country. Before he left the U.S. Navy JAG Corps, Wall was enmeshed Sayed Mohammad Saeeq Shajjan in such action as a senior lawyer for U.S. Special Operations Command Central, a responsibility that took him different perspectives are all needed to Afghanistan often between 2007 in a place like Afghanistan, they say. and 2009. In that role, he focused on Establishing the rule of law requires the issue of civilian casualties and both capacity-building and security, as on supporting and incorporating well as the efforts of the national and the rule of law. Gang—also an international communities working American—worked in the country as a together toward a common goal. consultant for the Norwegian Refugee Wall, for example, notes that NGOs Council on civil law issues and later provided a valuable perspective when helped establish Afghanistan’s first they, concurrent with the military, independent bar association in 2008. investigated allegations that civilians While she was working on that project, were killed during military operations. she met Shajjan, an attorney affiliated “We all want the same thing for with the International Development Afghanistan,” he says. “Yes, sometimes Law Organization who had been we come at it from slightly different selected to help create Afghanistan’s perspectives, but in reality when you first Independent National Legal sit down and talk, you realize that you Training Center in Kabul, a central have a lot to learn from each other.” institution in the national vision to “Once you get into that build the country’s legal capacity. environment,” Gang adds, “it’s clear The three students share an easy that there’s not a distinct, dualist rapport, despite their disparate separation anymore between the Andru Wall backgrounds and experiences. Those military and humanitarians, which
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02-25_HLB_Summer 10_09_r1.indd 12 5/11/10 10:56 AM 9 “The situation [in Afghanistan] is very “The situation is really different security forces, says Shajjan, “because different now. Even now,” he says. “Even judges are calling we understand that we do not have judges are calling defense attorneys now saying, We will the army and police to protect the defense attorneys have a trial tomorrow; we would like to population of the country.” see you.” The students all express optimism saying, We will have Gang points to the achievement of that progress will continue, though a trial tomorrow; establishing the Afghan Independent Shajjan cautions patience. It will we would like to see take time to build something that has you.” been destroyed over the course of 30 5 “There’s not a years, he says. But he is encouraged distinct, dualist that more young separation anymore Afghans are going between the military to university and traveling to other and humanitarians.” parts of the world. So is Gang, as she f “We’re there to describes a scene of little girls in help the Afghan matching uniforms people bring rushing to school in security to their Kabul every morning. “As people country. So we’re not become more and going to dictate how more educated and it’s done.” more open to the outside world, there Rebecca Gang is a critical mass of idealistic, open- minded Afghans who makes it complicated and murky but Bar Association, which has registered want change, who don’t want to be also teaches you a lot about dealing almost 700 defense attorneys. At seen as this hotbed of fundamentalism, with each other. There’s so much first, neither the organization nor its who want to be part of an international crossover and so much working members fully grasped its function community,” she says. together.” or purpose, she says, but within a Gang says she feels obligated to They know that much has yet to be year it was playing a prominent role, return to Afghanistan. She doesn’t done in order to stabilize the nation. including advocating on behalf of know in what role, but she wants And they acknowledge struggles and Guantánamo detainees and a member it to be one in which she can build frustrations. Yet they also point to attorney who the organization believed relationships with Afghans because signs of progress. After the Soviet had been unlawfully detained. The that is the best way to get the job done, invasion, Shajjan moved back and bar association’s advocacy led to the she says. Shajjan certainly will return forth to Pakistan with his family before attorney’s release, says Gang. home after his HLS studies. He also returning to his homeland in 2002 Wall cites “great relationships” isn’t sure in what capacity but wants and graduating from Kabul University between U.S. military personnel and to be useful and make a difference. As the year after. He says that during Afghan forces. He notes that the recent for Wall, his military service is over, the Soviet occupation and under the campaign in Helmand Province was but he too thinks about a time when Taliban, people didn’t have a right to directed by the Afghan government. he will return to Afghanistan, not speak when they were arrested or learn “We’re there to help the Afghan people as a professional but as a tourist. He the charges against them. As recently bring security to their country,” he hopes for the day when he will be able as 2004, he went to court in order to says. “So we’re not going to dictate how to bring his children there, to show defend someone accused of a crime. He we think things need to be done. That’s them a secure country in the process recalls being told that a defense was not a recipe for success.” Afghans of rebirth, and to tell them that he, in a not needed—only the prosecution. want the help of the international small way, helped make it possible. P
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02-25_HLB_Summer 10_09.indd 13 5/6/10 1:36 PM Connect! since the school launched its online alumni advis- ing network, HLS Connect, nearly 1,400 graduates CHRISTOPHER DYDYK have signed up to volunteer. In a changing legal marketplace, consider sharing your expertise and experience with students. With your help, students can gain perspective on their chosen fields and organizations, tips about the legal market in a particular geographic area, and even advice about course selection, judicial clerkships and job search strategies. Participants have addressed issues as diverse as work/life balance, international work, nonlegal career paths, starting a business and combining pro bono activities with private practice. HLS faculty consult experts they locate through the site, and the Office of Public Interest Advising and Office of Career Services use it to find speakers for their career panels. So, as you help the next generation of HLS gradu- ates, take advantage of the opportunity to network and reconnect with alumni from around the country and around the world—and with Harvard Law School itself!
In addition to mentoring opportunities and an Be an HLS mentor! HLS updated online directory, CONNECT HLS Connect also provides Sign up for access to job databases in the public and private HLS Connect: sectors. https://hlsalumni.publishingconcepts.com
02-25_HLB_Summer 10_09_r1.indd 14 5/11/10 10:58 AM ON THE BOOKSHELVES
Bargaining with the Devil Mnookin explores HOW AND WHEN TO NEGOTIATE with an adversary you don’t trust
By Lewis I. Rice In the most recent U.S. presidential election, the candidates debated the wisdom of negotiating with enemies. But such a debate is not confined to political leaders. Whether it’s a dispute between countries, businesses or family members, the parties involved face a crucial decision. And Robert Mnookin ’68 offers a guide to making the right one in his new book, “Bargaining With the Devil: When to Negotiate, When to Fight” (Simon & Schuster).
A professor and chair of the Program on Negotiation at Harvard Law School, Mnookin presents case studies from history as well as private disputes in which he has served as mediator and arbitrator, outlining how and why people decide to negotiate and the factors that influence the bargaining process. In each case, he he argued that the UNLIKE MANY OTHERS leaders such as Winston evaluates the wisdom of the decision United States should IN HIS FIELD, MNOOKIN Churchill and Natan and addresses the ethical and moral not negotiate with the SOMETIMES Sharansky, who refused to issues that arise. Taliban, contending bargain with the “devil” (a Contrary to many others in the that the chances for a ADVISES NOT TO term he uses to describe dispute resolution field, Mnookin potential agreement NEGOTIATE someone perceived as advises against negotiation in certain were minimal and untrustworthy, harmful circumstances. Indeed, the idea for that negotiating would undermine U.S. or even evil). At the same time, he the book developed out of a debate credibility. says that people who demonize an shortly after the Sept. 11 attacks, when Mnookin praises the stances of adversary often resist negotiating
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02-25_HLB_Summer 10_09_r1.indd 15 5/11/10 10:58 AM ON THE BOOKSHELVES
even when it would benefit them. While he endorses a presumption in favor of negotiation, Up in the Air he recognizes that people often are driven to fight Tushnet argues that the Constitution by personal morality or outrage. “There is often a tension that’s inescapable matters LESS THAN YOU THINK between a resolution that can serve your interests best in the long run and the unmitigated pursuit of justice,” Mnookin says. He counsels readers to recognize “negative traps” that can distort thinking, such as tribalism, dehumanization and moralism. In order to make a wise decision, those involved in a conflict should undertake careful analysis, preferably in consultation with an outside party, that takes into account their interests and the alternatives to— and costs of—negotiation, he writes. Mnookin identifies Nelson Mandela—who in the best interests of his country decided to bargain with a government that imprisoned him—as the greatest negotiator of the 20th century. His example shows that it is foolish to reject outright the possibility of negotiating with an evil adversary, according to the author. Though Mandela hated the apartheid regime in South Africa, he “ultimately achieved through negotiation an outcome that could never have been accomplished solely through violence or resistance,” writes Mnookin. Such a lesson can serve people even when the stakes are much lower, he contends. In business and family disputes, he says, “people have the same tendency to feel that they’re not being true to themselves if they negotiate.” As a mediator, he has steered people in such cases toward negotiation—although the participants were beset by anger and mistrust. In one instance, two companies battling over the use of operating system software agreed to an unusual By Robert Garrett True, the Constitution arrangement establishing a secured facility where The title of Professor organizes our political relevant information was shared. It is an example, Mark Tushnet’s “Why the structure, and no one would writes Mnookin, whereby “a third party, acting Constitution Matters” is dispute, for example, the as mediator, can facilitate voluntary settlements something of a misnomer. stipulation of elections for when it is impossible for bitter enemies even to sit The Harvard Law senators every six years and down at the negotiation table together.” School constitutional law representatives every two. He also shows the downside of refusing to expert surprises readers Beyond such explicit rules, negotiate. In one bitter divorce case, the wife was in the first few pages by says Tushnet, the ground offended by her husband’s settlement offer and strongly arguing that the begins to shift in ways that never responded to it, necessitating a lengthy Constitution doesn’t matter can make some of us feel un- court fight. The wife’s refusal to negotiate, in as much as you might think. comfortably “up in the air.” Mnookin’s view, prolonged the conflict, cost What really matters, Apart from politics substantial attorneys’ fees and prevented her Tushnet says, is the and interpretation, he from reaching a deal that would have better way politics affects the boldly declares, there is served her interests—and her children’s. interpretation judges, no independent meaning, Mnookin acknowledges that it can be painful to politicians and ordinary carved in stone, for many bargain with the devil, but it can hurt even more citizens bring to the fundamental rights we so not to. P document. cherish.
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02-25_HLB_Summer 10_09_r1.indd 16 5/11/10 4:23 PM back on the true FOR TUSHNET, not mentioned path.” Those who IT’S POLITICS in the document. disagree with our For example, the interpretation of THAT DRIVES Constitution does true meaning are CONSTITUTIONAL not forbid an active scoundrels acting CHANGE military officer in bad faith. from running for Tushnet, a self- president, yet the unwritten described liberal, political expectation is that prefers to see reasoned a general should resign from arguments that disagree duty before running for with his viewpoint office. as simply the normal Early in his career, political process. As we Tushnet saw a connection grapple with the devilish between law and politics. details of constitutional Influenced by the heated interpretation in an politics of the civil rights evolving society, we do and antiwar movements, he not need to demonize our was an early participant in adversaries, he asserts. the Critical Legal Studies Paying attention to movement, which posited how law and politics are that law is politics. intertwined, he says, At 27, Tushnet clerked for can empower people to Justice Thurgood Marshall push harder and more and wrote a key memo intelligently for change that worked its way into they want—for example, Roe v. Wade, addressing by supporting political issues confronting very “workarounds” that young women who became mitigate Supreme Court pregnant. decisions that rankle. He looks back on his time Tushnet is in the on poetry and Louis Begley A case in point is the at the Court as a momentous forefront of legal scholars ’59 on the Dreyfus Affair. recent Citizens United period in his life, but who assert that law is While most of us decision rejecting wistfully admits, “I was inseparable from politics. recognize that politics and corporate campaign too young to appreciate the While this view is now interpretation shift over spending limits. Tushnet experience.” conventional wisdom among time, many people, whether advocates HLS Professor Tushnet’s wife, Elizabeth, most scholars, Tushnet’s conservative or liberal, Victor Brudney’s call for is a lawyer specializing aim is to reach out with persist in believing that change in corporate law in prison reform. Their this message to a general there is a “fixed” meaning in so that shareholders can elder daughter, Rebecca, readership. By debunking the Constitution. vote against such funding. is an intellectual property the idea of “objective” Depending on your This strategy is “beginning lawyer and a professor at meaning, he hopes to make politics, says Tushnet, to get some legs,” says Georgetown. our discourse about the changes in Court opinion are Tushnet. Younger daughter Eve is Constitution less mean- typically seen as “departures He is fascinated by what a conservative blogger. spirited. from the true Constitution people don’t know about Tushnet follows the The book is part of the or a return to the true the Constitution. He talks conventional wisdom in Yale University Press series Constitution. ... Sometimes about the “constitution keeping harmony at the “Why X Matters,” which has we stray from the path, outside the Constitution,” dinner table: “We avoid included works by Jay Parini then we manage to get bedrock rights or values talking about politics.” P
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02-25_HLB_Summer 10_09_r1.indd 17 5/11/10 4:23 PM ON THE BOOKSHELVES Censorship Without Borders How states around the world are controlling Internet access
By Jeri Zeder countries—and not just the usual suspects. This collection When, in February, Internet law expert Professor John looks at the global trend of government control of Internet G. Palfrey ’01 spoke at a gathering of the Harvard Law content, not only in places like Russia and China, but School American Constitution Society, he asked his audience in Western democracies as well. The report, which was to consider this trio of circumstances: Turkey’s censoring of published by MIT Press in April, is the culmination of an YouTube within its borders—and attempts to do so beyond eight-year research project involving more than 100 people, them; Italy’s prosecution and conviction of three Google ex- a consortium of four universities—Oxford, Cambridge, ecutives for not moving quickly enough to block Toronto and Harvard—and a $3 million grant from a video showing the bullying of a child with STATE CONTROL the MacArthur Foundation to the Berkman Center. Down syndrome; and the likelihood that Google OF THE WEB: Palfrey was the project’s principal investigator. would shut down its China search engine, IT’S NOT JUST A follow-up to the same editors’ 2008 study, google.cn, following cyberattacks Google blames “Access Denied: The Practice and Policy of Global on the Chinese government (the company did so THE USUAL Internet Filtering,” the latest volume finds that not a month later). The changing politics of Internet SUSPECTS only are various degrees and methods of Internet censorship reflected in these incidents is docu- monitoring continuing to grow in the 65 countries mented and explored in the new book “Access Controlled: studied, but since the completion of the first volume, The Shaping of Power, Rights, and Rule in Cyberspace,” attitudinal and technological norms are now emerging to edited by Palfrey, Ronald Deibert, Rafal Rohozinski and HLS justify and establish Internet control. These norms include Professor Jonathan Zittrain ’95, co-founder and faculty co- national security and law enforcement, the Internet’s tipping director of the Berkman Center for Internet & Society. of the power balance from government to private authorities, The Internet once held the promise of serving as a portal cyberwar threats and increasingly sophisticated access- to the unprecedented and unfettered flow of information control technologies. and ideas across borders. It appears those days are over. Researchers relied on a combination of testing The Web is increasingly being blocked, filtered, surveilled, methodologies and legal research to arrive at their findings. censored and otherwise controlled by a growing number of Using sophisticated computer programs, they knew when and how, for instance, the Iranian government was blocking access to Web platforms during the summer of 2009. Through legal research, they could explore how states use their laws to regulate online behavior, and to conduct surveillance of the Internet. The result, Palfrey says, is a “rich picture” of how states are increasingly controlling Internet access. “Access Controlled” reveals discrepancies in what countries choose to block. The United Kingdom, for example, largely protects free expression and privacy, but actively surveils the Internet in the name of national security. Myanmar has been known to shut down access entirely. Falling between are countries engaging in varying levels of political or cultural censorship. Palfrey wonders how fractured Internet access practices will affect relationships among people throughout the world. “What version of the Internet can you see?” he asks. “What does the rest of the world see? How does the emergence of an Internet that’s bordered affect politics and culture developing in a digital era?” P
18 harvard law bulletin summer 2010 Illustration by david pohl
02-25_HLB_Summer 10_09_r1.indd 18 5/11/10 4:23 PM RECENT FACULTY BOOKS
In the wake of landmark laws, such as ones Professors John F. designed to be used in health care legislation that mandate separate Manning ’85 and the growing number of passed this spring, a payments for each Matthew C. Stephenson courses in law schools new book edited by provider and amount ’03 are the authors across the country that Professor Einer Elhauge to disincentives for of “legislation teach statutory and ’86, founding director coordinating care. and regulation” regulatory subjects in of the Petrie-Flom It also examines the (Foundation Press, the first year. Center for Health Law regulatory issues and 2010). The new casebook Policy, Biotechnology, business and economic introduces students After Harvard Professor and Bioethics, couldn’t motivations the authors to the theory and Henry Louis Gates Jr. be more timely. “the believe are responsible practice of statutory was mistakenly arrested fragmentation of u.s. for fragmentation and interpretation, by Cambridge Police health care: causes proposes reforms to the constitutional Sgt. James Crowley for and solutions” make the system more architecture of the attempting to break (Oxford University efficient and effective. modern administrative into his own home last Press, 2010) explores the state, the key elements July, a media firestorm lack of unified decision- “transformations of the lawmaking was ignited. In “the making that plagues the in american legal processes used by presumption of U.S. health care system. history, ii: law, Congress in passing guilt: the arrest of The interdisciplinary ideology, and legislation and by henry louis gates volume—including methods” (Harvard administrative agencies and race, class and a contribution from University Press, 2010), in enacting regulations, crime in america” Elhauge and other edited by Daniel W. and the judicial review (Palgrave Macmillan, professors of law, Hamilton and Alfred L. of regulations. The 2010), Professor Charles medicine, economics, Brophy, is the second book grew out of Ogletree Jr. ’78 uses health, business and volume in a tribute materials Manning this incident as a lens political science— to Professor Morton and Stephenson had through which to makes the case that this Horwitz ’67. It includes developed in connection explore issues of race fragmentation leads contributions from HLS with teaching the and class, with the goal to increased medical colleagues Professors new Legislation and of creating a more just error, higher costs, Yochai Benkler ’94, Regulation course legal system for all. less preventive care Frank Michelman ’60, adopted in the reform Ogletree is director of and misallocations of Martha Minow and Mark of the HLS first-year the Charles Hamilton health care resources. V. Tushnet, as well as curriculum that the Houston Institute for It identifies possible former students and faculty passed in Race and Justice at HLS. causes—including others. 2006. It is specifically
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Enforcing Domestic Human Rights An HLS clinic helps SECURE ACCESS TO HEALTH CARE for society’s most vulnerable
By Elaine McArdle From filing an emergency guardianship petition in probate court ensuring that the children of a dying mother are raised by the person she chooses, to appealing the denial of a disability claim in federal court for a critically ill client, the Harvard Law School Health Law and Policy Clinic prides itself on taking the toughest cases and working to shape policy to protect some of society’s most vulnerable people. Take, for instance, situations in which people are denied Social Security Administration disability benefits—a critical issue, as access to Medicaid or Medicare is often predicated on it. “The overwhelming majority of people who apply for public benefits are disabled and in desperate need of income and health care support. Yet the Social Security system is designed to reject most applications,” says Robert Greenwald, director and founder of the clinic, as well as managing director of the WilmerHale Legal Services Center in Jamaica Plain, where the clinic is based. “We work with our clients’ health care THE HEALTH LAW and providers to build strong Policy Clinic prides itself on cases,” says Greenwald. taking the toughest cases. Anne Pierson ’11 (seated); “Legal representation and Julie McCormack, clinical instructor; Colleen Kelly strong advocacy make all ’11; and Dan Fields ’11 the difference in helping
20 harvard law bulletin summer 2010 Photographs by mark ostow
02-25_HLB_Summer 10_09.indd 20 5/6/10 1:37 PM to secure what is literally fight discrimination, and health care policy. In the fundamental rights. “I lifesaving access to income to maximize control over late 1990s, it convinced the would say I run a domestic support and health care.” decisions affecting their Massachusetts Legislature human rights clinic,” he says “We rarely lose these medical care and finances to change state law so proudly. cases, and when we do, through estate planning. that low-income people The clinic currently is we appeal to Federal In what Greenwald sees diagnosed with HIV are working on three projects District Court,” adds Julie as particularly important immediately eligible to that keep Greenwald and McCormack, a clinical work, the clinic has receive Medicaid and can his students on the road. In instructor. represented hundreds of be treated for their illness, the State Healthcare Access Over the past two single mothers who were instead of having to wait Research Project, known as decades, under Greenwald’s terminally ill, helping them until they are disabled by SHARP, students have been leadership, hundreds officially designate through AIDS to get medical care. traveling to North Carolina, of HLS students have the guardianship process Greenwald and his team South Carolina, Arkansas, provided direct legal in probate court who will have been working ever Alabama and other states to services to thousands of raise their children upon since to expand that reform document access to health individuals living with their deaths, so the kids do nationally. care and support services chronic and terminal not end up in state care or With approximately 50 for low-income people. They medical conditions, helping possibly with an abusive million Americans living conduct focus groups with them to obtain public and relative. without health insurance, local health care providers, private health insurance The clinic has also been he says the clinic is on the patients, government and disability benefits, to influential in the area of front lines of a battle for leaders, and others, and
ON THE FRONT LINES of a battle for fundamental rights
Robert Greenwald, the clinic’s director, is a nationally recognized leader in the area of health care access and legal issues related to HIV/AIDS.
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then produce reports on the current status of health care access in each state and help them improve access through strategic advocacy. “Working on the North Carolina and South Carolina SHARP projects has been amazing,” says Colleen Kelly ’11. “I have learned an incredible amount about the health care delivery systems in different parts of the Carlo Marchioli ’10 meet- country. More importantly, ing with his client and her son as they review legal I am confident that our documents Marchioli has reports will have a profound prepared for them impact on access to care in these communities.” In the Health Care reforms will improve Greenwald, who worked income people living with Reform Advocacy Project, health care access for low- at the legal services center HIV/AIDS. Later renamed Senior Fellow Dorothee income people. A third when he was a Northeastern the Health Law and Policy Alsentzer ’05 and clinic major project is helping University School of Law Clinic, it quickly grew students are on call as state-based advocates fight student, joined it full time in into a broad health care first responders to analyze back against state efforts 1987 as a housing attorney. program serving not only all major congressional to cut Medicaid during the But an international crisis people living with HIV but proposals for health care current down economy, quickly changed his practice the entire community of legislation. Within 72 hours, including providing focus. “That was the first big low- and moderate-income they provide a summary technical assistance to wave of the HIV epidemic, people who are uninsured, of each proposal to a state governments to help and we were starting to see with an emphasis on the coalition of 100 national and minimize cuts as they work large numbers of people elderly, chronically ill, state-based organizations to balance their budgets. in our community get sick terminally ill and disabled. around the country, such The clinic also works with and die. We also started to The clinic now raises as the Southern AIDS many local and national see fear and discrimination about $500,000 a year in Coalition, determining partners on a variety of increase toward those with grants—millions of dollars whether the proposed other initiatives. the disease or perceived to over the past two decades— have the disease,” recalls including, in December, a Greenwald. “We realized as Ford Foundation grant of a law center that we needed $200,000 to fund the health to respond to this,” so the care access law and policy center put a small ad in work. A nationally recog- a newsletter of the AIDS nized leader in the area of Action Committee offering health care access and legal legal services to people with issues related to HIV/AIDS, AIDS-related issues. Greenwald was appointed in “We had no idea of the February to the Presidential response we would get,” Advisory Council on HIV/ says Greenwald. “Literally, AIDS, which provides rec- our phone has not stopped ommendations to President ringing since.” The AIDS Barack Obama ’91 and to the Law Clinic, launched that U.S. secretary of Health and Back to campus year, was the nation’s first Human Services on issues after a day’s work at the clinic law-school-based legal related to HIV disease and services clinic to serve low- AIDS. He also serves as co-
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02-25_HLB_Summer 10_09_r1.indd 22 5/11/10 11:00 AM NOW ONLINE
chairman of the federal HIV Health Care Access Working Are You an Online Journalist in Legal Peril? Group, a national coalition of advocates working to im- A new clinical collaboration may be the answer prove access to quality care for people living with HIV/ AIDS. Berkman’s Cyberlaw Greenwald credits much and Intellectual Prop- of the clinic’s success to its erty Clinic and the students: “We could not Transactional Law accomplish one-tenth of Clinics. More than 40 what we do without the skill clients have been as- and commitment of the large sisted since the project number of HLS students launched, ranging who work in our clinic each from very small and semester.” local online news Dan Fields ’11 enrolled sites to documentary in the clinic because of his producers, says David long-standing interest in Ardia LL.M. ’07, direc- health care, an issue he tor and co-founder of focused on last summer the project. during a White House “One of our goals internship. Fields, who has was to build up exper- been involved in SHARP, An online inves- clients (making sure tise among clinics and health care reform advocacy tigative journalist, they adhere to jour- law students all over and disability cases, says he working on a shoe- nalistic standards, for the country in work- is “excited about working string budget, is sued example) and match ing for these clients,” on impact-oriented health for libel. Where can he them with lawyers says Ardia. care policy and direct client turn for legal help? who provide legal help This April, the casework.” He adds, “I not To a huge network on everything from Berkman Center only get to see health care of law school clinics business formation CMLP and the Cy- issues at the macro level but and experienced pri- to copyright and fair berlaw Clinic hosted how they play out on the vate lawyers across use, from freelancer a conference titled ground level. I find the work the country, thanks and other employment “Journalism’s Digital rewarding as the people to the Online Media questions to access to Transition: Unique we serve are in really dire Legal Network, a proj- government informa- Legal Challenges and straits.” ect launched in 2009 tion. Opportunities” to Greenwald says that by the Citizen Media In just a few mark the launching working to fix the health Law Project at HLS’s months, the network of the Online Media care system, helping clients Berkman Center for has already grown to Legal Network. It in need and mentoring Internet & Society. include 40 law firms brought together students make the heavy- The network is with 7,000 lawyers panels of academics, duty workload worthwhile. designed to connect willing to provide legal practitioners and “It certainly helps motivate online journalists and free or reduced-rate journalists to discuss me that I can be on the T digital media creators legal services to these just the sort of issues with my family and have a with lawyers and law new media clients. raised by the Online young woman come up and students nationwide More than a dozen Media collaboration, say, ‘You may not remember willing to assist them law school clinics are including how the le- me, but I’m in college now, for free or reduced participating so far, gal profession can as- and I turned out OK because rates. Two lawyers at including a number of sist rather than hinder you made sure that when my CMLP work full time Harvard Law School journalism’s digital mom died, my aunt got to to screen the potential clinics, such as the transition. take care of me.’” P
Illustration by justin renteria summer 2010 harvard law bulletin 23
02-25_HLB_Summer 10_09_r1.indd 23 5/11/10 4:23 PM THE TEACHING TRACK
The Olin Advantage At HLS there’s a METHOD FOR PRODUCING FUTURE LAW PROFESSORS. (That, plus an oracle.)
FORMER OLIN FELLOWS, now law professors: Daniel Chen ’09 and Lisa Bernstein ’90
02-25_HLB_Summer 10_09.indd 24 5/6/10 1:38 PM By Seth Stern ’01 For his paper, Chen explored how laws prohibiting Lisa Bernstein ’90 knew from her first day of sexual harassment affect gender equality and found the laws law school that she wanted to be a professor, actually improve labor market outcomes for females relative though as time went on, she wondered to males. The stipend helped Chen hire research assistants to code whether that would be possible without top appellate court decisions and damage awards. He presented grades or law review credentials. What helped his paper as a work in progress at the Olin workshop, where to set her apart from other applicants, she says, fellow students with backgrounds in a variety of disciplines was the paper she wrote—and mentoring she offered their views. received—as an Olin Fellow during law school. “It was very helpful to get their feedback early on in a safe “That support made all the difference,” setting,” says Chen, who will start as an assistant professor at Duke Law School after finishing up a fellowship at the says Bernstein, now a law professor at the University of Chicago this year. University of Chicago. “I would not have Not every Olin Fellow arrives with an advanced degree or gotten a teaching job without the fellowship a road map to academia. paper.” Guhan Subramanian ’98, J.D./M.B.A., credits the fellowship he received with convincing him to pursue an Each year, only 15 to 20 Harvard Law School students academic career. What was most striking for Subramanian receive John M. Olin Fellowships in Law and Economics. was the way Kaplow treated him and his fellow students just But alumni of the program such as Bernstein have enjoyed like the faculty who attended Olin seminars. outsized success landing legal academic jobs. “Engaging on an equal footing with faculty made me In fact, the annual number of Olin Fellows who get think I could be an academic,” says Subramanian, who is positions on top law school faculties often exceeds the now a professor at both Harvard Law School and Harvard number of successful Business School. applicants from the entire “ENGAGING ON AN EQUAL FOOTING WITH FACULTY MADE ME Subramanian says the graduating class of other feedback he received was leading law schools, apart from THINK I COULD BE AN ACADEMIC.” helpfully pointed. “Many Yale and HLS itself, according people in the academic world to Professor Steven M. Shavell, director of the John M. Olin want to heap praise on mentees, whereas Louis and Steve Center for Law, Economics, and Business at the school. tell you all the ways [the work] can be better,” he says. The Olin Fellowship is just one of many efforts at HLS to Shavell says the goal is to make sure every fellow has help current students and alumni pursue academic careers. a polished paper ready for publication in law reviews or There is also advising by the Office of Academic Affairs and other academic journals. He also invites fellows to return to a postgraduate research program added in recent years. campus for mock job talks where they further refine their But over the course of more than two decades, the Olin presentations before entering the job market. Fellowship has racked up a particularly noteworthy record, Equally important to Tom Miles ’03 was the exposure to one Shavell says is due to the individualized attention faculty academic values and academic training and the mentoring devote to training and mentoring Olin Fellows during their that professors such as Kaplow, Shavell and Howell Jackson time at the law school—and beyond. ’82 provide. The formal requirements are straightforward. In “They were extremely helpful in thinking about the return for a research stipend, each fellow is expected to path into academia and what steps were necessary in order write a research paper under the guidance of a faculty to begin an academic career,” says Miles, who is now an adviser. Students have presented their findings at the assistant professor at the University of Chicago Law School. law and economics seminar as well as the American Law The advocacy for students continues behind the scenes, & Economics Association, among other national and with faculty making calls on their behalf to other law international conferences. schools. “We champion these people and try to help them The opportunity appealed to Daniel Chen ’09, who find jobs that are appropriate given their skill set,” Shavell arrived at the law school after completing a Ph.D. in says. economics at M.I.T. Chen had already set his sights on Bernstein says she tries to replicate what Shavell has an academic career, but he credits Olin faculty including developed with the Olin Fellowship with her own students Shavell and Louis Kaplow ’81 with helping funnel his who want to become professors. excitement about potential areas of research into more When it comes to charting an academic career, Bernstein concrete questions. says, “Steve is the oracle at Delphi.” P
Photograph by chris lake summer 2010 harvard law bulletin 25
02-25_HLB_Summer 10_09_r1.indd 25 5/11/10 4:23 PM REMI
A NEW LIBRARY FOR THE 21ST CENTURY BY JERI ZEDER LANGPhotographs by kathleen dooher
In 2008, HLS Professor John Palfrey ’01, an Internet scholar who has written extensively on the ways digital technologies are shaping society, was asked to apply his expertise to the reshaping of an HLS institution: the largest academic law library in the world. Now vice dean for library and information resources, Palfrey, with his energized staff, has been working double time to define the library of the future.
26-47_HLB_Summer10_09.indd 26 5/6/10 2:42 PM XING DELL
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26-47_HLB_Summer10_09.indd 28 5/6/10 2:42 PM “ WE HAVE TO DEFINE ‘LIBRARY’ DIFFERENTLY THAN IN THE PAST. THEWE REASON HAVE FOR MY URGENCYTO DEFINE IS THAT IT BEFORE IT IS DECIDED FOR US.” —PROFESSOR JOHN PALFREY ’01, VICE DEAN FOR LIBRARY AND INFORMATION RESOURCES
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26-47_HLB_Summer10_09_r1.indd 29 5/11/10 11:01 AM catalog entry sparks who has published extensively on the future that is changing the landscape the imagination: On March Internet’s relationship to intellectual for information services and libraries, 6, 1935, Gutzon Borglum, property and on the ways digital but the reality of the digital present for the sculptor who sited technologies are changing society. His so many of our patrons.” And in many A Washington, Lincoln, task in his current position is to meld the ways, he says, the law school library’s Roosevelt and Jefferson on old, the new and the emerging digital- reorganization has provided a testing Mount Rushmore, was in Washington, era library. To do so, Palfrey says he has ground for the wider university efforts. D.C., casting wet plaster over the built on the legacy of his predecessor, lifeless face of former Supreme Court HLS librarian Terry Martin. He also FROM RESOURCE TO ACADEMIC Justice Oliver Wendell Holmes Jr. draws on the expertise of his librarian LL.B. 1866. The object he was creating staff. PARTNER would eventually measure 26 x 17.5 Palfrey kicked off the library’s A striking accomplishment of the x 18 centimeters, be purchased from reorganization by laying out his reorganization is a library that Borglum’s widow for $1,077, and be broad vision and appointing a nine- proactively assists faculty and students held forevermore at Harvard. Today, member, professionally diverse steering in the production and dissemination Holmes’ death mask, along with his committee to design its implementation. of new knowledge. “Libraries are now desk, straight razor and annotated copy A year later, on April 30, 2009, the less about having a set of materials that of his seminal work, “The Common committee issued its report. The result: you store and more about knowledge Law,” is now visible the world over, a new structure that opens the law management,” says Palfrey. “How do you online, courtesy of the Harvard Law school’s extraordinary collections to the help create materials in partnership with School library. world; leverages support for, and access faculty and help curate those materials?” Holmes’ final likeness is but one of to, law-school-generated scholarship; One answer: Hire statisticians. The hundreds of thousands of objects— strategically develops the collections; library has taken the unusual step together with 2 million volumes—in streamlines and modernizes traditional of hiring two full-time employees to the law school’s collection, now in the library functions; and—critical in this crunch the numbers for the law school’s earliest stages of digital preservation volatile time for libraries—prioritizes empirical legal researchers. For the and cataloging. And digitization, itself innovation. uninitiated: Empirical legal research a remarkable feat of stewardship, Palfrey says part of what drives the is an emerging field that crosses all is only one piece of a larger effort to changes is “a realization that we have to legal disciplines. It might look, for launch the library into the future. define ‘library’ differently than in the example, at whether it is possible to The 21st-century legal academy past. The reason for my urgency is that predict how the makeup of the Supreme emphasizes interdisciplinary study, we have to define it before it is decided Court affects decisions in rape cases; international law and empirical for us,” he adds, noting efforts by the effects of various regulatory legal research. When the law school businesses like Google to take on library- structures on corporate behavior; reformed its curriculum in 2007 and like functions in ways that are motivated ethnic voting patterns with implications 2008 to accommodate these new by for-profit, rather than scholarly, for redistricting; or the efficacy of emphases, it was clear that the library concerns. programs for reducing gun violence. needed to keep pace. The question The law library’s reorganization Assistant Professor James Greiner’s was, how? As dean, Elena Kagan ’86 is one piece of a larger project to empirical research focuses on the effect commissioned an external review. The modernize Harvard’s entire $165 of assigning counsel to indigent civil resulting report became the primary million, 1,200-person library system. litigants. He says, “[Palfrey’s] team blueprint for re-envisioning and The university recruited Palfrey to looks at information, and understanding reorganizing the library, a process led contribute to the provost’s library information, as their general purpose, by John G. Palfrey ’01. task force, and since November he and that means that they’re willing to get Palfrey, who for six years helped has been a member of a team looking information from alternative sources, to run the law school’s Berkman into how to implement the task force’s and they’re willing to hire staff that Center for Internet & Society, was recommendations. Harvard Divinity wouldn’t be considered traditional for appointed vice dean for library and School Professor David Lamberth, libraries to hire.” information resources in 2008. Palfrey who chairs that effort, says Palfrey’s Travis Coan, the statistician assigned is not a librarian. He is, however, a law empirically based observations pushed exclusively to faculty, fields questions professor and cyberspace visionary, them “to envision not only the digital on issues ranging from how best to
Since its reorganization, the library has a new structure that further opens its collections to the world; leverages support for, and access to, HLS-generated scholarship; streamlines and modernizes traditional library functions; and—critical in this volatile time for libraries—prioritizes innovation.
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26-47_HLB_Summer10_09.indd 30 5/6/10 2:42 PM IN MANY WAYS, THE LAW SCHOOL LIBRARY’S REORGANIZATIONA HAS TESTING PROVIDED GROUND FOR THE LARGER PROJECT TO MODERNIZE ALL OF HARVARD’S LIBRARIES.
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26-47_HLB_Summer10_09_r1.indd 31 5/11/10 11:02 AM Digitization of the law library’s massive collections is under way, and the items now online are fascinating—from postcards from a World War I civilian internment camp to 15th-century English Year Book cases. But the ambitions of the library staff go further. A new unit, the in-house Harvard Library Laboratory, is exploring other ways to serve patrons through the Internet. It aims to build a virtual library architecture that can be navigated as easily as the physical library.
merge data files to programming and make it widely available on the access; now, 80 percent of my time is.” statistical models. He sees demand Web. The law school faculty adopted With the law school now transitioning for his services steadily growing— an open access policy in 2008, and to open access, the number of law consistent with the larger trend, visible one benefit has been its impact on the articles in DASH is fairly low, but particularly over the last decade, bottom line. Pearse is dedicated to changing that of an explosion in empirical legal Palfrey explains: “When Laurence by conducting outreach to faculty scholarship. “I think the law library Tribe writes an article for a law review, members (part of her “scholarly and John Palfrey are trying to get in on he’s not trying to make any money communications” function) and also the ground floor of that action,” says off of it. He is seeking to improve the by handling the logistics necessary Coan. understanding of a legal doctrine or a to bring works published before May Statistician Parina Patel works legal theory. And yet on the other side 2008 into the repository. with students doing original research of that, the publishing apparatus works in their empirical law courses for at cross-purposes. [It] charges us RAMPED UP FOR THE DIGITAL AGE eventual publication, and occasionally money for our own work to reacquire guest-teaches. One of her students, back into libraries, and likewise, While deploying new resources for re- Jaime Eagan ’11, is researching the doesn’t make it freely available to search and teaching, the library is also Americans with Disabilities Act. Patel people who might in fact use it.” On tackling what Palfrey calls the “digital- helped Eagan glean from her data a practical level, open access works plus” era head-on. “We’re the largest whether the extent of an advocate’s like this: A faculty member publishes academic law library in the world,” expertise in ADA litigation is related to her work in a peer-reviewed journal, says Kim Dulin, associate director for the outcome of a case in a statistically but retains the copyright and deposits collection development and digitiza- significant way. an author’s final version (post-peer- tion. “We should be putting it out there Besides providing muscular reviewed, but pre-copyedited and pre- and making it more open.” Her unit statistical support to researchers, the formatted) in the repository known as boasts the new, in-house Harvard library has also boosted support for DASH (Digital Access to Scholarship at Library Laboratory, responsible for the production and dissemination of Harvard), where anyone can access it digitizing collections and for develop- knowledge through the expansion of on the Web. ing new ways for the library to serve its its “scholarly communications” and Veteran library staffer Michelle patrons through the Internet. “open access” functions. “Scholarly Pearse handles open access and Jeff Goldenson, the laboratory’s communications” refers to the process scholarly communications for the designer and multimedia communica- of supporting faculty along the road to library; the point of her job is to get tions specialist, is experimenting with publication. “Open access” refers to the content into DASH. She says, “Before a Web application he developed called movement to free scholarly work from [the library’s reorganization], 20 Stack View, which would allow the the restrictions of for-profit publishing, percent of my time was spent on open virtual browsing of library shelves. The
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26-47_HLB_Summer10_09.indd 32 5/6/10 2:42 PM PALFREY’S TASK IS TO SHAPE AND DEFINETHE EMERGING DIGITAL-ERA LIBRARY.
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26-47_HLB_Summer10_09.indd 33 5/6/10 2:43 PM THE LIBRARYTO CRUNCH HAS HIRED TWO STATISTICIANS THE NUMBERS FOR THE LAW SCHOOL’S EMPIRICAL LEGAL RESEARCHERS.
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26-47_HLB_Summer10_09_r1.indd 34 5/11/10 11:02 AM Palfrey wants the library to help generate new scholarship, and on-staff statisticians Parina Patel and Travis Coan (pictured at left) are helping to realize this vision. Patel works with students doing original research in empirical law classes for eventual publication. Coan assists faculty, with everything from questions about merging data files to programming statistical models. He sees demand for his services steadily growing— consistent with the boom in empirical legal scholarship over the last decade.
Harvard Library Laboratory is also expensive to do both.” These realities his staff have embedded innovation striving to make the library’s holdings led the library to develop its first-ever into the library’s organizational more visible on Google and is develop- collection development policy. structure. Beyond the obvious example ing a project called Shelf Life, which, as HLS, of course, is not the only law of the laboratory’s research and described by Dulin, “has the goal of ex- school facing these pressures, so col- development work, they have borrowed posing the richness of Harvard library lections have become a natural area for Google’s 80/20 work principle, holdings on the Web in a new and dif- law schools to work together. Palfrey allowing staff members to spend 80 ferent way.” An early demo version is calls this cooperative effort “radical col- percent of their time at their assigned expected this summer. laboration,” both because it has never jobs and 20 percent in other areas of Basically, the laboratory is aiming to been done before and to make a point: the library. Palfrey believes this will build a virtual library architecture as “Even the wealthiest, strongest librar- improve internal communications, easy to navigate as the physical library. ies cannot go it alone in the digital-plus productivity, innovation and service. To see the value of this work, take a era we’re getting into,” he says. At this stage of the reorganization, look at the library’s website where por- The library is also more strategic more than half of the staff is availing tions of the historical and special col- about collecting the laws of other na- itself of 80/20 opportunities. Palfrey lections are posted (see http://tinyurl. tions. “We have laws here that people believes more staff will get involved com/specialcollections). These collec- don’t have in their own countries, so over time. tions are massive: more than 200,000 they have to come here to use them,” Another example of planned printed materials in the library’s rare says Dulin. The library has discontin- innovation: Collection development, books and early manuscripts collec- ued collecting the laws of countries like previously a discrete job, is now tion; more than 250 collections within Switzerland, which are easily acces- considered a librarywide responsibili- the modern manuscripts collection; sible from other sources, and instead ty. News of library resource needs and one of the world’s largest collec- focuses on putting online the laws of can now reach the collection coordin- tions of law-related art and visual countries with unstable regimes or ator faster, and from more constitu- materials. Cataloging these items for with too few resources to preserve the encies. the Web is a monumental task, but laws they have developed. Finally, the entire hierarchy of the the results are breathtaking: See, for With the goal of making as much library, which has a staff of about 90, is example, “Statham’s Abridgment,” a available online as copyright restric- now flatter and more porous, allowing collection of 15th-century English Year tions allow, the library has hired Nika freer communications throughout Book cases from the time of Henry VI; Engberg ’10, the first Harvard Library the organization. Teams are regularly or Bracton’s law treatise from the early Laboratory Fellow. Engberg researches convened and dispersed to execute to mid-1200s; or the Ruhleben civilian copyright and intellectual property is- special projects. As much as possible, internment camp papers from World sues and their impact on digitization the reorganized library stands ready to War I; or the ongoing project to digitize and online availability. tackle anything. the 1 million pages of documents relat- If these changes feel dizzying, it’s ed to the Nuremberg Trials—all online. READY FOR ANYTHING reassuring to hear Palfrey say, “We haven’t stopped ordering books. We THE BRAVE NEW WORLD OF COLLECTION “This is a moment when libraries are haven’t stopped ordering serials. We do rethinking everything,” Palfrey says. acquire more electronic resources, but DEVELOPMENT No one knows yet how to organize the we still need to catalog them.” In other Once upon a time, the library collected library’s website for optimal searching words, Palfrey and his staff are re- everything, in every language, related and browsing, what the law school’s envisioning the law library at the same to law. No more. “There’s so much more future library needs will be, or what time that they are improving the core published every year, the cost of what social media the library might invent services it has always provided. They is published is increasing, and the or adopt to connect with patrons. “How are, as Palfrey puts it, merging “the formats have multiplied,” says Palfrey. do we do the traditional work that has classical and the jazz.” The point of this “So the expectations for some people made this a great library historically merger: to better support the faculty are that we’ll have a book or journal while also transitioning to an era and students who are heralding in the in hard copy; on the other hand, some where libraries have very new jobs to future of law. P people want a digital version to be able do?” he asks. to search or do something with. It’s too To meet this challenge, Palfrey and Jeri Zeder is a Boston-area freelance writer.
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26-47_HLB_Summer10_09.indd 35 5/6/10 2:43 PM BY JULIA COLLINS The risky business of repairing the U.S. financial system
HARD HATS REQUIRED
The close call of 2008 exposed deep and widespread risks in the financial sector that took the most seasoned industry leaders and federal regulators by surprise. Two years after the government bailout of Bear Stearns set off the first shock wave, the Bulletin checked in with HLS faculty and alumni committed to figuring out what went wrong, for their takes on where the greatest dangers remain in our financial system and what to do about them.
©
36 harvard law bulletin summer 2010 Illustration by james yang
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26-47_HLB_Summer10_09.indd 37 5/6/10 2:43 PM Too interconnected to fail? one another.” Since the meltdown, Jackson has recommend- ed in publications and talks that the Federal Reserve Board’s “We were on the precipice,” said Professor Hal Scott, direc- authority be expanded to cover all sources of systemic risk tor of HLS’s Program on International Financial Systems, in the financial services industry, with better coordination referring to the high-wire weeks when federal regulators and with other regulatory agencies. He supports formation of a Wall Street leaders held nonstop emergency meetings to stave financial services oversight council, composed of regulators off collapse and decide the fate of Lehman Brothers, AIG and with frontline responsibilities, “as a step toward more con- other tottering industry giants. Fast-forward to the present, solidated supervision.” (At publication, Congress was mov- and Scott said the greatest systemic risk of all “remains the ing in this direction.) possibility that if a major financial institution fails, others According to Jackson, another unresolved risk that Wall will follow. So far, we have not licked this problem.” Street’s woes made plain is how hard it is to monitor the Since AIG’s rescue, and the creation of the TARP safety financial health of international firms. For example, when net, the phrase “Too Big to Fail” (aka “TBTF”) has become now-bankrupt Lehman Brothers got into trouble, the sta- the mantra justifying the Wall Street bailouts. Scott consid- tus of its assets outside the United States could not be de- ers TBTF misleading. The real question, he said, is, Are there termined. “We need to harmonize, to coordinate with other institutions too interconnected to fail? As regulatory reform national regulatory systems. The problem is, who should efforts press forward, “we’re trying to design a modern fi- do this?” A supranational regulatory body isn’t feasible, he nancial system without knowing the most important, basic said. “So far, it’s done through informal agreements among facts,” Scott contended. For example, if a major bank failed, coordinators—a slow process.” For now, the Obama admin- “how exposed would another bank be as a result? What per- istration “is attempting to address cross-border regulatory centage of its capital would be at risk? We have no idea.” variations with the G-20 and its Financial Stability Board,” As he wrote in a December op-ed for The Wall Street Jour- the new regulatory body established post-crisis. nal, and testified in February before the Senate Committee on Banking, Housing, and Urban Affairs, “We clearly need to know far more about the facts of interconnectedness.” For Rely on markets, not regulators one thing, Scott would like Congress to demand full account- ing with documentation, including details of any counter- Byron Georgiou ’74 is head of Georgiou Enterprises, is of party exposure, “of why the Fed and Treasury decided they counsel to Coughlin Stoia Geller Rudman & Robbins and had to rescue AIG to the tune of $85 billion. They have yet to serves on the advisory board of HLS’s Program on Corpo- tell us.” If AIG had indeed failed, he said, given that Gold- rate Governance. Based on 10 years of experience investigat- man Sachs claimed adequate cash collateral, the two entities’ ing and prosecuting financial fraud at Enron, WorldCom, interconnectedness did not mean Goldman Sachs too was Dynegy and AOL Time Warner, he observed, “Many of the doomed; it was an issue of capital exposure. If in fact there behaviors leading to the crisis were lawful but had unfore- are no “adverse consequences from interconnectedness, seen multiplier effects which regulators missed.” He added, then the TBTF problem becomes much more manageable”: “Of course, to the extent the crisis was caused by criminally Instead of “after-the-fact taxpayer-funded bailouts,” as Scott fraudulent behavior, we expect that public prosecutors at the put it, the private sector can bear its losses, with public mon- federal, state and local levels will enforce applicable laws.” ey injected only after that if there is no other recourse. Georgiou is one of the 10 appointees to the new bipartisan Financial Crisis Inquiry Commission charged with evaluat- ing the prime causes of the financial crisis, in 22 areas rang- Somebody needs to have ing from the impact of the housing crisis to the repeal of the Glass-Steagall Act of 1933, originally passed to prevent the big picture banks from speculating with depositors’ money. The com- mission will examine “major financial institutions that failed “Nobody likes ‘Too Big to Fail,’” said Professor Howell or would likely have failed without infusion of exceptional Jackson ’82. “Everyone thinks there should be consequences taxpayer assistance,” Georgiou said, and will present its re- when a financial institution becomes insolvent. It’s modestly port to President Barack Obama ’91 and Congress on Dec. 15. ironic and counterintuitive that to prevent the Too Big to Fail Georgiou emphasized the need to develop “market mech- policy, you have to regulate large institutions in advance.” anisms” to enforce behaviors that can help maintain stability Historically, the U.S. regulatory system has been “highly of the financial system and prevent over-reliance on regu- fragmented,” with lots of different agencies overseeing dif- lation. “One must always assume that financial innovators ferent aspects of the financial system, and divisions between will come out with new products ahead of regulators” having the federal and state governments. This built-in divisiveness, the tools to regulate them, he explained. In the securitization Jackson noted, is “one of the elements of risk we’ve gener- market, all participants in the creation of mortgage-backed ated for ourselves.” No single regulatory agency has had an securities—including lawyers, accountants, underwriters, industrywide perspective. This has allowed businesses to mortgage brokers and rating agencies—were compensated in “take advantage of regulatory gaps and play regulators off cash, often with higher percentages for riskier, high-interest
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AVOIDING howell jackson hal scott allen ferrell jesse fried The Federal The greatest risk is Securities “A bailout clawback A Reserve Board’s still the possibility class-action would force authority should that if one institu- litigation those who FINANCIAL cover all sources of tion fails, others will may reveal profi ted from the risk in the fi nancial follow. “We have essential risk-taking to MELTDOWN services industry. not licked this.” information. chip in more.” 8 QUICK TAKES ON RISK AND norm champ byron georgiou bill stuntz elizabeth warren RELIEF The SEC continues “Market “Criminal punish- “The easiest way to to fi nd instances of mechanisms” ment works best reduce risk ... is to advisers who fail to must be developed when it is ... tar- start at the disclose confl icts of to maintain the geted. Regulators front end, making interest to clients as stability of the need to paint with a the credit market required by law. fi nancial system. broader brush.” safe.”
products. But once the security was issued, “none of the cre- corrosive role of unmodulated executive pay. “The boards of ators retained an interest in how it performed.” One solution investment banks paid executives and traders for short-term is to require that a significant portion of participants’ fees performance,” said Fried. “Not surprisingly, the boards got be paid not in cash but in a long-term retained ownership what they paid for. Many of these banks did not make it to of the securities they create, “so that their financial interests the long term.” Some banks that survived are taking steps to are aligned with [those of the] investors to whom they sell,” improve pay structures, such as lengthening holding periods thereby encouraging responsible due diligence at the front for the equity executives receive in their compensation and reducing the likelihood of nonperformance. packages. Fried thinks holding periods should be longer, In the wake of the subprime lending collapse and credit and cash bonuses based on short-term results should be crisis, the number of federal class-action securities filings has smaller. Getting boards to follow suit won’t be easy, however, surged. Writing with co-authors Jennifer Bethel and Gang Hu “because executives and traders will resist.” (both Babson College faculty members), HLS Professor Allen The harsh term “clawback” is becoming familiar as the Ferrell ’95 has suggested that securities class-action litigation public fumes over bonuses paid to bailed-out AIG executives either could expose “weak links” in the chain of participants while legislators and legal experts debate how to rein in ex- in the process of issuing securities—from origination to un- cessive compensation. Fried believes that current laws and derwriting to rating and sale—or could serve “to highlight arrangements impede taking back pay that executives and where the market may have underappreciated certain risks traders received before their firms are bailed out. At pres- or failed to anticipate particular circumstances.” It remains ent, “it is difficult to find authority to recover pre-bailout to be seen whether such litigation can help tamp down future bonuses,” he said. “Compensation contracts rarely require unreasonable risk-taking in the securities markets. executives to return already-paid bonuses, even if the deci- sions made while ‘earning’ these payments ruin the firm.” The Sarbanes-Oxley Act permits the government to recover Trouble from the top certain bonus payments, but only under very narrow cir- cumstances, and while provisions of the federal Bankruptcy Bonuses paid to CEOs of bailed-out companies earlier Code and state insolvency statutes could be used to recover last year elicited public wrath and brought the topic into payments to executives if the firm becomes insolvent, “the public view, but Professors Jesse Fried ’92 and Lucian bailout itself prevents the use of these insolvency-triggering Bebchuk LL.M. ’80 S.J.D. ’84 have long been studying the clawback provisions.”
summer 2010 harvard law bulletin 39
26-47_HLB_Summer10_09.indd 39 5/6/10 2:44 PM Fried would like Congress to adopt a law that allows Legislative reform and the the government, when it bails out a firm, to claw back cash bonuses paid out to executives and traders in the previous financial industry year or two—bonuses that can’t currently be reached. “Right now, too much of the cost of cleaning up a financial firm’s “Industry is getting ready for a lot of change,” Scott mess falls on the taxpayers’ shoulders; a bailout clawback said, as the legislative package to reform the financial sector would force those who profited from the risk-taking to chip moves through the Senate; the House version already voted in more,” he said, ideally impelling future decision-makers on waits in the wings. Scott has consulted regularly with to “think twice before taking financial gambles.” House and Senate members and their staffs; surprisingly, despite the bipartisan wrangling and industry foot-dragging, he believes “disagreements actually are not great” on how to Security from the SEC? deal with derivatives and clearinghouses, design resolution procedures for insolvent financial companies, jump-start The Securities and Exchange Commission has taken private-sector securitization and come up with fixes for the a drubbing since the meltdown for blinkered inaction and rest of the problems crowding the massive bill. worse. Professor Scott would merge the SEC into a new The main sticking point between Congress and industry “USFSA” modeled on the United Kingdom’s FSA (Financial has been the CFPA, the proposed consumer financial pro- Services Authority), the regulator of all U.K. financial service tection agency that would oversee financial products such providers. Said Scott, “One major failure of the current as mortgage loans and credit cards. Professor Elizabeth reform proposals is [the lack of] any serious reform of the Warren, chairwoman of the TARP Congressional Oversight [U.S.] regulatory structure.” The SEC proved incapable of Panel, has said the Credit Card Accountability, Responsibil- providing financial supervision before the crisis, he said, ity, and Disclosure Act passed in 2009 is “a good first step” and is trying to fix this by creating a new division focused on toward fixing the “broken” consumer credit industry. But risk. “But I am skeptical that they can overcome their lawyer- she contends an independent CFPA is vital to rein in the big dominated culture.” banks, which she has bluntly criticized for deceptive tactics That brings us to the notorious legacy of one of Wall that ensnare ill-informed consumers in disastrous financial Street’s biggest manipulators: Bernie Madoff, a former stock- positions. broker and investment adviser. Now serving a 150-year sen- “The lack of meaningful rules over the consumer credit tence, he sidestepped SEC detection for many years while market has destabilized families for a generation and also swindling clients in the largest Ponzi scheme in history. contributed to the collapse of the global economy,” said War- But on a smaller scale, countless investment advisers took ren. “The easiest way to reduce risk in the system is to start liberties with their clients’ money in the fast-and-loose pre- at the front end by making the credit market safe again. This meltdown markets. can be done by a new agency with the tools to slim down From the vantage point of Norm Champ ’89, an associate the fine print and eliminate all the tricks and traps buried regional director for the SEC, the ongoing risk post-crisis in incomprehensible contracts.” (At publication, while the “is that investment advisers do not treat their clients fairly.” House reform bill included an independent CFPA, its fate in Although they are required to manage their clients’ assets as the Senate was uncertain, as a plan to fold the agency into the a fiduciary, said Champ, “we continue to uncover instances Fed was gaining traction.) of advisers” who fail to disclose “material conflicts of inter- In Scott’s view, the CFPA’s focus on “credit cards and est to clients as required by law. We’re concerned that this late fees is small potatoes compared to the high percentage behavior harms investors and undermines public confidence of people’s net worth tied up in real estate. Nobody is really in the markets.” (This point was amplified in April when the protecting investors in this area. But Elizabeth Warren and I SEC brought an enforcement action against Goldman Sachs are on the same page when it comes to the mortgage problem: in connection with the firm’s marketing of mortgage secu- We have yet to come up with a convincing solution to the rities.) The SEC is ramping up by hiring more agents and subprime crisis.” And another wave of foreclosures threat- intensifying scrutiny of investment advisers based on risk ens. As Byron Georgiou pointed out, “We haven’t yet seen factors the agency has identified. The reviews focus on ar- the collapse in the commercial mortgage-backed securities. eas of investment management “where misconduct is most Many of those are due in five years” and will need to be re- likely to be found”; the SEC’s Enforcement Division is called financed and reset. in when serious rules violations are discovered. By the time his commission issues its consensus report in Inevitably, the number of people criminally prosecuted December, said Georgiou, “the financial crisis will, regret- will be small. According to Professor Bill Stuntz, this high- tably, still very much be with us.” P lights the limits of using criminal punishment to police financial markets. “The worst problems affect the whole Julia Collins is an independent writer working in the Boston area. market, not a small number of badly run firms,” said Stuntz. “Criminal punishment works best when it is precisely target- xxxxxxxxxxxxxxxxx ed. Regulators usually need to paint with a broader brush.”
40 harvard law bulletin summer 2010
26-47_HLB_Summer10_09.indd 40 5/6/10 2:44 PM A PRESCRIPTION CHANGEFOR
BY ELIZABETH COONEY REBECCA ONIE, outside Boston Medical Center, where she started Project HEALTH 14 years ago
WHEN SHE WAS 19, REBECCA ONIE ’03 CREATED A PROGRAM THAT TAKES A HOLISTIC APPROACH TO TREATING LOW-INCOME PATIENTS; ONE “GENIUS GRANT” LATER, SHE’S DETERMINED TO CHANGE THE HEALTH CARE SYSTEM.
Photograph by jessica scranton summer 2010 harvard law bulletin 41
26-47_HLB_Summer10_09_r1.indd 41 5/11/10 11:03 AM It all started with a simple question: If doctors had no limits on what they could offer their patients, what would they give them? The answer, then-Harvard sophomore
Rebecca Onie heard again and again, was food, health care system is the leadership of housing, child care, help finding a job. Not the the health care system,” she said. traditional tools of health care, these lifelines are Students compete for places in Project HEALTH, which requires no less essential to health. If a family is living intensive training and a time in a car, she explains, prescribing an antibiotic commitment of at least six hours a week for a child’s ear infection can’t begin to cure the to work on a help desk, follow up with clients and devote an hour to on-campus deeper ills that family is suffering. reflection with other volunteers. On a slushy day in February, Onie marshaled like-minded undergraduates to work Frances Wu, a Harvard junior in her third year with Project with longtime health visionary Dr. Barry S. Zuckerman, HEALTH, fielded phone calls and tracked cases in pediatrics creating Project HEALTH 14 years ago. From a card table at Boston Medical Center. Most of the patients’ families need near the elevators outside Zuckerman’s Boston Medical help with housing, she said, which is hard to resolve given Center pediatrics department, the first Family Help Desk long waiting lists for subsidized housing and high rents in has branched out to six cities—with centers staffed by 600 the private market. Wu and sophomore Megan McGrath student volunteers a year who fill “prescriptions” from compared notes on regulations and time limits for housing doctors and nurses for assistance with homelessness and and food stamps while scanning the Family Help Desk hunger. They are convinced that in order for doctors’ offices database on their laptops. They have such a firm grasp on to be places where people actually get healthy, services the ins and outs of services that clients assume they work for beyond traditional medical care must be offered. the medical center and ask them for help getting a job there. This disarmingly simple idea and its real-world execution Wu was especially pleased to come up with recreational won Onie a MacArthur Fellowship last fall. The half- activities for the child of a woman who had just lost her job. million-dollar “genius grant” catapulted the 32-year-old HLS She couldn’t afford some programs, but Wu combined two in alumna and her organization onto a larger stage just as its the same neighborhood that were much cheaper. Solutions leaders were looking beyond merely replicating success to for child care can be tougher to find, especially outside transforming the health care system itself. the city. “I don’t know how they manage,” Wu said about “We have this belief that access to basic resources like families far from services. food and housing impacts both health outcomes and health McGrath, 19, recalled one request for housing that care utilization in general, but particularly for low-income brought her up short. patients, and a belief that we will only actually move the “I had someone my age who had a baby and was living needle on health outcomes and health care costs when with a friend. I had come in really annoyed about a chem we have a system that addresses the social determinants test, but this put it in perspective,” she said. of health,” she said during a recent interview in Project Project HEALTH co-founder Onie was also 19 when HEALTH headquarters, which occupies space donated by she approached Zuckerman with her questions about the firm Foley & Lardner in Boston’s Prudential Center. “So health care. She the question we ask ourselves is, If it’s all so obvious, why had volunteered in doesn’t the health care system just operate this way?” the housing unit of For starters, there is a staggering lack of social workers. Greater Boston Legal At Bellevue Hospital Center in New York City, for example, Services, working on there is one social worker for every 12,000 patients. At problems from vermin Boston Medical Center, which serves many low-income to evictions. “When you patients, there is one social worker assigned to a pediatric scratched the surface, emergency room with 22,000 visitors a year. there was always an A volunteer workforce trained to connect patients to underlying health resources can fill in this piece of a social worker’s job. But issue,” she said. Onie has a reason for relying specifically on undergraduates, She decided she two-thirds of whom are pre-med students. She’s recruiting wanted to work further
future leaders to influence health care in the years to come. upstream, before At Family Help Desks around the country, “Having a model, however brilliant or not it may be, is children’s asthma was student volunteers fill “prescriptions” from doctors and nurses for assistance with not sufficient. What will be necessary to actually change the worsened by cockroach homelessness and hunger.
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26-47_HLB_Summer10_09_r1.indd 42 5/11/10 4:26 PM BY STAFFING THE help desks with undergraduates, many of whom are pre-med, Onie hopes she is training future leaders who will transform health care.
but physicians at Boston Medical Center did warn her that some days were all ear infections. “By not being [a doctor], I potentially could enable all of those folks who were doctors to be much more effective in their own work,” she said. “I had a real belief that law would be a path to be a powerful advocate around issues that I cared about. Still the same issues, just a different tool kit.” After graduating from law school, where she was an editor of the Harvard Law Review, droppings or families were out on the streets. Zuckerman Onie clerked for 7th Circuit Judge Diane P. Wood. While had bridged law and medicine in 1993 by founding the an associate at Miner, Barnhill & Galland, she worked Medical-Legal Partnership for Children, which enlisted on civil rights and employment discrimination cases and Boston law firms to help families solve legal problems that represented health centers, affordable housing developers impinged on health. After interviewing physicians at his and nonprofits. But in 2006 she left law for the social suggestion, Onie thought about what students could do to entrepreneurship of the organization she had helped found. bridge the gap between needs and available services. Onie reflects that she is probably too impatient for law’s On the Harvard campus, she was struck by another pace: “There’s the occasional sweeping change, but the law is gap: the discrepancy between what was asked of student explicitly incremental, and I think for me [I had] a hunger to volunteers and what was asked of student athletes. “It move faster.” seemed to me the model that tried to be more relevant for At this juncture, Project HEALTH is embarking on an poverty ... would be that which asked more rather than that $11 million capital campaign over four years, fueled by the which asked less,” she said. “If you’re going to do that for MacArthur grant. Onie says the effort resembles HLS’s water polo, surely we can do that for poverty.” newly established Public Service Venture Fund, on whose Dr. Michael Tang, a resident in the combined pediatrics board she sits, and which includes seed money to launch program of Children’s Hospital Boston and Boston Medical nonprofit ventures proposed by 3Ls. Onie wants to build Center, was an early recruit to Project HEALTH. He heard philanthropic equity to expand Project HEALTH programs, Onie speak at Harvard’s freshman orientation and was which some hospitals now pay for, ultimately quadrupling hooked. the number of families served in the next four years, to about “She was incredibly inspiring and she was hard not to 24,000. sign up with,” he said recently about her 1997 pitch. Today, At the same time, in the midst of the national debate “[h]er energy, her vision push us to say, ‘How can we do this about health care reform and how to hold down escalating better? How can we make families’ health better? How can costs, she believes Project HEALTH’s approach saves we change the health care system to improve the health of money: “Part of our vision for the next four years is to work these kids?’ Project HEALTH volunteers through the years, successfully to actually establish the cost savings associated even those who just heard her speak once, feel it.” with the model and to be able to make a compelling case Zuckerman, too, was struck by Onie’s energy. After she to Medicaid, or [to] other third-party payers, that this is a called him up out of the blue and convinced him to see her, model that is actually worth investing in.” he recalled, “I expected to have a brief chat—she was just a “Our aspiration is to grow only to the extent we need to, sophomore in college,” he said. “She came over and we were in order to really change the health system,” she said. “I chatting for an hour. Her energy and her intellect and her think that absolutely our goal is not to build an empire, but passion were extremely compelling.” to really change the system.” P After graduation in 1997, Onie worked at Project HEALTH for three years and then enrolled in Harvard Law Elizabeth Cooney is a Boston-area journalist who writes about School. Earlier, a career in medicine had crossed her mind, health care for publications including The Boston Globe.
Photographs by bette walker summer 2010 harvard law bulletin 43
26-47_HLB_Summer10_09_r1.indd 43 5/11/10 6:11 PM A U.N. advocate is fighting to protect children from armed conflicts
A MOST DISARMING
Last spring, a young woman named Grace Akallo sat in the U.N. Security Council chamber and told its delegates her story. In 1997, when she was 15, soldiers of the Lord’s Resistance Army abducted Akallo from her school in northern Uganda. She learned to use an AK-47 in battle and shot other girls who tried to escape, so as not to be shot herself by the rebel commanders. She was repeatedly raped over the course of seven months, until one day when the LRA was under attack, she herself escaped. When she finished telling her story, she asked the delegates to help bring home other girls and boys who hadn’t been so lucky. Sitting at Akallo’s left in the chamber was radhika coomaraswamy ll.m. ’82. As U.N. special representative for children in armed conflict, Coomaraswamy hears stories like Akallo’s regularly.
BY EMILY NEWBURGER
44 harvard law bulletin summer 2010
26-47_HLB_Summer10_09.indd 44 5/6/10 2:44 PM OSRSG-CAAC WARRIOR OSRSG-CAAC
Coomaraswamy traveled to the Philippines in December 2008 to negotiate the release of children recruited by the Moro Islamic Liberation Front.
summer 2010 harvard law bulletin 45
26-47_HLB_Summer10_09.indd 45 5/6/10 2:44 PM The U.N. estimates that there are some 250,000 children APRD (Armée populaire pour la restauration de la Répub- involved in armed combat in Africa, Asia and parts of Latin lique et de la démocratie), although in the moment—they America, whether as fighters, porters or sex slaves. It’s her had traveled deep into the jungle and there was shooting all job to bring their stories to the attention of the world and to around—she wasn’t sure where the negotiations would lead. use all of the tools available to end impunity for such crimes. “He was not aware that he was on the list, and he got quite Coomaraswamy was first appointed to the position in agitated,” she recalls. The moment was “quite tense,” but 2006 by the U.N. secretary-general. The office had been cre- eventually he agreed to give up the 400 child soldiers in his ated 10 years earlier, after a study commissioned by the sec- forces, and a few months later, he did. retary-general—the Machel Report—brought international She has had similar success in other countries, including attention to the reality of child soldiers. It described a world the Philippines and Nepal. Working closely with U.N. em- of new wars, in which lighter weaponry made it easy to put ployees on the ground and national NGOs, she’s made more children on the front lines. “Twenty years ago weapons were than 17 country visits since her appointment. “Not all groups too heavy for children to carry,” says Coomaraswamy. “But respond,” she says. “There is the Taliban and there are oth- now a child can not only carry an AK-47 but master its use ers we don’t have full communications with. But quite a few in 45 minutes.” At the same time, in these new wars, combat- have entered into negotiations with us because of the Secu- ants do not recognize the Geneva Conventions; they go after rity Council process.” whole communities, enlisting children and women. In fact, In the struggle to end the recruitment of child soldiers, she says, today the majority of deaths in any given armed Coomaraswamy believes international prosecutions like conflict—from Afghanistan to the Congo—are of civilians. those at the International Criminal Court—although it can It was her predecessor, Olara Otunnu LL.M. ’78, the first take on only a few cases—play a role. It has to do with deter- special representative, who established an essential frame- rence, she says, thinking of the reaction she’s gotten during work to end impunity for these crimes against children: her field visits. People are obsessed with the ICC, she says. Resolution 1612. In accordance with the resolution, country- “They ask, ‘Why are people being prosecuted?’ And, ‘What level task forces monitor and report on violations every two does it mean to be prosecuted there?’” months. “We call it the ‘naming and shaming list,’” says It also has to do with “setting the standard.” In the ICC’s Coomaraswamy. Until 2008 it comprised names of member first case to go to trial, Chief Prosecutor Luis Moreno-Ocampo states that recruit and use children as soldiers. Since 2009, it has charged Democratic Republic of Congo rebel leader has also included states that commit sexual violence against Thomas Lubanga with “conscripting and enlisting children” children and kill and maim them. and “using them to participate actively in hostilities.” Coomaraswamy brings these violations to the Security So much is being worked out, says Coomaraswamy, in the Council and pushes for action—the next step, she says, is the interpretation of these charges. creation of a special sanctions committee. In 2008, she wrote an amicus brief, and earlier this year She also visits countries herself to put pressure on gov- she testified before the court in the case that is still ongoing, ernments, rebel groups and military leaders. arguing for a broad interpretation of the words “to partici- “What you must realize,” she says, “is that a lot of these pate actively in hostilities” that would cover the multiple rebel leaders expect to become leaders of their countries roles imposed on children in war, in particular girls. “[They] someday, so they don’t want to be on any list, and they don’t are fighters one minute, ‘wife’ or sex slave the next, and do- want the possibility of sanctions.” mestic aid and food providers at another time,” she wrote. That ended up being the case when she went to the Cen- In her brief for the ICC, she also parsed the language tral African Republic and met with a commander of the “conscripting and enlisting,” stressing that they are both forms of recruitment. Many children, she says, The special represen- like Grace Akallo in Uganda, are abducted into tative in the Sudan, November 2009 armed conflict. But in other parts of the world, children join voluntarily, sometimes because
OLIVIER CHASSOT-UNAMID of need, she says, recalling a trip to the south- ern Sudan, where leaders of the Sudan People’s Liberation Army turned over orphans who had come to the camp desperate for food and willing to enlist to get it. Sometimes they enlist out of a desire for revenge; many children have seen their parents murdered, their sisters raped. “We don’t distinguish,” she explains, “because we feel that if you are a child, you are too impressionable to volunteer.” It is U.N. policy that people should not be tried for war crimes they committed as children. The
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26-47_HLB_Summer10_09_r1.indd 46 5/11/10 4:26 PM New book focuses on children’s role in transitional justice
Today around the world, Saudamini Siegrist; and in Liberia’s truth-telling panel via videoconference, children are among the most Theo Sowa, is part of recent commission, the book looks agreed that children must affected by war. Yet until efforts to change that. at recent efforts to bring be given such opportunities. recently, transitional justice At a panel at HLS marking accountability and healing He also expressed wonder tools—from international the launch of the book—a and to protect the rights of at children’s resilience: and national prosecutions to collaboration between children in the process— “When you think that truth-telling commissions— UNICEF and the school’s especially when the they are going to be just have paid little attention to Human Rights Program— participants have not only casualties, burnt up by a their experience. Dean Martha Minow called it been victims of violence, lust for revenge, you are A new book, “Children a remarkable collection that but perpetrators. It makes so humbled by how they and Transitional Justice: will have “repercussions for the case that if we are to can be so magnanimous— Truth-Telling, Accountability, restorative justice, but also prevent mass atrocities and wounded healers of other and Reconciliation” (Harvard retributive justice as well help child victims of war, wounded persons. I pray University Press), edited by as community building.” robust educational and this splendid collaboration Sharanjeet Parmar; Mindy From the fi rst cases in economic opportunities between Harvard and Jane Roseman, Harvard international courts focused must be part of the solution. UNICEF will blaze a new trail Law School Human Rights on crimes against children Archbishop Desmond in dealing with post-confl ict Program academic director; to involvement of children Tutu, participating on the situations.”
Special Court for Sierra Leone and the ICC, the first inter- going home, they said, ‘No, no. We’re very happy here.’” national courts to try child soldier cases, have followed suit. Coomaraswamy herself first came to the U.S. from Sri Children who have committed crimes in these wars must Lanka (then Ceylon), when she was a girl and her father’s come to terms with what they have done, she says, perhaps position with the United Nations Development Programme through mechanisms of restorative justice, but they should brought her family to New York. After 17 years, and degrees not be subject to criminal prosecution. from Yale and Columbia (the HLS degree would come later), Many states follow this policy when it comes to national she returned to her home country in 1976 and worked there law. Coomaraswamy says the issue has been raised with the for more than 30 years, as a human rights advocate and then United States regarding young people detained in Guantá- as U.N. special rapporteur on violence against women to namo; so far the U.S. has released all of them except one. the U.N. Commission on Human Rights. “It was during the Coomaraswamy says terrorism and anti-terrorism are worst of the war,” she says, referring to the battles between increasingly affecting children. In March, she returned Tamil insurgents and the government. “I spent a lot of time from a trip to Afghanistan, where the Taliban used seven fighting for human rights, and for women’s rights and for children as suicide bombers in 2009. She is also concerned ethnic harmony in that country.” with allegations that Afghan forces are recruiting minors. That gave her firsthand knowledge of the sort of disrup- During the trip, she secured ongoing access to recruitment tion that affects the lives of the people for whom she now and training centers in an attempt to stop the practice. advocates. They are so often “afraid of the Western imposi- And when she met with Gen. Stanley McChrystal, after a tion,” she says. “And when I say, ‘I understand what you’re year when 131 children were killed by airstrikes, “collateral going through because I come from Sri Lanka,’ the tone just damage” was high on her list. He convinced her that he was lowers.” committed to reviewing military strategy to better protect According to Coomaraswamy, one of the highlights of civilians. But during the very week of her visit, an airstrike her work is getting to know extraordinary people like Grace killed children, and Coomaraswamy will continue to push Akallo, “who have gone through hell but have come through for review of these tactics. In addition to meeting with top it.” military officials and President Hamid Karzai, the special When she’s asked what’s hardest, the U.N. special repre- representative also talked to children who had fled fighting sentative laughs: “That I have to be well-behaved.” in Helmand Province. They were 6 and 7 and 8, but they “I am just joking,” she says. “But on these issues [you feel] used the word “martyr,” she says. “I don’t think we realize so much outrage—you can manage that and control it, and how much the discourse of resistance is in children’s minds.” put it into diplomatic language. But I come from more of an The solution, she says, can’t just be military but must ad- activist background.” Yet in the U.N. system, “if you become dress a range of problems. She was struck by how much the too activist, you create a backlash,” she says. “If you want children, especially the girls, loved attending the school set to get much done … you have to push. You have to construc- up by UNICEF in the camp: “When you asked them about tively engage and push.” P
summer 2010 harvard law bulletin 47
26-47_HLB_Summer10_09.indd 47 5/6/10 2:45 PM HISTORY MAKERS
relationship with Germany, and even- tually negotiated an agreement recog- nizing Polish gains of German territory Straddling the Gap Between East and West during the war. Maintaining a good relationship Krzysztof Skubiszewski LL.M. ’58 with the U.S.S.R. was perhaps even more vital—even though its influence was waning. The Soviets had stored vast amounts of ammunition in Poland, and the hundreds of thousands of So- viet troops stationed in East Germany were accustomed to crossing through Poland at will. In the early 1990s Skubiszewski called for talks on their withdrawal, and 20 months of tense negotiations followed. Finally, with the intercession of President Lech Walesa, an agreement was reached. Skubiszewski’s ultimate goal was to open Poland up to relations with the West, but he knew he had to tread care- By Katie Bacon school clandestinely in occupied War- fully. As he pointed out in a November For almost half a century, Poland’s saw, and narrowly escaped deportation 2009 interview, Poland couldn’t con- foreign policy had been dictated by to a German labor camp. He taught nect with the West while still in the others—first the Germans during international law at Polish universi- Warsaw Pact, yet it also couldn’t unilat- World War II and then the U.S.S.R. ties on and off throughout his career, erally leave the pact without offending After the election of Solidarity in the at times running afoul of the Commu- its neighbors: “The Warsaw Pact had spring of 1989 and the chain reaction nists, as when he condemned the So- to be weakened first, and subsequently it started, leading to the fall of Com- viet invasion of Czechoslovakia in 1968 disbanded, in an effective way—with all munist regimes throughout Eastern and when he criticized anti-Semitism parties’ consent. And that meant that Europe, the leader of the new govern- within the Polish government. He also the U.S.S.R. had to be convinced that ment, Tadeusz Mazowiecki, needed a studied and worked abroad, often mak- the Warsaw Pact was dead.” foreign minister who could carefully ing contact with Polish political exiles Skubiszewski remained foreign negotiate the line between East and during his travels. During his studies minister, through four different gov- West while recreating re- at Harvard in the late ernments, until 1993. His work build- lationships with Germany, 1950s, he was particularly ing Polish relations with the West the U.S.S.R. and other close to Professor Louis culminated in Poland’s membership in neighbors threatened by Sohn LL.M. ’40 S.J.D. ’58, NATO and the European Union. Poland’s move away from a fellow Pole who left his Jerzy Makarczyk, a former student communism. The man country just before the Na- of Skubiszewski’s and later a colleague he chose was Krzysztof zis invaded. Skubiszewski in the Foreign Ministry, wrote a tribute Skubiszewski LL.M. ’58, a took Sohn’s class in Unit- in 1996 that captures both his men- AGENCJA GAZETA respected scholar of inter- ed Nations law, a topic tor’s importance and the tensions of national law and an expert in Polish- Skubiszewski had been discouraged life under communism: “It is thanks German relations. “He was a complex from investigating back in Poland. to men like him that we, the younger figure, straddling the gap between East Part of the reason he was chosen generation of lawyers, during the dark- and West both professionally and po- as foreign minister was his expertise est years of communism, the university litically,” recalls HLS Professor David on frontier issues between Poland purges, the submission of our country Kennedy ’80, who met Skubiszewski in and Germany. The tension over shift- to the U.S.S.R. and the Communist Par- Poland in the early 1980s. ing borders during World War II was ty, never lost faith in human values, in Skubiszewski, who died earlier this one of the vital issues that needed to the primacy of law both in internal and year at age 83, lived a life shadowed and be solved by the new government. international relations, in the indivis- shaped by World War II and commu- Skubiszewski, an early proponent of ibility of international law, in short—in nism. During the war, he went to high German reunification, forged a close our belonging to European culture.” P
48 harvard law bulletin summer 2010
48_65_HLB_Summer10_09_r2.indd 48 5/12/10 10:48 AM PROFILE BRUCE RAMER ’58 DIVIDES HIS TIME BETWEEN ENTERTAINMENT GIANTS AND PRO BONO CAUSES
Ramer’s List
IT’S A TYPICAL deals and the relation- as an American and as a Southern California day ships with his clients. Jew,” Ramer said. In 2000, for Bruce Ramer ’58. The “And I adore, love and while president of the weather is sunny, and trust my partners,” he AJC, he testifi ed before he’s on the telephone, said of his dozen col- Congress against the driving back to his leagues at the fi rm. Secret Evidence Repeal Rodeo Drive offi ces in Ramer’s involvement Act, arguing that its pro- Beverly Hills from a in nonprofi t work is posed ban on the use of lunch meeting with nearly as deep as his classifi ed information in a Hollywood power client list. George W. immigration proceedings broker. Today, he dined Bush appointed him failed to draw a balance at Il Grano in West Los to the board of the between due process Angeles with writer and Corporation for Public concerns and national director Cameron Crowe. Broadcasting in 2008. security interests. He as- “We schmoozed and He serves on the board serted that the bill would got the business done,” of trustees of the have softened America’s said Ramer. “He’s an University of Southern protections against enormous talent and a California in addition terrorism, and the AJC dear friend.” to sitting on the board strongly opposed it. After Ramer is sheepish of councilors of the Sept. 11, he said, the bill about dropping names. USC Annenberg School “fell off the desk.” Home- His fi rm, Gang, Tyre, for Communication & land security issues still Ramer & Brown, is well Journalism, the USC concern Ramer, and he known for its high-profi le Gould School of Law, serves on the Homeland entertainment and me- and the USC Shoah Security Advisory Council dia work. Yet it doesn’t Foundation Institute of Los Angeles County. have a website and for Visual History and Ramer either hasn’t doesn’t publish a client Education. calculated or won’t admit list. “We’ve never felt the He is the former presi- to how much time he
need,” said Ramer. MORIGI/WIREIMAGE FOR AUDI OF AMERICA PAUL spends on his nonprofi t Word is out, however, involvements versus his about the many notable HE MAY BE THE ONLY MEMBER OF THE COUNCIL ON FOREIGN law fi rm work. “That’s a celebrities among the state secret, because I fi rm’s clientele, including RELATIONS TO BE THE NAMESAKE OF A MECHANICAL SHARK don’t want my partners actors Demi Moore and to know,” he said. “It Ben Stiller and directors gives me a great sense Clint Eastwood and Rob- lawyer joke to name a Reliance ADA Group and dent of the American of satisfaction. I fi nd it ert Zemeckis. Director 3-ton, 25-foot shark after a battery of banks, led Jewish Committee and a stimulating, and I really Steven Spielberg is one an attorney. But Ramer by J.P. Morgan, and a member of the Council believe it energizes my of Ramer’s long-standing insists that there are distribution deal with on Foreign Relations, professional work.” clients: Ramer has good parts to a shark, Walt Disney Co. The fi rm and he sits on the Pacifi c At 76, Ramer gives no represented the direc- too, and that it is certain- provided counsel on all Council on International thought to retiring. “I tor of “Jaws,” “E.T.” and ly those qualities that he aspects of the transac- Policy. His interest in truly enjoy it all. I have “Schindler’s List” for is named for. “They never tion, from the distribu- diplomacy stretches back from day one,” Ramer four decades. And Ra- paid me a royalty—that’s tion agreement with to his undergraduate said. “It’s trite, but it’s mer boasts the dubious all I know,” he said. Disney to the employ- days at the Woodrow true. I love what I do, distinction of being the The fi rm represents ment agreements and Wilson School of Public and I do what I love. namesake of “Bruce,” the Spielberg and Dream- fi nancing. and International Affairs That’s the way it’s been. mechanical shark used Works in complex deals There is no one part at Princeton University. Do I look forward to the to terrify moviegoers in for feature fi lms and of entertainment law “Foreign affairs and challenge of every day? “Jaws.” television. These include Ramer enjoys best. He diplomacy are both Yes.” It may be the ultimate a fi nancing deal with savors the variety of the issues of concern to me michelle bates deakin
summer 2010 harvard law bulletin 51
48_65_HLB_Summer10_09_r1.indd 51 5/11/10 11:26 AM PROFILE DAN CHILL ’70 PRACTICING THE ART OF BRINGING BACK A FORGOTTEN GENRE
Smart About Art—Even When It’s Naïve
WHEN YOU ARE best contacts. Then, with standing in the middle of the help of drivers and GINA Gallery of Inter- translators, he visits the national Naïve Art, you artists’ homes to “fi nd feel the way you would out what’s behind each in a fl ower garden on a piece,” taking careful perfect day. notes on his yellow legal That’s just the pad, a habit he’s held on ambience Dan Chill ’70 to since law school. hoped to create when In April, he traveled he founded the Tel Aviv to Nicaragua, Honduras, gallery in 2003. El Salvador, Guatemala Chill defi nes naïve art and Panama, and then as a genre made up of home to Tel Aviv, visiting “simple, idealized scenes more than 20 artists and that have an enchanting acquiring approximately innocence and joyous 40 paintings, and then colors.” The artists— returned to Cambridge most often self-taught— just in time for his 40th paint the world “as it law school reunion. (In could be or should be.” addition to his J.D., he His mission is to holds an M.P.A. from the expose more and more John F. Kennedy School of people to the paint- Government.) ings that, he said, fi rst NAIVE ART 75X75CM) COURTESY OF GINA GALLERY INTERNATIONAL TO THE RIVER” (2008, ACRYLIC ON CANVAS, “THE FLORES, PATH ALONSO Chill says business “grabbed my heart” 28 has been thriving in the years ago during a busi- HE DISPLAYS THE WORK OF ARTISTS, FROM SOUTH AMERICA TO Tel Aviv gallery, and his ness trip in Tegucigalpa, hope is to eventually Honduras. RUSSIA, WHO PAINT THE WORLD “AS IT COULD BE OR SHOULD BE” include the work of art- On the road many ists from China, Australia months a year as general and possibly Africa on its counsel for Israel Aircraft sought to give the art- this is how these walls. His dream (once Industries and the Eisen- work the recognition he artists want to the gallery has been dis- berg Group, and then believes it merits. “see and feel” their covered by art collectors later with a company Among the artists world. He is happy worldwide) is to create a that introduced the fi rst featured at the gallery is to report that, “museum of the highest digital offset color print- Alonso Flores of El Salva- since Flores’ work caliber” highlighting ing press, Chill carved out dor, whose work depicts fi rst appeared in naïve art from all over time to buy works by lo- scenes from village life as the gallery, it is the world. cal naïve artists. He soon he remembers it: women now in demand by “I’m really proud of saw that the paintings carrying produce from collectors around taking up the challenge he brought home deeply the market and children the world. of bringing back into the affected other people swimming in a stream. GINA now art world a genre that as well. “When people Although many of the features the work is one of the oldest in visited our home, they artists represented are of 200 artists from history but hasn’t been spoke about what was on from countries where more than 25 given the attention it our walls instead of the there is great political countries, includ- deserves,” he said. weather and politics,” upheaval, violence or ing Canada, Brazil, linda grant Chill said. By establishing poverty—and Flores is Spain and Russia. fully as he would for a le- the gallery, the fi rst to no exception—these Prior to his visit to a gal case—writing a “mini l To see more of the art focus on naïve art from forces are never visible in country, Chill prepares doctorate” about the lo- on display at GINA, go to around the world, he the artwork. Chill insists and researches as care- cal art and artists and the www.ginagallery.com.
52 harvard law bulletin summer 2010
48_65_HLB_Summer10_09_r2.indd 52 5/12/10 10:48 AM PROFILE PAUL BUTLER ’86 USED TO PUT PEOPLE AWAY—NOW HE WANTS TO SET THEM FREE
A Case for Reform
WHEN HE WAS a it comes to criminal prosecutor, Paul Butler justice,” he says. ’86 loved to put people in Of course, Butler also prison. He loved winning wants to effect change trials, which he did most in society, through his of the time. He loved book plus appearances breaking defendants on news programs like down on the stand “60 Minutes” and opinion and getting them off pieces in major news- the street, which, he papers. He has perhaps believed, made the com- garnered the most atten- munity safer. tion for his advocacy of Now he would love jury nullifi cation in cases nothing more than to set of nonviolent offenders free some of the types of even if they are guilty, people he once put away. which he contends is a A professor at George justifi able strategy that Washington University dates to the American Law School, Butler has Revolution. “When law become an outspoken enforcement does go too critic of the U.S. criminal far, when it crosses the justice system, mass line, that’s when jurors incarceration and drug have a constitutional laws. He recounts his authority to check and views in his book “Let’s balance,” says Butler. Get Free: A Hip-Hop Theo- His own experience ry of Justice,” in which he working with jurors has advocates for alterna- given him the confi dence tives to incarceration for THE FORMER PROSECUTOR ARGUES FOR JURY NULLIFICATION that they can use this nonviolent offenders and IN CASES OF NONVIOLENT OFFENDERS—EVEN IF THEY ARE GUILTY power as a remedy for the release of at least the kinds of prosecutions 500,000 of them currently that in the end harm their in prison. communities. Indeed, his “We’d be a lot safer if serves as a training of Justice, but also as an like him. Butler jokes time as a prosecutor has we were smarter about ground for nonviolent accused criminal. During that if you go to criminal informed his critique of who we locked up, and offenders, who are more his time at the DOJ, a court in D.C., you’d think the very system of which we didn’t lock up so many likely to victimize people neighbor claimed he that white people don’t he was once a part. people,” Butler says. “A after they are released, assaulted her. Butler was commit crimes. Such “As a former lot of the reform of the according to Butler. then arrested and faced racial disparities are prosecutor, I have a lot criminal justice system “The biggest threat to a trial in which both the addressed in the culture more credibility and I really is about ways to freedom in the United complainant and a police of hip-hop, which he get a lot more attention be safer as much as it States comes not from offi cer lied in an attempt praises for exposing a when I talk about is about ways to treat some foreign or terror- to convict him, he says. mass audience to the reforming the criminal people more fairly.” ist threat but rather Though he was found not same social justice issues justice system,” says He argues that high from our dysfunctional guilty, the experience, he that concern him. Though Butler. “It’s given me an incarceration levels have criminal justice system,” says, “gave me profound sometimes criticized for important platform that decimated black com- he writes. misgivings about how misogyny and violence, I try to use responsibly.” munities in particular, He understands much justice I was doing hip-hop artists “know lewis i. rice disrupting families and that system not only as a prosecutor.” how to impact people’s making prison—rather as a prosecutor of drug So did the fact that hearts and minds, and I l For more on Butler’s than employment—a cases in Washington, nearly all the people he think they’re doing that book, see www.letsget- social norm. Prison also D.C., for the Department prosecuted were black very consciously when freethebook.com.
56 harvard law bulletin summer 2010
48_65_HLB_Summer10_09_r1.indd 56 5/11/10 11:27 AM PROFILE RAJ KUMAR LL.M. ’00 WANTS TO REFORM INDIA’S LEGAL SYSTEM—ONE LAW STUDENT AT A TIME
Build It and They Will Come
EARLY IN THE 1990s, The school opened last when C. Raj Kumar September, with 113 stu- decided to attend law dents and an internation- school, he was swim- al faculty. Kumar plans to ming against the current expand the university to of India’s high achiev- include a business school ers—most of them were and schools focusing on headed into engineering, international affairs and medicine and account- public policy. ing. “My parents’ friends Professor David would say to them, ‘Raj Wilkins ’80, head of the is a good student. What HLS Program on the Legal happened?’” he recalls. Profession (he appears The fi eld of law—char- to Kumar’s left in the acterized by corruption, photo), attended Jindal abuses of power and Global University’s open- endemic delays in the ing ceremonies. He says courts—was not highly of Kumar: “I think he’s a regarded. And, while the visionary leader. It’s not fi rst of 15 elite national going to be easy—start- law schools had opened ing a new institution is
in the late 1980s, many of TOM PIETRASIK never easy—but I think the other 900 law schools [the school] will play an in India offered only a “I THINK HE’S A VISIONARY LEADER,” SAYS important role not just mediocre education. in India but around the Kumar received a law HLS PROFESSOR DAVID WILKINS OF RAJ KUMAR world, as institutions fi g- degree from the Univer- ure out how to respond sity of Delhi in 1997, and to the globalization of over the next several noticed one charac- it as trying to create an and power businesses. It law.” years his graduate stud- teristic that set U.S. Indian version of Harvard took more than a year of Kumar thinks big, ies and work in the hu- universities apart: Most or Yale. Kumar started persuasion, but eventu- and his ultimate goal, man rights and national were private, nonprofi t, putting together an inter- ally Jindal agreed to cre- going back to his early security fi elds took him philanthropic initiatives. national advisory board, ate the O.P. Jindal Global days in human rights around the globe—to Ox- Kumar decided he and in 2006 he met with University. law, is reforming the ford, where he obtained wanted to create some- India’s law minister, H.R. Over the next year Indian legal system a Bachelor of Civil Law thing new in India—a pri- Bharadwaj, who liked and a half, Kumar worked to build a more just as a Rhodes Scholar; to vate research university Kumar’s idea and asked with a small team to society. “We have a very Harvard for his LL.M. in that, while giving stu- him what he’d need to buy land north of Delhi, vibrant civil society, 2000; to NYU Law School dents the basics of Indian accomplish it. “I said, ‘We oversee the design and but there’s also a fair as a research fellow; and law, would look outward need someone who can construction of the amount of lawlessness, to Japan and Hong Kong in both curriculum and put in 60 to 70 million U.S. residential campus, and a lack of respect for human rights fellow- hiring, drawing people dollars, and who can do navigate the educational for the law among both ships. He started thinking from around the world to it in a nonprofi t manner, permitting process, cre- average citizens and the about the quality of the teach the intricacies of with academic freedom ate the curriculum, hire government,” he says. legal education available international and com- and independence.’ He the professors, publicize Kumar sees good law in those places and about parative law. His school said he would get back the school and select the schools as an essential how one would go about would also prepare its to me.” students. “It’s been a 24/7 tool for addressing the recreating it. He saw an students for the new eco- Later that year, exercise. The process of problem: “It’s training emphasis on rigorous nomic realities, including Bharadwaj linked Kumar doing something like this people who will be at the scholarship and teaching the multibillion-dollar up with Naveen Jindal, a in India usually takes a vanguard of ensuring by academics at the top industry of offshoring le- billionaire who had made minimum of six to eight justice within society.” of their fi eld, but he also gal work to India. He saw his money in the steel years,” Kumar says. katie bacon
58 harvard law bulletin summer 2010
48_65_HLB_Summer10_09_r1.indd 58 5/11/10 11:27 AM PROFILE ORY OKOLLOH ’05 FROM THOUSANDS OF MILES AWAY, SHE SENT AID IN THE WAKE OF DISASTER
A Citizen Journalist to the Rescue
WITHIN HOURS OF the media, and they weren’t catastrophic earthquake really covering the that hit Port-au-Prince, story well,” says Okolloh. Haiti, on Jan. 12, Ory Okol- “When I’d turn on the loh ’05 was working to TV and the radio, there route rescue personnel would be no news com- and supplies to Haitians ing through. I opened who were desperate for up my blog and said, assistance. Although she Send me your stories. I’ll was located a hemi- publish them and make sphere away in Johan- sure that someone sees nesburg, South Africa, them.” Okolloh found herself When incumbent informing humanitarian candidate Mwai Kibaki aid groups and even the was declared the U.S. State Department winner of the election about the developing despite his opponent’s disaster. announcement to the Okolloh gathered contrary, violence broke digital information from out around the country. aid workers and others in Okolloh, who by then Haiti and uploaded it to TRYING TO GET ASSISTANCE TO A DISASTER-STRICKEN CITY? had a 10-month-old the public website that baby, made the diffi cult she created specifi cally MONITORING ELECTION FRAUD? SHE’S CREATED A SITE FOR YOU decision to return to for this purpose. Called South Africa. Ushahidi (Swahili for On her way back “testimony”), it uses journalism and inter- She interned in Nairobi politics for the fi rst time to Johannesburg, she free software that tags national human rights during two of her winter in history. “We really thought, What if there on-the-ground reports work. She fostered those terms, at the Kenya wanted to encourage was a way for people to and attaches them to a interests at HLS through National Commission on Kenyans to say, Look, if send the information di- Google map. Ushahidi the Berkman Center for Human Rights. you don’t start asking rectly to a website … and receives information Internet & Society. After law school, these guys questions you could have access—a from a variety of sources, Okolloh, a native of Okolloh returned to her about what they are record of some sort of including SMS text Kenya, did her under- country (turning down doing, they aren’t going what happened? messages and e-mails. graduate studies at the an offer from a D.C. to give that information The idea for Usha- With communications University of Pittsburgh fi rm) and soon enough up themselves,” Okolloh hidi was born—and it’s systems severely dam- and decided to go to law found herself in the says. since developed into an aged by the quake, the school because, “From midst of a constitutional At about that time, internationally recog- Haitian Ushahidi page when I was young, I referendum. Responding Okolloh met her partner nized source of citizen became one of the few always associated law to the lack of information and moved back with him journalism. With a full- channels through which with individuals who are about the process, she to Johannesburg to work time staff of 11, it’s been the outside world could pursuing justice,” she co-founded a program as in-house counsel for a used to track xenophobic direct assistance to those says. tracking Kenyan small NGO. She returned violence in South Africa, in need. Focused on parliamentarians online, to Kenya in 2007 to blog confl ict in the Demo- Ushahidi, which international public because “We didn’t really about the presidential cratic Republic of Congo, harnesses the power of interest work, Okolloh know what they were election, which was elections in India and the Internet to organize spent one of her up to,” she explains. widely believed by the incidents of violence in content generated by summers at the World Mzalendo (Swahili for international media to be Pakistan. Al Jazeera has “crowdsourcing,” or Bank in Washington, D.C., “patriot”) garnered rigged. even used it to track the multiple users, was born investigating corruption international attention “There’s a lot of war in Gaza. And it’s on out of Okolloh’s interest in World Bank projects, for the transparency censorship in the gov- call for the next disaster. in technology, citizen as a Chayes Fellow. it brought to Kenyan ernment and the local emily dupraz
60 harvard law bulletin summer 2010
48_65_HLB_Summer10_09_r1.indd 60 5/11/10 11:28 AM OBITUARY INFORMATION class notes IN MEMORIAM Notices may be sent to Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138 or to [email protected]
1930-1939 victor b. schwartz ’43 theodore l. cross ii ’50 albert robin ’55 sheldon a. vincenti ’63 Nov. 19, 2009 Feb. 28, 2010 Oct. 28, 2009 March. 31, 2010 clarence e. galston ’33 Oct. 27, 2009 richard d. holzapfel ’44 jay w. glasmann ’50 louis a. wood ’55 w. dalton tomlin ll.m. ’64 May 16, 2009 March 19, 2010 Sept. 10, 2009 Feb. 23, 2010 nicholas c. english ’37 Jan. 11, 2010 robert g. bailey ’48 jack l. goodsitt ’50 frank c. gardner ’56 richard e. floor ’65 Nov. 30, 2008 Jan 11, 2010 Oct. 31, 2009 Feb. 18, 2010 robert kaplan ’37 Oct. 6, 2009 john “jack” bingham ’48 david j. o’boyle ’50 marshall s. harris ’56 beverlee bell human ’65 Dec. 7, 2009 Dec. 30, 2009 Nov. 2, 2009 Dec. 9, 2009 marvin p. richmond ’37 Dec. 18, 2009 milton alfred “al” d. glenn ofsthun ’50 edgar love iii ’56 galen c.k. leong ’65 darling jr. ’48 Dec. 9, 2009 Oct. 14, 2009 Dec. 26, 2009 henry c. beerits ’38 Jan. 15, 2010 July 25, 2009 edward pesin ’50 pierre pelham ’56 morey w. mcdaniel ll.m. george c. gillette ’48 March 6, 2010 Dec. 3, 2009 ’65 norman c. stallings ’38 Feb. 26, 2010 Oct. 29, 2009 ll.m. ’40 george r. poor ’50 bernard rothman ’56 March 23, 2010 edmund h. kendrick ’48 Oct. 13, 2009 Aug. 20, 2009 paul s. byard ’66 Dec. 12, 2009 July 15, 2008 j. jenkins garrett ll.m. charles h. randall jr. ’50 donald g. rowlings ’56 ’39 leonard j. keyes ’48 ll.m. ’54 Oct. 8, 2009 thomas j. graff ’67 Jan. 28, 2010 Jan. 26, 2010 Jan. 29, 2010 gordon h.s. scott ’56 Nov. 12, 2009 lewis h. parks ’39 f. william mccalpin ’48 f. theodore thomsen ’50 Aug. 24, 2009 robert d. joffe ’67 Feb. 19, 2010 Dec. 9, 2009 Sept. 19, 2009 john p. “jack” driscoll Jan. 28, 2010 frank h. spears ’39 daniel p. s. paul ’48 philip m. boudreau ’51 jr. ’57 jack t. litman ’67 Nov. 11, 2009 Jan. 23, 2010 Sept. 19, 2009 Nov. 15, 2009 Jan. 23, 2010 paul g. pennoyer jr. ’48 joseph sheffield dow ’51 harold kaufman ’57 bruce a. blumberg ’69 1940-1949 Jan. 7, 2010 March 5, 2010 March 10, 2010 Sept. 23, 2009 judd n. poffinberger edward m. fogarty ’51 patrick j. rohan ll.m. ’57 frank j. connors jr. ’69 donald r. bryant ’40 jr. ’48 Aug. 1, 2009 Nov. 26, 2009 Aug. 14, 2009 Oct. 23, 2009 Dec. 2, 2009 george b. haley jr. ’51 jonathan h. churchill ’58 daniel j. mcauliffe ’69 robert c. harris ’40 donald n. rothman ’48 Jan. 31, 2010 March 26, 2010 March 12, 2010 Dec. 15, 2008 June 8, 2009 s. neil hosenball ’51 thomas lee clark ’58 gerald a. rosenberg ’69 john r. haskell ’40 john c. siegesmund jr. ’48 Dec. 23, 2009 Feb. 22, 2010 Sept. 5, 2009 Aug. 12, 2009 Sept. 9, 2009 jay j. newman ’51 eli manos ’58 ralph j. thanhauser ’69 rafael martinez-alvarez malcolm richard wilkey Oct. 24, 2009 Nov. 21, 2009 Nov. 23, 2009 jr. ll.m. ’40 ’48 July 29, 2009 gordon c. smith ’51 teodoro p. nichtawitz Aug. 15, 2009 July 28, 2009 ll.m. ’58 stephen a. milwid ’40 1970-1979 michael alexander ’49 stephen d. wahrhaftig ’51 May 15, 2009 Oct. 10, 2009 Feb. 16, 2010 andrew m. lukele ll.m. Sept. 29, 2009 john c. pittenger ’58 ’70 s.j.d. ’73 robert d. price ’40 edwin w. bragdon ’49 Dec. 6, 2009 Jan. 5, 2010 henry a. warchall ’51 Feb. 1, 2008 Oct. 11, 2009 Sept. 3, 2009 harry l. snead jr. ll.m. ’58 ralph c. putnam jr. ’40 donald j. jeruc ’71 john p. carroll jr. ’49 paul c. gartzke ’52 May 24, 2009 Nov. 10, 2009 Sept. 9, 2009 July 12, 2009 Sept. 25, 2009 garland c. “bud” boothe john j. kruse ’72 charles e. schaaf ’40 winston r. cornell ’49 jr. ’59 Dec. 28, 2009 asa rountree ’52 Aug. 24, 2009 Dec. 5, 2009 Feb. 11, 2010 Nov. 26, 2009 george w. cregg ’41 richard j. sutton ll.m. ’72 frank n. dardeno ’49 robert wallace smith ’52 richard l. cleveland ’59 April 17, 2009 Oct. 9, 2009 Nov. 8, 2009 March 1, 2010 March 10, 2010 edward n. beiser ’77 gerald e. fosbroke ’41 roger j. donahue ’49 stephen w. craig ’59 April 25, 2009 douglas broward craig Sept. 4, 2009 Oct. 28, 2009 ’53 Sept. 23, 2009 vincent p. “bill” brady dwayne green ’79 joseph b. gedanic ’49 Nov. 25, 2009 john d. dunmire ’59 Sept. 7, 2009 matasavage ’41 July 27, 2009 Feb. 10, 2010 Nov. 24, 2009 edward j. hawkins jr. ’53 alan g. grant jr. ’49 Jan. 15, 2010 daniel c. kramer ’59 1980-1989 albert j. rosenthal ’41 Sept. 16, 2009 March 11, 2010 March 17, 2010 ian r. macneil ’53 susanna e. shields ’85 eric r. haessler ’49 Feb. 16, 2010 ray g. olander ’59 Oct. 17, 2009 william c. schmeisser Nov. 7, 2009 Nov. 3, 2009 jr. ’41 theodore b. roessel ’53 nancy a. o’neal ’87 April 18, 2008 george m. hasen ’49 Sept. 23, 2009 Sept. 4, 2009 Oct. 31, 2009 1960-1969 myron l. gordon ’42 charles j. “jack” cooper steven l. vollins ’89 Nov. 3, 2009 david r. hastings ii ’49 ’54 bernard h. clark ll.m. ’60 Aug. 19, 2009 Feb. 14, 2010 Nov. 19, 2009 charles l. michod sr. ’42 Feb. 27, 2009 June 1, 2009 harold l. hitchins jr. ’49 peter h. ghee ’54 birchard a. furlong 1990-1999 March 4, 2010 Dec. 18, 2009 ’57-’58 earl d. murphy ’42 marjorie l. benson s.j.d. Sept. 14, 2009 sherman r. slavin ’49 robert d. hartshorne ’54 Feb. 2, 2010 Oct. 20, 2009 Feb. 19, 2010 ’93 jesse h. oppenheimer ’42 alex r. seith ’60 Jan. 4, 2010 Oct. 9, 2009 edmund g. sullivan ’49 richard f. sachs ll.m. ’54 March 23, 2010 Dec. 20, 2009 Jan. 4, 2010 albert rocha ’94 finley h. perry ’42 charles w. small ’60 Oct. 22, 2009 Aug. 17, 2009 abraham wax ’49 archibald spencer ’54 Oct. 18, 2008 June 29, 2008 Jan. 13, 2010 dudley b. tenney ’42 richard h. thomas iii ’60 2000-2009 Sept. 18, 2009 joseph m. walsh ’54 Nov. 27, 2009 1950-1959 Sept. 17, 2009 thomas g. conway ’61 robert k. townley ’00 frank morey coffin ’43 Oct. 9, 2009 Dec. 7, 2009 david alter ’50 dwight b. claar jr. ’55 Aug. 22, 2009 Aug. 27, 2009 Nov. 15, 2009 carl f. ehmann jr. ’61 katarina o. savino ’02 john c. godbold ’43 Oct. 10, 2009 Dec. 22, 2009 john bishop ballem, q.c. harry downs jr. ’55 Jan. 19, 2010 ll.m. ’50 Nov. 28, 2009 stephen r. barnett ’62 james e. maschoff ’06 john “jack” pemberton Jan. 19, 2010 jr. ’43 Jan. 9, 2010 marvin e. gavin ’55 Oct. 13, 2009 Oct. 21, 2009 jerome v. blatz ’50 Aug. 20, 2009 benjamin r. schenck ’63 Aug. 20, 2009 Jan. 28, 2010
62 harvard law bulletin summer 2010
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a white tern in the tropical Pacific, photographed by Theodore Cross ’50 for “Waterbirds” (W. W. Norton, 2009). Nature magazine called the book “extraordinary.” The same might be said of its author, who came to bird photography at midlife after a career as a successful publisher and another in which Cross (who was white) became an authority on black economic empower- ment. Cross died on Feb. 28, a little more than a year after the publication of “Waterbirds.” The book’s success is a testament to his keen eye, to hours spent in swamps and tundra around the world, but also to his belief in our potential for reinvention.
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SPRING REUNIONS SEEMS LIKE IT WAS YESTERDAY
photographs by kathleen dooher
1. Sue Lee ’01, Phil Lee ’00 2. Pablo Buey Fernandez LL.M. ’85, Dafe Akpedeye LL.M. ’85, Patricia Lopez Aufranc LOOKING BACK LL.M.’85 3. Class of 1975 AND LOOKING 4. Maria Brito-Souza LL.M. ’00, Oliver FORWARD Brito-Souza 5. 1970 classmates Constance Vecellio, John Lovett 6. Alan Ullberg ’60, Bruce McLanahan ’60, George Cushing ’70, Henry Dane ’70 7. 1985 classmates Luis Lavin, Ken Sulzer 8. 2000 classmates Alison Corkery, Jane Frankel Sims, Yordanka Delionado 9. 1960 classmates Roy Hammer, Zona Fairbanks Hostetler 10. 1975 classmates Marilyn Hutton, Walter Jones, Julia Dobbs Gibbs 11. 1975 classmates Kari Glover, Nadine Strossen 3 12. 1970 classmates Mario Diaz-Cruz III, Noah Griffi n, Richard Hoff man, Guy M. Blynn 4
5 6
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CALENDAR 11 12
june 22, 2010 HLSA of the United Kingdom Dean Martha Minow The Inner Temple London 617-384-9523
oct. 29-31, 2010 Fall Reunions Weekend Classes of 1950, 1955, 1965, 1980, 1990, 1995, 2005 & Emeritus Club Harvard Law School 617-384-9523
l For the latest on Harvard Law School Association events, go to http://www.law.harvard.edu/ alumni/events/index.html.
summer 2010 harvard law bulletin 65
48_65_HLB_Summer10_09_r1.indd 65 5/11/10 11:11 AM Jack Cogan ’52 jokes that LEADERSHIP PROFILE he resides “in the shadow of Harvard,” having moved back to the Square after living in Lexington for years. A graduate of A Conversation with John F. Cogan Jr. ’52 Harvard College (’49) and Harvard Law School, he’s had a long engagement What is it about HLS that You participated on Russia’s being challenged. You have with the school and the has elicited so much of your Foreign Investment Advisory to set high standards for university, serving on the focus? Council soon after it was cre- yourself. I remember we Visiting Committee and It’s the school itself. To ated. What was that like? had a large and important supporting HLS—includ- me, HLS is a place of It was a unique experience. U.S. client seeking to set ing most recently its inter- enormous excitement, The council originally had up a project in Nigeria. It national programs. always. It’s the sheer energy, 14 members representing was before the revolution Cogan also has much and the spirit of inquiry— companies from Western that took place there in the experience advising HLS also the rigor. Of course, I’m Europe, the United States ’60s and before the much- deans—from Al Sacks ’48 proud to have graduated and Japan. It was in the needed U.S. Foreign Corrupt to Martha Minow—and from the law school. Its early ’90s, when Russia was Practices Act was passed in takes a long view of the impact on legal education a wild and woolly place. Its the ’70s. The client needed school. When he thinks and the profession has closed society was trying government approval for a of the promise of today’s been profound, and I have to come of age in the world private sector project which Program on the Legal been fascinated to watch marketplace. Its large un- was stalled. The client’s lo- Profession led by Profes- the school evolve into a truly derground economy was cal advisers kept suggesting sor David Wilkins ’80, for global law school. reinforcing rampant cor- the need for some “dash,” example, he recalls its an- ruption. Social, political the local word for bribes. tecedents in the early ef- What have you enjoyed and economic upheaval was While it was not my deci- forts by then-Dean James most over the course of your everywhere. Yeltsin had re- sion to make or to imple- Vorenberg ’51, including career? gained the presidency after ment, I told the client if they trips they took together What I have enjoyed most the attempted coup, but peo- followed that advice, I could to interest law fi rms in was practicing law, but after ple tend to forget that the no longer represent them. New York in support of becoming managing partner Communist Party was still Fortunately, the client re- this program. “They knew of our fi rm, I was able to do in a position to block almost jected the local advice, and we didn’t come from outer much less of it. In my begin- anything signifi cant in the fi nally, after a long wait, the space,” he recalls, “but the ning years, however, I Duma that the government project was approved. skepticism was pervasive.” did quite a bit of corporate wanted to do. Thus, many of I also think there’s a Now of counsel at work and some internation- the economic, corporate law certain humbling in prac- WilmerHale, he was al work. I became interested and accounting reforms rec- tice. You can be involved in named a senior partner in comparative law, in a ommended by the council a problem and think you in 1961 at the predeces- very real, practical sense. to help make Russia more understand all four corners sor fi rm, Hale and Dorr, What actions could you take friendly to foreign investors of it. Then sometimes in became managing partner under civil law that you were scuttled in the Duma. further discussions some- in 1976 and served as could not under common There was so much to one will make a point that chairman from 1984 to law and vice versa? It was be done as Russia tried to makes you realize you’ve 1996. Cogan, who turns so diff erent doing transac- slough off the ineffi cient missed something. 84 in June, remains active tions in civil law South Communist central control in the fi nancial services America from common law economy. The country had What advice would you give industry and is deputy countries like India or an archaic accounting sys- to a graduating law student? chairman of Pioneer Ghana. It was a very inter- tem. Russia’s whole statisti- You can go anywhere. You Global Asset Management esting time internationally cal system was an unreliable know, it can be like putting S.p.A. (Italy) and president because at fi rst you were government database with a rucksack on your back of the Pioneer Family of working in the closed Cold a propaganda slant to it, so and just taking off . You can Mutual Funds (USA). Dur- War environment and then, you could not trust the data. go anywhere as a lawyer, ing an afternoon in March, post-perestroika, you be it as a lawyer in practice, he spoke with the Bulletin watched the opening up What have you found most public interest organiza- before embarking on a of Central Europe and challenging in your career? tions, business or govern- four-mile run. Russia. One’s integrity is always ment service.
66 harvard law bulletin summer 2010 Photograph by leah fasten
66-c4_HLB_Summer10_09_r1.indd 66 5/11/10 5:40 PM I know it’s harder right Any words of warning? HLS, you’ve served many some of the contemporary now, because the job market I must say this: The law other organizations, including pieces being composed is thinner, but for someone itself is very demanding the Boston Symphony today. It’s been wonderful from this institution, it’s not and enticing, and if you’re a Orchestra, Boston Medical over the course of years to as thin as for others. You natural workaholic—which Center and the Boston hear the Boston Symphony come out of Harvard Law unfortunately I am, geneti- Museum of Fine Arts. How do Orchestra’s progression: School with a legacy of intel- cally, I guess—you must be you balance these efforts? Seiji Ozawa was a great con- lectual strength, of analysis, careful not to be so drawn Well, to me, life is a bal- ductor, but Maestro Levine of understanding diff erent into your professional life ancing act. It narrows the has brought the orchestra systems, and people, and that there is time for little amount of free time that one to new heights. As to muse- how they behave. else. It’s as if you were in a would otherwise have and ums, I’ve also had a longtime There are so many oppor- giant centrifuge. You have often makes for long days, interest in art, and museum tunities to make a diff erence to constantly try to avoid but the rewards in terms of visiting worldwide has been in the world when you leave being drawn into the center enrichment and the expan- an important part of my life. Harvard Law School. I think and rather swim to the edge sion of my knowledge and While I’m not a collector that it gives you a kind of ta- to reach other activities that interests have been great in any signifi cant way, I do bula rasa. Thinking about the enrich your life. It’s an im- and personally satisfying. collect contemporary paint- possibility of those opportu- portant perspective to have. I’ve had a love of classical ings, works on paper and nities still gives me a vicari- music for years and years— sculpture—some things that ous sense of excitement. In addition to your support of from early music forward to both my wife, Mary, an art historian by education, and I like.
What’s one of your favorite pieces you’ve collected? One is a large color fi eld painting that my law partners gave me when I stepped down as managing partner, so it has special signifi cance. I like it, but not everyone does. It’s a [Jules] Olitski. And if you see it at a distance, it almost looks like a blackboard, but close up you see the textures and the subtle gradations of coloration.
Can you say something else about your long-term engage- ment with HLS? It’s been so enjoyable for me, especially, as earlier noted, watching the school evolve into a global law school. Anything I’ve done, in terms of giving to the school of time and resourc- es, I’ve received back in so many diff erent ways. And the school has had such a profound eff ect on my life, so I feel doubly rewarded. It’s been glorious! P
harvard law bulletin 67
66-c4_HLB_Summer10_09 bcg.indd 67 5/6/10 2:49 PM GALLERY
The future of Harvard Law School is emerging on Massachu- In the Blink of an Eye setts Avenue, like a present waiting to be opened. Slated to be completed in December 2011, the environmentally friendly,
68 harvard law bulletin summer 2010 Photograph by mary kocol
66-c4_HLB_Summer10_09 bcg.indd 68 5/6/10 2:50 PM The Wasserstein Hall, Caspersen Student Center, Clinical Wing project
250,000-square-foot complex—with an academic building dent center and a new centralized home for the school’s bur- that will support the innovations in teaching that have been geoning clinical program—is already revealing its handsome introduced into the school’s curriculum, an expansive stu- facade now that much of the scaff olding has come down.
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