2 Honors 3 Ethics 6 Challenging 7 New © MORE HLS NEWS INSIDE for the of criminal the individual faculty at www.law. honorable defense mandate appointments harvard.edu

Congratulations to the Class of 2012

The Harvard Law School graduating Class of 2012 was encouraged HARVARD LAW to remember the importance of service in their future careers, during Class Day and Commencement exercises this year. The law school conferred 757 www.law.harvard.edu/news/hltoday/ To day degrees—580 J.D.s, July 2012 169 LL.M.s, and 8 S.J.D.s—at Commencement on May 24. ,4 PHOTOS BY HERATCH PHOTOGRAPHY PHOTOGRAPHY HERATCH BY PHOTOS

“My colleagues are people who Celebrating recognize their own responsibility to get 35 years to the right answer, and I think they act on the Court “This is the kind of thing that in good faith.” aff ects billions of dollars for industry, pharma, hospitals, Harvard Law School researchers and universities across the world,” said Assis- celebrated Justice John tant Professor I. Glenn Cohen ’03 (right), co-director of the Paul Stevens’ 35 years of Petrie-Flom Center for Health Law Policy, Biotechnology, service on the Supreme and Bioethics. Court with an April 25 event honoring his work and his MARTHA STEWART MARTHA contributions to the fields of environmental, energy and The future of human natural resources law. subjects research In her introduction, Dean Martha Minow said that Justice Stevens’ crucial leading role regulation in environmental law follows from his atten- tion to facts and his ability to cut through the LEADING EXPERTS IN the fields of law, science and fog to bring reason to bear in the midst of high medicine gathered at HLS May 18 and 19 to discuss the emotion, high drama and sometimes boring future of human subjects research regulation. detail. That focus on facts, she said, is “among The topic for the conference, sponsored by the Petrie- the dimensions for which Justice John Paul Flom Center for Health Law Policy, Biotechnology, and Stevens has set the standard defining what a Bioethics at Harvard Law School, was prompted by a July

GUS FREEDMAN great judge is.” ,8 2011 advance notice of proposed rulemaking from the U.S. Department of Health and Human Services proposing to amend the rule that has governed this research for more Harvard Law Today Nonprofit Org. than 20 years. Harvard Law School U.S. Postage “We felt this might be an opportunity to revisit and actu- 125 Mount Auburn Street PAID ally change things regarding human subjects research,” said Cambridge, MA 02138 Boston, MA Permit No. 54112 HLS Assistant Professor I. Glenn Cohen ’03, co-director of the center. “This is the kind of thing that affects billions of dollars for industry, pharma, hospitals, researchers and universities across the world.” In announcing a contemplation of the rule change, of- ficials at HHS noted that the research landscape involving ,6

HLT_July12_05a.indd 1 6/14/12 11:10 AM Glendon appointed to the U.S. Commission on BRIEFS International Religious Freedom

and circumstances of violations of reli- Student pens Centenarian Bill Hogan Jr. gious freedom internationally and mak- ’36 helped celebrate Fenway one of the top ing policy recommendations to the presi- Park’s 100th anniversary. dent, secretary of state and Congress. securities articles AT THE OLD BALLGAME An article by ANDREW TUCH S.J.D. ‘12 Lifelong Red Sox fan and Harvard Law School has been voted by the nation’s corporate Cohen named a grad BILL HOGAN JR. ’36 celebrated his 100th and securities law professors as one of fellow for medical birthday by throwing out the ceremonial first the top 10 corporate and securities law pitch for the Red Sox-Rays game at Fenway Park papers of 2011. The article, “Multiple tourism on April 14. Hogan, born just six days before Gatekeepers,” was originally published The Radcliffe Institute for Advanced Mary Ann Glendon the Red Sox played their first game in Fenway, in the Virginia Law Review. The Corpo- Study at Harvard University has select- was part of the centennial celebration leading rate Practice Commentator, a quarterly ed Assistant Professor I. GLENN COHEN up to Fenway Park’s 100th anniversary on April journal, polls corporate and securities law ’03 as a Radcliffe Institute Fellow for the 20. Also part of the WATCH VIDEO hvrd. l celebration on April 14 faculty to select the 10 best articles pub- 2012-2013 academic year. The co-director me/HLSatFenway lished during the prior year. Professors of HLS’s Petrie-Flom Center for Health were HLS staff members chose Tuch’s article out of 580 articles Law Policy, Biotechnology, and Bioeth- Ben Sears, Brad Conner and Joei Marshall Perry. on this year’s list. ics, Cohen will focus his fellowship on Sears and Conner, who have been performing as medical tourism and the legal and ethical a cabaret duo for more than 20 years, performed issues related to travel by patients who the national anthem. Joining the duo were Perry Academy fellows: are residents of one country to another and the cast of “Fabulous Fenway,” a concert Wilkins and country for medical treatment. celebrating Fenway Park in story and song. Vermeule

Harvard Law Professors DAVID WILKINS Students ’80 and ADRIAN VERMEULE ’93 have been recognized for elected to membership in the American Academy of Arts & Sciences. Wilkins, the community work Lester Kissel Professor of Law, is director CRYSTAL REDD ’13 and ANGELA CHUANG David Wilkins of the Program on the Legal Profession ’13 were among 10 students chosen as and vice dean for Global Initiatives on the 2012 Harvard University Presidential Legal Profession. Vermeule is a leading Fellows for their commitment to public scholar of administrative law and con- service initiatives. The university-wide stitutional law and theory. Several HLS fellowship program, designed to promote alumni were also named 2012 fellows: public service across Harvard’s schools,

RITA HAUSER ’58, president of the Hauser provides grants to undergraduates and RINALDO TONY Foundation; KENNETH FRAZIER ’78, presi- graduate students to fund summer proj- Radcliff e honors Marshall as a dent and CEO of Merck & Co.; and DAVID ects. Redd will work at the Advancement WEISBACH ’89, the Walter J. Blum Profes- Project and with the Southern Center for ‘true pioneer in her field’ sor of Law at the University of Chicago. Human Rights, working with defendants Margaret H. Marshall, senior research fellow facing the death penalty. Chuang will in- and lecturer on law at Harvard Law School, Adrian Vermeule Glendon joins tern at New York County Defender Ser- was recently awarded the Radcliffe Institute vices’ newly created Immigration Unit, Medal. Marshall, who is former chief justice helping to represent indigent clients. commission on of the Massachusetts Supreme Judicial Court religious freedom and senior counsel at Choate Hall & Stewart,

MARY ANN GLENDON, Learned Hand Pro- gave the keynote address during the Radcliffe fessor of Law and former ambassador to Day luncheon on May 25. the Holy See, was appointed to the U.S. l WATCH VIDEO hvrd.me/Marshall2012 Commission on International Religious Freedom on May 23 by Senate Minor- HARVARD LAW TODAY ity Leader Mitch McConnell. Compris-

ing nine members, the commission is Assistant Dean/Chief of Editorial Office an independent, bipartisan federal body Communications Harvard Law Today ROBB LONDON ’86 125 Mount Auburn St. that is responsible for reviewing the facts Editor Cambridge, MA 02138 CHRISTINE PERKINS 617-495-3118 [email protected] Managing Editor LINDA GRANT Send change of address to A FAMILY OF HONORARY DEGREES HLS Dean Martha Minow and her parents and siblings Alumni Records Design Director 125 Mount Auburn St. received honorary degrees from Dominican University in May. Minow’s father, Newton, delivered the RONN CAMPISI Cambridge, MA 02138 commencement speech. (L-R, front): Josephine and Newton Minow; (L-R, back): Dominican University Contributors [email protected] SOPHY BISHOP, DICK DAHL, JILL President Donna Carroll; Nell Minow, an expert in corporate governance; Dean Martha Minow; Mary Volume 11 Number 4 GREENFIELD, CAROLYN KELLEY, Minow, an expert in legal issues for libraries at Dominican University; and Susan Roman, dean of ALIZA LEVENTHAL, SARAH Harvard Law Today is published Dominican University’s Graduate School of Library & Information Science MARSTON, EMILY NEWBURGER, by Harvard Law School LEWIS RICE, LORI ANN SASLAV, © 2012 by the President and KIM WRIGHT Fellows of Harvard College

2 Harvard Law Today July 2012

HLT_July12_05a_r2.indd 2 6/14/12 4:16 PM AWARD WINNERS HONORS AT VIS MOOT COURT Two HLS teams competed at the 2012 Rethinking Willem C. Vis International Commercial (L-R) Rethink Music competition winners Adam Gottesfeld and Joey Seiler, with Allen Bargfrede and Assistant Arbitration Moot competitions, in Vienna music Director of HLS’s Cyberlaw Clinic Christopher Bavitz and Hong Kong, which aim to train future PHIL FARNSWORTH leaders in methods of alternative dispute TWO HLS STUDENTS, ADAM in legal services from the firm such as Spotify and Groove- bridge relationships between resolution. In Vienna, 282 universities from GOTTESFELD ’12 and JOEY Duane Morris, additional in- shark to make music listening artists and fans. 68 countries competed. HLS placed third SEILER ’12, recently won Re- kind consulting, and at least and sharing more rewarding They received the award in in oral arguments, making it to the semifi- think Music’s Genesis Project, three meetings with venture for fans and more lucrative for April during the Rethink Mu- nal round and winning Best Memorandum a startup competition that aims capitalists. artists and brands. sic conference, sponsored by for Claimant, and received honorable to encourage and monetize Their project, Have You The project combines the Berklee College of Music, in creativity in the music industry. Heard?, utilizes data available classic street team promotional association with the Berkman The duo will receive $10,000 on music-streaming platforms model with online games to Center for Internet & Society.

Vienna Team

A Progressive Vision of National Security mention for the Respondent’s Memoran- dum. JESSICA MOYER ’12 and JESSICA FORMER WISCONSIN SEN. RUSS FEINGOLD ’79 initial spike in engagement in the years immedi- BEESS UND CHROSTIN ’13 received honor- delivered a lecture, sponsored by HLS’s American ately following 9/11, the American government able mention for Best Individual Oralists. Constitution Society, titled “A Progressive Vision and people are not sufficiently connected with the The Hong Kong team placed eighth out of National Security” in April. rest of the world, and have failed to stay of 90 teams, making it to the quarter-final The only member of the Senate to vote connected to the issues. He said that, al- round and winning honorable mention for against the PATRIOT Act in 2001 and though it is understandable that public the Claimant’s Memorandum. TARIK one of 23 to vote against the Iraq War in discourse and government resources ELHUSSEIN ’13 won honorable mention 2002, Feingold recently wrote “While shifted to address the financial cri- for Best Individual Oralist. America Sleeps,” a book which details sis, a crucial lesson from 9/11 is that his criticisms of American foreign policy when we’re not alert to what’s occur- since 9/11 and proposes a plan to correct ring in the rest of the world, regardless the nation’s course. of what’s occurring domestically, we can Feingold said he chose to write the book—which be taken completely by surprise. is his first—about national security, rather than Feingold said, “We can’t say ‘Domestic issues l WATCH VIDEO hvrd.me/ feingold2012 issues with which he is better associated, such now, global issues later.’ We need to address both Hong Kong Team as campaign finance reform, because despite an at once.”

BIG THINKERS Five ideas in 50 minutes “HLS Thinks Big,” inspired by the global TED (Technology, Entertainment and Design) talks and modeled after the college’s “Harvard Thinks Big” event, was held at Harvard Law School on May 23 in Austin North. During the event, fi ve professors presented some of their favorite topics.

ern health care system,” said El- daily basis, said Sullivan, criminal hauge, “but it is unsustainable in law provides “a rather dramatic the face of growing technological prism” to answer this question. development.” ANNETTE GORDON-REED ’84, Professor RICHARD LAZARUS professor of law and history at ’79 discussed how private-sec- Harvard, said it’s important for tor law firms have captured the students, particularly at an insti- Einer Elhauge Supreme Court’s docket, over- Ronald Sullivan tution that sees itself as training Lawrence Lessig whelming the Court with peti- people to be leaders, to have a STEWART MARTHA BY PHOTOS THE PROMISE OF efforts to re- tions. According to Lazarus, the of the Harvard Criminal Justice full grounding in history—to go Our institutions should be design humans and the needed Court needs to create its own of- Institute RONALD SULLIVAN ’94 through the process of thinking separate from money influence, limits on those efforts were the fice of career lawyers to provide an discussed the ethical dimensions about how the American legal said Professor LAWRENCE LESSIG, focus of a talk by Professor EINER initial layer of review, with experts of criminal defense, questioning system developed—so that they director of Harvard’s Edmond J. ELHAUGE ’86. capable of second-guessing and whether a good lawyer can be a can make the arguments and can Safra Center for Ethics. Congress According to Elhauge, the law scrutinizing expert advocates. good person. think about policy when they are has moved from dependence on currently draws a distinction be- Clinical Professor and Director “How can a lawyer use her drafting laws. the people to dependence on the tween biological interventions great education, skills and talent funders, which jeopardizes the that treat human diseases and dis- Richard Lazarus to secure the acquittal of a per- Annette Gordon-Reed future of American democracy. abilities, and those that enhance son who she knows is guilty?” he Americans’ belief that money human abilities. “It’s an important asked. Since most junior criminal buys results in Congress erodes distinction because it’s a central defense lawyers have to resolve trust in the institution, which organizing principle of our mod- these sorts of conflicts on a nearly erodes participation, he said.

July 2012 Harvard Law Today 3

HLT_July12_05a_r2.indd 3 6/14/12 4:16 PM ‘Put your skills to use in helping to define our future’ Attorney General Eric Holder keynotes Class Day

The 82nd attorney general of the United States, Eric H. Holder Jr. addressed the Class of 2012, urging the newly minted lawyers to continue the tradition of service encouraged at Harvard Law School and to use their skills to define the country’s future. The nation’s top attorney joked that he wasn’t offended that he was the school’s fourth choice for Class Day speaker, behind comedians Stephen Colbert, Tina Fey and Jon Stewart, because the school wasn’t his first choice either. After his undergraduate studies, Holder was (L-R) Eric H. Holder Jr., accepted to Harvard Law, but he chose to attend Dean Martha Columbia. l WATCH VIDEO hvrd.me/Holder2012 Minow, William Rubenstein

A number of good deeds Frank talk at Harvard College Class Day U.S. REP. BARNEY the Second World War. “America continues to FRANK (A.B. ’62) ’77 At that time, Frank commit tens of billions shared the stage at said, Europe was of dollars that we could Harvard College “poor and hungry and otherwise use for very with actor, writer defenseless, and facing important purposes,” and comedian Andy a brutal Soviet Union.” including education, 352,120 2,500 Samberg to deliver the The current situation environmental keynote address during is vastly different, and solutions and health total number of pro bono hours pro bono hours completed by the college’s Class Day “65 years later, too research. WATCH VIDEO hvrd. completed by Class of 2012 Rajan Sonik ’12 celebration. little has changed in l Frank, who has rep- our policy,” he added. me/BarneyFrank2012 resented the Fourth Congressional District of Massa- 597 chusetts since 1981, served as chairman average hours of the House Com- per student mittee on Financial Services from 2007 to 2011. He remains the committee’s Rajan Sonik ’12 is the winner of this year’s Andrew ranking Democrat. L. Kaufman Pro Bono Service Award. He was As part of his talk, 97 recognized for performing the highest number of pro bono service hours in the Class of 2012. He Frank urged his lis- was also recently presented with the 2012 Law number of students who teners to join him in Student Ethics Award from the Association of contributed more than 1,000 Corporate Counsel, Northeast Chapter. calling for the United hours States to end its billion dollars in regular assistance to Europe. He ref- “I ask you to use your erenced Secretary 7 influence to serve others of State George and better the world.” Marshall’s Harvard number of students who Commencement –Dean Martha Minow U.S. Rep. Barney performed more than speech of 1947, Frank ’77 was a 2,000 hours Commencement 2012 during which he an- keynote speaker at Harvard nounced the Mar- College’s Class shall Plan, the allied Day exercises held at Tercentenary roadmap on how to Theatre. rebuild Europe after

4 Harvard Law Today July 2012

HLT_July12_05a_r2.indd 4 6/14/12 4:18 PM Congratulations to “As you leave 757 HLS graduates! here, I hope you DURING COMMENCEMENT EXERCISES on May 24, Dean Martha remember the Minow congratulated the 757 graduates in the Harvard Law School powerful potential Class of 2012 on all that they accomplished while at HLS. Minow urged graduates to not only take problems apart and work to persuade others, attorneys possess but also to celebrate and extend their role as designers. Minow cited a range of examples of the positive impact of design— to bring justice including Chief Justice Warren Burger’s redesign of the Court’s judi- into the world.” cial bench, from a straight row to a curved bench allowing justices to see each other and communicate better. Thinking about things dif- ferently allows for alternative ways to solve problems, said Minow. “As you design options, rules, for clients, for the public, you design your career, your priori- ties. I have hope for our world because you will Rubenstein design solutions to local, national, international wins outstanding challenges; you design our future worlds.” teacher award TONY RINALDO TONY

“AS YOU LEAVE here, I hope you remember the power- ful potential attorneys possess to bring justice into the world.” That was the message delivered by Professor WILLIAM RUBENSTEIN ’86, this year’s winner of the prestigious Albert M. Sacks-Paul A. Freund Award for Teaching Excellence, bestowed each spring by the graduating class. Rubenstein, who specializes in civil procedure, com- plex litigation and legal remedies, recalled his time at HLS in the early-1980s, when many of his close friends were dying from a disease that would be known as AIDS. As a gay man, he said, he operated under the assump- tion that he would likely be infected and didn’t have much time to live. “In the midst of a plague, I turned to the law … be- cause the law’s promise was that it too could ameliorate human suffering,” he said. After law school, he said, he took a job at “the mar- gins of the legal profession,” choosing to dedicate his abilities to protecting the rights of people with AIDS. HARVARD UNIVERSITY HARVARD He worked for nearly a decade at the national office of the American Civil Liberties Union, litigating sexual orientation and AIDS discrimination cases in federal and state courts throughout the U.S. In the 1990s, he began teaching civil procedure at Stanford. “It turns out, I loved it,” he said. Teaching civil procedure has been his “single most enjoyable profes- sional pursuit.” He told the class, “I primarily enjoy the experience of working with such enthusiastic and bril- liant students at this formative moment in their careers. It is a gift that you all give to me.” l WATCH VIDEO hvrd.me/Rubenstein2012

“WHO WOULD HAVE THOUGHT that a girl from Sierra Leone, a country with one of the highest percentages of illiterate women, and a daughter of an illiterate mother, would have made it to Harvard,” said commencement speaker Nyella Maya Rogers LL.M. ‘12. “This is a personal story, not only because of my

circumstances, but a story about all the other women PHOTOGRAPHY HERATCH BY PHOTOS in the developing world with untapped potential.” l WATCH VIDEO hvrd.me/HLS2012gradvid

July 2012 Harvard Law Today 5

HLT_July12_05a_r2.indd 5 6/14/12 4:18 PM A COMPLEX CASE HUMAN SUBJECTS RESEARCH REGULATION 5 from page 1 Randy Barnett, Proposed rulemaking discussed on challenging the human subjects has changed significantly since 1991, when the individual mandate regulations were last substantially modified. Before then, research involving human subjects was conducted mostly at single sites within academic and medical centers. But, according to the HHS, A decision by the U.S. Supreme Court One of the central issues examined the subsequent expansion of research into new scientific disciplines on whether Congress has the power to during the Supreme Court hearings and multi-site studies has “highlighted ambiguities in the current was whether the Anti-Injunction rules” and led to questions about whether the current regulatory mandate individuals to carry private Act, which prohibits taxpayers from framework is meeting the needs of both researchers and research insurance coverage isn’t expected until the challenging a tax until it goes into ef- subjects. fect, applies to the health-mandate Greg Koski, former director of HHS’s federal Office for Human end of June. But Libertarian legal theorist requirement in the Affordable Care Research Protections, the office responsible for regulatory over- and Georgetown University Law Center Act. sight of research funded by the agency, said that he supported a Professor RANDY BARNETT ’77 is already The argument that the Anti-In- dramatic shift in the regulation of human subjects research and junction Act does apply—and there- acknowledged that it is highly unusual for a regulatory office to claiming victory of sorts for his argument fore renders the constitutional chal- look critically at the system it is charged with overseeing. that the mandate is unconstitutional. lenge moot—is widely held in legal HHS is considering a variety of changes to the rules governing academia, Barnett contended. regulation of human subjects research, but Koski characterized the “It’s an argument that’s so beloved proposals as “simply tinkering around the edges of a system that Barnett, who represented the Na- on that blog who posted a very snarky by professors, but there was not a sin- the bioethics community, the investigator community, and virtu- tional Federation of Independent ‘Nobody can be serious about a con- gle justice who was even interested ally every other community see as being somewhat dysfunctional Business in its challenge to the Pa- stitutional challenge here,’” Barnett in the tax-power argument in six and not achieving the goals for which it was originally intended.” tient Protection and Affordable Care said. “And I just sort of decided, Well, hours of oral presentation,” he said. The current regulatory framework, he said, is largely based on Act and attended the oral arguments maybe I should say something.” “If any justice liked the tax-power reactions to such tragedies as the Tuskegee syphilis study of 1932 to in March as an observer for that or- Since then, Barnett said, his argu- theory, you would have expected to 1972, in which the U.S. Public Health Service and the Tuskegee In- ganization, joined HLS Dean Martha ment has gained constant momen- hear from her or him during the dis- stitute conducted a clinical study involving hundreds of poor black Minow April 12 to discuss the case tum, culminating in a historic exami- cussion of the Anti-Injunction Act.” men who, despite the advent of penicillin, remained untreated for in a program sponsored by the HLS nation of the issue by the Supreme “The justices were debating among purposes of studying the disease. Public outrage over Tuskegee and Federalist Society. Court in March. The justices gave themselves about why it didn’t apply. other reported abuses led to the creation of a government commis- Minow introduced Barnett as “the attorneys more than six hours for There was nobody saying it did ap- sion that drew up a document called the Belmont Report in 1979, person who’s most responsible for oral arguments over three days—the ply.” which set forth the ethical principles to govern human subjects bringing public attention to this is- most time they’ve allowed for oral Barnett said he is cautiously op- research and led to the current regulatory structure. sue and identifying the structure of arguments since their consideration timistic about how the justices will However, Koski said, regulation has been dominated by human- a constitutional challenge.” of Miranda v. Arizona in 1966. rule. He said he had the sense from subject protectionism and an ethical-review system that has “de- Barnett characterized his ongoing This time, the justices are review- the justices at oral arguments that volved to regulatory compliance oversight.” The result, he said, is a constitutional challenge to the in- ing U.S. Department of Health and they may believe the Affordable Care system that is “inefficient and burdensome.” His recommendation, dividual mandate as a rather lonely Human Services v. Florida, and NFIB Act goes too far. he said, was to replace the current system with one modeled after one when he took it up two and a half v. Sebelius, in which the U.S. Court of “If it were actually accepted by the medical training and certification. years ago after lawyer David Rivkin Appeals for the 11th Circuit ruled in Court, they would basically be saying He said: “If we were able to develop a paradigm of professional- raised the issue in a Wall Street Jour- January 2011 that the mandate falls that Congress has unlimited power to ism in human research, it would likely be every bit as effective, less nal op-ed piece and launched an on- outside the federal authority contem- do whatever they want as long as they costly, less burdensome and more efficient than the protectionist, line legal-blog debate. plated by the commerce clause in the limit these sanctions to a monetary compliance-focused system that we are now seeking to reform. I “There was another law professor Constitution. fine collected by the IRS,” he said. would argue that reform of our current system is perhaps not the “That would be a startling claim of most appropriate or even adequate approach to try to achieve the power.” goals that we seek.” Randy Barnett ’77 “This is a claim of power by Con- While some panelists took broad views of the issue, others fo- “Never before gress that is literally unprecedented. cused more on specifics. Laura Stark, an assistant professor in the in history Never before in history has Congress Science in Society Program and the Department of Sociology at

has Congress STEWART MARTHA required individual citizens to do Wesleyan University, addressed the functions of Institutional Re- business with private companies as view Boards, which are mandated by federal regulations to approve, required a means of exercising its commerce monitor, and review most biomedical and behavioral research individual powers.” involving human subjects, and concluded that reform is necessary. He pointed out that just because “It’s commonly assumed that IRBs take regulation and apply it citizens to something is unprecedented, that to specific research contexts and to a local population,” she said. do business doesn’t mean it’s necessarily uncon- “But instead of applying these general regulations to a local con- with private stitutional. text, IRBs apply their own previous decisions to the next protocols What it does do is render it a case that come in. So they’re actually working case to case, rather than companies of first impression, “which means from regulations.” as a means that it’s highly unlikely that prior Rosamond Rhodes, a professor of medical education at Mount precedents have directly addressed Sinai School of Medicine in New York City, proposed the creation of exercising the issue of whether this is OK or not. of a new category of risk, “de minimis risk,” which would apply to its commerce That’s exactly the reason why this has research that poses no physical danger to humans and may there- always been a close case on the mer- fore proceed without obtaining informed consent. powers.” its, and not an easy case.” E Holly Fernandez Lynch, Petrie-Flom’s executive director, ad- dressed the degree to which labor and employment protections l WATCH VIDEO hvrd. might be applied to research subjects, concluding that subjects me/Barnett2012 generally should not be offered weaker regulatory protections than

6 Harvard Law Today July 2012

HLT_July12_05a_r2.indd 6 6/14/12 4:19 PM NEW APPOINTMENTS

Former Director of HHS’s Off ice for Human Research Farbstein named assistant A new policy Protections Greg Koski clinical professor of law director for the Environmental SUSAN FARBSTEIN ’04, a leading practitio- ner in the field of human rights, has been Law Program appointed assistant clinical professor and co-director of the International Human KATE KONSCHNIK, chief Rights Clinic at Harvard Law School. environmental counsel to U.S. Recognized as a national figure in Alien Sen. Sheldon Whitehouse (D-R.I.), Tort Statute litigation, an expert on South will join HLS on Aug. 1 as policy Africa, and a leader on transitional jus- director for the Environmental Law tice and its relationship to human rights, and Policy Program. She currently Farbstein is a co-author, with HLS Clinical serves as staff director for the Professor Tyler Giannini, of several books, Oversight Subcommittee on the including “Prosecuting Apartheid-Era Senate Environment and Public Crimes? A South African Dialogue on Jus- Works Committee. For seven years, tice” (Harvard University Press, 2009), “The Alien Tort Statute and she worked in the U.S. Department Corporate Liability” (University of Pennsylvania Law Review, 2011), of Justice’s Environment and and “Corporate Accountability in Conflict Zones” (Harvard Interna- Natural Resources Division as tional Law Journal Online, 2010). an environmental enforcement A lecturer on law at the clinic since 2009, Farbstein was named as- trial attorney, MARTHA STEWART MARTHA sociate clinical director in 2011. Her current clinical practice includes representing an examination of the social and political tensions in Thailand that the U.S. Regulation has been dominated by erupted into violence in 2010, and an investigation into human rights Environmental human-subject protectionism and an abuses committed by the Burmese military. Protection ethical-review system that has devolved Prior to joining the clinic, Farbstein clerked for the Honorable Mor- Agency, the U.S. ris E. Lasker of the Southern District of New York. She also worked at Fish & Wildlife to regulatory compliance oversight. the Cape Town, South Africa, office of the International Center for Service, and other federal agencies GREG KOSKI Transitional Justice. in litigation involving the Clean In addition to her J.D., she holds an M.Phil. in international rela- Air Act, the Clean Water Act, the tions from the University of Cambridge, where she was a fellow of federal Superfund program, and their counterparts engaged in more traditional work. Were subjects the Cambridge Overseas Trust. She received her A.B. in international the Resource Conservation and to pursue unionization and collective bargaining, she argued, the affairs and public policy from Princeton University, where she was a Recovery Act. She holds a B.A. Screen Actors Guild might offer the closest model for imitation. Woodrow Wilson Scholar and a member of the President’s Standing in political science from Tufts In addition to structural critiques, the conference also addressed Committee on the Status of Women. University and a J.D. from UC the actual impacts that human subjects research may have on spe- Hastings College of the Law. cific vulnerable populations. Osagie K. Obasogie, an associate professor at the University of California’s Hastings College of the Law, spoke of recommenda- tions by the Institute of Medicine to loosen regulatory protections for prisoner research and concluded that they are addressing the Q: What were some of the key issues raised in the workshop? issue from the wrong perspective—viewing prisoner vulnerability A: The overall focus was how we could do better by children in terms of the harm “solely as a function of what happens in prisons, rather than the they suffer from parental abuse and neglect by intervening earlier and more ef-

commercial forces that can lead researchers to seek prisoners in CREEDON KELLY fectively. We focused a lot on universal home visitation as a method of preventing the first place,” namely because they are “cheap and plentiful.” maltreatment from occurring in the first place, reaching out to new parents dur- Efthimios Parasidis, an assistant professor at Saint Louis Univer- PROTECTING ing pregnancy and after birth for a couple of years, targeting all parents, not just sity School of Law, spoke about another population that’s been his- VULNERABLE high-risk parents, and offering them home visitors who could model and teach torically vulnerable to use as research subjects: military personnel. CHILDREN about parenting and link parents to other services that could help them avoid Parasidis pointed out that soldiers have long been used to test On May 10 and 11, the HLS the kind of trouble that is correlated with child maltreatment. The other major the effects of various threats and drugs, ranging from exposure to Child Advocacy Program held theme was how we could make coercive child protective services more effec- mustard gas in the 1940s and atomic-weapons explosions in the a Prevention & Protection tive in terms of intervening early enough so that even if kids have been abused 1950s to the more recent use of memory-altering drugs to reduce Brainstorming Workshop and neglected, they don’t end up being abused and neglected for several years. inhibitions to killing, and he said a strong legal framework supports which brought together and perpetuates that activity. researchers, advocates, and Q: How has CAP influenced the child protection area since the program For instance, he said, military law mandates that soldiers must practitioners from around the started in 2004? follow their commanders’ orders or face the risk of court-martial. country to discuss strategies A: I would like to think that the program, through events like the racial dispropor- And, he said, the Feres doctrine prohibits military personnel from to prevent maltreatment tionality conference and this workshop, and also through our teaching and the collecting damages from the U.S. government for injuries. and protect vulnerable way we’re shaping the consciousness of students, is putting a healthy emphasis He proposed that the regulations be amended to clearly require children. The event followed on the child’s rights and interests. Everyone in child welfare always talks as if informed consent from soldiers before they are used as research last year’s CAP conference, that’s the central issue, but they haven’t been challenged to think about whether subjects, and that the military provide medical monitoring and which examined race and promoting family preservation to the degree they do really is designed to serve post-research treatment for soldiers used as research subjects. He child welfare. The founder children’s interests as opposed to adult interests. Also, given that children’s legal also proposed that an exception to the Feres doctrine be provided and faculty director of the issues generally are treated by the law as of little importance, I think the existence for violations of research protocols. program Professor, ELIZABETH of this CAP program has made a huge statement that Harvard Law School takes As for Cohen’s hope that the conference might help effect change, BARTHOLET ’65, spoke kids seriously. It’s also very important that CAP educates some 200 students a he’s already taken steps in that direction, sharing conference papers about the workshop and her year to recognize the importance of child-related issues and to look at them with with federal regulators and planning further collaboration between longtime efforts to improve a genuine focus on child rights and interests. the conference participants. E the child welfare system: l READ MORE hvrd.me/ChildAdvocacy2012

July 2012 Harvard Law Today 7

HLT_July12_05a_r2.indd 7 6/14/12 4:20 PM Green is the new Crimson Reusing furniture

When HLS departments moved into HLS wins Cambridge GoGreen new offices in the Wasserstein Hall, Award for sustainability eff orts Caspersen Student Center, and Clinical Wing Building this winter, 12 tons of furniture remained behind. The law school hosted a Furniture IN MAY, the city of Cambridge awarded Harvard FreeCycle, for students, faculty and staff. Leftover furniture was donated to Law School a 2012 GoGreen Award for Waste local charities. Reduction and Recycling for a Large Organization. The award recognizes sustainability initiatives of Earth Day at HLS Cambridge businesses and organizations in the areas On April 22, HLS celebrated Earth Day of transportation, waste reduction/recycling, energy, with live music and free food donated by local, sustainable vendors. storm water management, climate protection and initiatives by community organizations. HLS recovers most The law school’s new Wasserstein Hall, Caspersen compost ever

Student Center, and Clinical Wing Building In March, HLS recovered almost 10 recently received LEED-NC (Leadership in Energy tons of clean organic refuse, thanks and Environmental Design – New Construction) to expansion and improvement of a campuswide composting Gold certification for the energy efficiency, waste program. When the law school began reduction and resource conservation features that composting in April 2008, 38 percent of refuse was recovered for recycling, were incorporated into its design. with 493 tons of trash generation. In 2011, HLS recovered 64 percent of refuse for recycling, and trash generation fell to 145 tons. Today, nearly all dorms and most offices have access to organics recovery stations, an elaborate set-up which includes recovering food scraps from cafeterias, as well as paper towels from dormitory rest rooms. The refuse is picked up daily and is composted at Brick Ends Farm in South Hamilton, Mass. MARTHA STEWART MARTHA POHL DAVID BY ILLUSTRATIONS

JOHN PAUL STEVENS 5 from page 1 ‘Stevens has set the standard for what a great judge is’

Professor Richard Lazarus ’79, who led the program, said sion that judges weren’t acting as judges should that Justice Stevens earned his reputation as the environmen- act in many respects,” Justice Stevens said. He tal law steward on the nation’s highest court by repeatedly noted that he does not find the Affordable Care safeguarding the laws from attempts to weaken them. Act challenge similarly troubling because there is “Environmental laws challenged the nation to do no less legitimate conflict over the law, regardless that the than redefine the relationship of humankind to the natural issue has become politically charged. environment, in order to protect our air, water and lands,” he He also spoke more generally about the inner said. “Those laws inevitably challenged very powerful politi- workings of the Supreme Court, touching upon cal and economic interests and institutions. The strength of pre-conference discussion between the justices, Justice Stevens’ jurisprudence lay in his willingness to embrace the shifting dynamics of the Court when a new the clear policy import of the nation’s new laws.” justice joins, and the impact of oral arguments on Professor David Barron ’94, a former clerk to the justice, the justices’ deliberations. held a conversation with Stevens about his service on the Court “I’ve often been surprised at the difference be- and about his recent book, “Five Chiefs,” which discusses tween what happens at oral arguments and what the five different chief justices with whom he worked. Justice happens at conference and in considerations down Stevens also discussed some controversial cases that the Court the road. I can’t tell you how often my mind has GUS FREEDMAN has decided in the past, including Bush v. Gore, which he said The HLS Environmental Law Society presented Justice been changed during conference and the minds of Stevens with HLS’s first Horizon Award, for outstanding greatly damaged the independence of the judiciary. contributions to the fields of environmental, energy my colleagues have been changed,” he said. “My colleagues “I do think it was a most unfortunate decision, largely be- and natural resources law. The award, crafted out of are people who recognize their own responsibility to get to the renewable bamboo, is itself sustainable. The justice E cause of its impact not only on the Supreme Court itself but on also received a bowtie that depicts climate change. right answer, and I think they act in good faith.” other judges in other courts. I think it did create the impres- l WATCH VIDEO hvrd.me/Stevens2012

8 Harvard Law Today July 2012

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