/THE NEW EMPIRICISTS / 800 / / HarvardThe great fascinator at LawBeating the drum for Justice bulletin Spring 2015 83RD / ATTORNEY GENERAL OF THE UNITED STATES / LORETTA LYNCH ’84 CONTENTS Spring 2015 | Volume 66 | Number 2 | Assistant Professor Crystal Yang ’13 is one of the increasing number of empirical law scholars at HLS. ▼

FEATURES 20 Lynchpin for Justice A prosecutor with a calling 28 The New Empiricists In law’s new frontiers, data may be as important as precedent. 34 Unbowed Bryan Stevenson ’85 on race, poverty and the things worth fighting for 40 First Line of Defense Students represent the indigent in

courts where judges ask, ‘Is Har- PPELL A H vard in the building?’ C EBB W

Bryan Stevenson ’85, author of “Just Mercy: A Story of Justice and Redemption” ▶ X AU DE O N THIB O ND A BR Amanda Savage ’15 (left), Asmara Carbado ’15 and Cass Luskin ’15 represented clients as part of the CJI Criminal Defense Clinic, headed by Dehlia Umunna (right). ▼

DEPARTMENTS

2 From the Dean 3 Letters 4 Writ Large: Faculty Books Blum on the future of violence; Guinier on the tyranny of the meritocracy 8 Inside HLS The corporate takeover of the First Amendment; LL.M.s for LGBT rights; Articulating integrity; Title IX; Tributes to Daniel Halperin and Duncan Kennedy; Dying while black and brown 45 Class Notes W

Hidden talent; Persuasion; A TO S voice for accountability; Politics and service; Trust in Providence; MARK O A medical-legal partnership; HLS authors 59 In Memoriam 60 HLSA News 62 Leadership Profile Bart Winokur ’64 64 Gallery The ‘great charter’ at 800

Harvard Law Bulletin

ASSISTANT DEAN FOR Editorial Office COMMUNICATIONS Harvard Law Bulletin Robb London ’86 1563 Mass. Ave. Cambridge, MA 02138 EDITOR Email: [email protected] Emily Newburger Website: MANAGING EDITOR today.law.harvard.edu/bulletin S

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[email protected] AG EDITORIAL ASSISTANCE The Harvard Law Bulletin (ISSN Lana Birbrair ’15 1053-8186) is published two ETTY IM

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© 2015 by the President and L F Lori Ann Saslav A Fellows of Harvard College. H C I

DESIGN DIRECTOR Printed in the U.S.A. M Ronn Campisi Netta Barak-Corren S.J.D. ’16 launched the Empirical Legal Studies group at Harvard. “Data,” she says, “can be quite a convincing tool.” ▲ FROM THE DEAN | Law and Accountability

A CENTRAL PURPOSE OF LAW is accountability. But who holds law itself to account? Law is designed to expose and sanction people, organizations, and nations when they violate a public norm or legal system through instruction and through recruiting talented people to breach an enforceable private agreement. What should happen take up the work, we have expanded the when law fails to deliver? Criminal Justice Institute’s Criminal Over the past year, many people across the United States have Defense Clinic by nearly 60 percent. asked this question about local, state, and national criminal Approximately 50 percent of the clin- ic’s graduates go on to become public justice, and about police and grand juries in particular. A part of defenders. We are delighted that the the solution lies in the independent research and review offffered clinic’s deputy director, Dehlia Umun- by academics; another part, in the sterling effff orts of outstanding na, has accepted a place as clinical practitioners. Longer-term refforms come with the recruitment professor, starting this summer. and training of superb individuals to carry on the work. Other fi elds, such as medicine and technology, have made dramatic prog- This issue of the Bulletin offff ers ress through the use of empirical tools glimpses of some of these avenues for and data-driven analysis. Here at HLS, law reform in this country and around Assistant Professors Holger Spamann the world. S.J.D. ’09 and Crystal Yang ’13 each Last year, HLS Clinical Professor use empirical research tools to assess Ronald Sullivan ’94 helped the Brook- criminal sentencing practices. lyn district attorney’s offiffice set up a We are increasing our investment in conviction review unit to address the “The classic empirical research not only in criminal troubled history of the offiffice. As the question for justice but also in consumer protec- faculty director of the school’s Crimi- tion, settlement of litigation, corporate nal Justice Institute, Sullivan worked government and governance, securities regulation and with students to design the best way to for media is: the legal profession itself. A growing review convictions, with the focus on Who watches number of HLS faculty focus on empiri- correct results. cal legal studies, and the school has ex- Loretta Lynch ’84 has served for two the watchdogs? panded empirical research coursework distinguished terms as United States At its best, and learning opportunities.

N attorney for the Eastern District of law offffers The classic question for government New York, where she and her team and for media is: Who watches the successfully pursued convictions of essential watchdogs? At its best, law offffers essen-

KEN RICHARDSO police offifficers involved in the torture checks. But tial checks. But this very ideal raises of a Haitian immigrant, and where this very the stakes for holding legal systems she prosecuted a series of individuals themselves accountable. accused of terrorism. We salute her ideal raises We are trying to do our part by com- service and leadership upon her nomi- the stakes bining new and old tools—crowdsourc- nation and confifi rmation to serve as the for holding ing, debate, research and education. attorney general of the United States. legal systems The best prospect comes with talented Bryan Stevenson ’85, professor at people, propelled by visions of what New York University School of Law, themselves could and should be. Congresswoman founded the Equal Justice Initiative accountable.” Barbara Jordan once said: “More is to provide free legal representation to required of public offiffi cials than slogans death-row inmates in Alabama. His or- and handshakes and press releases. ganization successfully challenges life More is required. We must hold our- sentences for juvenile offffenders and ra- selves strictly accountable. We must cial and economic bias in the American provide the people with a vision of the criminal process. His award-winning future.” We invite your thoughts about memoir, “Just Mercy,” published in the how to promote accountability across fall, exposes systemic failures and at law and society . the same time raises hope with stories of his crusading efffforts. With an aim of improving the

2 HARVARD LAW BULLETIN Spring 2015 LETTERS |

Territorial taxation est theft from taxpayers in and visionary politician. her partners for perpetu- disguises largest theft in our history. Is it any wonder He was the fi rst great ating a cycle of poverty in taxpayer history that such a sophisticated American legal writer: His which teenage girls are I MUST TAKE EXCEPTION TO campaign is so well-funded eight-volume “A General forced into having their the statement in “Tax Turn- and -led? Abridgment and Digest of babies, which more often around Time?” (Fall 2014) Martin Lobel LL.M. ’66 American Law,” published than not condemns both that “both sides agree on the Washington, D.C. in 1823, a few years before mother and child to a grim need for a reduced tax rate Chairman of the Board of Kent’s “Commentaries on existence during which they and the move to a territorial Tax Analysts, publishers of American Law,” surveyed lack the opportunities that system. ... ” That is simply Tax Notes the entire national fi eld, and Windham enjoys. not true. was such a best-seller that Tad Kramer ’76 and A territorial system would Tax journal has wide reach it provided the funds which Margaret Kramer allow multinational corpo- AS A CONTRIBUTING EDITOR enabled Dane to endow the Lecompton, Kansas rations to avoid taxation to Tax Notes, I was sur- Dane Professorship (Dane on any profifi ts they claimed prised to see it referred to specifying that the first We need someone of Lloyd they earned offffshore and as an “arcane tax journal” incumbent would be his Weinreb’s stature would put domestic com- (“Tax Turnaround Time?”). great friend Supreme Court I READ WITH GREAT panies against whom they Far from being “arcane” Justice Joseph Story). interest Richard Fallon’s compete at a great disad- (or obscure), Tax Notes is Hiller B. Zobel ’59 recent story about the vantage. While it is true that generally regarded in the Boston retirement of my Crimi- our nominal corporate tax tax community as the lead- nal Law professor, Lloyd rate is high, the effffective ing publication of tax news A backlash against feminism Weinreb, who even in 1967 U.S. tax rate on multina- and commentary. That’s the IN REGARD TO “KEEPING was a superb teacher. After tional corporations is on reason why Professor Shay Faith,” t he article about the learning from it how he has a par with those of other chose to publish his views in nonprofifit law firm which grown in the last 47-plus developed countries. Tax Notes (“Mr. Secretary, represented Hobby Lobby years, it occurs to me that he No one disputes that our Take the Tax Juice Out of (Fall 2014), it is becoming might be just the person to tax system is riddled with Corporate Expatriations,” increasingly apparent to help the United States out of loopholes or subsidies which 144 Tax Notes 473 [July 28, us that what masquerades its present standoffff between should be eliminated. 2014]). He wanted to reach as a religious objection to many of our minority com- We need to adopt a system tax policy-makers and prac- contraception and abortion munities and their police of apportioning the multi- titioners. His article was is in actuality a backlash forces. nationals’ income, rather subsequently referenced against feminism, because Mr. Weinreb certainly than exempting them from by the mainstream media, arguing that a miniscule appears to retain the energy taxation of income they including The New York embryo has the legal status to chair a Warren-type claim they earned offffshore. Times and The Wall Street of a human being is as commission, which would For almost one hundred Journal. ludicrous as the medieval recommend changes to a years, the states have adopt- Incidentally, the Bulletin debate concerning how system of justice that might ed either a three-factor missed the role played in many angels can dance on alleviate the impasse that apportionment of tax- this story by an HLS alum. the head of a pin. has developed, and the able income based on the A key fi gure in developing By facilitating Hobby expertise to be respected amount of property, person- Treasury’s anti-inversion Lobby’s refusal to offffer a by both the police unions nel and sales within their notice [last] summer was plan that insures certain and the residents of our boundaries or simply on international tax counsel common methods of birth ghettos. Clearly, now more the amount of sales in their Danielle Rolfes ’02. control, Lori Halstead than ever after the senseless state, and the U.S. Supreme George White ’63 Windham is propagating killing of the two offifficers in Court has ruled that that Bethesda, Maryland the narrow-mindedness of a Brooklyn, we need someone is at least as accurate as white religious fundamen- of his stature to address the using transfer pricing to The Story connected to a talist minority which con- problems that the deaths determine where profifits are great American legal writer tinually attempts to impose of Michael Brown and Eric earned. NATHAN DANE, THE SUBJECT its will on the plurality, with Garner have brought to the Territorial taxation is of an interesting piece in dire social consequences as fore. merely a very clever way of the Fall 2014 Bulletin, was the result. Richard M. Grimsrud ’71 disguising perhaps the larg- more than just a fi ne lawyer Shame on Windham and Sedona, Arizona

→WRITE to the Harvard Law Bulletin, 1563 Massachusetts Ave., Cambridge, MA 02138; [email protected]. Letters may be edited for length and clarity. WRIT LARGE | Faculty Books Power–and Peril–to the People In a new world of technology, we are more powerful and more vulnerable than ever

DURING A CONVERSATION ABOUT HER NEW BOOK, Gabriella Blum grid; deadly pathogens have become more widely Gabriella Blum LL.M. ’01 S.J.D. ’03 jokes that she and Benjamin available, as seen in the anthrax attacks in October Wittes reject the has become paranoid. Then again, it’s not para- idea that we must 2001; and 3-D printing allows civilians to create noia if you truly have something to fear. And the give up liberty their own weapons. Furthermore, technologies book “The Future of Violence: Robots and Germs, for the sake of tend to allow attacks from greater distances and security. Hackers and Drones—Confronting a New Age of with a greater chance for anonymity. Threat” covers lots of things to be scared of—as As a corollary, distance does not protect people well as ways to make us safer even when danger can from harm. The ubiquity of the Internet, along come from everywhere and everybody. with the fact that our digital information is being Blum, the Rita E. Hauser Professor of Human stored out of our hands, has increased the number Rights and Humanitarian Law at HLS, and co-au- of ways people can be attacked, they write. As tech- thor Benjamin Wittes, a senior fellow in gover- nology advances, our vulnerability will increase. nance studies at the Brookings Institution, focus For example, should driverless cars one day take on a new world of technology that fundamentally over our roads, the systems that control them could changes long-established conceptions of security. be tampered with to cause mass traffiffic accidents. Whereas in the past, government was primarily To face these threats, the private sector will play a responsible for security, individuals are now more greater role than ever, they contend, ranging from empowered and more vulnerable than ever before. cybersecurity initiatives to innovations such as one Indeed, new technologies have allowed individuals from a company that uses audio sensors to identify and small groups to challenge states, they write. when a gunshot has been fired. For example, networked computers could facilitate “The point is that in the future world, you are an attack on the fi nancial system or the electric a key to security, you are a key to defense, you are

4 HARVARD LAW BULLETIN Spring 2015 ILLUSTRATION BY EDEL RODRIGUEZ FACULTY BOOKS

a key to threats, and each and every one of us is The Price of naked, vulnerable, menacing, and essential,” says Blum. The authors reject the notion that, in this new Admission age of threat, one must give up liberty for the sake of security. After all, they note, the least free Does overreliance on standardized tests countries are not the most secure. In addition, weaken college and society? while concerns about invasion of privacy are often raised when it comes to security issues, they write that “the concept of privacy badly describes the FOR LANI GUINIER, the mission of higher value we wish to protect in a culture in which we education is—or should be—democracy. routinely conduct transactions using, as currency, Speaking about her new book, “The Tyranny data about ourselves.” They cite instances in which of the Meritocracy: Democratizing Higher people gratefully cede privacy in order to feel more secure, such as when a credit card company mon- Education in America,” the civil rights attorney itors customers’ transactions in order to discover and Harvard Law professor explained that fraud. “the goal is not just to educate the elite, but Blum This is surveillance, whether we to educate the citizenry, and to educate the commonly call it that or not, as is screening done in airports, says citizenry in a way that will not only benefifit the Blum. And the authors advocate for individuals who are at the schools, but will also more of it as long as checks and bal- ances are in place, such as ensuring EVGENIA ELISEEVA EVGENIA that it is nondiscriminatory. In an age of “many-to-many threats,” we need to protect ourselves from more than just the specter of an all-seeing Big Brother government, Blum says: “I’m actually comfortable with [surveillance] within bounds if it protects me from lots of Little Brothers with far less accountability than demo- cratic government has.” As a native of Israel who advised the Israel De- fense Forces and Israeli National Security Council, Blum says that her background taught her that national security affff ects people’s everyday lives. Unlike in the United States, in Israel, the country’s border didn’t provide an effffective line of defense. In many ways, that is now the reality under which all nations must operate. Since many threats are transnational, more states will create laws and car- ry out unilateral actions that will cross their bor- ders, including more targeted killings, she says. To prevent a worldwide “Wild West,” she advocates for more international cooperation, including the possibility of a multinational police force. More than ever, the instability of one country threatens not only its own citizens but also other nations, she says. Before the book was published, students mulled its topics in a workshop Blum co-taught with HLS Professor Jack Goldsmith called National and In- ternational Security Law: New Threats. As the stu- dents embark on their careers, it’s not a question of iff they will deal with these threats, she says, but how: “I can’t think of a place where these questions aren’t relevant today.” —LEWIS I. RICE

ILLUSTRATION BY ADAM MCCAULEY Spring 2015 HARVARD LAW BULLETIN 5 FACULTY BOOKS

benefifi t a broader segment of society.” Guinier has been writing about democracy and exclusion for decades. In “The Tyranny

of the Majority” (1994), she V O ND

noted that voting rights alone A had failed to yield policies that LER/L improved the lives of minorities, A IN DE and she proposed a cumulative A voting system involving multiple LER) THE PL representatives of single dis- A IN DE

tricts, with each individual voter A having a number of votes to III/THE PL

cast. In “Becoming Gentlemen” S N (1997), she and her co-authors O documented ways in which wom- NNIE TIMM O L

en were failing to thrive in the ( traditional law school classroom and proposed collaborative, Lani Guinier She’d like to see universi- from my students,” she said. writes, “What problem-solving-based teaching is urgent for ties move from an emphasis In the early 1990s, when she approaches as remedies. In “The our world—and on admission that’s reliant on was on the faculty of the Univer- Miner’s Canary” (2002), she thus what we faulty standardized tests to an sity of Pennsylvania Law School, should consider and Gerald Torres argued that most closely in emphasis on mission—a mission Guinier agreed to co-supervise the experiences of minorities education—is a of expanding opportunity to a seminar on feminism that student’s capacity can inform the analytical and to collaborate students who are racially and was proposed by some of her political bases for positive social and to think economically diverse—and on students. “It turned out to be change for all Americans. And in creatively.” building on their potential with a remarkable experience. The ▲ “Who’s Qualififi ed?” (2001), she mentoring and support once students were so invested in the and Susan Sturm made the case they are on campus. course because they were in a po- that our reliance on admissions Guinier believes this would sition to help draft the assump- tests like SATs and LSATs is serves individual students “and tions and expectations and goals fl awed: They are poor predictors coc ntribute to the conditions of a of the class,” she said. “I was just of future success; they dispro- thriving democracy” by cultivat- struck by the power of learning portionately benefifit students ing classes of “critical thinkers, by teaching.” from privileged backgrounds; active citizens and publicly Today, Guinier said, in many and affiffi rmative action, the stan- spirited leaders.” of her courses at HLS, “I teach dard remedy for the monochro- How it is accomplished in for at least a third of the class, matic student body that these universityu classrooms, she said, meaning for the first three to tests draw, merely perpetuates is through peer-instruction, four weeks, and then I work with the problem. peer-collaboration and peer-sup- small groups of students to facil- In “The Tyranny of the port networks. When educators itate the next sessions. So, they Meritocracy,” Guinier builds “The like Harvard physics professor don’t have to spend their time on the idea that standardized SAT is Eric Mazur and University of listening to me talk; they are test-based admissions reinforce actually Texas math professor Philip Uri really learning by teaching.” a status quo stacked against the Treisman shifted to this style When diverse groups of disadvantaged. Guinier calls this more of teaching in their classrooms, students educate each other a “testocracy.” “The SAT is ac- reliable as they found that all of their as peers, they become prob- tually more reliable as a wealth a ‘wealth students—top and bottom—im- lem-solvers who know how to test than as a test of potential,” proved, that the achievement work together, and they are she writes. The success of higher test.’” gap narrowed, and that the gaining the skills that they need education, she argues, should be gender gap disappeared. to become participants in their measured not by the test scores Guinier has taken a similar democracy. “That’s the theme of the students who enter the journey with her own teaching. of the book,” Guinier said. “The system, but by the work and ser- “I wrote this book, in large mea- power of collaboration.” vice of the students who leave. sure, because of what I learned —JERI ZEDER

6 HARVARD LAW BULLETIN Spring 2015 FACULTY BOOKS In Brief

“Identifi ed versus Statistical Lives: An Interdisciplinary Perspective,” EDITED BY PROFESSOR I. GLENN COHEN ’03, NORMAN DANIELS AND NIR EYAL (Oxford, 2015). The book examines ways in which people are more likely to help those in actual danger than to protect as-yet-unidentifified people from similar harm in the future. Examples of this bias range from the world of health care, where major resources are often devoted to the gravely ill, to extraordinary relief efffforts such as the rescue of trapped miners in Chile. The book’s essays, including one written by Cohen, director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, on how the concept plays out in litigation, examine when the bias arises, whether it is ever justifified and its practical implications.

“Doubt in Islamic Law: A History of Legal Max- ims, Interpretation, and Islamic Criminal Law,” BY PROFESSOR INTISAR A. RABB (Cambridge, 2015). People commonly think that Islamic law, because touting the benefifi ts of group decision-making. Yet, it is based on the divine, leaves little room for dis- as the authors note, history suggests that groups cretion or doubt, says the author, co-director of the are often unwise or downright foolish. In the book, HLS Islamic Legal Studies Program. Yet doubt, she Sunstein, who wrote the inflfluential behavioral writes, is in fact at the heart of Islamic criminal science work “Nudge,” and Hastie, an expert on the law. Using case studies and examining the devel- psychology of decision-making, reveal the sources opment of Islamic law from the seventh century to of group failure, including how groups can amplify the 16th century, she highlights how the concept errors of individuals, adopt a herd mentality and of doubt was used by Muslim jurists “to form a veer toward extremes. They also detail how groups pragmatic method of interpretation that increased can succeed, by assigning roles and seeking outside their institutional power over law.” information and with leaders who make room for others’ viewpoints. Crowds aren’t always wise, “Wiser: Getting Beyond Groupthink to Make they write, but since most off us work in groups, we Groups Smarter,” BY PROFESSOR CASS R. SUNSTEIN should understand why and when they can be wiser. ’78 AND REID HASTIE (Harvard Business Review, 2015). As far back as Aristotle, people have been “The Singular Universe and the Reality of Time: A Proposal in Natural Philosophy,” BY PROFESSOR ROBERTO MANGABEIRA UNGER LL.M. ’70 S.J.D. ’76 AND LEE SMOLIN (Cambridge, 2015). In this book, a phi- losopher and a scientist tackle a subject that could not be grander: the universe and its history. Unger, a legal theorist (currently on leave from HLS to serve as minister of strategic affffairs in Brazil), and Smolin, a theoretical physicist, base their inquiry on the premise that the universe is singular; that time is inclusive and real and therefore nothing in nature lasts forever; and that there is selective realism in mathematics. In connecting these ideas, the authors provide “a reinterpretation of some of the most important discoveries of 20th-century cosmology and physics, the historical character of the universe fi rst among them.”

ILLUSTRATIONS BY DAVID POHL Spring 2015 HARVARD LAW BULLETIN 7 News and views INSIDE HLS from campus

FACULTY VIEWPOINTS Will Corporate ‘Speech’ Undermine Productivity? Extending First Amendment rights to corporations is bad for capitalism, argues Coates

THE FIRST AMENDMENT PRO- John Coates links misguided extension of First are increasingly using the First tects the political speech of the explosion of Amendment rights to corpo- Amendment to attack laws and corporate First corporations, the U.S. Supreme Amendment rations—what he calls “the regulations intended to rein Court decided in Citizens Supreme Court corporate takeover of the First in harmful corporate activity United. Critics say the ruling litigation to the Amendment”—has dire conse- (think consumer and environ- influence of corrupts our democracy by Justice Lewis quences not only for American mental protection laws), and allowing billions in corporate Powell. democracy, but also for Ameri- that the federal courts are, money to flood American elec- ▲ can capitalism. alarmingly, obliging them. tions, drowning out the voices of In his new paper, “Corporate His paper contributes to the those without the wealth needed Speech and the First Amend- scholarly literature on the sub- to compete for the attention of ment: History, Data, and ject in two ways: by examining elected representatives. Implications” (forthcoming the rise of First Amendment lit- Harvard Law Professor John in a special issue of the journal igation by corporations, through Coates has other concerns about Constitutional Commentary), empirical data, and by reconcep- the ruling. He says that the Coates argues that corporations tualizing the trend in economic

8 HARVARD LAW BULLETIN Spring 2015 ILLUSTRATION BY MITCH BLUNT, PHOTOGRAPH BY MARK OSTOW terms—namely, “rent seeking,” similar to those of people— of America and the freedom of the redistribution of benefifi ts at something that Coates argues our people.” Among the strat- another’s expense without added should be of interest to consti- egies he urged was litigation. social value. tutional originalists. Moreover, “Other organizations,” he noted, A corporate law professor and Coates writes, the U.S. economy “have been far more astute in former partner at Wachtell, historically grew into a power- exploiting judicial action than Lipton, Rosen & Katz, Coates house without a boost to busi- American business.” fi rst found himself drawn to ness via the First Amendment. Coates, in a striking graph, constitutional law after Citizens That all changed radically in quantififi es Powell’s judicial in- Unitedd was decided in 2010. the 20th century, after Powell fl uence. Between 1972 and 1987, He acknowledges that crossing joined the Court. Months before the period of Powell’s tenure this boundary is unusual. Few his elevation on Jan. 7, 1972, and on the Court, free speech cases corporate scholars know consti- unknown to the U.S. Senate that involving businesses doubled, tutional law, he has found, and confifirmed him, Powell, a cor- jumping from 20 percent of the few constitutional scholars know porate lawyer, wrote a 34-page Court’s First Amendment docket corporate law. manifesto to the U.S. Chamber to more than 40 percent. One of the exceptions is at the of Commerce. It claimed that The Court first ruled that center of his article: the late U.S. the American economic system commercial speech is protected Supreme Court Justice Lewis was under attack not only from under the First Amendment Powell LL.M. ’32. Coates sets leftists, but from “the college The in Virginia Pharmacy in 1976. the stage for Powell’s entrance campus, the pulpit, the media, After that, Coates found, against the backdrop of histo- the intellectual and literary jour- Founders nonexpressive businesses ry. Until the 20th century, he nals, the arts and sciences, and never con- (businesses that are not, for shows, British and American from politicians.” templated example, publishers or film or law assumed that corporations Powell argued that “a prima- television companies) went from were government creations and ry responsibility of corporate that corpo- about a 20 percent win rate in subject to routine and wide- management” is to fi ght back for rations had First Amendment cases to a 55 spread government regulation. the sake of “the free enterprise rights simi- percent win rate—about equal to The Founders never contemplat- system, and all that this means the win rate for individuals. ed that corporations had rights for the strength and prosperity lar to those In Bellotti (1978), the of people, Court established the right of argues corporations to free expression, Coates. and then came Central Hudson in 1980. There, the Court articulated the test for deciding commercial speech cases: If a case involves commercial speech, and that speech concerns lawful activity and is not misleading, then, to be constitutional under the First Amendment, the law regulating that speech must directly serve a substantial government interest, and it must “fifi t”—that is, it must restrict no more speech than is “necessary.” Coates writes that Central An expert in M&As and Hudson “provided an open securities invitation to courts to strike regulation, down laws ‘abridging’ speech Coates says there has been by businesses, even if the laws “a corporate serve concededly ‘substantial’ takeover of the First and legitimate purposes, even Amendment.” if the interests are served in a straightforward and intuitive

HARVARD LAW BULLETIN 9 INSIDE HLS

fashion, and even if the speech in STUDENT SNAPSHOT question has no political or ideologi- cal content.” LL.M.s for LGBT Rights Case in point: POM Wonderful, LLC, decided in January 2015 by Childhood friends train together to fi ght the D.C. Circuit Court of Appeals. Uganda’s draconian anti-gay laws The company wanted to market its pomegranate juice with unqualifified health claims, based on fi ndings from one randomly controlled study. AS ACTIVISTS FOR LGBT RIGHTS certain homosexual acts punish- A Federal Trade Commission order in Uganda, Susan Mirembe able by life imprisonment, was said that companies needed at least Nalunkuma LL.M. ’15 and Go- enacted in 2013. It was over- two studies; otherwise, they had to diva Akullo LL.M. ’15 have not turned on technical grounds, but state that their claims were based on chosen an easy path. a new version is expected to be “preliminary” or “initial” research. They’ve been called names, in- proposed in the Parliament. The court scrapped that part of the cluding by some of their univer- Through Kabumba, the two FTC order, ruling that it violated the sity teachers, and been shunned students met other human rights Central Hudson “fifi t” requirement. by other students, even those activists in Uganda, and also Within this doctrinal state of who support their work but are studied under an outspoken affff airs—and here is where rent afraid to do so openly. “We had proponent of LGBT rights, Sylvia seeking enters the picture—laws classmates saying: ‘You’re being Tamale LL.M. ’88, former dean regulating corporations that paid by Western powers to kill of the school of law at Makerere. are passed by legislatures and African culture. You are spread- Over the next four years, Akullo implemented by agencies with ing immorality,’” says Nalunku- and Nalunkuma expanded their input from broad constituencies, ma. “We did not have it easy, but effff orts, working through the uni- including corporations, are being many had it worse.” versity’s fi rst legal aid clinic on a contested in court by corporate Uganda is among the harsh- case against Uganda’s minister of managers with narrow interests and est nations in its treatment of ethics and integrity for shutting goals. Those laws are being declared homosexuals. In 2009, American down a gay-rights conference. unconstitutional by judges who evangelical preachers helped Nalunkuma also worked with misapply to the corporate form the Ugandan legislators draft a law Sexual Minorities Uganda, an rights of individuals. The courts in that called for the death penalty NGO based in Kampala, to help these cases, Coates says, are abusing for homosexuals, and attacks provide information and support their powers of judicial review. against gays spiked. In 2011, one to LGBT people and organiza- And when the federal courts of Uganda’s best-known gay- tions. invoke the First Amendment to rights activists was beaten to The more involved they strike down laws that regulate cor- death with a hammer. became in the work, the more porations, argues Coates, they are Born and raised in Kampala, scrutiny they received. After redistributing the power to regulate the childhood friends became their faces appeared on TV news corporations from elected offiffi cials involved in LGBT rights when during the lawsuit against the and regulators (and, by extension, they matriculated at Makerere minister of ethics, administra- ordinary people) to themselves for University in 2009, intent on tors at their former high school the benefifi t of corporate bureaucrats becoming lawyers. Interested in called a school assembly and who are litigating not for increased human rights, they interned at a warned girls headed to univer- productivity, but merely for in- consulting firm, under the direc- sity to avoid the pair. “And they creased profifits. tion of one of their professors, a mainly have, and we completely Coates warns: “If our companies constitutional law attorney, Bus- understand why,” Akullo adds. are increasingly convinced that the ingye Kabumba LL.M. ’08, just At the same time, they have best way they can maximize profifit is as Uganda’s harsh anti-homosex- been quietly approached by a to focus on legal or political moves, uality bill was proposed. Nalun- number of students who support and they stop focusing on productiv- kuma and Akullo soon found the LGBT movement and thank ity and value for consumers as a way themselves researching efffforts to them for their effff orts. More of making money, then we are going oppose the law on grounds it vio- importantly, they say, queer to end up dragging down both our lated the constitutional require- students—kicked out of their democracy and our economy.” ment for separation of church families, ostracized by friends— —JERI ZEDER and state. The law, which made have turned to them for advice

10 HARVARD LAW BULLETIN Spring 2015 INSIDE HLS

Kinnon, a renowned activist in the area of gender equality and rights, Nalunkuma has taken the Transactional Law Clinic. Akullo made a point of taking international trade law, she says, because trade sanctions are so often used to force govern- ments to comply with basic human rights; the U.S. and other nations cut their aid to Uganda when its harsh law was imposed. At HLS, the two have basked in the freedom to concentrate on their studies without fear. “It feels like your mind is free to be creative. When I wake up in the morning, I can think about some idea—something other than just survival instinct,” says Nalun- kuma. She adds, “I didn’t realize how much stress we were under.” Both students see the decriminalization of homosexuality as an essential step toward other basic rights for the LGBT community. Akullo notes that while she appreciates outside support, it can lead to a backlash against LGBT activists in Uganda. “The international help can be overzealous in certain situations,” she says. “I think with any assistance being offff ered, the fi rst question asked should be, ‘What help do you need, and how can we help you achieve your goals?’ Because if, at the end of the day, activists in Uganda are pursuing one course of action, and international activists are doing the exact opposite, then it makes the work even harder.” She and Nalunkuma hope to become university profes- on where to get legal and other Susan After passing the Ugandan sors—in Uganda or elsewhere in help. Mirembe Bar, the two headed to HLS, Africa—as they continue their Nalunkuma “And we’ve had a good number and Godiva drawn by the school’s interna- advocacy. “I know I was inflflu- of professors who respect ... the Akullo recall tional reputation. “Credibility enced a lot by my professors,” teachers who work we do,” says Nalunkuma, have guided is important when you’re doing says Akullo. “I really want to adding, “I would say most op- their activism. work of this nature,” says Nalun- have the opportunity to be that portunities I’ve been exposed to They now hope kuma. person in someone else’s life.” to play that in the past few years have been role for others. This semester, in addition to “Our activism is never going to because of my work with the ▲ studying under HLS Visiting stop,” she adds. “It’s not a 9-to-5 movement.” Professor Catharine A. Mac- job.” —ELAINE MCARDLE

PHOTOGRAPH BY JOHN GOODMAN Spring 2015 HARVARD LAW BULLETIN 11 INSIDE HLS

GLOBAL ENGAGEMENT The Global Anticorruption Lab, taught by Clockwise from left: Matthew Stephenson; HLS Professor Matthew Stephenson ’03, offffers Oluwafunmilayo Articulating Akinosi LL.M. ’15, law students an unusual opportunity to hone Melanie Emmen ’16, concise writing skills through the crafting of Lauren Ross ’16, Integrity Katie King ’16; blog posts that are read and commented on by Jordan Moran ’15; Christopher Students write about high-level stakeholders around the world. Crawford ’16, Anusha Pamula ’16; corruption for Now in its third semester, the lab is a hybrid Center: Yi Seul Kim an international audience between an independent study and a seminar. LL.M. ’15 ▲ Students are required to produce independent research on anti-corruption topics and write four brief but substantive posts for the Global Anticorruption Blog. Weekly meetings are

12 HARVARD LAW BULLETIN Spring 2015 PHOTOGRAPHS BY MARK OSTOW INSIDE HLS

devoted to group discussions of written posts on topics such as their writing and to do hands-on students’ research ideas, with allegations of protectionism in editing than is possible with a classmates and Stephenson China’s enforcement of its anti- 40-page paper,” he says. providing in-depth critiques in a corruption laws and the impact “I’ve been incredibly im- workshop format. of the Nigerian government’s pressed with all critiques I’ve With participants from a wide relationship with the military The blog is gotten,” says Melanie Emmen variety of backgrounds—includ- on the fi ght against Boko Haram. followed by ’16, who has posted on corrup- ing LL.M.s from South Korea, She says she has learned even tion in soccer’s governing body, Egypt, Indonesia and Nigeria— more than she expected to— readers at the Fédération Internationale who have an interest in anti- from Stephenson, from her the World de Football Association, among corruption, the lab generates classmates and from working Bank, in the other topics. “It’s wonderful to a range of posts, from one on on the posts: “When you put see how generous people are in money laundering in Vietnam your work out there for the U.S. govern- the time they spend and how to a comparison of four recent world to see, you want to make ment, at the much thought goes into [their U.S. governors prosecuted for sure your argument is as airtight U.N., and comments].” corruption. The blog is followed as possible. So a 700-word blog at major Stephenson was encouraged to by readers at the World Bank, post actually represents hours start the Global Anticorruption in the U.S. government, at the of research.” NGOs such as Blog by Professor Jack Gold- U.N., and at major NGOs such Since it is both a blog and Transparency smith, who co-founded Lawfare, as Transparency International, a lab—he chose the “lab” International. and more recently OnLabor Stephenson says, and some of moniker to distinguish it from with Professor Benjamin Sachs, the student posts have received more traditional seminars— blogs which include student signifificant attention. Stephenson wryly refers to his posts. Stephenson expanded on The lab itself has a following. course as a “blab.” E a c h post this idea by creating a course This year, Elizabeth Loftus ’16, must make a complete point around his blog and having like several of the students, is in a concise way. That brevity students focus on analysis as taking it for the second time. gives him the time to provide opposed to posting summaries (One student is taking it for a meaningful feedback on drafts, and news roundups. He, in turn, third time.) A vice president including comments on the style inspired Professor Intisar Rabb of the executive board for the and clarity of the writing. as she developed her Digital Harvard Law and International “It’s much more feasible for Islamic Law Lab, and there are Development Society, Loftus has me to give detailed feedback on now other courses that include student blog posts, such as Pro- fessor Jon Hanson’s Justice Lab, POSTED and the Food Law Lab at HLS’s Petrie-Flom Center for Health A selection of recent GAB titles; Read these posts and explore others at globalan- Law Policy, Biotechnology, and ticorruptionblog.com or follow on Twitter at @anticorruptBlog Bioethics, directed by Professor Jacob Gersen. Stephenson has found that Why Do People Care So Much Who Calls the Shots?: Boko Haram students take their posts very About the Proposed FCPA and the Legacy of Military Leadership seriously, in part because they Compliance Defense? in Nigeria know the blog contributes to actual policy debates around the When Transparency Isn’t the It’s Time to Stop Branding Public world. “Students know they’re Answer: Benefifi cial Ownership in Works in the Philippines writing for a small but meaning- High-End Real Estate ful audience.” Why International Double Jeopardy Emmen agrees. “One thing Gecko v. Crocodile, Round Three: Is a Bad Idea that’s really cool is that the blog Indonesia’s Ongoing Fight between the has international readership,” Police and the KPK Demand-Side Prosecutions: she says. With the credibility of Be Careful What You Wish For the HLS name, “we’ll hear back Whistling in Chorus: The Potential from people who know what Impact of the Rise of Parallel There Is No “East Asian Paradox” of they’re talking about and have Prosecutions on Whistleblower Regimes Corruption and Development worked really hard on these issues.” —ELAINE MCARDLE

Spring 2015 HARVARD LAW BULLETIN 13 INSIDE HLS

HLS VOICES Preventing Sexual Assault Universities nationwide are trying to do a better job of addressing sexual misconduct on campus. At HLS, new procedures refl ect many voices.

Over much of the past year, guidance from the U.S. Depart- the Department of Education’s their impact on the rights of the Harvard, like universities around ment of Education. Offiffi ce for Civil Rights, Harvard accused and on victims—and the country, was engaged in a In the fall, after a number of Law adopted new procedures even on classroom discus- major review of the many poli- HLS faculty raised due process for implementing the universi- sions—have been the subject cies and procedures across its concerns about the new univer- ty-wide policy and also resolved of widespread commentary, schools for preventing, investi- sity procedures, the entire Har- a 4-year-old inquiry by DOE, in publications from the New gating and disciplining sexual vard Law faculty explored ways which found that some of the Republic to The Wall Street misconduct. Last summer, the in which the school might adopt law school’s prior procedures Journal. Below are excerpts university issued a new policy separate procedures to address had not met current bench- from some of the student, fac- and new procedures designed to some of those concerns. In De- marks under Title IX. ulty and alumni contributions to follow the most recent federal cember, after consultation with These developments, and the debate.

“RETHINK Policy and Procedures “WHAT TITLE IX DOES” HARVARD’S imposed by the central THE HARVARD CRIMSON SEXUAL university administration OCT. 24, 2014 HARASSMENT and the Corporation on % Stephanie E. Davidson ’13, Kristi L. Jobson ’12 and POLICY” all parts of the university, Katherine L. Kraschel ’12 THE BOSTON GLOBE including the law school. OCT. 15, 2014 We strongly endorse the As alumnae of the Law School, we are dis- % Letter from HLS faculty: importance of protecting heartened by [the Harvard Law School pro- Elizabeth Bartholet; our students from fessors’] public dismissal of the University’s Scott Brewer; Robert sexual misconduct and long-overdue attempt to address sexual Clark; Alan Dershowitz, providing an educational violence at Harvard. Our professors claim that Emeritus; Christine Desan; environment free from the policy inappropriately expands forbid- Charles Donahue; Einer the sexual and other den conduct, tramples on the rights of the Elhauge; Allen Ferrell; harassment that can accused, and did not rely on suffifficient input Martha Field; Jesse Fried; diminish educational from faculty. … Nancy Gertner; Janet opportunity. But we believe In fact, read on its face, the policy reflflects Halley; Bruce Hay; Philip that this particular sexual an internal determination that the minimum, Heymann; David Kennedy; harassment policy adopted federally mandated requirements are not suf- Duncan Kennedy; Robert by Harvard will do more fi cient to create the environment that fosters Mnookin; Charles Nesson; harm than good. full intellectual engagement and exploration Charles Ogletree; Richard As teachers responsible for all members of the Harvard community. Parker; Mark Ramseyer; for educating our students Compliance with Title IX should be a floor, David Rosenberg; Lewis about due process of not a ceiling. A university like Harvard, which Sargentich; David Shapiro, law, the substantive law prides itself on educating tomorrow’s lead- Emeritus; Henry Steiner, governing discrimination ers, should be at the forefront of the national Emeritus; Jeannie Suk; and violence, appropriate response to sexual assault. Lucie White; David Wilkins administrative decision- making, and the rule of law AS MEMBERS OF THE generally, we find the new ‘‘this particular ‘‘ your letter has faculty of Harvard Law sexual harassment policy sexual harassment distracted ... from ... School, we write to voice inconsistent with many of policy ... will do more ending the scourge our strong objections to the most basic principles harm than good.” of sexual assault ... ” the Sexual Harassment we teach.

14 HARVARD LAW BULLETIN Spring 2015 INSIDE HLS

“GOING TO HARVARD “HARVARD’S NEW SEXUAL HARASSMENT IS A PRIVILEGE, BUT POLICY MUST CHANGE” SAFETY IS A RIGHT” WBUR, COGNOSCENTI BLOG THE BOSTON GLOBE NOV. 14, 2014 OCT. 31, 2014 % HLS Professor Janet Halley % Anna Byers ’16, Anna Joseph ’16 and Maggie [HARVARD’S] PROCEDURES … RISK MAKING VICTIMS OF THE UNHARMED AND VILLAINS OF Dunbar ’15 the innocent. They deprive accused students of due process by placing the entire deci- sion-making process in the hands of a single university offiffi cer, who has the authority to [SOME HLS PROFESSORS] charge, investigate, adjudicate and hear appeals, all in a single case. That offifficer is in the claim that the new policy impossible position of checking, testing and reviewing her own decisions. … “effff ectively destroyed Several other crucial American values are also under threat by policies like Harvard’s. the individual schools’ One of them is academic freedom. While the [Obama] DOE OCR has admitted— traditional authority grudgingly—that public institutions must respect the First Amendment while enforcing to decide discipline for sexual harassment bans, it makes no commitment to free expression values at private their own students” by institutions, where the First Amendment does not apply. … The broader values of centralizing arbitration in academic freedom, the very lifeblood of education and research, appear not to register the university-wide Title as important to DOE OCR at all. IX Offiffice. We believe that a university-wide structure is a fairer way to ensure that all students, regardless of “THE TROUBLE WITH “SEX, LIES AND JUSTICE” school affiffi liation, can access TEACHING RAPE LAW” THE AMERICAN PROSPECT a neutral arbiter. Whether a THE NEW YORKER WINTER 2015 student is studying design, DEC. 15, 2014 % HLS Senior Lecturer on Law law, or medicine should have % HLS Professor Jeannie Suk ’02 Nancy Gertner no effff ect on the protections they receive. A Title IX [M]y experience at Harvard over the past couple of Feminists should be con- Offiffi ce has the expertise and years tells me that the environment for teaching cerned about fair process, commitment to equality rape law and other subjects involving gender and even in private institutions to both uphold the law violence is changing. Students seem more anxious where the law does not re- and implement university about classroom discussion, and about approach- quire it, because we should policy. ing the law of sexual violence in particular, than be concerned about reliable We appreciate your they have ever been in my eight years as a law fi ndings of responsibility. We interest in assuring that professor. put our decades-long efffforts the university’s policy is We are currently in the middle of a national to stop sexual violence at risk fair, and we welcome your effff ort to reform how sexual violence is addressed when men come forward attempts to remedy its on college campuses. This effff ort is critical, given and credibly claim they were shortcomings. But we worry the apparent prevalence of sexual violence among wrongly accused. We put our that your letter has distract- students. But it’s not clear that measures taken to work at risk when the media ed many in our community protect victims always serve their best interests. can dredge up the shibbo- from an important goal— At Harvard, twenty-eight law professors, myself leths about false accusations ending the scourge of sexual included, have publicly objected to a new of rape, a collective “We assault at our university. sexual-harassment policy on the grounds that, told you so” tapping into old On that account, the new in an effff ort to protect victims, the university now attitudes. … [W]e should policy represents a step in provides an unfair process for the accused. ... not substitute a regime in the right direction. Instead [This is] unfortunately of a piece with a growing which women are treated of condemning the Title IX rape exceptionalism, which allows fears of in- without dignity for one in Offiffi ce, we should now focus fl icting or re-inflfl icting trauma to justify foregoing which those they are accus- our energies on improving usual procedures and practices of truth-seeking. ing are similarly demeaned. the university’s policy—al- Now more than ever, it is critical that law stu- Indeed, feminists should be ways with the twin goals of dents develop the ability to engage productively concerned about fair process, preventing sexual assault and analytically in conversations about sexual as- not just because it makes and sexual harassment, and sault. … If the topic of sexual assault were to leave fact-fifi ndings more reliable of ensuring that justice and the law-school classroom, it would be a tremen- and more credible, but for its fairness are served. dous loss—above all to victims of sexual assault. own sake.

Spring 2015 HARVARD LAW BULLETIN 15 INNSSIDE HLSS

EMERITUS UNDISGUISED VALUE

Legacies of Selfl ess DANIEL HALPERINN has shaped U.S. tax policy and tax practitioners Scholarship BY ALVIN C. WARREN JR. In July, HLS Professors Daniel Halperin DANIEL I. HALPERIN ’61 WILL and Duncan Kennedy will retire. We asked retire at the end of this academic year after more than a half-cen- two colleagues for refl ections. tury as a tax lawyer, professor and government offifficial. Unlike most law professors starting out today, Dan worked as a lawyer for a decade—at the fi rm Kaye Scholer and in the government— before entering law teaching. Serendipitously, he became Kaye Scholer’s expert in the new field of pension law in his second year, after the sudden departure of the only lawyer at the firm with any experience in the field. In 1967, Dan moved to Wash- ington to join the staffff of the Treasury Department’s Offiffice of Tax Policy, which is the executive branch offiffi ce responsible for tax regulations and legislative pro- posals. At the time, the assistant secretary of the Treasury for tax policy was Stanley S. Surrey, a legendary Harvard Law School professor who served as the prin- cipal tax policy offifficer for Pres- idents Kennedy and Johnson. (He had also been Dan’s teacher in a course on the taxation of international income.) Although tax law is frequently contested and often political, Surrey’s rule was that his staffff was to consider only the criteria of good tax policy in developing regulations and legislative pro- posals. Political issues were to be left to him, the Treasury secre- tary and the White House. Dan fl ourished in this envi- ronment. Thanks to his practice experience, he played a key role in the development of the John- son administration’s initial bill for pension security, →page 18

Alvin Warren is Ropes & Gray Professor of Law at HLS.

PHOTOGRAPHS BY KATHLEEN DOOHER his students have become law professors all over the world. Consciously or not, they cannot help but read and teach law by distinguishing between the de- ployment of rules and standards; identifying the gaps, conflflicts and ambiguities in the doctrine; considering the seeming inde- terminacy of law alongside the complex ways in which judges experience both restraint and freedom; searching for the ways in which power operates in both public and private law as well as through the constructed distinc- tion between them; and thinking through the distributive conse- quences in terms of class, race, gender, sexuality and nationality of diffff erent legal rules, including those that often remain in the background. A description of Duncan’s GENEROUS AND GENERATIVE have written third-year papers, inflfl uence misses the extent to LL.M. theses or S.J.D. disserta- which his teaching and writing DUNCAN KENNEDY’S inflfluence tions with him. In fact, Duncan have always been part of a two- spans the globe has served on the committee, of- way street. He has managed to BY KAREN ENGLE ’89 ten as direct supervisor, of S.J.D. be on the cutting edge of critical students from close to two dozen thinking about law during each REGARDLESS OF WHETHER THEY countries around the globe. decade of his career. That is know it, or even like it, thou- To be sure, not all students He helps because he never stands still. sands of law students over the agreed with Duncan or with the you fi gure Feminism, critical race theory, past four decades have been left, anti-hegemonic Critical postcolonialism, postmod- inflfl uenced by Duncan Kennedy’s Legal Studies movement in out how ernism and queer theory all keen insights into the politics which he played the starring to deploy posed critical challenges to the of law. An astonishing amount role. While some openly re- your CLS movement that he helped of that inflfl uence was direct. For sisted CLS, others claimed not pioneer in the late 1970s and over 30 of those years, one- to understand how it related passions early ’80s. Unlike some others fourth of every HLS entering to what Duncan was teaching in the in CLS, Duncan encouraged the class learned contracts, property them in class. (They were often making of development of these critiques. or torts from Duncan. And many surprised by how much doctrine More than that, he engaged others have taken his upper-level they learned!) Yet, even the most legal directly with those who posed courses, ranging from the histo- oppositional were shaped by scholar- them, reading along with them ry of American legal thought and their resistance. ship or the texts on which they relied, low-income housing law to Isra- For others, the inflfluence practice. and then often deploying their el/Palestine legal issues and the has been less personal but work and insights in his own globalization of law. Still others nevertheless profound. Count- self-avowed methodologically less numbers of students and eclectic scholarship and politics. Karen Engle is the Minerva scholars have read at least a As a feminist arriving at HLS House Drysdale Regents Chair in part of Duncan’s enormous in the mid-1980s, I experienced Law at the University of Texas at corpus (fifive books and dozens fi rsthand Duncan’s insatiable Austin School of Law and found- of articles, some of which are appetite for new knowledge er and co-director of the school’s among the most inflfluential— and constructive engagement. Bernard and Audre Rapoport and even most cited—law review Though he was not particularly Center for Human Rights and pieces of all time). Moreover, as known as a feminist in those Justice. years have gone by, hundreds of days, he encouraged a →page 18

Spring 2015 HARVARD LAW BULLETIN 17 INSIDE HLS

to an Unsolved Problem,” 122 Univer- In 1996, Dan was appointed the first sity of Pennsylvania Law Review 859 Stanley S. Surrey Professor of Law at (1974), remains a classic 40 years later. Harvard Law School. Over the past 19 In the presidential campaign of years, he has continued to write about HALPERIN 1976, Jimmy Carter famously called tax law and policy, and has taught a the U.S. income tax system a “disgrace variety of tax-related courses, covering which would evolve into the historic to the human race.” After the election income taxation, tax policy, pension Employee Retirement Income Security of President Carter, Dan returned to law, and nonprofifi t organizations. Act, enacted by Congress in 1974. the Treasury, fi rst as tax legislative Throughout his long career, Dan has Surrey further believed that the counsel and then as deputy assistant always been known in the tax law com- Treasury should not only focus on secretary. In those positions, he was munity for two attributes: his analyti- current regulatory and legislative instrumental in the formulation of the cal sophistication and his generosity. issues, but also analyze and produce president’s 1978 tax reform proposals, No matter how diffiffi cult the problem, proposals for long-term reform. some of which were enacted in the Dan is usually the first to see a solution Dan played an important role in the bipartisan Tax Reform Act of 1986. (or why a solution may be impossible). evolution of these proposals, which In 1981, Dan returned to law teach- This sophistication has always been eventually led to the Tax Reform Act of ing, this time at Georgetown, where coupled with remarkable generosity. 1969. Although a lifelong Democrat, he he would remain for 15 years. He also When congressional staffff ers, young remained at the Treasury as deputy tax returned to practice as a consultant law professors or law students have legislative counsel after the election for Ropes & Gray. It was during this asked for his help in understanding of President Nixon in order to see the period that Dan’s most famous article, some diffiffi cult question, Dan has never proposals through to enactment. “Interest in Disguise: Taxing the Time been too busy to provide the requested Stimulated by his work at Treasury, Value of Money,” 95 Yale Law Journal assistance. Dan joined the faculty at the Universi- 506 (1986), appeared. Stemming from What are his plans for retirement? ty of Pennsylvania Law School in 1970. problems he had dealt with at Trea- Dan has already begun work on a book His first major article as a professor, sury, this article remains the seminal on some unresolved issues in tax law “Business Deduction for Personal analysis of a series of issues that are and policy. Stanley Surrey would be Living Expenses: A Uniform Approach still not fully resolved. proud.

KENNEDY to deploy your passions in the making dinner with Duncan working out some of legal scholarship or practice. issue with which I had been struggling. critical feminist reading group that I Duncan loves nothing more than a When I later tried to fi nd out what they helped organize as a 1L. He had read good paradox or seemingly intractable had resolved or even which issue they an enormous amount of feminist problem. As a mentor, he pushes you had tackled, neither was able to tell literature, had a keen sense of the to be precise, forcing you to identify me; it wasn’t even clear they remem- alliances and divides within it, and block quotes to prove what you are bered. In hindsight—having found was a terrififi c resource. When I asked saying about a discourse or body of law. myself in the same position with some Duncan to supervise my third-year pa- Then he gets into the problem with of my own students—I now see that per on international human rights law you, and even sometimes obsesses Duncan wasn’t working it out for me; and feminism (on which, at the time, about it without you. While I was in the he was just so present with me in the fewer than a dozen articles had been midst of writing my third-year paper, journey that he took on the challenges written), he warned me that he knew I ran into another professor who in- for himself. practically nothing about internation- formed me that he had spent an entire Working with Duncan on my al law, but that he was game to learn. third-year paper prepared me for my As anyone who has ever worked academic career. It not only helped with Duncan on a paper can attest, it shape me as a scholar, but it modeled is an extraordinary experience. He the way I work with my own students has a unique gift of getting inside your and junior colleagues on their scholar- head. When he talks with you, you feel ship. In my 23 years of teaching, I have as though you are the only one in the asked myself countless times, “What world who matters. He takes delight in would Duncan do?” If I have made pos- getting to know you, your history, your itive diffff erences in any of my students’ desires and fears. And then, if you are lives, it is because I have answered that so inclined, he helps you fi gure out how question correctly.

18 HARVARD LAW BULLETIN Spring 2015 INSIDE HLS

DANCING FOR JUSTICE Dying While Black and Brown

IN MARCH, Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice sponsored a dance performance at HLS titled “Dying While Black and Brown.” Presented one day before the 50th anniversary of the Selma-to-Montgomery civil rights march, it dramatized the disproportionate incarceration and execution of people of color in the U.S. Performed by the Zaccho Dance Theatre, the piece was commissioned by the San Francisco Equal Justice Society as part of the soci- ety’s campaign to restore 14th Amendment protections for victims of discrimination, including those on death row.

→Watch the performance: bit.ly/Performance2015 →“Dying While Black and Brown” is part of an ongoing series of events at HLS this year exploring issues of race and injustice. Read more at bit.ly/AfterFerguson2015

PHOTOGRAPH BY LOLITA PARKER JR. PROSECUTOR

WITH

20 HARVARD LAW BULLETIN Spring 2015 By SETH STERN ’01 Photograph byy JESSICA SCRANTON

Loretta Lynch ’84 becomes 83rd attorney general of the United States A CALLING

HARVARD LAW BULLETIN Spring 2015 21 Loretta Lynch ’84 appeared

at her January confifi rmation hearing before the Senate Judiciary Committee only days after a new Republican majority openly hostile to her predecessor assumed control of the panel. Halfway through the daylong hearing, John Cornyn of Texas, the Senate’s second-ranked Republican, asked Lynch: “You’re not Eric Holder, are you?” Lynch, known as an unflfl appable prosecutor of drug dealers, corrupt politicians and terrorists, calmly replied that no, in fact, she wasn’t.

“If confifi rmed as attorney rural North Carolina farm ing sit-ins in the early 1960s, general, I will be myself,” she where her grandfather, a share- meetings he brought his toddler said. “I will be Loretta Lynch.” cropper-minister with a third- daughter to on his shoulders. Throughout Lynch’s life, grade education, built a church Her mother, Lorine, a librarian being herself has meant being a right next to his house. Inside who picked cotton one summer → trailblazer, from when she was the farmhouse, long before to pay for college, refused to use Loretta Lynch an overachieving schoolgirl in she was born, her grandfather racially segregated bathrooms was nominated newly desegregated North Car- sheltered African-Americans as a young minister’s wife when by President olina through her first job out facing Jim Crow justice and they drove through rural North Barack Obama ’91 in Novem- of Harvard Law School at a New told the sheriffff he hadn’t seen Carolina on his preaching ber to replace York law firm in the mid-1980s, them. He hid them beneath the assignments. Attorney General when young African-Amer- fl oorboards. Lynch’s family moved to Eric Holder. In ican women lawyers were so Durham when she was 6, and January, she tes- rare that she was sometimes there, new to town, she did so tifi ed before the assumed to be the stenographer well on a standardized test at Senate Judiciary Committee. On at depositions. Then she found Y GRANDFATHER her predominantly white school April 23, she her calling as a federal prosecu- had eight chil- that skeptical administrators was confi rmed by tor who twice served as the U.S. ‘M dren and no asked her to retake the exam, the Senate in a attorney for the Eastern Dis- money. He was her father told The Charlotte 56-43 vote. trict of New York, with a stint as dependent on the white farm- Observer. She scored even high- a law fi rm partner sandwiched ers of the county to hire him er the second time. in between. and his sons to support them Lynch graduated from Now, after enduring the all,” Lynch said in an April high school as valedictorian, lengthiest confifirmation pro- 2014 speech. “If justice was so although, as she told The Wall cess for a Cabinet member in important to him to risk his Street Journal, the school 30 years and being sworn in livelihood for it—how can I do insisted she be co-valedictori- on April 27, Lynch is poised any less? How can any of us?” an alongside a white student to serve out the remainder of Lynch’s father, Lorenzo, a and another black student. Barack Obama ’91’s presidency fourth-generation Baptist min- She then majored in English as the nation’s fi rst female Afri- ister, opened up the basement at Harvard College, where she can-American attorney general. of his Greensboro, North Caro- read Chaucer in Middle English To understand how Lynch lina, church to college students and helped found a chapter of wound up here, go back to the and NAACP members organiz- Delta Sigma Theta Sorority,

22 HARVARD LAW BULLETIN Spring 2015 ) BOTTOM ( ; ASSOCIATED PRESS PRESS ; ASSOCIATED ) TOP ( M. SCOTT MAHASKEY/POLITICO MAHASKEY/POLITICO SCOTT M.

Spring 2015 HARVARD LAW BULLETIN 23 Lynch had an “uncanny ability to talk to witnesses and present to a jury in a case as explosive as [that of Abner] Louima in a way that few people can.”

whose members mentored local In early 1990, she began people for whom the law was an youths. working as an assistant U.S. at- instrument of oppression sat up “We knew that she was a ‘PK,’ torney for the Eastern District and smiled.” as you call them, a preacher’s of New York, which has juris- Lynch often talks in her kid, in her conduct and what diction over Brooklyn, Queens public speeches about the “dual she did,” said Karen Freeman - and Staten Island as well as two challenge” African-Americans Wilson ’85, who fi rst met Lynch suburban Long Island counties. working in law enforcement at Harvard College and followed She started prosecuting narcot- face “trying to improve a sys- her to Harvard Law School. ics cases and then moved on to tem that traditionally was one white-collar crime and public of the harshest to us.” corruption. She faced the issue head-on Lynch’s highest-profifile at a 2011 panel on criminal HEN LYNCH WAS assignment came in 1998, when justice at Harvard Law School’s job hunting she joined the trial team pros- third Celebration of Black W during law ecuting New York City police Alumni, where fellow panelist school, one offiffi cers accused of assaulting Paul Butler ’86, now a professor law fi rm receptionist couldn’t Haitian immigrant Abner Loui- at Georgetown University Law believe that an African-Ameri- ma in a precinct-house bath- Center, questioned how much can woman was the job candi- room. “It was nothing to see her good African-Americans can date from Harvard. Lynch and at all hours of the evening, all do serving as prosecutors in her classmate Annette Gor- days of the week, working on a “dysfunctional, racialized don-Reed ’84 both wound up at the case,” said Leslie Cornfeld system of justice.” Cahill Gordon & Reindel in New ’85, who met Lynch at Harvard Lynch was unapologetic. York along with a third female and went on to work with her in “I view my role as protecting → African-American associate, the U.S. attorney’s offiffice. the people in my district,” she Loretta Lynch, Alysa Rollock, who is now a vice Lynch had an “uncanny said. “The reality is, sometimes about to be president at Purdue University, ability to talk to witnesses and when people in this society sworn in as and the three nicknamed them- present to a jury in a case as ex- have been harmed, someone attorney general of the United selves “the triplets.” plosive as Louima in a way that has to step up for them, and States in a Gordon-Reed and Lynch few people really can,” Cornfeld I’m proud to do it—I absolutely ceremony at the bonded over their shared said. am.” After taking Butler to task, Department of Southern roots. Gordon-Reed “It was extremely racially and she gave him a “big hug” when Justice on would host Lynch for dinner on politically charged at the time,” the panel ended, he recalled. April 27 Friday nights, frying shrimp Lynch told the Harvard Law “Lynch is extremely charming,” the way she learned to growing Bulletin in 2011. “My way of he said. up on the Gulf Coast. Mostly, dealing with high-profifile cases though, they worked “very, very like that is to completely sepa- hard,” said Gordon-Reed, now rate from the press. What you Charles Warren Professor of have to do is insulate yourself.” FTER NEARLY 11 American Legal History at HLS. Lynch rose through the years as a prosecu- In her sixth year as a litigator offiffi ce’s senior ranks before A tor, Lynch left the at Cahill, Lynch began rethink- President Clinton named her Justice Department ing her career path after a sec- U.S. attorney in 1999. A few in 2001 and joined Hogan & retary found her passed out at months into the job, she joked Hartson as a partner in New her desk. “I spent the night in in a speech in lower Manhattan York. Her work ethic made an the hospital, diagnosed with ex- that when she took offiffice: “I impression even before her haustion, with an IV drip in me, am sure that a long line of dead start date, when the collapse thinking about a lot of things, white men rolled over in their of Enron enmeshed the fi rm’s things like—Is this the highest graves. But at the same time, I client Arthur Andersen. and best use of my talents? Am am sure that just a stone’s throw Dennis H. Tracey III, a part- I truly happy?” she recounted away from here, in the African ner at the fi rm, called Lynch, in a 2014 speech. Burial Ground, a long line of who was on vacation in between

24 HARVARD LAW BULLETIN Spring 2015 G MBER OO BL

Spring 2015 HARVARD LAW BULLETIN 25 Lynch has talked about the “dual challenge” for African-Americans working in law enforcement “to improve a system that was one of the harshest to us.”

jobs, and asked if she might be and one of her “most signifificant Bulletin in 2011. willing to talk and perhaps to and rewarding” assignments as Her work at the Justice De- assist the attorneys represent- a lawyer. partment extended beyond the → ing Arthur Andersen once she At her 30th law school re- Eastern District when Attorney Lynch takes the started working a few weeks union last year, Lynch jokingly General Holder appointed her oath of offiffi ce later. called herself a “recidivist” as a member and later the chair as her father, “She said: ‘No problem. I’ll when talking about her decision of the Attorney General’s Advi- Lorenzo Lynch, come in this afternoon.’ She to return to the Eastern District sory Committee, which helps her husband, Stephen Har- abandoned her vacation, came of New York for a second stint set policy across U.S. attorneys’ grove, and Vice in, met with the client and as U.S. attorney after President offiffi ces. President Joe worked on the case from that Obama took offiffice. When Holder announced Biden look on. “It moment on,” Tracey said. “It “Most people think if they’ve plans to leave last year, Lynch seems like such was incredible. I’d never expe- got a government job or a quickly emerged at the top of an understate- rienced it in all the years as a corporate job, their next job the shortlist of possible suc- ment to say my managing partner.” has to be of a higher rank,” said cessors, and President Obama heart is full,” she said, “but it is.” Jamie Gorelick ’75, who first announced her selection at the met Lynch while serving as the White House on Nov. 8. Two deputy attorney general under and a half months later, Lynch YNCH’S WHITE-COL- President Clinton. “She was sat before the Senate Judiciary lar criminal defense so dedicated to the work of the Committee carrying the trident L work, involving Department of Justice that she medal her late older brother, internal investi- came back to the same job and Lorenzo, earned during his two gations in matters such as the did a bang-up job the second tours of duty as a Navy SEAL. Foreign Corrupt Practices time.” Supporters in the hearing room Act, “was a terrifific asset to the During Lynch’s second tenure included her father; her young- fi rm,” said Ira M. Feinberg ’72, as U.S. attorney, notable targets er brother, Leonzo, the family’s a partner at the firm, which is included mobster Vincent fi fth-generation minister; now known as Hogan Lovells. Asaro for his role in a $6 mil- Gordon-Reed; and a contingent Feinberg said her experience as lion heist at Kennedy Airport, of red-clad sorority sisters. both a prosecutor and a defense the former New York State attorney will prove valuable in Senate majority leader who her new role as attorney general embezzled federal funds from since she understands “where nonprofifit health clinics, and ORDON-REED SAID the other side is coming from terrorists planning to attack she realized how and [will] be in a position to the New York City subways and G much had changed evaluate it properly.” plant a bomb at the Federal for her law school Even at Hogan, Lynch didn’t Reserve Bank in Manhattan. friend when Lynch emerged entirely give up being a prose- After 9/11, the offiffice’s focus from the hearing room to a cutor. She assisted the Inter- had shifted, and increasingly scrum of photographers with national Criminal Tribunal its cases had an internation- fl ashbulbs popping. for Rwanda on a pro bono al dimension, whether they “Washington is tough for basis, fi rst as a trial advocacy involved terrorism, like the everybody, and I would imagine instructor and then as special thwarted bomb plots, or human there’s nothing that prepares counsel in a witness-tampering traffiffi cking, cybercrime, or you for that kind of limelight,” investigation. She spent much money laundering. Lynch also Gordon-Reed said. “But as her of the summer of 2005 in East made it a priority to reach out performance [at the hearing] Africa interviewing genocide to Muslim Americans. “What showed, she’s very cool under survivors who had seen their I hear them saying is what so pressure and she’s as prepared entire families killed or had many African-Americans said as anyone could be for this.” survived by hiding under piles in the ’50s and ’60s: ‘We’re part Freeman-Wilson was just of dead bodies. She considered of America, too. We’re just like as impressed by what Lynch the work both overwhelming you,’” she told the Harvard Law did away from the cameras the

26 HARVARD LAW BULLETIN Spring 2015 weekend before the hearing. In qualififi cations or personal attri- Janet Reno ’63, the first female the middle of her preparations, butes,” but nevertheless wanted attorney general. But Gorelick Lynch drove out to Maryland someone in the job less inclined believes that Lynch is well to visit a law school classmate to be a stalwart supporter of the suited to take the helm in the in poor health. “That’s a real president’s policies. second half of a president’s testament to who she is,” said Ten Republicans ultimately second term, “when it’s very Freeman-Wilson, who is now voted for Lynch, who was con- important to mind the business mayor of Gary, Indiana. fi rmed by the Senate on April of the department itself.” Lynch’s Senate confifirma- 23 in a 56-43 vote. “That’s not to say she can tion was held up in wrangling avoid the political scrum, between the Obama adminis- because she can’t, but I predict tration and the new Republican her stewardship will be less majority over an executive YNCH’S PRIOR EXPE- eventful than has been the order on immigration and rience in the Justice case [under Holder],” Gorelick legislation combating human L Department makes said. traffiffi cking. Texas Republican her “well prepared” Butler, who challenged Ted Cruz ’95 said her support to serve as the nation’s 83rd Lynch about the proper role of administration policies attorney general, Gorelick said. for African-Americans in law would “undermine the rule Still, Gorelick added, there’s enforcement at the Harvard of law.” a learning curve for anyone Law panel in 2011, predicted While Republican senators assuming the job of overseeing her approach to racial justice is made Lynch wait longer for a the department’s 116,000 em- likely to evolve as she becomes vote than any Cabinet nominee ployees, law enforcement agen- the second consecutive “Afri- since the Reagan administra- cies ranging from the FBI to the can-American who is the chief tion, they acknowledged her Federal Bureau of Prisons, and law enforcement agent in the qualififi cations even as they an expansive national security land.” questioned whether she could portfolio. “Your domain is just “If she has the same kind

K be independent enough. Sen. bigger and more complex.” of focus on racial justice as an Shelley Moore Capito, Republi- Lynch will also have to get important part of her portfolio, can of West Virginia, for exam- accustomed to serving in a if she becomes a race woman in ple, told The New York Times position that has become more the way Eric Holder became a she could hardly expect a better of a political lightning rod since race man, I think there’s a huge

AP PHOTOS/ANDREW HARNI AP PHOTOS/ANDREW nominee, “not in terms of Gorelick served as deputy to potential,” Butler said.

Spring 2015 HARVARD LAW BULLETIN 27 THE NEW EMPIRICISTS IN LAW’S NEW FRONTIERS, DATA MAY BE AS IMPORTANT AS PRECEDENT

ARE THERE GREATER racial disparities in criminal sentences now that federal sentencing guidelines are no longer mandato- ry? If health insurance companies are required to provide coverage for fertility treatments, will fewer children be adopted? J Do staggered corporate boards provide more or less value for shareholders? J For the growing number of empiricists at HLS, there’s nothing quite so satisfying—or unimpeachable—as resolving a thorny, often contentious, legal or policy ques- tion through rigorous analysis of cold, hard data. J Take the issue of criminal sentencing. J As a student at HLS, Crystal Yang ’13—appointed last year as an HLS assistant professor—set out to determine whether the mandatory application of federal sentencing guidelines resulted in more or less racial disparity in sentencing. In 2005, in United States v. Booker, the U.S. Supreme Court held that the U.S. Sentencing Guidelines, by which federal judges impose criminal sentences, were to be

H

BY ELAINE McARDLE

Illustration by HARRY CAMPBELL 28 HARVARD LAW BULLETIN Spring 2015 Spring 2015 HARVARD LAW BULLETIN 29 advisory only. Comparing data from courts, Yang, who and the fi eld of law and economics, which, at HLS, is holds a master’s in statistics and a Ph.D. in economics centered at the John M. Olin Center for Law, Econom- from Harvard, found that greater judicial discretion ics, and Business under the direction of Professor post-Booker has resulted in African-American defen- Steven Shavell. Other HLS programs, including the dants receiving longer sentences than comparable Center on the Legal Profession, also take an empirical white defendants. approach to research. “So many policies have assumptions embedded Courses involving empirical legal reseach have within them, that this is how people respond,” says long been offffered at the school. For example, Eliza- Yang, whose article about her fi ndings will be pub- beth Warren, now a U.S. senator and HLS professor lished in The Journal of Legal Studies. “But if we show emerita, taught Empirical Analysis of Law, drawing on through empirical work that that is not how something her own experience as a scholar. For years, Professor works, that’s very important for lawmakers to know,” Kathryn E. Spier has taught the popular Analytical so that laws and policies have their intended conse- Methods for Lawyers, as has Lecturer David Cope. quences. With a growing recognition that an empirical ap- Empirical legal studies is the application of data- proach could be invaluable to virtually any type of legal based research methodologies, both quantitative and question, HLS is giving the fi eld even greater empha- qualitative, to legal and law-related policy questions. sis, reflfl ecting not just academic trends but demand Long relied upon in medicine, economics, psychology from students and even law fi rms. and social sciences, empirical research can take any Last year, in addition to Yang, HLS appointed two number of forms, from analyzing huge sets of exist- other empirically focused faculty, both with Ph.D.s in ing data (tens of thousands of records of tort cases in economics: Professor Oren Bar-Gill LL.M. ’01 S.J.D. Massachusetts, say) to running field experiments to ’05, whose fi eld is contracts, and Alma Cohen, HLS generate data, an approach in which HLS Professor D. Professor of Empirical Practice. Cohen, an empirical James Greiner has taken the lead. economist, has analyzed data that found that there is While empirical legal studies is not at all new, it is decreased value to shareholders of staggered corporate boards, that diffff erent groups vary in their responsiveness to govern- For the empiricists at HLS, there is nothing quite so mental subsidies for childbearing, and that mandatory seat belt laws satisfying as resolving a thorny legal or policy ques- do reduce fatal accidents—but not as much as the government claims. tion through the analysis of cold, hard data. “An empirical revolution has been taking place in all fields of experiencing enormous growth and is arguably the social science as well as in law,” Alma Cohen says. “In hottest area of legal thought today. many areas of legal scholarship, the share of work that “Lawyers often make claims about policy changes is empirical or informed by empirical work has sub- they think would be good or a legal problem that needs stantially increased.” It’s also increasingly prominent to be solved, but often those adjustments are made in litigation, regulatory rulemaking and legal policy from an armchair,” says HLS Professor I. Glenn Cohen discussions—a shift due, in part, to the “vast increase ’03. “But things in the real world don’t always act as we of data that is available and the wide accessibility that think they should. Instead of just arguing and assum- all of us now have to the computational power that is ing this or that is true,” he said, “let’s actually find out needed for most of the empirical work,” she adds. the answer.” Faculty director of the Petrie-Flom Center HLS now has a statistician on the library staffff to as- for Health Law Policy, Biotechnology, and Bioethics, sist with faculty and student research, and an Empiri- Cohen has done empirical research that has revealed, cal Legal Studies group, known as HELS and launched for instance, that insurance coverage for fertility treat- two years ago by Netta Barak-Corren S.J.D. ’16, which ments does not lead to a reduction in adoptions. brings in top empirical scholars, offff ers training work- In corporate law and governance, an empirical ap- shops, and serves as a community for students who proach has been prominent for at least 10 years, with conduct empirical research themselves. And there are Lucian Bebchuk LL.M. ’80 S.J.D. ’84, Allen Ferrell ’95, now a range of new courses on empirical methodology John Coates (see Page 8), Guhan Subramanian J.D./ aimed at budding litigators as well as scholars. M.B.A. ’98 and Holger Spamann S.J.D. ’09 among the “In terms of the practice of law, empirical analysis— HLS faculty producing inflfluential research. Spamann including valuation and event study analyses—has has also used empirical methods in other areas, in- proved enormously important in complex business cluding to assess criminal sentencing practices. and securities litigation,” says Ferrell, who recently There is also a signifificant intersection between ELS won a prestigious prize for outstanding quantitative

30 HARVARD LAW BULLETIN Spring 2015 ALMA COHEN AND OREN BAR-GILL, who both hold Ph.D.s in economics, joined the HLS faculty last year. Cohen’s research in- cludes empirical studies on risk, regulation and corporate governance. Bar-Gill, an expert on contracts, is currently working on a study that relies on research subjects to test how diffff erent legal protections affff ect how people bargain over entitlements.

PHOTOGRAPH BY WEBB CHAPPELL CRYSTAL YANG ’13, appointed last year as an HLS assistant professor, focuses on criminal law. Drawing on her background in economics and statistics, she recently wrote an article, based on empirical research, disproving some of the commonly held assumptions about the way sentencing guidelines work.

PHOTOGRAPH BY WEBB CHAPPELL research in socially responsible invest- ing and who teaches an empirical legal methods course with Alma Cohen. “Lit- igators must deal with empirical issues in terms of how the markets work, how to think about causation, and damages and settlement value on a regular basis.” Many empiricists agree that there are long-standing assumptions in policy and law that likely rest on faulty premises, since they were not derived from actual data-based research. “I think that’s why there’s more recog- nition of the need for having empirical legal studies, especially in law schools,” says Yang. Law is at the center of so much that “it is vitally important” to have law- yers who also have the methodological tools to do empirical research. No one is suggesting that a law school course or two would prepare someone Netta Barak-Corren S.J.D. ’16 in Israel, where she to conduct statistically valid research. is conducting empirical Rather, the HLS courses, and the work- research exploring the shops through the Empirical Legal Stud- circumstances in which people comply with the ies group, are intended to give students law when it confl icts with fl uency in understanding empirical their religious beliefs. research whether they are practicing law or are interested in getting further education in empirical methods. be reduced by sending low-cost mailers that explain “While empirical analysis is nowa days often easy to the legal process and encourage people to show up conduct, it often produces results that should be used for court. The answer: Yes. According to preliminary with caution and with keen awareness of their limita- results, the mailers have at least doubled the number tions,” Alma Cohen says. “In my courses, I try to teach of defendants who avoid default. students how to assess the reliability and limitations of Andrea Matthews ’15, who did empirical studies at empirical fi ndings.” a think tank before coming to law school, chose HLS Even lawyers with statistical backgrounds find because of Greiner, and has worked with him on the that teaming up with social scientists or economists Boston court study and other empirical projects. “I’d is essential to producing reliable results that can be been searching for someone doing randomized exper- defended. Bar-Gill is working with a colleague at the iments in law,” says Matthews, who next year will be a Max Planck Institute in Germany on an experiment— lawyer in the honors program at the federal Consumer his fi rst—that relies on research subjects to test how Financial Protection Bureau in Washington, D.C. “I diffff erent types of legal protections affffect how people think the empirical standpoint is something the CFPB bargain over reallocation of entitlements. While he prizes and seeks,” she adds. expects to do more of such experiments, he acknowl- But empirical research costs money, and it’s unlikely edges that “there’s a big question of external validity: that there will ever be enough resources to apply this If you fi nd something in [such experiments], does that approach everywhere it could be useful. Still, says mean you’d get the same results in the real world?” Glenn Cohen, recognizing its importance means “at That’s why James Greiner is conducting a difffferent least you can prioritize important questions.” And kind of experiment, a “fifi eld experiment,” studying although conducting rigorously devised and executed people in actual legal settings. These randomized studies is expensive, “the social harm of not aggres- controlled trials, unusual in legal studies, have been sively investigating what works and what doesn’t” established as the “gold standards” of empirical re- must be weighed against the cost, insists Matthews. search in other fi elds. People are divided into groups, As the value of this research becomes increasingly with some receiving a particular intervention and apparent to policymakers, litigators and others, em- a control group that is not. In one experiment, he is piricists expect their approach to continue to grow in working with the Boston Municipal Court to see if the all areas of the law. After all, says Barak-Corren, “Data default rate by defendants sued for consumer debt can can be quite a convincing tool.”

PHOTOGRAPH BY MICHAL FATTAL/GETTY IMAGES Spring 2015 HARVARD LAW BULLETIN 33 34 HARVARD LAW BULLETIN Spring 2015 BRYAN STEVENSON ’85 ON RACE, POVERTY AND THE THINGS WORTH FIGHTING FOR

Drum Major for Justice

By Michael Zuckerman ’17 r

Photograph by Brandon Thibodeaux

Spring 2015 HARVARD LAW BULLETIN 35 EARLY in his career, Bryany Stevenson spoke at a small church in rural Alabama. Throughoutggg the talk, he kept noticing an old man in the back, staringg at him severely.y Afterward, ppppeople praised Stevenson and came up to shake his hand. Then the old man approachedpp and pointed a fi nger in Stevenson’s face.

“Do you know what you’re Contemplating the yard- about racial inequality, about doing?” the man asked. stick of a lawyer’s success in poverty, and about the injustice Stevenson didn’t know what an interview with the Bulletin, that I had witnessed. And it to say. Stevenson recalled the man in just didn’t seem like—in those “Do you know what you’re the church, who had turned his fi rst few weeks—anybody was doing?” the man asked a head and shown Stevenson his talking about race. It didn’t second time. scars, one by one—the wounds seem like anybody was talking Stevenson could only he had suffff ered at Greene about poverty. It didn’t even mumble. County, Alabama; and during seem like anybody was talking “I’ll tell you what you’re the Children’s Crusade in Bir- about justice. doing,” the man said. “You’re mingham; and during Freedom I think, in retrospect, when beating the drum for justice. Summer in Mississippi. He had you talk about civil procedure, You keep beating the drum for dubbed them his “medals of contracts, criminal law, there justice.” honor.” is—behind the discourse—a Stevenson has beat the drum “There’s another metric very real conversation about for justice ever since. And he system when you’re trying to race, and poverty, and justice. has been heard. achieve justice,” Stevenson But it wasn’t visible to me at The 55-year-old lawyer gradu- argues. “And it’s not measured that time—and it wasn’t high- ated from Harvard Law School by how much money you make, lighted, in all candor. and Harvard Kennedy School in or how many cases you win, or 1985, practiced for any of those things. It’s mea- Has that changed? four years with the sured by how much you fi ght for I think it’s changed a lot. This “You begin to Southern Prisoners the things that someone has to was before there was clini- Defense Committee, fi ght for.” cal legal education. This was realize that you’ve and then founded before you had as many faculty got to stand, the Equal Justice You write about feeling “discon- members with practice as part Initiative in Mont- nected” and “disillusioned” during of their background. Back in even if you stand gomery, Alabama, your time at HLS. those days, I think there was in 1989. Initially I think a lot of my alienation real skepticism about having by yourself.” focused on provid- had to do with my lack of people teach who had actual- ing free legal help to familiarity with lawyers and ly practiced law. Now that’s death-row inmates in Alabama, the law. I started my education changed, and I think the advent EJI has grown to tackle life in the colored school, because of clinical legal education has sentences for juvenile offffend- black kids weren’t permitted to really changed the culture of ers, paltry access to legal help attend the public school. And legal education generally. for poor defendants, racial bias I’d heard about lawyers coming You’ve got students now in the criminal process, and the into our community and mak- talking about meeting clients, history of racial and economic ing them open up the public or going into court, or working inequality in America. Along schools for kids like me. And with low-income communities. the way, Stevenson has been that narrative was absolutely a And even before I graduated, I named a MacArthur Fellow, formative one, but I’d actually got involved with [HLS Profes- joined the faculty at N.Y.U. never met a lawyer. sor] Gary Bellow and the legal School of Law, won the Olof So when I showed up at aid work that he was doing. Palme Prize for international Harvard, I was dazzled by the Spending time in Jamaica Plain human rights and, in the fall, diffff erent kinds of people, and working with low-income resi- published the award-winning I was very excited. And my dents transformed my interest memoir “Just Mercy.” motivation was to do something in the law. Being able to connect

36 HARVARD LAW BULLETIN Spring 2015 civil procedure, and criminal scary. And the downside to presumption of dangerousness Bryan Steven- law, and contracts, and consti- public interest work, in too and guilt that has been born son, founder of the Equal Jus- tutional law to contemporary many places, is that there is no out of our attitudes around tice Initiative struggles was really important accountability. If you do very race. And those attitudes per- in Montgom- ery, Alabama, in shaping my interest in the little, nobody will fault you. If sist because we haven’t dealt has spent law. you decide to just do the same honestly with the legacy of his career I went to Georgia, spent thing all the time, nobody will racial inequality. We haven’t fighting for a fairer criminal a month meeting people on fault you. There’s not the same talked enough about slavery, justice system. death row—people literally metric of success that’s forced and what it did to us. We hav- His memoir, dying for legal assistance. And on you when you’re in other en’t talked enough about lynch- “Just Mercy,” is a New when you meet somebody who sectors. ing. We talk too superfifi cially York Times is desperately trying to get to We’re now doing this major about civil rights—we just want best-seller. higher ground, and is counting project on race and poverty. to talk about the heroes, and ▲ on you to help them get there, It’s the fi rst project we’ve the leaders, and the celebra- it will change your relation- done that’s not specifific to the tions, and the extraordinary ship to law study. So when I got criminal justice system. And it things that were accomplished back to Harvard, you couldn’t was, in a lot of ways, the boldest by people, but we haven’t talked gett me out of the law library. choice we could make—to take about the humiliation, and the I was in Langdell morning on something broad and ex- damage that was done to lots of till night trying to fi gure out pansive. But fi ve years in, I am people, day in and day out. how constitutional law prin- super pleased that we’ve taken And so to get to that place ciples would apply, how civil it on. We just issued this lynch- of hopefulness, I do think procedure would work—all of ing report, and we’ve been you have to keep telling the these constructs and abstract inundated with hundreds of truth about the challenges concerns became meaningful requests from people who want that our history has created. and personal. to engage with us on America’s But when you do that, you see legacy of racial terror—these some wonderful, amazing In “Just Mercy,” you tell a story lynchings that we’ve docu- things. And I’ve certainly had about getting to sit with [storied mented in all of these states. the privilege of seeing people civil rights activists] Rosa Parks, I never expected take a step Virginia Durr, and Johnnie Carr, Given that legacy, is reconciliation forward. And those steps and talk about EJI with them. At possible, on a national scale, in make me believe that we can the end, Ms. Carr tells you, “You’re America? all collectively move forward, going to have to be brave, brave, I think one of the great chal- when we commit ourselves in brave.” When have you most need- lenges we have in our criminal a meaningful way to dealing ed that advice? justice system today is that with the legacy of our history Whenever you take on some- there are too many people in of inequality and injustice, in a thing new and difffferent, it’s our society burdened with the sober and thoughtful way.

PHOTOGRAPH BY BRANDON THIBODEAUX Spring 2015 HARVARD LAW BULLETIN 37 When have you most felt like And they were bending over My grandmother was the giving up? backward all day to ask him how daughter of enslaved people, You know, when you represent they could help: “What do you and I think about them when people on death row and you want for lunch? Can we get you we have really diffiffi cult days. don’t succeed, it is surreal. the phone to call your family? Slavery wasn’t an evil defifi ned by You’re talking to an otherwise Do you want stamps to mail involuntary servitude—it was healthy human being who is your last letters? Can we get an evil defifi ned by this ideology about to be executed by your you some water? Can we get you of racial diffff erence, this state government, through a some coffff ee? What do you want narrative of racial difffference process that may be torturous. for your last meal? How can we that allowed people to believe R E

G So it’s just really diffifficult to rec- help you?” that if you’re black, you’re RAN

G oncile yourself with that reality. And I’ve never forgotten not fully human, you’re not RIN O

L My first execution was in how that man looked at me in as smart as the others, you’re

Bryan Steven- 1989. Back in those days, they the last few minutes. He said, not hardworking. And that son speaking were still executing people “Bryan, it’s been such a strange destructive ideology of white at Harvard Law with the electric chair. And I day.” He said, “More people supremacy was the real evil School on April 2. An Alabama remember being a young lawyer, have asked me, ‘What can I do of slavery, and we never really judge had just desperately trying to get a stay to help you?’ in the last 14 hours addressed that evil. The 13th ruled that morn- of execution. And I was shocked of my life than they ever did in Amendment doesn’t deal with ing that Steven- son’s longtime when the Supreme Court denied the fi rst 19 years of my life.” that narrative. client Anthony our last stay motion. And I sat And, holding that man’s And that’s why I contend slav- Ray Hinton, who there stunned at the realization hand, I couldn’t help but think, ery didn’t end—it just evolved. had spent the past 30 years on that this man whom I’d been Yes, but where were they when It turned into this era of terror- death row for a working with was going to be you were 3 years old, and you ism, and violence, and lynching, crime he did not executed. And it was something were being abused? Where were and convict leasing, and then commit, should be set free. that I was completely unpre- they when you were 7, and you Jim Crow, and segregation. And ▲ pared for. All of the emotions, were struggling, and suffff ering? in each of those eras people had the dynamics—the confusing Where were they when you were to deal with unconscionable spectacle of having someone a young teenager, experiment- challenges. Losing your loved pulled away, and ing with drugs and alcohol? one to a torturous lynching that strapped in an Where were they when you the entire community cele- “We talk too electric chair, and returned home after serving brates in some public specta- then killed in front in Vietnam, traumatized, and cle—that would be devastating. superficially about of you. mentally disabled, and on the And yet people survived that, And the most edge of behaviors that would fought that, continued to chal- civil rights. We just diffiffi cult thing for result in this violent crime? lenge that. And even in the civil want to talk about me was the conver- And that disconnect was pret- rights era, the lawyers who won sation I had with ty stunning. I left the prison my opportunity to go to a public the heroes.” this man, where questioning whether this was school, and graduate, and go we were standing something I could do ever again. to college, had to encounter all there and he was telling me kinds of challenges, with far about his day. You know, they How do you keep going? fewer resources, with far less would shave all the hair offff your You begin to realize that you’ve certainty that there would be body to make you a more effiffi- got to stand, even if you stand safety for them. cient conductor of the electric- by yourself. You’ve got to speak, You know, I’ve been doing ity that would kill you. And it even if everybody else is quiet, this work a really long time, was so humiliating for this man because not standing—not but unlike my predecessors, to be shaved by these offifficers in speaking—injures you in a way I’ve never had to say, “My head this way. much more profound, much is bloody, but not bowed.” And But then he started telling me more devastating, much more when you think about that about how strangely the offifficers consequential than fi ghting, history, you begin to fi nd your had been interacting with him. even if the fi ghting is hard and courage. You begin to recognize And he said that when he woke uncomfortable. And that’s what that as diffiffi cult as things up that morning, the guards I’ve learned from the people become, you can, and you came to him and said, “What do who have fought before me in should, do what must be done you want for breakfast?” places like Montgomery. to sustain justice.

38 HARVARD LAW BULLETIN Spring 2015 Telling the Truth A REPORT DOCUMENTS THE about American Terror LEGACY OF LYNCHING

Racial reconciliation in America has been an elusive dream. To Bryan Stevenson ’85, the problem is that we haven’t been willing to tell the truth about our nightmares. “Lynching in America: Confronting the Legacy of Racial Terror,” a report released in February by Stevenson’s Equal Justice Initiative, tells its piece of that truth in unfl inching detail. Its pages lay bare a scheme of organized racial terrorism that murdered at least 3,959 people across the American South— retribution for “transgressions” like one man’s failing to call a police offifficer “Mister,” or a World War I veteran’s refusal to take offff his Army uniform. Images and anecdotes underscore a particularly public system of terror. A July 1919 Mississippi newspaper blares out in bold type, above the fold: JOHN HARTFIELD WILL BE LYNCHED BY ELLISVILLE MOB AT 5 O’CLOCK THIS AFTERNOON “Thousands of People Are Flocking Into Ellisville to Attend the Event,” reads the subhead. A multigenerational crowd looks on, “enjoying deviled eggs, lemonade, and whiskey in a picnic-like atmosphere,” while two victims are tied to a tree, dismembered, and eventually burned to death. Another mob gouges out a man’s eyes with a scalding fi re iron before shoving the poker down his throat, cas- trating him and slowly burning him alive. Our criminal justice system, the report argues, remains contaminated by this history. Lynchings declined only as the court-ordered death penalty expanded, it notes, while African-Amer- icans living today in communities where ) lynching was common remain “over- BOTTOM ( represented in prisons and jails, and underrepresented in decisionmaking TOP: Paris, Texas, 1893: The ABOVE: New York City, 1936: roles in the criminal justice system.” ; MPI/STRINGER ; MPI/STRINGER ) murder of Henry Smith A reminder hanging There is no comfort in looking at this

TOP was carried out in front of from a window of the ( history—and little hope save the cour- a crowd of some 1o,ooo who headquarters of the had gathered to watch. National Association for the age of those who survived it. But there Advancement of Colored may be no justice, Stevenson’s team People that lynchings maintains, until we stop looking away. were still happening.

HOTOGRAPHS: CORBIS HOTOGRAPHS: —Michael Zuckerman ’17 P

Spring 2015 HARVARD LAW BULLETIN 39 By KATIE BACON | Photograph by MARK OSTOW

First Line Students represent the indigent in courts where judges ask, of Defense ‘Is Harvard in the building?’

40 | HARVARD LAW BULLETIN | Spring 2015 TRAINING ETHICAL, ZEALOUS ADVOCATES CJI DEPUTY DIRECTOR DEHLIA UMUNNA (LEFT) WITH CASS LUSKIN ’15, ASMARA CARBADO ’15 AND AMANDA SAVAGE ’15 AT THE ROX- BURY DISTRICT COURT. THE STUDENTS REPRESENTED CLIENTS THROUGH THE CJI CRIMINAL DEFENSE CLINIC, HANDLING ALL ASPECTS OF THEIR CASES. ON A FRIGID, snow-packed morning in mid-February, the galleries in the Roxbury building? We need them to take division of Boston Municipal this case.’ That makes my day,” says Truth Court were jammed with Umunna, who was recently appointed people waiting for their clinical professor of law. “They know Seeker cases to be heard, and half a that the case is going to be thoroughly investigated, thoroughly worked up Sullivan dozen Harvard Law School and thoroughly prepared. They know students, part of the Criminal the client is going to get top-notch works to Justice Institute’s Criminal service.” make the The students’ appearances in court Defense Clinic, were waiting are part of a long training process, criminal to defend their clients. including a course on the legal, ethical Cass Luskin ’15 was representing a and theoretical issues encountered justice man accused of assault and battery. by public defenders. (Students may system “It’s been a month, and I have just as participate in the clinic only during little in my fi le as I did at the arraign- their 3L year and must have taken more ment,” he told the judge. He asked the both Evidence and the Trial Advocacy court’s indulgence to speak with his Workshop beforehand.) They meet accountable supervisor, Dehlia Umunna, CJI dep- with their clinical instructors to pre- uty director. After a bit of whispered pare for their cases and come up with a In early 2014, Kenneth Thompson, advice, he continued, asking for an strategy of defense. This involves writ- the new district attorney for Brook- out-of-court compliance date for his ing out and practicing scripts ahead lyn, New York, approached Clinical discovery request so that the prosecu- of time, including motions, opening Professor Ronald Sullivan ’94 with a tion would be required to give him a statements, cross-examinations and challenge. He wanted him to design copy of the evidence they had against arguments. “I mooted the appeals the best conviction review unit in the his client before the next court date. over and over again, playing out what country, to help address the troubled The judge agreed to his request. Out- could happen in court and going over history of an offiffice that had been ac- side another courtroom, Yorda Yenenh all possible outcomes,” recalls Amanda cused of manipulating evidence and ’15 and one of her clients huddled with Savage ’15, of the case she successfully usin g unreliable eyewitness testimony Umunna after the judge unexpectedly argued in December. Students also go in order to win convictions. denied a motion out on their own to examine a case’s Sullivan, whose experience includes to dismiss his evidence—visiting the scene of the leading Washington, D.C.’s Public De- “We let case and instead alleged crime, talking with the client fender Service, is the faculty director them handle set a trial date. and with witnesses, combing through of HLS’s Criminal Justice Institute. “You know we the police report, and fi guring out As part of his work at CJI and with the the good, believe in you,” what evidence they need to request help of HLS students, Sullivan studied Umunna told from the prosecution. other conviction review units and the bad and the client. “We In court, the students are responsi- applied the best of what he saw to the the ugly.” are not giving ble for all aspects of the case, from the new system in Brooklyn. With 10 full- up.” Yenenh and arraignment, through fi ling motions, time prosecutors, three detectives the client then to defending the client in trial, if it and two paralegals, the CRU has so headed into a room to confer about the comes to that. “For the most part, we far taken on about 130 cases; they’ve next steps. let them handle the good, the bad and completed 38 reviews, and 12 people The students take on anywhere from the ugly,” s a ys Umunna. But as Luskin have been exonerated, including a three to seven cases at a time, a mix says of Umunna’s role: “There’s a fine man who spent more than 20 years in of misdemeanors and small felonies, line between letting students fi gure jail for murder, even though the main representing both adults and juve- things out on their own and making witness recanted the testimony that niles who cannot pay for their own sure no mistakes are made, because had formed the basis for the case. defense lawyers—mostly in Roxbury someone’s liberty is at stake. She walks Sullivan’s goal was to shift the and Dorchester courts. As the clinic that line really well.” dynamic between prosecutor and has expanded in response to increased Umunna points out that she and the defender toward a “nonadversarial demand by students (this year, enroll- other instructors in the clinic—Kris- norm.” He points out that while a typi- ment was up by 58 percent), so has tin Muñiz, Robert Proctor, Jennifer cal court case is necessarily adver- the court system’s familiarity with it; McKinnon and Lia Monahon—work to sarial, in these reviews the two sides judges have been known to specififi cally help their students move from being should have the same interest—“a request the HLS clinic. skilled fact-fifi nders to zealous advo- conjoint search for the truth.” For that “They’ll ask: ‘Is Harvard in the cates for their clients. “We →page 44 to happen, the two sides need to be

42 HARVARD LAW BULLETIN Spring 2015 patterns will help dissuade prose- cutors from taking on certain cases in the fi rst place. He also hopes that the Brooklyn model will be picked up by other communities. “Prose- cutors shouldn’t be afraid to correct their mistakes,” he says. “No one should be in jail for one day—let alone decades—as a function of a wrongful conviction.” Sullivan’s work with the CRU is one of many ways that the Criminal Justice Institute and its students are engaged with the outside world beyond the local courts. For example, in response to the grand jury verdicts in the Michael Brown and Eric Garner cases, Sullivan and several students are putting together a large-scale report directed at police chiefs and legislators, looking at ways to reform both the law and police practice. Recommendations they are considering include the mandatory use of body cameras for beat police offiffi cers; making police offiffi cers personally liable for any increase in the department’s liability insurance premium resulting from the use of excessive force (under current practice, they’re indemnifi ed); and the assignment of an independent prosecutor for cases in which police are involved in shootings. In these open to sharing information, including Ronald DNA evidence; instead, the prosecu- cases, Sullivan says, “The relationship Sullivan, talking to each other’s witnesses and director of tors have reinvestigated the cases: between DAs and the police with comparing thoughts on new lines of HLS’s Crim- looking at the scene, reinterviewing whom they work every day is a classic investigation. The CRU also needs to inal Justice the witnesses, re-examining the phys- confl ict of interest.” Institute, be independent of the district attor- designed a ical evidence. The process has helped Whether students are examining ney’s offiffi ce. In the system Sullivan conviction reveal patterns in the wrongful convic- the standards for review and exonera- designed, recommendations are made review unit for tions, including cases that have relied tion at conviction review units around the Brooklyn to an independent legal review panel, DA’s office. on a single eyewitness or a confession the country or helping to think through which makes the fi n al decision on ▲ by a juvenile and cases where the what might be the best legal path for exoneration. prosecutors never visited the scene to Michael Brown’s family in Ferguson, The work of the Brooklyn CRU has match the physical layout of the crime Missouri, the issues they are working been especially painstaking, since with witness reports. on are not theoretical, says Sullivan. most of the cases have not turned on Sullivan hopes knowledge of these “These are real life.” —KATIE BACON

PHOTOGRAPH BY MARK OSTOW Spring 2015 HARVARD LAW BULLETIN 43 FIRST LINE OF DEFENSE ←continued from page 42

have an experienced, dynamic and outstanding team,” says Umunna. “Ev- eryone takes ownership of the clinic and knows that we’re doing good and useful work.” For students (and their instructors), that work requires enormous commit- ment, at any time of day. Clients might call them at 2 a.m. asking for advice because they’ve been picked up by the police, or the students might need to track down their client at a local shel- ter. (Asmara Carbado ’15 recalls inves- tigating a client’s habits and hangouts so that she’d know where to find him Although it’s not since he had a record of missing his for everyone, says Dehlia Umunna, CJI court dates.) “I can’t articulate how deputy director, for much work it is and how rewarding at many, public defense the same time,” says Yenenh. becomes a calling. Even once the trial is over, the clinic’s relationship with the clients continues. Under the direction of Chris Pierce, a clinical social worker on staffff at CJI, the clinic can help cli- access to skilled representation to nav- defending clients charged with general ents obtain housing, drug treatment, igate their way through the criminal felonies. “Coming here having already mental health services, therapy and justice system. “There’s an emotional had a jury trial is a rare experience. immigration referrals. “We don’t just investment that goes into this work. Not many other law schools give stu- say goodbye,” says Umunna. “We want It’s not for everyone—it really isn’t. dents this opportunity,” she says. them to avoid having to come back For me, I don’t just view it as a job; I For Amanda Savage, who plans to through the legal view it as who I am,” she says. work as a public defender in New Jer- clinic. We want Umunna herself chose this profes- sey after graduation, one of the most “I can’t them to do well.” sion because of her family’s experience valuable things about the clinic is the For Elayna with the justice system in England, way it’s helped take her from a theoret- articulate how Thompson ’12, where she grew up—the daughter ical view of law to seeing the real-life much work who is now a of parents from Nigeria and Sierra disparities at work in the criminal jus- public defender Leone—and where her brother got into tice system. “You can read about the it is and how for the state of trouble with the law. “Watching him go laws and the cases, but it’s so difffferent New Jersey, the through the system, I thought, Nobody when you meet the clients, when you rewarding.” clinic provid- is really standing in the gap; there’s no see how the system is stacked against ed essential one to really represent him. It felt like them,” she says. Asmara Carbado, who training. She represented two clients he was just a number. So I think that will work at the Federal Public Defend- in aggravated assault trials and won fueled my desire to want to stand in er’s offiffi ce in California, takes this a acquittals for both of them. “In what I the gap for other folks.” step further. do now, there are not enough resourc- Before coming to HLS in 2007, “Never judge a book by its cover. es to have someone watching over Umunna worked as a trial attorney In the context of the criminal justice me at every second,” Thompson says. for seven years for Washington, D.C.’s system, the cover is the police report,” “The clinic, with close supervision by Public Defender Service—a path that’s says Carbado. “It’s getting to know extremely experienced trial attorneys, well worn in both directions. Others your client and seeing where they’re was the one thing that really prepared on the HLS faculty who have worked coming from that fills up the pages,” me for my work today.” at PDS include criminal law experts she adds. “When you see who they Umunna estimates that about half of Charles Ogletree ’78, Carol Steiker ’86 are beyond the legal text that tries the students in the clinic end up going and, most recently, Andrew Crespo to defifi ne them, you see someone like into public defender work; for many ’08, a former CJI student. yourself. ... Our job as defense attorney of them, as for her, the work becomes Ieshaah Murphy ’12, who first had is to restore their humanity or dignity, a calling, where they feel they are the chance to bring a case to trial to understand their story. How can helping people who often may not have through CJI, now works for PDS that not be something I want to do?”

44 HARVARD LAW BULLETIN Spring 2015 PHOTOGRAPH BY BROOKS KRAFT PROFILE

HIDDEN TALENT For his work in cryptography, Craig Gentry named winner of MacArthur Fellowship

It can occasionally be awkward CraC igg Genenntrtryt has when you win an award known devd eloloopedpepe waw ysy to as the “genius” grant. Especially to keek ep dataa seccure for Craig Gentry ’98, who works and acacccesssibsi lee that may brob aadeden among a lot of smart people at the theth use of clououud IBM Thomas J. Watson Research cocomputpuutingiin . Center in New York. “Some of my colleagues say there’s only one certifi ed genius among us,” he said. “I don’t really know how to respond to that. I smile and hope people ignore it.” It was hard to ignore in September, when Gentry became a recipient of the MacArthur Fellowship, which provides $625,000 to people “who show exceptional creativity in their work and the prospect of still more in the future” (the MacArthur Foundation does not actually use allowing hospitals to store on the that a cryptographer is also this kind of theoretical computer the term “genius” in granting the cloud sensitive data that could an attorney. Gentry’s path to a science allowed him to use his award). He was recognized for be searched without violating law degree was not something mathematical skills and, in some his work as a research scientist patients’ privacy. In the legal long planned. A math major at surprising ways, his legal training. for IBM’s Cryptography Research fi eld, patent lawyers could search Duke University, he was “a little Gentry described “peculiar Group, in particular for his focus databases without revealing their burned out by the abstraction similarities” between cryp- on fully homomorphic encryption. interest in a particular invention. of mathematics,” he said. For tography and law. They both FHE is still in the development “It’s great research,” said much of his life, in fact, he was involve the adversarial process, stage, but it has the potential to security technologist Bruce immersed in math—even from with cryptographers modeling the help keep information private, Schneier, a fellow at the Berkman before age 3, when he taught security of an encryption system including by improving the Center for Internet & Society at himself multiplication by making as a game between a challenger security of cloud computing. The HLS. It will make it more secure rectangles with Cheerios. Going to and an adversary. Also, he said, subject of his thesis for his Ph.D. to “do remote computing on a HLS was an opportunity to learn both fi elds have “an obsession from Stanford University in 2009, platform you don’t trust.” something new and, he joked, with defi ning and achieving proof.” FHE allows people to perform For the layperson, it may sound for more social engagement in He expects to continue with operations on encrypted data impossible to process information contrast to the solitary work of a the work he has been pursuing while it is still encrypted. that remains hidden even from mathematician. in cryptography to develop FHE For example, Gentry said, FHE those who are in possession of Although he enjoyed his law for more widespread use (it is could give someone the ability the data. But as Gentry notes in a classes and the legal perspective currently impractically slow) to request a Google search while MacArthur Foundation video: “If he gained, Gentry didn’t embrace and has no immediate plans for encrypting the search query. you want a certain functionality, the practice of law. After two using the award money. He does Google would take that encrypted you might think you have to years working as an intellectual have another major and growing query and create a response that give up your privacy. But it turns property attorney, he began project that may get some benefi t the user would then decrypt. The out that’s false. Your common working for a Japanese company, from that prize. The same month result: Google would perform sense is wrong. Cryptography DoCoMo USA Labs, where, during that he heard he won the MacAr- the search function while not has solutions for problems that his interview, he was shown a list thur Fellowship, his daughter was recognizing what it was searching allow you to make functionality of potential projects. One of them born. No word yet on what she for. The technology could be used consistent with privacy.” was cryptography. He didn’t know does with her Cheerios. for industries such as health care, And it may sound improbable much about it but was intrigued; —LEWIS I. RICE

PHOTOGRAPH COURTESY OF JOHN D. AND CATHERINE T. MACARTHUR FOUNDATION Spring 2015 HARVARD LAW BULLETIN 47

PROFILE

PERSUASION Kannon Shanmugam on making his case before the Supreme Court

and ask the hardest possible Kannon Shanmugam says questions. It is a demanding the fi rst time he process, and often it’s less than argued before the the most enjoyable part of the Court, he was too young to realize process, but it’s essential in the how scared he Supreme Court because it is should have been. such a smart court. If there is any weakness in the position, it will be exposed at oral argument, and you have to be prepared to deal with that and address any weaknesses you can.

What’s the difffference between working on an appellate brief as a writer and being the person at the lectern at oral argument? Oral argument is the time that the Court gets to ask the questions that don’t get answered in the briefi ng. It’s the one opportunity Many lawyers dream of the day that one day I’d wake up and have an overwhelming command of justices or judges have to pin that they can stand in front of argued a number of cases in front the law and the facts and who are down questions that parties may the justices of the U.S. Supreme of the Supreme Court, I would able to answer the hardest ques- not have been willing to volunteer Court and argue a case. For have said you were crazy. tions in a way that advances the answers to in their briefs. It forces Kannon Shanmugam ’98, a client’s cause. That is a rare skill: the parties to answer the very partner at Washington, D.C., You had your fi rst argument the ability to persuade a court in hardest questions for their side. litigation powerhouse Williams before the Supreme Court when cases where, almost by defi nition, Sometimes it’s really only at oral & Connolly, that milestone came you were just 31 years old. What there are good arguments on both argument that you see the parties just six years out of law school, was it like to be so young and in sides. The best arguments are by come together on an issue. after he clerked for Justice that position? those who are able to acknowl- Antonin Scalia ’60 and joined I was too young to realize just edge that there are weaknesses What was the most memorable the U.S. solicitor general’s offiffice. how scared I probably should have in their positions, but show that case you worked on? It has now been followed by 16 been. It’s a great privilege to have their preferred outcome is the Maryland v. King, which was other arguments, three of them that opportunity, and one of the right one. about the constitutionality of in the 2014-2015 term. This reasons is that there have been so collecting DNA from arrestees. spring, he spoke with a Bulletin many great advocates at that bar. How do you prepare for oral There was a moment during oral reporter about the challenges and The fi rst Supreme Court argument argument? argument when Justice Alito said exhilaration of Supreme Court I ever saw was by now Chief Jus- There’s no substitute for the he thought it might be the most advocacy. tice Roberts [’79], and I remember work that goes into preparing for important criminal procedure case thinking, There’s no way I could oral argument. It involves reading the Court had heard in decades, Was appellate law a path you possibly do that, because he was the briefs multiple times and and that was an electric moment. planned to pursue since your just so good. reading everything that is cited The case was very close, as it fi rst day of law school? in the briefs, but also spending a turned out, and unfortunately, we It was only after clerking and What do you mean by “good”? lot of time just thinking through were on the losing end. It still was spending some time in private What makes an appellate advo- the contours of my client’s a great professional experience to practice that I really decided to cate effff ective? position and undergoing moot work on a case like that, even if focus on appellate work. If you had The best Supreme Court advo- courts where people simulate the you’re disappointed by the result. told me when I was in law school cates are the ones who have just experience of the oral argument —LANA BIRBRAIR ’15

PHOTOGRAPH BY ELI MEIR KAPLAN Spring 2015 HARVARD LAW BULLETIN 49

PROFILE

A VOICE FOR ACCOUNTABILITY Sareta Ashraph documents violations of international law for the U.N.

Sareta Sareta Ashraph, chief For much of her career, analyst on the U.N. Ashraph LL.M. ’01 has worked commission of inquiry to uncover the truth behind some on Syria, pictured here in Geneva, where the of the worst confl icts in the world. commission is based She has investigated human rights abuses including murder, torture, and rape, and has spoken en’s rights. Later, she developed to people traumatized by what an understanding of law as a tool they have seen and experienced. to empower people marginal- From afar, people may con clude ized in society and she became that those who perpetrate such a defense lawyer (currently her violence are inherently evil, she practice isn’t active because of says. But from up close, she has a her international work). For several diffff erent view. years, she lived in Sierra Leone as “I take issue with the concept a member of the defense team of bad people,” she says. “Wars representing Issa Sesay, a leader are really complicated. It’s easy of the Revolutionary United Front to make snap judgments on what who would be sentenced to 52 people do.” years for war crimes and crimes She is now immersed in one of against humanity. In that case and the more complicated confl icts, others, those accused should have as chief analyst on the U.N. Com- someone in their corner fi ghting mission of Inquiry on the Syrian for them, she says: “We don’t drag Arab Republic. Based in Geneva, people in the street and shoot it is the U.N.’s longest running them anymore. There should be investigation of this nature, she real processes with real challeng- says, involving hundreds of in-per- es for the prosecution.” son interviews of Syrian refugees the same role for a commission trials are to people.” Ashraph talked about her career displaced in neighboring countries of inquiry on Libya during the Perhaps her most high-profi le with students at HLS in the fall and phone or Skype interviews fi nal period of the Qaddafi regime, assignment for the U.N. was as a Wasserstein Fellow. In her of Syrians in-country (the Syrian producing a report document- being part of a team conducting own experience as a student, her government won’t allow the com- ing crimes against Libyans and investigations for the Fact-Find- interest in human rights work mission within its borders). While minorities. The ICC is using that ing Mission on the Gaza Confl ict, was strengthened by the clinical the group ISIS garners much of report in an ongoing investiga- which produced fi ndings known as classes, the guest speakers and the world’s attention because of tion, but Ashraph acknowledges the Goldstone Report. Though the the perspectives of other students its gruesome execution videos, that seeing justice done in the report was criticized for alleged from around the world. she notes that an increasing aftermath of international crimes bias against Israel, Ashraph says The work can be all-consuming, number of groups that resemble can be a “very long game.” When she is proud of it. In her role, she and it’s important to fi nd balance criminal gangs operate there, she interviews people, she says: notes, she interviewed Israelis in life, with friends and family, and the Assad government now “You’re not promising them any- about what they had suffffered. she says. Just as important is to conducts air bombardments after thing. You’re just asking them to “You have to develop a hard skin realize that people are capable of fi ring on protesters in the earlier share their stories, and we’re not if you’re going to work in this area much more than the worst you stages of the confl ict. giving very much in return except of law because there’s so much can see, she adds. Ashraph is in charge of report- the experience that your story is politics in international law.” “A big part of it,” she says, “is ing, documenting and tracking being documented. And that is A native of Trinidad and trying to fi nd things that remind violations, with the goal of facili- very diffiffi cult.” Still, when perpe- Tobago, Ashraph fi rst became you how good people are. Because tating accountability, potentially trators are called to account for energized by issues of justice ultimately you need to be in a through the International Criminal their actions, “I have a very keen in her home country, where as a good place to do this kind of work Court or ad hoc tribunals. She had sense of how important these teenager she advocated for wom- and be useful.” —LEWIS I. RICE

PHOTOGRAPH BY DARRIN VANSELOW/GETTY IMAGES Spring 2015 HARVARD LAW BULLETIN 51

PROFILE

POLITICS AND SERVICE For Freshman Senator Tom Cotton, politics and patriotism are nothing new

On the morning of the 9/11 attacks, Tom Cotton ’02 was a typical Harvard Law 3L with a clerkship and law fi rm job in hand and notions of being a prosecutor or perhaps following his father into the military someday. But as he watched coverage of the attacks from the Harkness Com- mons, Cotton resolved to serve as an infantryman in the Army. He started an intensive regimen of exercise and reading military Only nine weeks after taking history before beginning his clerk- offi ce, Tom Cotton ship with a federal Circuit Court rallied Republican judge. At the end of his clerkship, colleagues to write a letter to the he walked into a military recruit- leaders of Iran. er’s offiffi ce in Houston in the spring of 2003 to sign up, ignoring the suggestion that he become a military lawyer. the congressional seat represent- tives probably asked him the same fundraising letters with Elizabeth Cotton went on to lead an ing the district where he grew up thing.” Warren, who taught his fi rst-year infantry platoon in Iraq, narrowly on a cattle farm in Dardanelle, For Cotton, a highlight of law Contracts class 13 years before escaping injury when an IED de- Arkansas. school was reading de Tocque- becoming the Democratic senator stroyed his Humvee in Baghdad in The sixth-generation Arkansan, ville’s “Democracy in America” from Massachusetts. 2006. While in Baghdad, he read nearly six and a half feet tall, re- as part of a weekly study group Cotton said he chatted amiably a New York Times story revealing members kicking bales of hay out in Professor Mary Ann Glendon’s with Warren on the Senate fl oor in a secret terrorist-fi nance tracking of his father’s truck when he “was offiffi ce. Glendon remembered January on the day of his swear- program. He wrote an angry letter barely bigger than those bales.” Cotton as “eloquent but folksy, ing in. “She gave me a big hug and to the editor saying the paper’s As an undergraduate at Harvard a sympathetic but critical reader introduced me as her student,” he editors should be jailed on espio- College, Cotton played a year of and bristling with insights into said. “To be fair, she was a better nage charges. basketball and discovered “politi- American politics.” professor than I was a student.” Cotton became a conservative cal philosophy as a way of life,” as “It was evident that he would Cotton made national head- cause célèbre after the Power Line he wrote in his college thesis. go far,” Glendon said. lines nine weeks after taking blog published the letter. “Here He spent a year at the conser- Cotton’s fi rst term in the offiffi ce, when he convinced most of was a guy leading his men on vative Claremont Institute in Cal- House, where he earned a repu- his Senate Republican colleagues missions in Baghdad,” said John ifornia before enrolling at Harvard tation as a stalwart conservative, to sign a letter to top Iranian Hinderaker ’74, a Minnesota attor- Law, where Marvin Ammori ’03 was not even half over when he leaders warning that any nuc lear ney and Power Line co-founder. remembers him hanging a picture decided to challenge the state’s deal signed by President Barack “What made the letter so striking of Winston Churchill on the door incumbent Senate Democrat, Obama ’91 may not have any was that it was just so well writ- of his dorm room. Mark Pryor. Cotton emerged the effff ect beyond his presidency. ten and it was very forceful.” “There was no secret that he winner last November after an The Wall Street Journal called Cotton served at military was interested in politics,” said expensive campaign pitting con- the letter “a kind of Senate funerals at Arlington National Ammori, whose vastly difffferent servative groups such as the Club coming-out party” for Cotton and Cemetery as part of the ceremoni- political views didn’t get in the for Growth against the Democrat- predicted, “Whatever the letter’s al Old Guard and volunteered for a way of their friendship. “We de- ic establishment, including former ripple effff ects, it certainly won’t tour of duty in Afghanistan before bated politics and philosophy, and President Bill Clinton. represent the last Washington will leaving the Army in 2009. Three people would ask, ‘How are you In the course of his Senate hear from Tom Cotton [on] foreign years later, he ran successfully for friends with that guy?’ Conserva- campaign, he traded nasty policy.” —SETH STERN ’01

PHOTOGRAPH BY ASSOCIATED PRESS Spring 2015 HARVARD LAW BULLETIN 53

PROFILE

TRUST IN PROVIDENCE Jorge Elorza wins the battle to lead the city where he fought for social justice

Jorge Elorza ’03 was nine months out of college working as an auditor in New York in early 1999 when his father called with news that a childhood friend back in Providence, Rhode Island, had been shot to death. Elorza decided to move home to Providence, a path that led to Harvard Law School; work as a legal aid lawyer, law professor, and housing court judge; and fi nally, his election as the city’s mayor last year, at age 37. No one would have found his Jorge Elorza, former living-wage ascent more improbable than activist, legal aid lawyer, housing Elorza himself. Having been court judge—now mayor of rejected by every college he Providence, Rhode Island applied to, Elorza wondered if he’d wind up in the same jewelry or textiles factories where his Guatemalan-immigrant parents of homelessness” as an attorney have invested in me,” he said, ac- fund his fi rst television ad only a had worked with the hope that in Rhode Island Legal Services’ cording to the Providence Journal, couple of weeks before Election he would do better. “It was either housing unit and then taught “I believe it is my responsibility to Day, but far less than his colorful work in the factories or get my housing law at Roger Williams invest in others. And as mayor, I and well-known opponent. act together,” Elorza said. “So I University. will fi ght to make sure that others “It was a risky campaign,” said decided to get serious.” In 2010, Providence’s mayor have these same opportunities Wendy Schiller, a Brown Universi- He enrolled in community appointed Elorza to serve on the and supports that I’ve been so ty political science professor. “He college and then transferred to city’s housing court, where he fortunate to have.” wanted to portray himself as the the University of Rhode Island, prodded banks into fi xing aban- In what Elorza described as a everyman mayor, someone who where he graduated summa doned residential properties. He “long, hard slog,” he fi rst defeated is sincere and didn’t have a lot of cum laude and landed a job with held some of the nation’s largest the City Council president in the fl ash but would be a good, honest PricewaterhouseCoopers. Elorza banks in contempt for failing to Democratic primary and then, mayor.” returned to Providence after his properly maintain the proper- in the general election, faced On Election Day, Elorza won by friend’s death, working with a ties, issued six-fi gure fi nes and Vincent A. “Buddy” Cianci Jr., who a 10-point margin, and he took program helping inner-city kids even threatened to arrest their had served six previous terms as the oath of offiffi ce as Providence’s before enrolling at HLS in the fall presidents. “All the banks except mayor—as well as four-plus years 38th mayor in January. A winter of 2000. one took responsibility for the in federal prison on corruption blizzard almost immediately Professor David Wilkins ’80 abandoned properties far beyond charges. delivered the fi rst test of his remembered Elorza, an organizer what I had the power to do,” “Jorge knew exactly what he leadership. for the “living wage” campaign for Elorza said. had to do to be a viable candi- “He’s doing very well at it, and I workers on the Harvard campus, Elorza left the bench to explore date, and he went ahead and did expect him to continue to do well as a “very engaged” student who a mayoral run after the incum- it,” said Darcy Paul ’03, a friend at it,” said Schiller. “He’s a very “spoke about issues that were bent announced plans to run for of Elorza’s since their 1L year, smart guy, and if he proves he can really of deep concern to him, governor. He formally launched who himself was elected to the run the city well, he’s attractive mostly around fairness and equal- his campaign in November 2013 Cupertino, California, City Council not only in Rhode Island but ity and social justice.” while standing outside his child- last November. nationally. So the question is: Can After graduation, Elorza said, he hood home, which is now part of a Elorza said he raised “just shy we hold on to Mayor Elorza?” “represented people on the brink homeless shelter. “Just as others of” a million dollars—enough to —SETH STERN ’01

PHOTOGRAPH BY ASSOCIATED PRESS Spring 2015 HARVARD LAW BULLETIN 55

PROFILE

REPRESENTING THE WHOLE CHILD Brett Stark co-founds a medical-legal partnership toassist children who seek asylum in the U.S.

Brett Stark co-founded Terra Firma in October 2012 to better represent children who have crossed into the U.S.

supported by Catholic Charities, Montefi ore Medical Center, and the Children’s Health Fund, and more sources of private and public funding may become available as the issue of unaccompanied immigrant children attracts more national attention. Stark fi rst saw the need for a medical-legal partnership like Terra Firma while working at a ref- ugee resettlement organization in Kenya during the summer after his 2L year at HLS. There he referred rape victims to counselors and introduced people who thought they might have AIDS to doctors. When he got back to HLS that fall, he participated in the Trauma When Vladimir Gongora, a deaf Shapiro and Dr. Cristina Muniz but also enhances and facilitates and Learning Policy Initiative’s teenager who fl ed El Salvador, De la Pena, which offff ers legal and the legal case. We really feel the Education Law Clinic, an experi- fi r st met with Brett Stark ’12 health services to unaccompanied legal case gets better when chil- ence that confi rmed for Stark the two years ago in the Immigrant minors who’ve crossed into the dren can tell their story.” For these effff ectiveness of combining legal and Refugee Services Division at U.S. clients, he usually seeks asylum aid with medical and psychologi- Catholic Charities in New York, Terra Firma provides a panoply or Special Immigrant Juveniles cal services. the two had to draw pictures to of services to young people like status—a benefi t for children Terra Firma has worked with communicate. Vladimir had never Vladimir, to address the wide who’ve been abused, neglected or around 100 children so far, and it been taught to write or use sign range of issues that often ac- abandoned. is expecting to see twice as many language, and he needed Stark to company their cases. This holistic “We were working in silos, over the next year. Clients in immi- help him win the legal right to stay approach not only helps to meet and that was really less effffective gration cases, including children, in the United States. children’s immediate needs; it than working collaboratively on do not have the legal right to pub- Stark found him a special helps Stark in the courtroom. immigration issues that have a licly funded immigration lawyers, interpreter, one versed in commu- Reports by Terra Firma doctors medical component and medical so the demand is great. nicating with hearing-impaired and mental health profession- issues that have an immigration As challenging as the workload people without formal language als often include evidence that component,” Stark says. and nature of the cases may be, skills. He then built a successful children were persecuted and even Terra Firma now includes Stark says he stays inspired by his asylum case for the teenager faced life-threatening dangers in about 15 people—Stark and other clients’ tenacity. “Working with on the grounds that Salvadoran their home countries. In addition, lawyers at Catholic Charities, two kids is extremely and extraordi- law forbade people with serious medical and mental health provid- doctors, a psychologist, a social narily motivating,” he says. “Kids disabilities from marrying or even ers can help to stabilize children, worker, a nutritionist, a project are resilient, and these kids have acquiring a passport. preparing them to assist and coordinator and support staffff. been through a lot and have so This was part of the inspi- testify in their own cases. Initially started with funding much potential to actualize if they ration for Terra Firma, a project This, Stark says, is “crucial for a from an Equal Justice Works just can get the right kind of help.” co-founded by Stark, with Dr. Alan child’s own well-being and future, fellowship, Terra Firma is now —KIM ASHTON

PHOTOGRAPH BY MARK BONIFACIO Spring 2015 HARVARD LAW BULLETIN 57 HLS AUTHORS

Selected Alumni Books

including facilitating searches for what “Unfair: The New Science of you want people to fi nd and hiding what Criminal Injustice,” by ADAM you don’t. Be a careful curator of your own BENFORADO ’05 (Crown) reputation, they advise. Drawing on research in psychology and neuroscience, the associate professor of law at Drexel University points to ram- “Discontent and Its Civilizations: pant injustices that stem from the legal Dispatches from Lahore, New system—not caused by corruption or ill York, and London,” by MOHSIN HAMID will but simply by the way our minds work. ’97 (Riverhead) He cites real cases and scientififi c studies An acclaimed novelist and journalist, showing how lawyers, witnesses, juries and Hamid presents a collection of essays judges can be inflfl uenced by seemingly in- written over the past 15 years, blending the signifificant elements or occurrences—such period’s political and social changes with as an accused’s appearance or even fl eeting the personal experiences of an author who, thoughts related to death—which can lead no matter where he lives, considers him- to more severe punishment. Benforado self a perpetual “half-outsider.” The native suggests reforms such as relying more on of Pakistan writes on his life in his home technology and less on human memory, country and the perception of it in the limiting the discretion of legal actors, and world, on living in cities devastated by ter- reducing the adversarial nature of the trial rorist attacks, and on arts and culture. And system. he writes on small moments that linger in memory: the taxi ride after he applies for a visa in New York City, the streets in Lahore “Mark Twain vs. Lawyers, after a showing of the movie “Avatar.” Lawmakers, and Lawbreakers: Humorous Observations,” compiled and edited by KENNETH “Genesis Code: A Thriller of the BRESLER ’84 (Hein) Near Future,” by JAMIE METZL ’97 One of America’s foremost humorists, (Arcade) Twain frequently chose lawyers as a target A former government offifficial with the U.S. for his sharp wit. Bresler, the principal of State Department and National Security ClearWriting.com and a Massachusetts Council, Metzl creates a fictional world of administrative law judge, presents Twain’s international intrigue, where the apparent writings on the subject, gathered from drug overdose of a woman in Kansas books, magazine and newspaper articles, City may be connected to an evangelical and correspondence. They include legal pastor, presidential politics and a U.S. and political sketches, and quotations government program competing with on the law and lawmakers. Among other the Chinese to enhance human genetics. observations, Twain compared Theodore With elements of science fi ction and noir Roosevelt to Tom Sawyer and said that thriller, the book touches on the dangers of Washington is the place where “rascality technological advances and real-life impli- achieves its highest perfection.” cations of genetic research.

“The Reputation Economy: How “BiblioTech: Why Libraries Matter to Optimize Your Digital Footprint More Than Ever in the Age of in a World Where Your Reputation Google,” by JOHN PALFREY ’01 (Basic) Is Your Most Valuable Asset,” During an era in which vast storehouses of by MICHAEL FERTIK ’05 and David C. information are available at many people’s Thompson (Crown) fi ngertips, the question may be asked: Are A person’s reputation was once limited libraries still relevant? For Palfrey, the to his or her social and professional head of school at Phillips Academy and a circles and lasted only as long as people former HLS professor who reorganized remembered it. Now digital technology has the school’s library and is a director at its made reputations “ubiquitous, permanent, Berkman Center for Internet & Society, and available worldwide,” write the the affiffi rmative answer lies in a new kind of authors, leading to potential problems and library. It utilizes digital technology (he is opportunities. Fertik, CEO and founder of the founding chair of an effffort to establish Reputation.com (and a lecturer at HLS and a national digital library system in the expert-in-residence at the Harvard i-lab), United States) while maintaining a physi- and Thompson, the company’s former cal space accessible to all. The library has general counsel, advise readers on how to been and will remain, he writes, “funda- shape their reputations to their advantage, mental to the success of our democracy.”

58 HARVARD LAW BULLETIN Spring 2015 ILLUSTRATION BY LUC MELANSON IN MEMORIAM

1940-1949 DONALD H. ANGUS ’51 JOHN F. COUGHLIN ’57 KENNETH G. PIGOTT ’68 Aug. 7, 2014 Dec. 14, 2014 Feb. 13, 2015 LEONARD C. MEEKER ’40 RICHARD G. BATESON ’51 PAUL L. DAVIES JR. ’57 JOHN DURHAM WELLS ’69 Nov. 29, 2014 Feb. 12, 2015 Nov. 19, 2014 Sept. 28, 2014 ALFRED G. BOYLAN ’4 2 JOHN D. MORRISON JR. ’51 KENNETH L. EVERETT ’57 March 8, 2015 Feb. 6, 2015 Nov. 27, 2014 1970-1979 LESTER A. LAZARUS ’46 STANLEY P. POLLACK ’51 THOMAS J. GODFREY JR. ’57 GUY M. BLYNN ’70 Sept. 24, 2011 April 25, 2013 Oct. 5, 2014 Dec. 17, 2014 DONALD L. AUSTIN ’48 ALFRED C. SCHMIDT ’51 NEIL L. LYNCH ’57 R. KIRKLAND GABLE ’70 Jan. 19, 2015 June 7, 2012 Oct. 1, 2014 Jan. 18, 2015 THOMAS E. BENNETT ‘48 DAVID E. CRABTREE ’52 KAI A. NEBEL ’57 ERIC S. ANDERSON ’71 Feb. 26, 2015 Jan. 27, 2015 2014 Nov. 9, 2014 THOMAS E. BRASWELL JR. ’48 MALCOLM S. ELSOFFER ’52 JOHN W. SEARS ’57 ALLEN N. GROSSMAN ’71 Feb. 23, 2014 Feb. 2, 2015 Nov. 4, 2014 Dec. 3, 2014 JACK C. BRISCOE ’48 SAMUEL G. KING ’52 EVAN R. DAWSON ’58 LINDA WILLIAMS Dec. 1, 2014 Jan. 9, 2015 Feb. 3, 2015 STANDRIDGE ’71 LARRABEE M. JOHNSON ’48 GAEL MAHONY ’52 WILLIAM H. GORHAM ’58 March 7, 2015 Aug. 26, 2014 Nov. 4, 2014 March 2, 2015 FREDERICK D. JONES III ’72 FRANK R. KITCHELL ’48 THOMAS W. PEARLMAN ’52 WILLIAM H. HAYS III ’58 Aug. 23, 2014 Jan. 25, 2015 April 29, 2014 Feb. 25, 2015 DAROLD E. MAXWELL ’72 Oct. 7, 2014 STANLEY LAMPERT ’4 8 ROBERT E. RODES JR. ’52 SHERMAN D. HORTON JR. ’58 Dec. 20, 2014 Nov. 25, 2014 Dec. 3, 2014 TERRANCE R. MCKNIGHT ’75 STUART MARKS ’48 EDGAR H. BOOTH ’53 YOSHIO SHIGEZAWA ’58 Nov. 29, 2014 April 13, 2014 Feb. 21, 2015 Sept. 22, 2014 WILLIAM J. ARNOLD III ’76 THOMAS A. QUINTRELL ’4 8 JOHN A. CURTISS ’53 PETER K. GOULD ’59 Nov. 17, 2014 March 3, 2015 Nov. 1, 2014 Nov. 1, 2014 JOHN T. DOWNEY ’76 LEON SAVITCH ’48 ALLEN E. KLINE ’53 WILLIS G. HAUGEN ’59 Nov. 10, 2014 May 17, 2013 Jan. 30, 2015 Nov. 28, 2014 FERNANDO T. “JERRY” S. ARTHUR SPIEGEL ’48 BARICAN LL.M. ’79 NICHOLAS L. METAXAS ’53 LELAND T. JOHNSON JR. ’59 Oct. 3, 2014 Dec. 31, 2014 Feb. 25, 2015 Sept. 18, 2014 WALTER E. BLACK JR. ’49 RICHARD S. MONAGHAN ’79 ROBERT S. WEATHERLY JR. ’53 JOSHUA M. LEVIN ’59 Oct. 27, 2014 Sept. 29, 2014 Dec. 30, 2014 Jan. 9, 2015 ROBERT R. BUELL ’49 WARREN W. BENTZ ’54 DECATUR H. “DEKE” 1980-1989 Sept. 23, 2014 Dec. 31, 2014 MILLER ’59 HENDRIK M. “RIK” DE MELVIN J. CARRO ’49 MONROE H. FREEDMAN ’54 Feb. 2, 2015 Nov. 20, 2014 CEULAER LL.M. ’81 LL.M. ’56 Sept. 12, 2014 ARNOLD J. ERICSEN ’49 Feb. 26, 2015 1960-1969 Dec. 27, 2014 JOSÉ GOMEZ ’81 ROBERT L. HANDROS ’54 JOHN J. CARLIN JR. ’60 Sept. 14, 2014 WILLIAM A. GEOGHEGAN ’49 Feb. 17, 2015 Nov. 28, 2014 Jan. 17, 2015 WANDA (DOUGLAS) THIGPEN CHARLES H. HARFF ’54 ALFRED K. HETTINGER ’60 ’83 Jan. 3, 2015 LEONARD L. GRIMES ’49 March 9, 2015 July 18, 2014 Jan. 4, 2015 ROBERT W. KENT ’60 ISAAC HENKOFF ’54 MICHAEL L. SEIGEL ’84 Dec. 21, 2014 JOHN RICHARDSON JR. ’49 March 3, 2015 Jan. 1, 2015 Dec. 26, 2014 PETER W. KILBORN ’60 STANLEY M. LANGER ’54 THOMAS A. SCHWEICH ’85 Dec. 28, 2014 JOSEPH C. ROBBINS ’49 Feb. 18, 2014 Feb. 26, 2015 Nov. 11, 2014 J. SPENCER LETTS ’60 LEONARD S. MERANUS ’54 TRACIE BUTLER GILES ’88 Nov. 10, 2014 GILBERT R. “BERT” SCHMITT Dec. 17, 2014 Nov. 19, 2014 LL.M. ’49, Q.C. WILLIAM D. PARSLEY ’54 FLETCHER L. YARBROUGH ’60 Dec. 25, 2014 Nov. 22, 2014 Nov. 24, 2014 1990-1999 PAUL A. SIMMONS ’49 COURTLAND W. TROUTMAN C. PERRY BASCOM ’61 Oct. 9, 2014 JAKE A. PALUMBO ’99 ’54 Nov. 4, 2014 Nov. 6, 2014 ROBERT N. THOMSON ’49 Jan. 6, 2015 LEONARD V. GRAY LL.M. ’61 Sept. 22, 2014 PAUL L. WRIGHT ’54 June 14, 2014 JERRY WAGNER ’49 Feb. 1, 2015 RICHARD A. ROBINSON ’61 →Visit the In Sept. 30, 2014 JOHN F. BOK ’55 Jan. 16, 2015 Memoriam section Sept. 27, 2014 1950-1959 SARAH “SALLY” (REYNOLDS) online at bit.ly/ DONALD C. COUSINS ’55 NEWBURY ’62 THOMAS L. FARMER ’50 Feb. 7, 2015 Dec. 29, 2014 Inmem2015 for Feb. 5, 2015 CHARLES DAVID EMHARDT ’55 ROBERT PIRIE ’62 links to available CHARLES F. HARRINGTON ’50 Jan. 14, 2015 Jan. 15, 2015 Jan. 22, 2015 ROBERT E. HERZSTEIN ’55 SONIA FAUST ’64 obituaries. MORTON KOPPEL ’50 Feb. 12, 2015 2014 Nov. 4, 2014 JEROME KURTZ ’55 DORAN KOULACK-YOUNG ’64 OBITUARY INFORMATION VINCENT L. MCKUSICK ’50 Feb. 27, 2015 Jan. 23, 2015 Dec. 3, 2014 ELHANAN C. “ELKY” STONE MICHAEL J. SPECTOR ’65 →Notices may be CHARLES R. SIMPSON LL.M. ’55 Oct. 31, 2014 sent to Harvard Law ’50 Dec. 27, 2014 STEVEN L. CYMROT ’66 Jan. 28, 2015 PHILIP W. COYLE ’56 Nov. 29, 2014 Bulletin, 1563 Mass. ARTHUR D. SPORN ’50 July 18, 2014 H. PATRICK GLENN LL.M. ’66 Ave., Cambridge, MA 2015 JOHN W. HARRIS ’56 Oct. 1, 2014 02138 or to bulletin@ SYDNOR THOMPSON ’50 Oct. 20, 2014 WAYNE E. BATCHELER ’67 Jan. 27, 2015 RONALD S. STEELMAN ’56 Aug. 1, 2013 law.harvard.edu. HAROLD WEINSTOCK ’50 Dec. 6, 2014 CHARLES A. JUDELSON ’67 Dec. 1, 2014 April 16, 2014

Spring 2015 HARVARD LAW BULLETIN 59 HLSA NEWS | An Event Supreme 34 alumni join the Supreme Court Bar and get a tour from the chief justice

On Dec. 15, 2014, 34 Harvard Law alumni, from the Classes of 1971 to 2010, gathered at the U.S. Supreme Court to join the bar for the highest court in the nation. It was the fi rst time HLS had organized such an event, and it was at the suggestion of Glenn Ivey ’86, president HLS alumni recently admitted to the bar of the of the Harvard Law Supreme Court of the United States School Association’s Washington, D.C., chief justices that are hang- cases before the Court (see argument and opinion days. ing in the room, explaining interview, Page 49). Those But in December, for the chapter. the histories of some of the who attended came almost HLS grads at the ceremony, Dan Schweitzer ’89, lesser-known justices. As he exclusively from D.C. and the focus was on reconnect- who heads the Center for was in the middle of telling included a wide range of ing with old classmates and Supreme Court Advocacy at a story, Justice Ruth Bader alumni, from a stay-at- colleagues, engaging with the National Association of Ginsburg ’56-’58, who had home mother who took the Supreme Court history and Attorneys General, moved just come into the room, opportunity to re-engage lore, and celebrating the to admit the attorneys fi nished his anecdote and with the law, to Bert Mizu- history of legal practice. before Chief Justice John G. joked about an opinion she sawa ’89, a major general in Ivey has no immediate Roberts Jr. ’79. Before the had read from the bench the U.S. Army Reserve who plans to argue before the ceremony, the group had that morning. sent in his application to the Supreme Court but is breakfast in the East Con- The prior night, the group Supreme Court Bar while excited to be part of its ference Room, where Rob- was addressed by Kannon stationed in Afghanistan. tradition. He said that erts, wearing his Harvard Shanmugam ’98, an appel- Because of the popularity standing in front of the tie, gave attendees a brief late litigator at Williams & of the event, the HLS Alum- Court after the ceremony, tour of portraits of former Connolly who has argued 17 ni Center has booked group he was reminded of a visit admission dates through he’d made in Rome to a 2017. The next date, in June, spot where an ancient fi lled up within 24 hours courthouse used to stand. and will include 50 alumni “It struck me that when from D.C., Boston, New you hear about how lawyers York and New Mexico. practiced law in ancient Joining the Supreme Rome, there is a 4,000-year Court Bar has several perks, tradition of lawyers … pre- Chief Justice Roberts addresses the most notable of which serving the rule of law,” Ivey the new members of the Supreme Court Bar. involves guaranteed seats said. “I think we carry the at the front of the Court on torch.” —LANA BIRBRAIR ’15 BILL PETROS PHOTOGRAPHY PHOTOGRAPHY BILL PETROS

60 HARVARD LAW BULLETIN Spring 2015 ↑ The Harvard Law School Association of the United Kingdom brought together (from left) Kenneth Caplan, head of the Blackstone Group; Sanjay Patel, head of Apollo Europe; Caroline Chang ’01, managing ↑This spring, the HLSA of Northern California and Farella Braun + Martel director of Farallon Capital Management Europe; co-hosted a panel titled “Advising Disruptive Companies.” Panelists George White ’81, partner at Sullivan & Cromwell; included (second from left): Tangela Richter ’97, deputy general counsel and Peter Krause Jr. ’12 of the Blackstone Group, on and senior vice president of Lending Club; Candace Taylor’09, associate a panel titled “Globalizing Your Career: Perspectives litigation counsel at Lyft; Katie Biber ’04, senior counsel at Airbnb; and on Business and Law for Young Alumni.” The event, Jen Ghaussy ’08, counsel at Uber. Over 75 people attended the event, attended by 40 alumni, was sponsored by Sullivan & which focused on topics ranging from the challenges of advising compa- Cromwell in London. nies that are hiring 50 people a week to how to network your way into a job that doesn’t exist, i.e., convincing a startup that it needs a lawyer. T.J. Duane ’02 (far right), CEO at Qollaboration, discussed the HLSA’s grow- ing focus on programming related to “the startup and entrepreneurial eco- system,” including the launch of the new HLSA Entrepreneurs Network, which he is chairing. Farella Braun partners Chris Wheeler ’02 (far left) and Deepak Gupta ’02 (second from right) hosted the event. Including this panel, there were four HLSA events related to entrepreneurship and startups in San Francisco, New York and Los Angeles in March.

↑ Dean Martha Minow addressed the Harvard Law Society of Illinois at its annual meeting in November. Over 90 attended the event, which was held at Sidley Austin in Chicago.

↑Dean Minow (center) was the guest speaker at the HLSA of Orange County’s March event at Ru- tan & Tucker in Costa Mesa, California. Among the ↑ HLSA of Houston board members (from left) Mark 48 attending were HLSA of Orange County board Yzaguirre ’97, Miles LeBlanc ’81, President Anna Rot- members (from left) Richard Schwarzstein ’59, man ’04 (second from right) and Scott Sherman ’91 Ryan Fawaz ’09, Nancy Castenholz ’88, President (far right) with HLSA of Houston guest speaker Dean Michael Friedland ’91, Patty Le-Narula ’96, Ben Minow. Seventy-eight alumni attended the reception Katzenellenbogen ’99, Bill Marticorena ’77 and Josh held at Bracewell & Giuliani. Robbins ’04.

Spring 2015 HARVARD LAW BULLETIN 61 LEADERSHIP PROFILE | A conversation with Bart Winokur

FROM LONDON TO IRAN AND BEYOND, Barton J. “Bart” Winokur ’64 has had a robust career as an international deal-maker and expert in mergers and acquisitions, including representing Getty Oil in And then you chose another its sale to Texaco and representing the Haas Family Trusts in negotiating the $15 billion acquisition challenge? of Rohm & Haas by Dow Chemical Co. More recently, Winokur was lead attorney for Fannie Mae in Really another opportunity. connection with an $11.6 billion settlement with Bank of America involving claims related to mort- [Later in] 1975, Dechert gave gage loans originated by Countrywide Financial Corp. and Bank of America National Association from me the opportunity to move 2000 through 2008. to London for four years to But it’s his skill at leading Dechert that in 2013 earned Winokur a Lifetime Achievement Award run that offiffice. The fi rm had from The American Lawyer. He transformed the Philadelphia-based law fi rm into an international law a very small practice there: practice with more than 20 offiffi ces in the U.S. and around the world. Under his leadership, Dechert one client [whom we billed] also became one of the world’s most profi table fi rms, according to The American Lawyer, and rose for $25,000 a year, or $75,000 from 61st among fi rms in pro bono rankings to the top 10. over the prior three years. It A native of Philadelphia and graduate of Cornell University and Harvard Law School, where he was was essentially a greenfifield a member of the Harvard Law Review, Winokur joined Dechert in 1965 after serving as a law clerk for venture. The risk of failing Judge Abraham L. Freedman of the U.S. Court of Appeals for the 3rd Circuit. He served as chair of was very high, and indeed, I Dechert’s mergers and acquisitions and international law groups, and was the resident partner of the was defifi nitely failing for the London offiffi ce from 1975 to 1979. At Cornell, he serves as a trustee and a member of the executive fi rst fi ve or six months. But, committee and also as chairman of the Dean’s Advisory Board of the College of Arts and Sciences. In with no alternative but to addition, he serves as a trustee of Brandeis University, where he was the chairman of the board. He is succeed, we eventually found a member of the Dean’s Advisory Board of HLS. opportunity.

How did you build that practice? When I fi rst got to London, How did you build Dechert from to prevail over proximity, I was presented with an I noticed there were few real primarily a regional fi rm to an the competition was going opportunity to represent tax lawyers in England, and international powerhouse? to fl y right over those walls, the minister of war of the accountants who did I don’t think it is accurate so the only answer was to Iran on a major contract most of the tax work tended to say that I built anything. develop our own excellence. with TWA to buy twelve to look at taxes on a limited Whatever we built was the That meant we needed to 747 airplanes for military jurisdictional basis. The result of the effff orts and raise the portcullis, drop the use. I had no experience in U.K. tax accountants focused vision of many. What we did drawbridge, and go out and that area and certainly no on U.K. issues; the French, was build on what were the meet the enemy on his terri- experience representing a on French issues. No one strengths of the firm and tory in those areas where we major foreign government seemed to be looking at the radically upgrade the level were strongest. Then we had and U.S. ally in a sensitive interaction between diffffer- at which the fi rm competed. a real shot. Of course, that arms purchase, but the ent jurisdictions. It seemed When I joined the firm in meant that our partners and opportunity was enormous. to be an opportunity, so I set the 1960s, most regional associates had to up their I was nervous as hell, about learning French and fi rms had primarily local game. It meant they had to but it was an incredible German and English tax law. practices. You practiced embrace risk and go where experience. It was a time After about three months, I primarily in the local courts many of them had never when there were, maybe, thought I could contribute. and advised mostly local been—something that is not three telephone lines out of I went out and talked to the clients on [the majority] of natural for lawyers or law Iran, so I was there on my fi rst one I’d hoped would their matters. In the ’70s fi rms. But our lawyers did, own. Somehow I survived be a client. When he was and ’80s, that world was with results that surprised and went on to do further skeptical—he already had disappearing. The big New even many of them. deals with Boeing, other the “best, most renowned York firms started coming major defense contractors tax advisers”—I offff ered to in and taking away the most Would you say your success was and a number of foreign take the assignment on a full important and profifitable built on seizing opportunity? countries. And I soon contingency: He would pay matters for those traditional I’m a very big believer in found all kinds of new me only if he thought I saved clients. The natural reaction change and challenges opportunities with major him money. Fortunately, as of most fi rms was to try to that stimulate and enrich international companies. often happens, necessity gave build walls and protect their you. In 1975, I was in My world was now a birth to a solution. And the traditional clients. Certain- Iran representing an diffff erent world—a world fee earned for that success ly that was what was hap- American company on a beyond Philadelphia was four times the fi rm’s pening in Philly. In a world potential large contract and beyond the United revenues for the prior three where excellence was going with the government when States. years.

62 HARVARD LAW BULLETIN Spring 2015 “As institutions get bigger, they tend to be more bound by rules, and those rules are often the enemy of independent thinking.”

Why did you require all lawyers bono, you get to work with had, meaning a career that opportunities, because so at Dechert to give a minimum people who are unbelievably was interesting and excit- many people today are held number of pro bono hours? grateful for what you do. I ing. My answer was, “Abso- back by rules. The fi rm had a long history have always thought that the lutely.” The challenge is the of pro bono. All I did was most rewarding aspect of structures we have within So if you’re willing to challenge ratchet it up, with programs practicing law was building large law firms. There are rules—as you did in London— that focused a lot more on it relationships with people, many great law firms, but that’s where the opportunity is? and gave people more credit helping those people, and as institutions get bigger, Exactly. See challenges and leeway for pro bono, seeing the tangible and they tend to be more bound as opportunity and don’t along with requirements for intangible results. And of by rules, and those rules are accept rules as the limit. all partners and associates course, those experiences often the enemy of indepen- When I was 27, I looked at to participate. It sounds help you in everything else dent thinking. A great ca- everything as opportuni- obvious, but pro bono is you do as a lawyer. Practic- reer means thinking beyond ty, and I challenged every extremely important for a ing law is about identifying and challenging those rules. conventional view of what number of reasons. We’ve with people, not about some That doesn’t mean ignoring an associate should do at all been given a privilege abstract cause of action. the rules; it means challeng- my firm. I think I am most of practicing law, of being ing them when they don’t effff ective when I do what I successful, and of living What advice do you give young make sense or what you did when I was 27, and I’m a good life, and there’s an lawyers today? want to do is interesting and least effffective when I think obligation to give back. When I was teaching a class exciting and makes sense. If I’m entitled because of what Second, on a personal level at Penn, a student asked you’re willing to do that, the I have done in the past. If and a professional level, pro whether I still thought it opportunity is there. There you think you’re entitled bono work is extraordinarily was possible for people to are loads of opportunities because of what you’ve done, rewarding. When you do pro have the kind of career I today, in some ways more you’re on the down road.

PHOTOGRAPH BY BETH PERKINS Spring 2015 HARVARD LAW BULLETIN 63 GALLERY | Magna, Cum L aude

800 years later, the ‘great charter’ still fascinates

ON A JUNE DAY executive power.” day have, he said; it in- ments survive in the 800 years ago, King John of The Harvard Law cluded provisions that U.S. Constitution and England met with disaffffect- School Library owns “foreshadowed” the the Bill of Rights. ed feudal barons at Run- 39 early manuscript idea of a parliamenta- At an American Bar nymede, a meadow on the copies of Magna Carta ry petition; and it of- Association gathering River Thames 20 miles from (ca. 1300 to 1467)— fered an early glimmer last summer, Chief London. Under pressure for and many printed of what we now call the Justice of the United overstepping his authority ▶ versions—see bit. rule of law. States John G. Roberts over landowners, the king Initially ly/MagnaCartas. During the 17th cen- Jr. ’79 said Magna merely a (A special exhibit tury, Magna Carta in- Carta helped give put his seal to Magna Carta, summary of the “great charter” that in feudal rights, is planned for the spired English Puritan rise to representative 1215 was merely a summary Magna Carta fall.) One example, a rebels during “battles government, moderat- has become manuscript version over the power of the ed executive authority of customary feudal rights a symbol of and guarantees. But the liberty and of the abbreviated king,” said Mary Sarah and established the charter went on to have a sec- the power of charter that was Bilder ’90, professor of idea of an independent the rule of ond life as an argument for law. The HLS distributed to English legal history at Boston judiciary—vital today liberty more generally, and library owns sheriffff s around 1327, College Law School. as a place of cool judg- 39 manu- is said to have been For years after, she ment, he said, within as a primer on the rule of law. script copies, Soon Magna Carta shook the among them re ad aloud four times added, it “gets used the heat of partisan world into modernity with a the one from a year. as a way of arguing debate. Last fall, at the the early Magna Carta’s 1225 against authority.” Library of Congress, feudal message readily recast 1300s pic- as revolutionary: Executive tured here. version was integrated The ancient text was Roberts called Magna power has limits. Included on into English statute invoked in the Vir- Carta a driving force Handwritten in Latin on the page is a rolls in 1297, and then ginia charter of 1606 behind the ideals that clause con- sheepskin parchment, the one- firming the into law books during and the Massachusetts propelled American page charter drew “direct lines freedom of the 16th century. But Body of Liberties of independence. to some of our most fundamen- the English only four of its provi- 1641. Early colonists To this day, Ameri- church and tal principles,” according to another sions survive in pres- used Sir Edward Coke’s cans are more “ob- the American Bar Association. limiting the ent-day British law. loose, colorful rein- sessed” with the tax to be (Included were due process, trial HLS Professor Charles terpretation of Magna centuries-old charter . paid to the by a jury of one’s peers, punish- Crown after a Donahue Jr. said that Carta as a template for than the British, said ments that matched crimes and landowner’s more provisions of laws in the New World. Bilder. Americans re- habeas corpus.) Its 63 provisions death. Magna Carta are in John Adams used gard it as symbolic of also included demands for safe effffect today in Alberta, Magna Carta during an idea woven into the passage at borders, standardized Canada, than in Great arguments against the fabric of the Consti- measures for traded goods, fixed Britain itself. Despite Stamp Act and the vice tution: that authority and independent courtrooms, its enduring power as admiralty courts. In is not absolute. The FOLIO 5R. HARVARD LAW SCHOOL LIBRARY LAW HARVARD 5R. FOLIO fair interest rates, and the power a metaphor for liberty, 1775, Massachusetts American obsession— , of localities to make their own Magna Carta “is not revised its seal to underscored by ABA laws. HLS Visiting Professor a charter of liberties depict a man holding pronouncements start- Daniel R. Coquillette ’71 called or a bill of rights in Magna Carta in one ing in the 1950s—may CA. 1300. HLS MS 175 HLS 1300. CA. it “our fi rst great constitutional either the modern hand and a sword in reflfl ect a relatively new , document” in his book “The or the 17th century the other, a version country seduced by the Anglo-American Legal Heritage” sense,” Donahue told a that survived until idea of such an old le- (1999). Despite its not being a recent class. But it was 1780. Magna Carta was gal framework. “To be constitution or even legislation, “a good start” on the used in the constitu- part of an 800-year-old he wrote, Magna Carta “remains primacy that individ- tions of at least eight tradition,” she said, “is STATUTA VETERA WITH TRACTS STATUTA a great symbol of the rule of law ual grievances against of the original colo- somehow comforting.” , and of limitations on arbitrary authority would one nies, and its senti- —CORYDON IRELAND ENGLAND

64 HARVARD LAW BULLETIN Spring 2015

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INSIDE OUT | Slicing the Data

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