ALSO:A LSO: THE LAWS OF ADAPTATION | GIVING VOICE TO BRAZIL’S PRISONERS | HLS’S FIRST CENTURYCENTURY Harvard Law Fall 20152015 bulletinbulletin

TEN YEARS IN

A TributeTribute toto JohJohnn G. RobertsRoberts JJr.r. ’79’79 onon HisHis FirstFirst DDecadeecade as ChChiefief JusJusticetice of tthehe UnitedUnited StatesStates | BY MARTHA MINOWMINOW

C1-13_HarvardLawBulletin_FA15_r1.indd c1 9/28/15 4:43 PM CONTENTS Fall 2015 | Volume 67 | Number 1 | Fernando Delgado ’08 works with HLS students in Brazil’s prisons, where there are constant reminders of the limits of legal advocacy. ▼

FEATURES

14 The Chief, Ten Years In A tribute to Chief Justice John G. Roberts Jr. ’79 by Martha Minow 18 Undermining Injustice, One Prison Visit at a Time Fernando Delgado ’08 and his students put prisoners’ voices at the heart of a human rights case. 24 All-Star Team on a Winning Streak Corporate law scholars at HLS keep putting up great numbers. 32 Beyond Obergefell After the landmark ruling on mar- riage equality, the Bulletin looks at the terrain ahead. 40 The Laws of Adaptation Change is coming to the legal pro- fession. HLS is at the forefront of efforts to prepare students for it. DANA SMITH DANA

ON THE COVER Photograph of John G. Roberts Jr. ’79 by Steve Pyke/Contour/ Getty Images

Peter Renn ’06, staff attorney at Lambda Legal, is among those focused on the work ahead after Obergefell, the landmark ruling guaranteeing a right to same-sex marriage. ▶ AMANDA FRIEDMAN AMANDA

C1-13_HarvardLawBulletin_FA15_r2.indd c2 9/29/15 10:29 AM DEPARTMENTS Michele DeStefano ’02, a visiting 2 professor at From the Dean HLS this year, is the creator of 3 LawWithoutWalls, Letters an innovation space for law 4 students and Writ Large: Faculty Books lawyers. Regulation and freedom; The ◀ global prosecutor; HLS’s first century; Books in brief 10 Inside HLS Tailored lawsuits; Making the state pay for its wrongs

63 In Memoriam 64 Faculty Tributes Daniel J. Meltzer ’75 David Grossman ’88 67 HLSA News 70 Leadership Profile James A. Attwood Jr. J.D./M.B.A. ’84 72 Gallery SCRANTON JESSICA Turning over a new leaf

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 Linda Grant Send changes of address to: [email protected] EDITORIAL ASSISTANCE The Harvard Law Bulletin (ISSN Lana Birbrair ’15 1053-8186) is published two Michelle Deakin times a year by Harvard Law Lorin Granger School, 1563 Massachusetts Christine Perkins Ave., Cambridge, MA 02138. Lori Ann Saslav © 2015 by the President and Fellows of Harvard College. DESIGN DIRECTOR Printed in the U.S.A.

BETH PERKINS Ronn Campisi Jonathan Hiles ’16 (right) helped Kareem Bellamy sue for the 14 years he spent wrongfully imprisoned. Bellamy says if he could give up the money to change what happened to his 26-year-old self, he “would do it in a second.” ▲

C1-13_HarvardLawBulletin_FA15_r1.indd 1 9/28/15 4:45 PM FROM THE DEAN | Continuity and Change through Law

“THERE IS NOTHING SO STABLE AS CHANGE.” So said Bob Dylan (and Heraclitus, too). Yet we yearn for continuity. Chief whom I fi rst met when we served as law Justice of the United States Melville Fuller (who attended clerks during the Supreme Court’s 1980 HLS briefl y in the 1850s) noted, “Without continuity, men term. would become like fl ies in summer.” Law and legal training Change and continuity run through the new book by Dan Coquillette ’71 help ensure both continuity and change for individuals about Harvard Law School’s fi rst centu- and for societies. This is good to remember as the legal ry, and we are especially delighted that profession faces fundamental challenges and opportunities. the book’s publication coincides with our eff orts to plan the school’s third As new technologies and businesses century. As we launch the HLS Cam- introduce disruptive innovations in paign for the Third Century in October selling and buying everything from as part of the university’s campaign for books and music to transportation renewed resources, we also are excit- and travel accommodations, now it is edly planning to celebrate our 200th the turn of the learned professions. anniversary in 2017. Please stay tuned Artifi cial intelligence can accurately for more information about events and diagnose malignancies and mine data Technology has projects of refl ection and rededication, to identify optimal treatment. A virtual already begun critique and celebration! psychologist may actually elicit more In May, HLS lost a revered professor, honest conversation than a human to alter the work public servant and alum, Dan Meltzer one. Thus far, the closest connection of lawyers and ’75; in July, we also lost a treasured between A.I. and theology may be access to justice advocate for the poor, colleague and in Steven Spielberg’s movie “A.I.,” alum, David Grossman ’88. As we deal which has a soundtrack by the music for nonlawyers. with this hardest kind of change, their group Ministry. But digital resources friends and students renew eff orts to are already altering how lawyers do carry on the superb work they forged. research and generate documents— and, increasingly, how nonlawyers can gain access to legal help. This Bulletin learns from eff orts by the HLS Center on the Legal Profession, led by my visionary colleague David Wilkins ’80,

KEN RICHARDSON to understand, assess, and infl uence innovations in law-related technology OLIVER MUNDAY and business. Our faculty and students benefi t from this vital work, teaching us to change before change happens to us. The center’s pathbreaking research on women in the profession is also featured. Legal institutions, such as courts, legislatures, and corporate boards, channel change through formal proce- dures, precedent, and structured par- ticipation. Marriage equality litigation in the United States, prison reform in Brazil, corporate governance reforms, and global national security initiatives are distinct areas of notable change and also of continuity, as explored in stories presented here. And I off er refl ections on the fi rst decade of leadership by Chief Justice John G. Roberts Jr. ’79,

2 HARVARD LAW BULLETIN Fall 2015

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What’s First Amendment law exists to allow all political FACULTY VIEWPOINTS Trial Advocacy Workshop). Will Corporate ‘Speech’ got to do with it? Undermine Productivity? speech—not merely that Extending First Amendment rights to corporations is bad for capitalism, argues Coates I had the great privilege of

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 AS A LONGTIME CORPORATE which is or is deemed to corporations, the U.S. Supreme Amendment rations—what he calls “the regulations intended to rein being taught by Professors 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, law practitioner who has be economically desirable money to fl ood American elec- ▲ can capitalism. alarmingly, obliging them. Charles Ogletree [’78] and 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- also taught law and written or productive. Plausible Harvard Law Professor John in a special issue of the journal igation by corporations, through Mary Prosser, who were 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 law review articles on cor- arguments may be made 8 HARVARD LAW BULLETIN Spring 2015 ILLUSTRATION BY MITCH BLUNT, PHOTOGRAPH BY MARK OSTOW and remain mentors and

C1-19_HarvardLawBulletin_SP15.indd 8 4/24/15 12:44 PM porate governance, I cannot for and against Citizens friends. In those classes, help but express mixed United based upon the text being economically unproductive. I learned from the best feelings on Professor John of the First Amendment and We will have to disagree about defense lawyers in the world Coates’ thoughts [“Will related jurisprudence and other points. Nothing in Supreme how to be a defense lawyer, Corporate ‘Speech’ Under- scholarship. I am not aware Court precedents or the text of and how defense lawyers mine Productivity?,” Spring of any authority allowing the First Amendment supported think and why they do what 2015]. or requiring that speech be the result in Citizens United. On they do. I also conducted On the one hand, I share scrutinized for its impact on the contrary, Citizens United a jury trial, obtaining an his view that in too many productivity. expressly confl icts with two acquittal on behalf of my cases, corporate executives Indeed, much individual prior Supreme Court decisions, client charged in Roxbury do a disservice to their speech can be said to be and more generally confl icts court with a mandatory organizations and custom- economically unproductive with 150-plus years of judicial minimum drug off ense—in ers with an inordinate focus such that the speaker or deference to prudential decisions what remains one of the on legal issues. Whether writer should be admon- of Congress and the states in the best and most rewarding this involves lobbying ished to use their time for regulation of corporate behavior, moments of my career. In eff orts regarding public other things. I am sure that including speech and participa- CJI, I learned how to be a policy matters which may Professor Coates would tion in elections. On text, even a lawyer—a real lawyer. impact the organization or agree that no court should literalist would have to confront And then I became a more mundane corporate or or would incorporate such the fact that Congress cannot prosecutor. I worked as a contractual issues, it is usu- analysis into the consider- help but aff ect someone’s ability prosecutor for 12 years, at ally antithetical to the needs ation of whether the speech to use corporate funds to express Main Justice in the Honors of customers, employees, is protected by the amend- their views whenever it regulates Program, the United States communities and ultimate- ment. As the Founding corporate governance—and it Attorney’s Offi ce for the ly fi rms themselves. Time Fathers understood, today’s would be absurd to suggest that District of Columbia and devoted to such topics could frivolous or “unproductive” no changes in corporate gover- the United States Attorney’s and should be spent more speech often becomes to- nance are ever constitutionally Offi ce for the Southern productively on develop- morrow’s brilliant, ground- permissible because of the First District of New York. Then ment of better products/ breaking idea. Amendment. Nothing in the First I established and ran a services or provision I feel that it is essential Amendment’s text allocates nonprofi t organization at of better service to the that your readers put in con- power among shareholders, NYU School of Law devoted marketplace. Professor text the diff erence between directors and managers over the to studying and improving Coates is entirely correct Professor Coates’ laudable use of corporate funds for any the exercise of prosecutorial that as a matter of policy, advice to corporate manage- particular purpose. Economic discretion, before departing corporate “speech” is likely ment and the constitutional productivity is relevant, then, as for my current position at to be a waste of time and considerations expressed in a basis for policy, and as a valid the law fi rm Jenner & Block, resources—at best. Hope- your article. way to fi ll gaps in constitution- as a partner in its white-col- fully, large institutional and Martin B. Robins ’80 al meaning. Good policy—and lar practice. other shareholders will heed Barrington Hills, Illinois good law—would deny corporate Because of what I learned this message and so advise managers the right to seek profi t and from whom I learned it corporate managements, John Coates responds: at both shareholder and taxpayer in CJI, I was a better pros- and vote accordingly for I appreciate Mr. Robins’ com- expense through socially unpro- ecutor. I’m sure that, as a directors. ments and agree that corporate ductive lawsuits and lobbying. result of those classes, I was However, I am not sure managers may be misspending more eff ective in bringing what any of this has to do corporate funds when they focus Criminal defense clinic also and prevailing in cases on with First Amendment law. on lobbying and legal tactics. I benefi ts prosecutors behalf of the government. It is universally under- also agree that no legal conclu- I TOOK CJI: CRIMINAL DE- But more importantly, I stood that the amendment sion follows directly from speech fense in my 3L year (and the better understood the →9

→WRITE to the Harvard Law Bulletin, 1563 Massachusetts Ave., Cambridge, MA 02138; [email protected]. Letters may be edited for length and clarity.

C1-13_HarvardLawBulletin_FA15.indd 3 9/25/15 1:04 PM WRIT LARGE | Faculty Books

Freedom Is Just Another Word for … Regulation With new book, Singer touts rules that make the free market and property possible

IN A PROPERTY LAW CLASS AT HLS, THE DISCUSSION Property law ex- tions by others, to ensure that people can acquire turned to a regulation by a condo association that pert Joseph Singer property, and to allow all of us to exercise equal argues that regula- prohibited residents from fl ying a fl ag. One resi- tion promotes con- freedoms, he writes. The subprime crisis was a dent refused to comply, and the condo association servative values. painful and dramatic example that demonstrated eventually relented. Congress later passed a law ▲ the need for consumer protection regulation, in- forbidding condominium covenants that prevent cluding laws that promote disclosure and prevent residents from fl ying the U.S. fl ag. banks from selling mortgages to people who can’t Two libertarian students in the class began to aff ord them. argue. One said the federal statute interfered with “I don’t think those people were doing anything the property rights of the neighbors and the condo wrong,” Singer said in an interview. “They wanted association. The other countered that a funda- to buy a home, and they were told by experts that mental right of an owner to fl y the fl ag should not they could aff ord the home. And I have no issue be interfered with. For Professor Joseph Singer with people who trusted the banks when they said, ’81, who was teaching the class, the point wasn’t This is a mortgage that’s appropriate for you.” who was right. The point was that two people who The book continues his work over the past 30 shared the same political philosophy of limited years focusing on a “progressive version of proper- government both wanted regulation that would ty law.” He points to the Civil Rights Act of 1964 as preserve their concept of freedom. The choice, as a signal event that changed the country and even- he writes in his new book, “No Freedom Without tually led to his journey to reframe the concept of Regulation: The Hidden Lesson of the Subprime property. At the time, he explains, people contend- Crisis,” was “among regulations, not a decision ed that a restaurant owner had a right to exclude whether or not to regulate.” someone based on race. Singer argues in his book that regulations make When Singer started teaching property in the markets and property possible. Regulations are mid-1980s, he found nothing in the casebooks on needed to protect us from harm and fraudulent ac- public accommodation statutes. They were con-

4 HARVARD LAW BULLETIN Fall 2015 ILLUSTRATION BY JAMES YANG

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sidered to be part of anti-dis- traces to the modern president Global Prosecutor crimination law, not property most associated with conserva- law: “And I thought, They’re not tive values. New book looks at the ICC teaching property law correct- “Reagan made it in some Offi ce of the Prosecutor ly,” he said. sense a majority view that Public accommodation law government is the problem. gives people the right of access Before that, there was debate In January 2010, Martha Minow, then the new dean of to the marketplace, he said— about what government should Harvard Law School, taught a seminar examining the the right to acquire property, do,” Singer said. “Nobody really Offi ce of the Prosecutor of the International Criminal not just sell it. People may ex- wants to abolish government. Court. Bolstering that eff ort was her co-teacher, Alex clude others from their church But the rhetoric is that gov- Whiting, who later that year would begin a three-year or home, but the marketplace ernment is evil and corrosive, tenure at the ICC, managing fi rst investigations and then is open to everyone. This past and regulation takes away our prosecutions for the offi ce. The other co-teacher was the summer, Singer applied that freedom. I think our rhetoric is ICC’s fi rst chief prosecutor, Luis Moreno-Ocampo. principle to an article he wrote not in tune with our values.” The seminar kicked off a sustained eff ort to under- asserting that there should He argues that in fact regu- stand the challenges and opportunities a prosecutor not be religious exemptions to lation promotes conservative faces in the international justice public accommodation statutes, values. For example, consumer arena. It off ered the prosecutor a “lab” such as for fl orists who refuse to protection laws promote free- to examine and assess the role and sell fl owers for display during a dom of contract by ensuring operations of the brand-new offi ce same-sex marriage ceremony. that buyers get what they want. at the brand-new international court. His book is fi lled with similar Likewise, a great deal of law Moreno-Ocampo shared draft and examples of how one person’s is needed to support a private published policies for the offi ce, for property rights aff ect the prop- property system. Regulation analysis by students and by a range of erty rights of others. protects the individual, which HLS professors, as well as others directly involved in the “It is surprisingly easy to for- he notes is a core conservative international legal process. To further advance that work, get,” he writes, “that property norm. At the same time, free Minow and Whiting, a professor of practice at HLS, along rights are not merely individ- markets and private property with C. Cora True-Frost LL.M. ’06, an associate profes- ual entitlements but a system refl ect liberal values of autono- sor at Syracuse University College of Law who worked that requires the rights of my and equality, he writes, with for the U.N., have edited and contributed to a new book, each to be compatible with the legal structures that promote “The First Global Prosecutor: Promise and Constraints.” rights of others.” Zoning laws, equal opportunity. Featuring a prologue by Moreno-Ocampo, the book for example, may limit what The benefi ts of regulation off ers the perspectives of academics and practitioners we can do with our own land are all around us, yet many in the fi eld on the limitations and potential of the fi rst because it may aff ect neighbors’ of us don’t see them, Singer permanent offi ce for global prosecution of war crimes enjoyment of their property. said. But he does. He served and crimes against humanity. Whiting, who also previ- Landlords can’t fail to provide on the building committee ously served as senior trial attorney at the International hot water or comply with a when Langdell Hall was being Criminal Tribunal for the former Yugoslavia, considers building code. And Singer notes renovated in 1996. Because of investigations at the ICC and ways the prosecution could that subprime mortgages were the Americans with Disabilities bring “stronger, better-supported cases,” such as an in- property rights that didn’t just Act, enhanced disability access creased focus on witness security measures. True-Frost aff ect home buyers and banks. was required. It’s true, he said, explores the relationship between the prosecutor and the They nearly ruined the world that without the regulation, the U.N. Security Council. Minow writes about the possible economy. project would have been easier role for the ICC prosecutor to help member states adopt Some of the points he raises to complete. But then it would and evaluate eff orts to enhance education about confl ict about the necessity of regula- have been much harder on prevention and resolution. Other chapters are written by tion seem obvious, Singer said. people with disabilities (which, experts on war crimes, international tribunals, criminal After all, Republican candi- as he noted, will be many of us justice reform and international law. Writing together, dates for president are not cam- at some point in our lives). For the editors praise Moreno-Ocampo for fi nding ways paigning to repeal a regulation them, the elevators and lifts to turn institutional constraints—such as no power to like the Clean Water Act or the at the entrance provide access subpoena evidence or make arrests—into collaborations many others that have become to one of the world’s great law with member states, but also caution that he and his ingrained in the American way libraries. For Singer, they successor, Fatou Bensouda, face ongoing questions of life. But he was compelled to provide a daily reminder of the about whether the Offi ce of the Prosecutor—and the ICC respond to the increasing vitri- freedom that regulations bring. itself—will become marginalized or instead truly advance ol against regulation, which he —LEWIS I. RICE protection for people all over the world.

Fall 2015 HARVARD LAW BULLETIN 5

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Harvard Law’s First Century

At the core of a new The fi rst volume of If you’re short on time, the history of the history of Harvard a new history aims fi rst hundred years of Harvard Law School is Law School are “three radical ideas” that at full disclosure available as an architectural telegram. On the were developed by the school’s early faculty stone roofl ine of neoclassical Langdell Hall and that would transform American are engraved the names of those men (yes—all legal education. men) who were foundational to the institution’s ▲ opening century: Gray, Ames, Thayer, Smith, Story, Greenleaf, Parsons and, of course, Christopher Columbus Langdell himself. But for a deep, detailed, compellingly written, unstintingly transparent view of the school as it was from the fall of 1817 (six students) to the spring of 1910 (765 students), look to “On the

6 HARVARD LAW BULLETIN Fall 2015 ILLUSTRATION BY REBECCA CLARKE

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Battlefi eld of Merit” by HLS its equivalent; extending the Law would eventually depend Visiting Professor Daniel R. degree track to three years; on academic merit, which the Coquillette ’71 and Bruce A. requiring written examinations; authors argue can be traced Kimball, published by Harvard and teaching the law from cases. to Charles W. Eliot’s Harvard University Press. It is the fi rst of This inductive method was a presidency, which began in 1869. two volumes intended to mark pedagogical novelty. He conceived of school deans; one the school’s bicentennial in 2017. The 1874 picture illustrates of his fi rst hires was Langdell. Previous histories of the another goal of the new history: The authors also cover another school come under fi re in the to take a century-long look at topic that has been excluded from new book, including Charles student life. Another chapter past histories: HLS’s contribution Warren’s 1908 “History of describes the novel and uneasy to antebellum legal tangles, the Harvard Law School and inclusion of students from non- and to the Civil War itself. One of Early Legal Conditions in Ivy backgrounds. Most law school chapter looks at faculty infi ghting America.” Coquillette and histories, says Kimball, “are over the Fugitive Slave Act, the Kimball call it a “victory lap” about what faculty did.” Emancipation Proclamation, meant to memorialize Harvard’s At the core of the book are what the wartime suspension of fi rst place in the realm of legal the authors call “three radical habeas corpus, and the limits of education, but at the price, ideas” developed at HLS that executive power. Add to that the A HISTORY’S they say, of ignoring the stories BACK STORY would transform American legal sheer numbers. On both sides, of racial, ethnic and gender “Battlefield” education. nearly 600 HLS alumni fought in confl ict that marked Harvard and the history’s First, HLS would be a the war and 111 died, a sum equal second volume, Law’s fi rst century. (In 1894, for focused on the professional school within a to two entire classes in that era. one, Warren, who had graduated 20th century, degree-granting university, an Eleven Confederate generals and were nearly two from HLS two years earlier, decades in the idea that originated in 1817. 40 colonels went to HLS, as did founded something called making. They (Until the mid-19th century, most leaders on the Union side—a total are the fruit of the Immigration Restriction the Harvard lawyers trained as apprentices or of wartime offi cers surpassed League.) Law School at lecture-based proprietary law only by West Point. History Project, With an eye toward full which from the schools.) “Battlefi eld” sets itself apart beginning has disclosure, “Battlefi eld” includes included schol- Second, it would defy the from incomplete histories and arship from

MPANY, NEW YORK, 1908) NEW YORK, MPANY, HLS’s connection to profi ts from notion that all law was local. The from “attack histories,” too, students and slavery and its brush with a long- alumni—nearly idea of a national school came which characterized books ago era’s mistrust of America’s 300 so far. in 1829 with Joseph Story, who on Harvard Law in the late Undergirding cultural outliers, including the research rescued a teetering law school 20th century, including 1994’s blacks, Irish, Asians, Jews, overall, the and opened the door to an infl ux “Poisoned Ivy.” Says Coquillette, authors say, is Italians, and Roman Catholics the Historical of students from the South. “We don’t come to this with any (a target of explicit institutional & Special Col- Third, attendance at Harvard ax to grind.” —CORYDON IRELAND lections arm of vitriol). Evidence of “racism,” the Harvard Law most of all, says Coquillette, School Library. Many of its hold- The HLS Class of 1874, which included the fi rst Asian graduate “runs like a river through ings have been and the second black graduate, a former slave volumes 1 and 2.” In addition, digitized, are word-searchable there is the exclusion of women and are accessi- from law classes until 1950. (A ble, the authors write, “beyond 1967 history of HLS devotes only the dreams of earlier histo- three pages to the subject.) rians.” (Read That “Battlefi eld” will be about one of those collections diff erent is evident at fi rst on Page 72.) glance. On the book’s cover is a photo of the Class of 1874, which included the fi rst Asian graduate and the second black graduate, a former slave. The class also arrived in the midst of stunning reforms set in motion between 1870 and 1886. Among them: requiring admitted students

CHARLES WARREN, HISTORY OF THE HARVARD LAW SCHOOL AND OF EARLY LEGAL CONDITIONS IN AMERICA, VOL. 3, P. 138 (LEWIS PUBLISHING CO P. 3, VOL. CONDITIONS IN AMERICA, LEGAL SCHOOL AND OF EARLY LAW OF THE HARVARD HISTORY WARREN, CHARLES to have a bachelor’s degree, or

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“Contract as Promise: A Theory of Contractual Obligation,” 2nd Edition, BY PROFESSOR CHARLES FRIED (Oxford). The intent in writing the book, as Fried explains, was to display the underlying structure of contract law and show how this complex legal institution could be traced to a small number of moral principles. The new volume includes an essay by the author that arose from a symposium in 2011 that celebrated the 30th anniversary of this classic work. The essay considers scholarship in the fi eld since the publication of the fi rst edition. The original text, whose perspective remains sound, according to Fried, is also reproduced. Fried’s audience for his teachings on contracts has expanded to nonlawyers, through his popular online ContractsX course off ered this year through HarvardX.

“Reconsidering the Insular Cases: The Past and Future of the American Empire,” EDITED BY PROFES- SORS GERALD L. NEUMAN ’80 AND TOMIKO BROWN- “Christian Human Rights,” BY PROFESSOR SAMUEL NAGIN (HRP). Arising out of a conference held at MOYN ’01 (Penn Press). Moyn asserts that the rise HLS in 2014, the volume shines light on early 20th- of human rights after World War II was prefi gured century Supreme Court decisions ruling that full and inspired by a largely conservative worldview constitutional rights do not extend to people living embodied in religious thought in the years just in the U.S. territories—decisions that remain in prior to the outbreak of the war. The author of “The force today. The contributors (Dean Minow pro- Last Utopia: Human Rights in History” ends his vides the preface), who focus on Puerto Rico, con- latest book with a chapter that traces contemporary sider options for reform including changes to the European struggles to assimilate Muslim immi- constitutional framework, admission to statehood grants to the continent’s legacy of Christian human and full independence. As Neuman, who organized rights. the conference with Brown-Nagin, notes, “The path forward is complicated, however, by disagree- “The Enduring Legacy of Rodriguez: Creating ments over the direction that reform should take New Pathways to Equal Educational Opportunity,” and by the need to secure federal approval.” EDITED BY PROFESSOR CHARLES J. OGLETREE JR. ’78 AND KIMBERLY JENKINS ROBINSON ’96 (Harvard Education). More than 40 years after the U.S. Supreme Court decision in Rodriguez, holding that the Constitution does not require equal education funding for children in poorer school districts, disparities in educational opportunity still exist, which “betray our national identity, shackle our economic future, and mock the nation’s professed commitment to justice and fairness,” write the editors (Ogletree, an HLS professor, and Robinson, professor at the University of Richmond School of Law). The book’s essays, contributed by school fi nance attorneys and education and law policy scholars, examine litigation that has sought to reform school fi nancing; off er ideas for state-level reform; and propose federal avenues to enhance equal access to educational opportunities.

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Continued from Page 3

defense function and appreci- accused of.” It’s time for well- ated it, and exercised my dis- intentioned but behind-the- cretion as a prosecutor more times liberals to deal with the “Second-Best Justice: The Virtues of Japanese sensitively and appropriately. here and now. Private Law,” BY PROFESSOR J. MARK RAMSEYER ’82 Your wonderful [Spring Steve Susman ’60 (University of Chicago). A scholar who has written 2015] article [“First Line of Denver many works on Japanese law, primarily with a law Defense”] described accurate- and economics approach, Ramseyer focuses in ly the incredible experience What about the social injustice his latest book on the Japanese system of litiga- gained by HLS students in of our tax system? tion, which stands in stark contrast with the U.S. CJI. It also properly noted THERE WERE MANY INTEREST- system, he writes. A primary diff erence: fewer law- that about half of CJI students ing articles and notes in the suits, which some have ascribed to cultural factors go on to be public defenders, Spring 2015 Bulletin and or even interpreted as a sign of a legal system that which is wonderful. I think it I enjoyed reading it. But doesn’t work. The author argues, however, that is worth noting that the expe- overall its content and tone the Japanese system works well by aspiring to be rience and education received are overtly left-wing, full of “mostly right” as opposed to “exactly right” (the in CJI are equally valuable and (self-declared) “social justice” standard in the U.S.). Japanese courts hire capable important for students who go issues and animus toward professionals, tell them what to do and monitor on to careers as prosecutors. business and corporations. I them throughout their careers, according to the Anthony S. Barkow ’95 would like to see more balance author. The result, he writes, is a system that usu- New York City in your coverage choice of top- ally “compensates victims uniformly, predictably, ics. Perhaps an article on the and cheaply.” It’s time for liberals to deal social injustice of a tax system with the here and now that confi scates over half the “Choosing Not to Choose: Understanding the THE SPRING 2015 EDITION OF wealth I create to spend it on Value of Choice,” BY PROFESSOR CASS R. SUNSTEIN the Bulletin is brilliant in its causes and programs I don’t ’78 (Oxford). Choice, while a symbol of freedom, organization, presentation support? can also be a burden: If we had to choose all the and interesting content. Richard P. Sybert ’76 time, asserts the author, we’d be overwhelmed. However, I am tired of San Diego Indeed, Sunstein argues that in many instances, reading of academicians’ and not choosing could benefi t us—for example, if community activists’ revisits Kudos from a direct mortgages could be automatically refi nanced to poverty, civil rights abuses, descendant when interest rates drop signifi cantly. The book and “justice denied.” We AS A MEMBER OF THE BARONI- defi nes in what circumstances default rules (as need to move forward from al Order of Magna Charta opposed to active choosing) work and when they regurgitating the horrors of founded in 1898 and a direct don’t, and also explores the future of personalized lynchings, segregated schools descendant of several of the default rules, wherein past personal preferences and victimization. That’s so Barons and King John (it is would dictate what the default should be. “Without 1950s. Instead, how about nice to hedge one’s bet!), I default rules,” he writes, “it would be far more some creative attention to the read with interest “Magna, diffi cult for us to exercise our autonomy.” real present-day problems of Cum Laude” (Spring 2015). our society, and of people of The collection of related items color especially—fatherless housed in the HLS Library is families; out-of-wedlock most impressive as only four births; the unending cycle copies of the original 1215 of dependence on social charter remain in existence, welfare; a culture sanctioning held by the British Library petty criminal off enses; and the cathedrals of Lincoln excuses couched as prejudice, and Salisbury. As a Dartmouth discrimination. Where is history major prior to attend- the applause for local law ing [Harvard] Law School, enforcement? Isn’t it a crime I commend the Bulletin for to shoplift or sell untaxed featuring this iconic piece cigarettes? We need to be of English legal and cultural unaccepting of “woe-is-me” heritage on this its 800th attitudes and the standard anniversary. script of “My son’s a good Phil Curtis J.D. ’71/M.B.A. ’74 boy. He’d never do what he’s Atlanta

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FACULTY VIEWPOINTS The Right Fit? Spier discusses the use of ‘tailored lawsuits’ in the litigation process

Litigation is often seen Parties that She spoke with the Bulletin something like a runaway jury as an either/or proposi- sign pretrial about the benefi ts and potential award. In those cases, they want agreements are tion. You either settle out hedging their pitfalls of such “tailored law- to limit their risk by using some of court or go to trial and bets, Spier says, suits” as well as her unique role kind of a tailored suit or a high- and often unbe- on the faculty. low agreement. leave the outcome entirely known to judges in the hands of a judge or a or juries. jury. But Professor Kathryn ▲ What kinds of cases are best suited If people can agree on a general range Spier, an economist on the for these agreements? of damages, why can’t they settle HLS faculty since 2007, has The cases that might go to litiga- their case without going to court? researched another option: tion anyway, and also cases that That’s kind of a puzzle. Some whereby parties go to trial are perceived to have high risk practitioners and judges see with an agreement in place associated with them. So, both the high-low agreement as a on the ceiling and fl oor for parties think that on average fi rst step toward a settlement. the plaintiff ’s recovery. they’re likely to win or do well In terms of the statistics, we’re at trial, but there’s also a risk of seeing mixed results on this.

10 HARVARD LAW BULLETIN Fall 2015 ILLUSTRATION BY DAVID POHL

C1-13_HarvardLawBulletin_FA15.indd 10 9/25/15 1:05 PM Based on insurance company to disclose such an agreement? working on, most of them say, data, about half of the cases There’s a sense that if it were “I negotiated one of those once.” that signed high-low agree- disclosed, there’d be an I don’t really know why high- ments subsequently settled. anchoring effect, so that if a low agreements are not more But the other half went to trial judge or jury were to hear what common. There are some pretty or arbitration. I don’t think we a high-low agreement was, they obvious advantages in having can conclude that the high-low might then disregard the them. I think people are not as agreement was causing them to evidence that’s presented and “If informed about them as they settle or preventing them from instead use those offers as parties might be. Maybe because law- settling. In theory, it could go evidence in deciding the case. yers are trained in law schools either way. If parties have these From a public policy perspective, have these and not as fi nancial analysts. options available, it makes trial I think it is a problem that it’s options This is what people who hedge less risky and therefore more not disclosed to a judge or a jury. available, it markets do—fi nancial folks do attractive, so these agreements A judge or a jury may waste a lot these kinds of things all the time could discourage settlements of time deciding “Should we makes trial in other contexts. I think they’re rather than encourage them. award $10 million or $20 less risky just not as familiar to legal prac- million?” It could save hours or and there- titioners. Should the legal system actively en- days trying to make that fine fore more courage these kinds of agreements? distinction, trying to do a really Speaking of which—what has your I have mixed feelings about it. good job accurately pinpointing attractive.” experience been like as an economist The libertarian side of me feels the award. And in the end it’s not on the Harvard Law faculty? that if the parties want to sign going to matter. I love it here. I’m having the these kinds of contracts, then greatest time. I started off they’re signing them because it’s How widespread have these teaching in the economics in their mutual fi nancial interest agreements become? department at Harvard as an to do so, so we should let them. It is hard to say. In one data set assistant professor, and then If they don’t know about these from a large national insurer, my husband and I moved out to types of contracts, letting them of the cases that went to trial or Northwestern, where we taught know about them does them a arbitration, about 4 percent had at the business school. That was service. However, there are some high-low agreements. In another all fi ne, but my research has downsides. If this drives more data set from New York’s sum- always been on litigation and people to the court system, the mary jury trial program, about contracts and torts, so I always fact that our taxpayer dollars 80 percent had these agree- felt a little torn. I would go into are paying for that could be a ments. When I tell friends of the classroom and teach manag- bad thing from a public policy mine who are lawyers what I’m ers about strategy, and we’d talk perspective. Some about how managers could make of these cases might more money, but I wouldn’t be otherwise settle out talking about legal issues. And of court altogether. so coming here, I’m basically The parties are teaching the managerial stuff basically gambling that I used to teach in business by using these school to law students. And I can contracts; they’re incorporate some of the legal speculating. So strategy issues into the class- maybe we shouldn’t room. The other great thing is be promoting this that I’m kind of unique here. At kind of speculative business school, almost every- activity. body is an economist, so all the classes are taught by economists. Litigants aren’t required But around here I’m unique and Kathryn Spier says to disclose the existence she loves being an my courses are diff erent, and the of high-low agreements economist on the students appreciate that option. Harvard Law School during trial. Why is faculty: “I’m having The law students like me better this, and what are the the greatest time.” than the M.B.A. students! consequences for failing —INTERVIEW BY LEWIS I. RICE

PHOTOGRAPH BY MARK OSTOW Fall 2015 HARVARD LAW BULLETIN 11

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STUDENT SNAPSHOT Making the State Pay Jonathan Hiles ’16 helps Kareem Bellamy sue for the 14 years he spent wrongfully imprisoned by the state of New York

3L JONATHAN HILES WAS 5 YEARS OLD WHEN KA- “heartbreaking.” The government’s case unraveled reem Bellamy was arrested for murder. This past when its sole eyewitness (whom police had coaxed spring, Hiles helped Bellamy win a $2.75 million into identifying Bellamy from a live lineup at the settlement from the state of New York for the 14 station) failed to pick him out of a photo lineup— years he was wrongfully imprisoned. with Bellamy in the courtroom. But his lawyer Bellamy’s nightmare began when a young man didn’t capitalize on the government’s fecklessness, named James Abbott was fatally stabbed in April and the jury convicted. After hearing the verdict, 1994 in Far Rockaway, Queens, where he and Bella- Bellamy was so inconsolable that he had to be my both lived. A few weeks later, a cashier from a carried from the courtroom by four bailiff s, one on local supermarket phoned the NYPD and reported each limb. From left: that she saw, standing on the street where the mur- Jonathan Hiles The agony captured by Court TV, however, der had taken place, a man she claimed had been ’16, Kareem would help provide for Bellamy’s deliverance: in the same checkout line as Abbott just before his Bellamy Locked up at Shawangunk Correctional Facility and Thomas murder. The man was Bellamy. He was promptly Hoffman upstate, he wrote to every lawyer he could fi nd, arrested. ▼ imploring them to watch the debacle on tape. None Hiles describes footage of Bellamy’s responded, until a Manhattan attorney named trial—preserved by a Court TV show—as Thomas Hoff man, having fi rst thrown Bellamy’s

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letter in the trash, pulled it back out and began work full time on the book, which he and Hoff man digging into the case. are now fi nalizing. “How could I not say, ‘I will look at it’?” says During that year, Hiles also began assisting with Hoff man, a Hungarian Holocaust survivor who was Bellamy’s civil claims: the state case, which settled hidden from the Nazis by his father’s employees. in May for $2.75 million, and the federal case, “How could we be part of a system that doesn’t even which continues to go forward in front of Judge look at it? I couldn’t keep it in the garbage can.” William F. Kuntz II ’77. For the state case, Hiles The two would need help. “We were having helped Hoff man prepare a comprehensive letter, money problems—because Tom was a ghetto presentation and binder boiling down the entirety poor lawyer,” Bellamy joked recently as the three of the case; for the federal case, he’d already logged rode together in Hoff man’s car to a lunch upstate. well over 500 hours, culling nearly 30,000 pages (Hoff man is actually a successful solo practitioner, of discovery, prepping for and attending deposi- but reversing a wrongful conviction generally re- tions and hearings, working on various discovery quires years of costly investigation and litigation.) motions—all while completing his 2L year. In an echo of Bellamy’s letter-writing campaign, Hiles is reluctant to put his own involvement Hoff man sent the Court TV tape to every major law front and center—insisting that he can’t begin to fi rm he could fi nd. None wrote back, until—nine understand the toll of the work the way the lawyers years after Bellamy’s conviction—newly minted who have been with Bellamy since 2004 can—but Cravath partner Darin McAtee ’91 took the tape he speaks about Bellamy’s odyssey with encyclo- home to watch with his wife. pedic knowledge. Anger comes through when he “She said, ‘You have to take the case—that guy’s “We’ve discusses the state’s attempts to “use Kareem’s fear innocent,’” McAtee recalls. They were both struck become like of dying in prison to extort a face-saving plea for by Bellamy’s reaction to the verdict: “You could a tightknit them,” and pride when he discusses his refusal to just tell that he was so rattled by this—it’s not the take the deal. reaction you would expect from somebody who had family,” “We’ve become like a tightknit family,” Hiles killed somebody.” says Hiles. says, noting the letters and meals that he, Bellamy, Soon McAtee was immersed in his fi rst-ever and Hoff man still share with the other lawyers and criminal case, knocking on doors in blighted Far investigators who worked on the case. The bond is Rockaway and heading up to Shawangunk to meet especially deep, he notes, between Hoff man and his new client. Cravath would end up pouring Bellamy: “Tom’s been the one person Kareem can around $5 million in pro bono hours and costs into count on in his life.” the case. At its height, McAtee says, it was “the The now-48-year-old Bellamy is quick to empha- equivalent of a major case for any big corporate cli- size that if he could give up the money to change ent,” with two Cravath partners—McAtee and his what happened to his 26-year-old self, he “would friend Antony Ryan ’95—as well as six associates do it in a second.” and two private investigators working full time. “I cry a lot because of my kids,” he says. When he After a winding journey—prolonged by Bella- was arrested, he had three children under the age my’s refusal to accept a plea that would have im- of 10. “They were aff ected just as much as I was. plied guilt, even in exchange for his freedom—the In a way I think even more—because they didn’t team won Bellamy a new trial in June 2008. He was deserve to be raised without a father.” released from prison that August, and all charges Though Bellamy now devotes his own time to were formally dismissed in September 2011. helping others who have been wrongfully im- Hiles joined what he calls this “unlikely troop” prisoned, Hoff man stresses that the team’s work in 2009, when he spent the summer before his helping Bellamy is far from over. “They say lawyers senior year at Brown interning in Hoff man’s offi ce. shouldn’t get involved with their clients,” the He was working on a separate case but got to know 71-year-old laughs. “But I never really agreed with Bellamy a little; he describes him, during their that.” fi rst meeting, as “shy but then very warm,” with a Hiles has adopted the same ethos: He describes sense of humor in spite of the “sword of Damocles” Kareem as a “close friend” and knows his life in- of “possibly having to return to prison for life” side out—from his case to his family to his health hanging over him. Hiles then kept in touch with problems. Hoff man while teaching middle school English in “As I told Jonathan and Kareem,” Hoff man adds, Jackson, Mississippi, through Teach For America, “if we’re unable to help Kareem transition back, during which time he accepted Hoff man’s invita- then we’ve done nothing.” He pauses, shifting to tion to start putting together a manuscript of the address Kareem: “We’ve gotta help you get back on Bellamy saga. A year into HLS, he took a leave to your feet.” —MICHAEL ZUCKERMAN ’17

PHOTOGRAPH BY BETH PERKINS Fall 2015 HARVARD LAW BULLETIN 13

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14-48_HarvardLawBulletin_FA15_v4.indd 14 9/25/15 11:41 AM Versatile

A N D

Nimble

CHIEF JUSTICE JOHN G. ROBERTS JR. ’79: A MASTERFUL MANAGER BY MARTHA MINOW

Fall 2015 | HARVARD LAW BULLETIN | 15

14-48_HarvardLawBulletin_FA15_v4.indd 15 9/25/15 11:41 AM Sept. 29 of this year marked the 10th other decisions strengthening framing discussion during the anniversary of the day Chief Justice protections for freedom of private justices’ conference John G. Roberts Jr. ’79 took his seat on expression. and by assigning the drafting Chief Justice Roberts does of opinions when he is in the the U.S. Supreme Court. At the time of not always agree with the pre- majority (and assigning the his appointment, he was the youngest vailing rulings. He joined dis- drafting of dissents when he justice on the Court. Nonetheless, right senters when the Court extend- falls on that side). For example, from the start, his leadership has shown ed constitutional protection for he can assign the drafting of an marriage to couples of the same opinion to a justice—includ- mastery and deft management—not sex. He similarly joined the ing to himself—who is likely only of the Supreme Court but also of dissent when it off ered broad to write a narrow or modest the federal judiciary. deference to agency interpreta- opinion rather than a broad This initial decade of his service tions of their own jurisdiction and sweeping one. Chief Justice and when it rejected a challenge Roberts has used these oppor- prompts many commentators to venture to a state’s refusal to issue li- tunities to promote greater assessments about the Court’s cense plates decorated with the consensus. Neal Katyal, former Confederate fl ag. acting U.S. solicitor general, direction. Rough tallies of the As he indicated during his commented in a recent story in outcomes and tilt of high-pro- confi rmation hearing before USA Today: “The signs thus far fi le decisions provide the focus. the Senate Judiciary Com- point to something that we have Here, the work of Chief Justice mittee, Chief Justice Roberts’ seen emerging over the past few Roberts defi es simplistic sum- decisions are not likely to etch years—that the chief justice is mary. During the past decade, a consistent political agen- truly fashioning the court into the Court—with the Chief in da. His decisions apply and his own image. … There is less the majority—has restrict- interpret the Constitution and ideology and more unanimity.” ed campaign contribution statutes with great learning, An outstanding appellate law- limitations and voting rights precision, and discipline. His yer before joining the bench, enforcement. Writing for the opinions and his votes provide Chief Justice Roberts prevailed Court, he rejected the use of considerable evidence that he in 25 of the 39 cases he had race to assign students to public tries to act impartially and with argued before the Supreme schools. Yet, led by the Chief restraint, as he told the Senate Court while in practice, and Justice, the Court also has up- he would. He testifi ed at his he represented plaintiff s and held, twice, President Obama’s confi rmation hearings: “I think defendants, corporations and health care reform. His opinion it is a very serious threat to indigent individuals. In high for the Court bars judicial can- the independence and integ- school, he served as halfb ack, didates from directly rity of the courts to politicize linebacker and captain of the The Chief Justice’s soliciting donations. them. I think that is not a good football team. On the Court, he He joined the majority development, to regard the leads with versatility and nim- annual reports in ensuring physical courts as simply an extension bleness, mindful of the diff er- accommodations for of the political process. That’s ent roles and ongoing relations can be poetic and pregnant workers. He not what they are.” These of justices, advocates, and hint at a droll wrote for the majority views help to explain why this parties. Chief Justice Roberts that police offi cers do Chief Justice has often defi ed has cautioned against rhetor- sense of humor. not necessarily violate expectations—and generated ical excesses and “tar[ring] a person’s constitu- criticisms from both conserva- the political branches with the tional rights when they tive and liberal Court-watchers. brush of bigotry.” stop a car based on a mistak- Chief Justice Roberts also told One aspect of his role seldom en understanding of the law, the Senate during the confi r- seen by the public involves but he also joined the Court’s mation hearings that the Court overseeing the entire federal majority in denying police the and the nation are served better judiciary. He chairs the Judicial authority to detain and search by unanimity than by closely Conference. There, the chief drivers during traffi c stops. His divided decisions. judges of each court of appeals, opinion for the Court protected As chief justice, he can district court judges from each freedom of speech by protest- nudge the Court in this direc- regional judicial circuit, and ers on a public sidewalk near a tion. He can contribute to the the chief judge of the United funeral, and he has joined many tone and even to results by States Court of International

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14-48_HarvardLawBulletin_FA15_v4.indd 16 9/25/15 11:41 AM Trade develop national judicial administrative policies, recom- mend legislation and rules of procedure and evidence, devise case management and electron- ic access to court documents, and oversee surveys of judicial business. In his 10 annual reports to Congress thus far, Chief Justice Roberts has outlined improvements in judicial administration and effi ciency including cost-containment measures both before and

following the economic IMAGES DOWNING-POOL/GETTY LARRY downturn. These reports also have shown his deep short features as they settled trend risks undermining the “Chief Justice immersion in history. They also into their seats. As the lights experience, diversity and Roberts reveals a manifest his steady attention dimmed, the screen beamed independence of the judiciary. sense of proportion to preconditions for judicial previews of coming attractions, He observes how the cost of and modesty about integrity and independence Merrie Melody cartoons, and modest salary increases for the Court and his “to fulfi ll the Framers’ vision the Movietone newsreels of judges would be “miniscule” role, traits that do of a judicial branch with the current events. The 1935 news in comparison with what is at not always accom- strength and independence ‘to shorts also provided many stake. His year-end reports pany impressive and say what the law is,’ without fear Americans with their fi rst look honor the thoughtfulness and talented people in or favor. Marbury v. Madison at the Supreme Court’s new decency of those serving the positions of great (1803).” building, which opened that judiciary. He points to retired power.” His historical references can year.” senior judges, who, without be poetic. He refl ects on eff orts His reports give hints of a extra compensation, carry by the Smithsonian Institution droll sense of humor: “New caseloads—much needed, (he chairs the board of the Year’s Day in America means especially in overburdened world’s largest museum com- football, parades, and, of districts. (After these reports, plex) to preserve the American course, the Year-End Report judicial salaries did rise.) fl ag known as the Star-Span- on the Federal Judiciary.” In In 10 years at the Supreme gled Banner: “This tattered this comment, as when he Court, Chief Justice Roberts fl ag nevertheless inspires deep traced public awareness of has drawn upon the lessons reverence. Why? Because it the majestic Supreme Court from his distinguished private speaks eloquently to the sacri- building to the short movie practice and his public service fi ces of every American who has features watched by moviegoers as a special assistant to the contributed to the preservation escaping from the Depression, attorney general, as associate of the United States.” His com- Chief Justice Roberts reveals counsel to the president, as ments can also be vivid, as in a sense of proportion and principal deputy solicitor his description of the experi- modesty about the Court and general, and as a judge on ence of moviegoers during the his role, traits that do not the Court of Appeals for the Great Depression: always accompany impressive District of Columbia Circuit. “In 1935—in the midst of and talented people in There have been 44 presidents the Great Depression—many positions of great power. but only 17 chief justices of the Americans sought respite from Although clearly not a United States. Chief Justice the Nation’s economic troubles favorite topic, the low salaries John Roberts has made his at their local movie theaters, for federal judges fi gure alma mater very proud. which debuted now-classic prominently in his reports to fi lms, such as Mutiny on the Congress. He notes the large Martha Minow is the Morgan Bounty, Top Hat, and Night number of judges leaving the and Helen Chu Dean and at the Opera. Moviegoers of bench for private practice Professor at Harvard Law that era enjoyed a prelude of due to fi nancial need. This School.

Fall 2015 HARVARD LAW BULLETIN 17

14-48_HarvardLawBulletin_FA15_v4.indd 17 9/25/15 11:42 AM Undermining Injustice, One Prison Visit at a Time Fernando Delgado ’08 and his students i n the International Human Rights Clinic put prisoners’ voices in Brazil at the heart of a human rights case / By Cara Solomon / Photograph by Dana Smith

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14-48_HarvardLawBulletin_FA15_v4.indd 19 9/25/15 11:42 AM There is no

marker in Aníbal Bruno prison that speaks to student investigating the high-profi le prison and po- home. In some cells, there are only dozens of men, lice violence that hit São Paulo in May 2006. Delgado sleeping on fl oors stained with feces, eating out of kept at it until 2011, when the HLS clinic released a plastic bottles cut in half. But when he stands at the joint report that exposed widespread police cor- bars, Fernando Ribeiro Delgado pauses, as he would ruption and, according to de Jesus Filho, changed at the doorstep of any stranger’s house. the way the Brazilian public viewed the sequence of He off ers a handshake to every man inside. He events. looks them in the eye. He calls each prisoner “Sir.” To de Jesus Filho, who monitored prisons for 20 And though Delgado already has offi cial permission years with Pastoral Carcerária (Catholic Prison Min- to enter, he asks, because asking matters: Would it be istry), that kind of commitment stood out. all right if I came in? “When Fernando starts with something, he goes to “It’s the kind of respect that is obviously required, the end,” he said. but that they are denied regularly by nearly every- body,” said Delgado, a clinical instructor in the International Human Rights Clinic at Harvard Law In the School. fi eld Over the course of the years, as an expert on prison conditions in Brazil, Delgado has argued before the of prison rights advocacy, litigation before the inter-American human rights system; negotiated inter-American human rights system is a powerful with government offi cials; and nurtured relation- tool. When the court orders emergency measures, ships with prisoners’ families, prison offi cials, and it binds all levels of government to the promise of members of the national press. But it all begins, for protecting the life, safety and health of the persons Delgado, in the cell blocks and hallways of Brazil’s at that facility. This, in turn, triggers a system of most overcrowded prisons, listening to the people monitoring and reporting. who live there. One of the clinic’s closest partners, Justiça Global Born in Brazil, fl uent in Portuguese, Delgado has (Global Justice), was at the forefront of this litiga- worked in these prisons for years, challenging his tion, helping to secure protective measures at Urso clinical students to think through the complications Branco, one of the country’s most notorious prisons, that come with mass incarceration and neglect. back in 2002. It’s a case Delgado worked on as a fel- Inside Aníbal Bruno, they watch him closely: the low with Justiça Global and is still litigating today. calm, fi rm way he negotiates with offi cers for access; The work on Aníbal Bruno began years later, when the undivided attention he gives to prisoners; the a group of Brazilian rights organizations looked at deference he shows to his local partners, whom he mass incarceration patterns across the country and considers the undisputed experts in the rhythm of found another focus: the state of Pernambuco, where the place. a new policy provided bonuses to police for every “I was really impressed to see him being so re- arrest they made. spectful, being so collaborative in his eff orts, and not Soon enough, they honed in on Aníbal Bruno, one the Harvard professor who knows all,” said Colette of the largest prisons in Latin America, and among van der Ven ’14. “He was a role model for so many of the most abusive. Since then, the clinic has worked us.” with Serviço Ecumênico de Militância nas Prisões Any praise that comes his way, Delgado defl ects (Ecumenical Service of Advocacy in Prisons), to his mentors, in particular his clinical professor, Justiça Global, and Pastoral Carcerária to secure James Cavallaro, former executive director of the precautionary measures for all persons at Aníbal HLS Human Rights Program and current vice chair Bruno—including prison staff and the families of of the Inter-American Commission on Human prisoners. Rights. Over the years, Cavallaro has tracked Delga- “I like this word Fernando uses: coalition,” said do’s career: Fearless, rigorous and dedicated are the Wilma Melo, of Serviço Ecumênico de Militância nas words that come to his mind. Prisões, a longtime advocate and the family member “Fernando’s work in detention centers in Brazil is of a former prisoner. “Each step we take, we take unparalleled by anything being done by any clinic or it together, and I believe this is the strength of our NGO outside Brazil,” said Cavallaro. “He’s document- work.” ed the most serious abuses in the most dangerous Years of monitoring have led to clear wins: a centers in the country.” camera ban lifted, a punishment cell dismantled, José de Jesus Filho, a Brazilian human rights medical help for the critically ill. Hundreds of illegal- lawyer, saw the potential when Delgado was an HLS ly detained prisoners have had their cases reviewed

20 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 20 9/25/15 11:42 AM In Aníbal Bruno—a prison designed for fewer than 2,000 men, now holding 7,000—gangs of prisoners force payment from anyone who wants a designated place to sleep.

and then have been released—including a forgotten the clinic and its partners: man who was kept incarcerated 10 years beyond his “Can we get precautionary measures for every original sentence. other prison in the state?” But for every individual violation reported and remedied, there are thousands more. In a prison designed for 1,819 men, the population recently hit When 7,000. At best, there might be one offi cer on shift for every 100 prisoners. Delgado, With so few offi cers on duty, gangs of prisoners his students and his partners walk through the take on, or are given, the power of policing. Their entrance to Aníbal Bruno, they hear the same thing leaders, known as “Chaveiros” or “locksmiths,” have every time. First, the call goes out, from one cell to keys to the cells and use them to govern an economy another: “Human rights!” of beds, forcing payment from anyone who wants a Then come the arms, reaching out from behind the designated space to sleep. On Delgado’s fi rst visit to bars, too many to count: “Over here!” “Over here!” Aníbal Bruno, he met with a Chaveiro whose person- “Over here!” al cell was furnished with a full-sized mattress and Some days, the team will interview more than 100 a meeting table. A cellphone lay on the tabletop. A people. The students will pair off with Delgado and knife hung from his belt. then settle into a space the prisoners have cleared for “It’s chaos,” said de Jesus Filho. them. In the presence of women, some prisoners will At the very least, advocates say, the monitoring put on their shirts. They’ll off er what water they have has forced a kind of reckoning on prison offi cials. on hand. And then the stories will start. They’ve gone from denying the depth of the prob- Months of picking through international law could lems at Aníbal Bruno to acknowledging many of not have prepared James Tager ’13 for the pressure. them, and working with others to address them. This At one point, he took down all the details that made may be why, at one public meeting, a representative up one man’s story and then realized, as he was from the prison offi cers’ union put the question to leaving the cell block: He had forgotten to ask for the

Photograph by WILMA MELO

14-48_HarvardLawBulletin_FA15_v4.indd 21 9/25/15 11:43 AM man’s name and ID number. can talk to medical staff privately, without the scru- “It’s not like you can call back next week and tiny of an offi cer. The extra time a team stands by the double-check the facts,” said Tager, who later got the gate of the warehouse, refusing to leave until each man’s name. “I was literally shaking—this idea that prisoner gets bread they’ve been denied. after talking to someone, because I hadn’t gotten his With their actions, they are undermining injus- name, he wouldn’t be helped.” tice in the moment. They are sending a message to all The learning for students is intense, said Clara who are watching that every person is equal—deserv- Long ’12, who now visits detention centers as an im- ing of dignity, protection and privacy. migration and border policy researcher with Human “It’s not enough to report on the problems,” said Rights Watch. She trained under Cavallaro and Del- Melo. “You have to make an impact there in the mo- gado, working with them on the Urso Branco case. ment in order to produce the change.” “You have a very compressed time period to build trust with someone, fi gure out how to keep them safe while they’re talking, fi gure out the right questions Take cell and get the most accurate information possible,” said number Long. Nerve-racking is a good word for it. Before going 5. Melo had reported it before: a tiny, dank pun- through the metal detectors, van der Ven took a ishment cell, where Chaveiros would dump prisoners picture of a badly beaten man, only to hear a prison they had beaten. A long metal sheet was welded to offi cial’s warning about the camera ban inside. The the bars of the cell, perforated with small holes for ban had been in place for months, but there, in the air and light. moment, Delgado had an idea: Can anyone here “The only thing comparable would be hell,” said draw? Celina Beatriz Mendes de Almeida LL.M. ’10, who Van der Ven had taken a few art classes in high trained under Delgado and went on to become a pro- school. That was enough. fessor at the Fundação Getulio Vargas School of Law’s “Just draw what you see,” he told her. Human Rights Clinic in Rio de Janeiro. As she sketched a warehouse where hundreds of The team interviewed the 16 men inside, photo- men ate and slept, some of the prisoners organized graphed their injuries, took down their names and themselves so she could better see the space. Others then walked to the warden’s offi ce, where Melo an- gathered around, looking over her shoulder. nounced that she had “discovered” a punishment cell. “It was like a unifying moment,” said van der Ven, Nearly an hour later, after the prisoners had been now an associate in trade litigation at Sidley Austin. removed, the warden stood in front of it, surrounded “We were all working toward justice for them.” by a gang of Chaveiros, their arms folded across their When the prisoners spotted a friend of theirs in chests. Hundreds of prisoners watched in silence her sketch, they joked that he was headed to the U.N. behind them. Melo had insisted the metal door come Instead, the coalition presented a slideshow of the down. sketches during a public hearing with the prosecu- The warden examined it again, then fi nally turned tor’s offi ce. The next time the team visited Aníbal to a nearby prisoner, and ordered him to fi nd a tool Bruno, the camera ban was no longer in place. that could remove it. There are many days when the question comes to From somewhere in the crowd of prisoners, there Delgado’s mind: Are we making a diff erence? came a suggestion: “A hammer?” Sometimes, the answer is clear and yes. Last Yes, Melo said, a hammer. And so it came to be, spring, in response to repeated concerns the coali- that late one October afternoon, in one of the worst tion raised, the court ordered a ban on strip searches prisons in the country, the warden called for a of prison visitors. Several months later, prison ad- hammer, and a prisoner proceeded to swing it, and ministrators had passed their own statewide ban. together they brought the metal door down. Number of people aff ected: 30,000 families every Even now, it is hard for Delgado and Melo to week. describe the emotion of the moment. To compre- But in prison work, there are constant reminders hend the ripple eff ects it had—for the prisoners, the of the limits of legal advocacy. Recently, after the warden, the Chaveiros, and beyond. coalition created an online archive of thousands of It was not the kind of victory that would make pages of evidence, the state put the camera ban back the newspaper. But it spread the spirit of possibility in place. within the system, so that years later, when a prison- So Delgado tries to remember: Small victories mat- er told Melo about another punishment cell, he ter. The human barrier he forms with his students asked her to dismantle it, just like she did with cell and partners, so that a prisoner suff ering knife cuts number 5.

22 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 22 9/25/15 11:43 AM Wilma Melo, a longtime advocate in the Aníbal Bruno prison, is a member of one of the organizations with which Delgado and his students collaborate. “Each step we take, we take it together,” Melo said, “and I believe this is the strength of our work.”

Photograph by RENATO SPENCER/GETTY IMAGES

14-48_HarvardLawBulletin_FA15_v4.indd 23 9/25/15 11:43 AM By Julia Collins PHOTOGRAPHS BY WEBB CHAPPELL All-Star Team on a Winning Streak

Cite by cite, download by download, the HLS corporate gov- ernance group has built a powerful reputation among schol- ars and practitioners, in classrooms, courtrooms, and board- rooms, for its prolifi c output of infl uential work. 2014 was the third time in a little more than a decade that half or more of the “Ten Best Corporate and Securities Articles” of the year (Cor- porate Practice Commentator) were written by HLS profes- sors. Studies by corporate governance faculty have attracted about ten thousand citations on SSRN (Social Science Research Network); at the end of 2014, 13 HLS faculty made SSRN’s 100 most-cited law professors list—with Lucian Bebchuk ranking fi rst. One of the most widely read law websites is the school’s Forum on Corporate Governance and Financial Regulation. We checked in with several corporate law faculty during the summer for an update on what they are thinking and writing about, and to ask what motivates their choice of research topics. CORPORATE GOVERNANCE SCHOLARS AT HARVARD LAW KEEP PUTTING UP GREAT NUMBERS K

24 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4_r2.indd 24 9/29/15 10:30 AM “MANY NORMAL PROCESSES of corporate governance that keep too-big-to-fails moving forward effi ciently can start to degrade,” making the fi nancial system overall more vulnerable.

The Too-Big-To-Fail Problem MARK ROE ’75 David Berg Professor of Law

IN 2010, THE GLOBAL FINANCIAL CRISIS waning, Federal Reserve Chair Ben Bernanke talked about the dangers of huge conglomerates going under and said, “If the crisis has a single lesson, it is that the too-big-to-fail problem must be solved.” Five years later, the problem isn’t solved, but where do things stand now? Mark Roe, who has written mul- tiple papers and op-eds relating to the crisis, in the Financial Times and The Wall Street Journal, recently applied corporate governance mechanisms “to understand how too-big-to-fail fi rms will wind up,” in his article “Structural Corporate Degradation Due to Too- Big-To-Fail Finance” (University of Pennsylvania Law Review, 2014). Roe’s article won the 2015 Euro pean Corporate Governance Institute’s Allen & Overy Law Prize for best corporate governance paper; it was also voted one of 2014’s “Ten Best” in the poll of corporate and securities law professors conducted by Corporate Practice Commentator (as was his co-written article in the Virginia Law Review on the foundations of bank- The consensus is that regulation The dominant mechanism has shifted ruptcy priority). In it he details how has improved, he says. To the extent over the last century, often in response ineffi cient fi nancial conglomerates it has, the funding boost should to market conditions, with the big have been shielded from restructuring diminish accordingly. Then deal- three having been an administrative pressures thanks to the “too-big-to-fail fi nancing interest rates will no longer system imposed by a judge or funding boost”: the lower debt-fi nanc- exceed debt-servicing rates, “and the regulatory agency, arising during ing rates from lenders confi dent that largest fi nancial fi rms will face strong the 1930s; a deal among creditors of the U.S. government won’t risk having pressures to resize and restructure.” a fi rm, dominating in the 1970s and corporate giants go under. This boost Roe testifi ed before Congress on 1980s; and the sale of the intact fi rm in undercuts fi rms’ natural tendency to “The Bankruptcy Code and Financial recent decades. spin off businesses that no longer fi t, Institution Insolvencies”—a subject on Also on Roe’s agenda: a chapter in since spunoff or restructured fi rms which he has written several law review the forthcoming “Oxford Handbook would lose that embedded subsidy. articles and op-eds since the fi nancial of Corporate Governance.” Here he “Many normal processes of corporate crisis. An article underway examines returns to his 30-year interest in how governance that keep too-big-to-fails and updates 100 years of bankruptcy big-picture political currents and moving forward effi ciently can start history. “Normally, a handful of interest groups aff ect the structure of to degrade,” explains Roe, making the decision-making mechanisms are corporate and fi nancial law—a topic he fi nancial system overall more vulner- available to decide how and whether to developed in two books and a dozen law able. restructure bankrupt fi rms,” he says. review articles.

Fall 2015 HARVARD LAW BULLETIN 25

14-48_HarvardLawBulletin_FA15_v4_r1.indd 25 9/28/15 4:54 PM FERRELL TESTS THE agency view that corporate social responsibility directs managers toward doing good with other people’s money.

THE FINANCIAL CRISIS HAS GENERATED a huge amount of securities litigation, and for Allen Ferrell, related legal issues have been of particular interest. He has covered many, applying law and economics analysis to the credit crisis, the housing market downturn, and subprime mortgage lending, among other things. Now he has a paper coming out in the Washington University Law Review (written with Stanford Law School colleague Andrew Roper) on the Supreme Court’s June 2014 decision in Halliburton Co. v. Erica P. John Fund, Inc. (aka Halliburton II). The decision holds that big institutions may be able to defeat class certifi cation in securi- ties fraud cases if the defense can show that the alleged misrepresentations had no impact on the stock price. “Our paper addresses the inter- section of law and economics in this case,” Ferrell notes. “As economists, we’re asking: What economic evi- dence would speak to the showing or lack of showing of existence of a price impact?” Ferrell is continuing research and analysis started in “Socially Responsi- ble Firms,” a paper that won the 2014 Moskowitz Prize for outstanding quan- titative research. He and co-authors Hao Liang and Luc Renneboog use large-scale data sets for 59 countries on fi rm-level engagement and compli- ance with environmental, labor, and social issues. Using the econometrics method of instrumental variables, they test the “agency view” that corporate social responsibility, or CSR, directs man- agers toward “doing good with other people’s money,” wasting corporate resources and weakening internal governance. In fact, the authors fi nd that better-managed fi rms engage in more CSR. “That’s because fi rms getting high valuations tend to be well run generally and therefore are on top of climate impact, employee protec- A Matter of Securities tions,” and other CSR issues, Ferrell explains, whereas when a company “is ALLEN FERRELL ’95 a mess in terms of its internal systems, Harvey Greenfi eld Professor of Securities Law it’s not on top of things in other areas either.”

26 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4_r1.indd 26 9/28/15 5:44 PM “IF A COMPANY is buying and selling a lot of its own shares, catering to long-term shareholders may well lead managers to destroy economic value to get the long-term stock price up.”

Mom, Apple Pie and Long-Term Shareholder Value JESSE M. FRIED ’92 Dane Professor of Law

THE COMMON DENOMINA- Corporation” (University of million in shares personally, value for the fi rm. “Like tor for two recently pub- Pennsylvania Law Review, except that nobody will ever Mom and apple pie, long- lished articles by Jesse Fried 2014), featured on the 2014 see this transaction. We will term shareholder value is a unique and increasingly “Ten Best” list, focuses on see only the total amount of is supposed to be good by important feature of U.S. an important implication of shares repurchased by the defi nition,” Fried says. public corporations—they this unfettered “new world” fi rm that month, and will But here, too, transacting buy and sell $500 billion of trading: Management see this only several months corporations complicate to $1 trillion of their own teams can use corporation later.” Hong Kong and coun- the picture: “If a company shares annually, via stock transactions indirectly to tries including the U.K. and is buying and selling a lot repurchases and equity is- benefi t from inside infor- Japan require disclosure of of its own shares, catering suances. “Firms on average mation, at the expense of these transactions within a to long-term shareholders are trading about 30 percent public investors as a whole. day or two, a practice Fried may well lead managers of their market capitaliza- “If the CEO wants to buy $1 thinks the United States to destroy economic value tion over a fi ve- to six-year million in shares on his own should adopt. to get the long-term stock period,” Fried explains. Yet account, he has to report In “The Uneasy Case price up.” For example, the fi rms aren’t required and it is public within for Favoring Long-Term managers may manipulate to provide detailed, timely two days,” Fried explains. Shareholders” (Yale Law the stock price down when reports of these transac- However, “if she owns 5 Journal, 2015), Fried the fi rm is repurchasing tions—only monthly or percent of the company challenges the popular view shares or pump the stock quarterly aggregate data and the company buys back that managers who serve price up when it is issuing “that is not disclosed until $20 million in shares at a long-term over short-term shares. Evidence suggests fi ve or six months later.” low price, it is economical- shareholders’ interests will these manipulations “Insider Trading via the ly equivalent to buying $1 generate more economic happen, Fried says.

Fall 2015 HARVARD LAW BULLETIN 27

14-48_HarvardLawBulletin_FA15_v4.indd 27 9/25/15 11:43 AM BEBCHUK IS A principal drafter of a rulemaking petition that urged the SEC to adopt rules mandating that public companies disclose their political spending to investors. The petition has thus far received support from more than a million comments that have been fi led with the SEC.

LUCIAN BEBCHUK, DIRECTOR OF HLS’S window,” the authors fi nd that it does shareholder value, including golden Program on Corporate Governance, is not support concerns that activism parachutes, poison pills and staggered working on several fronts at once, in- has adverse eff ects in the long term boards. As of this summer, fi nancial cluding writing and research projects and that such concerns do not provide economists have deployed the index in on how long-term value creation would a valid basis “for limiting the rights, more than 300 papers. Bebchuk is now be best facilitated, hedge fund activ- powers, and involvement of sharehold- engaged in further empirical research ism, empirical corporate governance, ers.” The Wall Street Journal, The New on the relationship between particular and corporate political spending. York Times, The Economist, and many governance provisions and sharehold- From proxy battles to liquidating other media outlets have reported on er value. assets, the infl uence that hedge funds the article’s fi ndings and their impli- With regard to corporate political have remains a contentious topic. cations for the policy debate. spending, Bebchuk and Robert J. Jack- In “The Long-Term Eff ects of Hedge How governance provisions aff ect son Jr. ’05 were the principal drafters Fund Activism” (Columbia Law Re- share value is another issue Bebchuk of a rulemaking petition, submitted view), published this June, Bebchuk has taken up in several studies. In by a 10-professor committee they co- and co-authors Alon Brav and Wei earlier work, he and HLS faculty col- chaired, that urged the SEC to adopt Jiang examine whether such activist leagues Alma Cohen and Allen Ferrell rules mandating that public compa- interventions ultimately hurt or help set forth a comprehensive “Entrench- nies disclose their political spending companies and their shareholders. ment Index” based on key provi- to investors. The petition has thus far Analyzing data across a “fi ve-year sions that correlate negatively with received support from more than a million comments that have been fi led with the SEC, as well as from 44 U.S. senators and many institutional inves- A Director at Work on Many Fronts tors. Bebchuk and Jackson followed up with a 2013 Georgetown Law Journal LUCIAN BEBCHUK LL.M. ’80 S.J.D. ’84 article, “Shining Light on Corporate William J. Friedman and Alicia Townsend Friedman Political Spending,” and they now have Professor of Law, Economics, and Finance a monograph in the works on the topic, with co-author James Nelson.

28 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 28 9/25/15 11:44 AM “WHAT WOULD HAPPEN if you put everything on the table, and tried to sort out a compromise package on corporate governance that we could agree, overall, is a better regime than what we currently have?”

“I’VE HAD THE BENEFIT OF having a seat at the table in two very diff erent schools,” says Guhan Subramanian. “At the law school, the agen- cy lens and incentive design are important tools when we think about boards’ work and how managers do their jobs. On the other side of the fence, at Harvard Business School, I teach in an executive education pro- gram called Making Corpo- rate Boards More Eff ective, which is for public company directors. I sit on one public company board myself, and when I look around the table, I see people who are fundamentally trying to do the best job they can.” From this dual perspec- tive, Subramanian off ers fresh proposals on gov- ernance challenges. His article “Delaware’s Choice” (Delaware Journal of Corporate Law), which also made that 2014 “Ten Best” list, takes “a more nuanced approach” to the vigorously debated staggered board structure, in which a frac- tion (often one-third) of the directors are elected at a time rather than en masse. “Corporate Governance 2.0,” published in the Harvard Business Review in March 2015, is a more Negotiating Corporate Governance practitioner-oriented GUHAN SUBRAMANIAN J.D./M.B.A. ’98 extension of “Delaware’s Joseph H. Flom Professor of Law and Business, Harvard Law School; Choice.” It is his response H. Douglas Weaver Professor of Business Law, Harvard Business School to the “knee-jerk reactions” to governance issues that frequently set shareholder advocates and more board- rate Governance 2.0” is the currently have?” Daniel Gallagher praised centric advocates at odds. result of a thought experi- Over the past few months Subramanian’s “potentially “We all know from the Ne- ment: “What would happen the article has been quoted transformative approach to gotiation Workshop at HLS if you put everything on the favorably in The Wall the corporate governance that if you negotiate issue table, and tried to sort out Street Journal and The debate,” calling “Corporate by issue, you’re not going a compromise package on American Lawyer, among Governance 2.0” an to achieve value-creating corporate governance that other places. In a recent “antidote to the caustic trades across the issues,” we could agree, overall, is a speech at Stanford Law trench warfare on these Subramanian says. “Corpo- better regime than what we School, SEC Commissioner issues.”

Fall 2015 HARVARD LAW BULLETIN 29

14-48_HarvardLawBulletin_FA15_v4.indd 29 9/25/15 11:44 AM “YOU CAN RATIONALIZE Citizens United, but not on the basis of the understood application of the First Amendment to corporations throughout U.S. history.”

Corporations Are Our Creations LEO STRINE Senior Fellow of the Harvard Program on Corporate Governance; Austin Wakeman Scott Lecturer on Law

AWAY FROM THE BENCH, THE eighth chief justice of the Delaware Supreme Court and former chancellor of the Delaware Court of Chan- cery writes and lectures on those interests that have always animated his career: “public service focused on building an inclusive society,” he says, “combined with my professional pre- occupation with the role of corporations in our society and globally.” Of late, Leo Strine has had his eye on two landmark U.S. Supreme Court cases and what they portend for the role of corporations in society, noting, “A concern of corporate law scholars is that the federal judiciary’s understanding of the histor- tion of the corporation was the judicial microscope.” Thus, Hobby Lobby allows ical organization of corpo- that it is the opposite of the Turning to his new article, a corporation, through who- rations in the U.S. isn’t as Lockean/Jeff ersonian citi- “A Job Is Not a Hobby,” due ever controls it, to “imbue sound as it could be.” zen, of the idea that we each out in the Journal of Cor- its actions with religious In his forthcoming article are born with inalienable poration Law, on the high ethos,” Strine argues, and for Notre Dame Law Review, rights.” Rather, a corpora- court’s decision in Burwell constitutes “another situ- “Originalist or Original: tion “only has the rights v. Hobby Lobby Stores, Inc., ation where government The Diffi culties of Recon- society gives to it.” Strine cites the maxim of is regulating the private ciling Citizens United with In the past, “company early common law, credited sector, and the corporation Corporate Law History,” leaders would focus on to Sir Edward Coke (1552- is able to exempt itself.” He written with Nicholas Wal- stockholders, follow the 1634): “corporations have connects the Court’s deci- ter, Strine takes issue with rules of corporate law and no souls.” By accommodat- sion to America’s legacy of Justice Antonin Scalia’s leave the rest to regulators,” ing the religious views of the corporate paternalism and (’60) application of orig- Strine says. Now the balance owners of Hobby Lobby, a re- employer eff orts to restrict inalism in a concurring has shifted, and federal tail operation, the Supreme employees’ freedoms. opinion for Citizens United courts are receptive to Court established that Corporations “are our cre- v. Federal Election Commis- granting corporate interests minimum health care ben- ation,” he says. “These re- sion. “You can rationalize the right to act on society efi ts of the Aff ordable Care cent cases have potential to Citizens United, but not on and the political process in Act are no longer a worker’s reduce the creator’s capacity the basis of the understood ways that were not recog- right but rather rely on the to regulate the conduct of its application of the First nized 25 to 30 years ago. Yet corporation’s “conscience creation. This is an import- Amendment to corpora- when the executive branch to give workers their due,” ant issue in a globalizing tions throughout U.S. histo- and elected offi cials try to leaving Congress to fi ll the economy, challenging every ry,” Strine contends. “Chief regulate corporate conduct, gap, with shortfalls covered notion on how to constrain Justice Marshall’s concep- those actions are “put under by other taxpayers. corporate behavior.”

30 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 30 9/25/15 11:44 AM KRAAKMAN APPLIES “ASSET PARTITIONING” theory to ancient Roman commerce to explore “how sharply business assets were separated from personal assets when creditors made claims on business enterprises.”

Commercial Entities Weren’t Built in a Day REINIER KRAAKMAN Ezra Ripley Thayer Professor of Law

ONE ADVANTAGE OF A LARGE LAW school like HLS is its “deep bench of active business-law scholars,” says Reinier Kraakman. “Although our work and backgrounds are very diff erent, we share general interests as well as a commitment to empiricism and meet often to discuss early drafts of each other’s projects.” Kraakman spanned two millennia in his own research for two 2014 working papers. In “Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce,” he and his co-authors apply “asset partitioning” theory to explore diff erences between modern and ancient legal entities, “and especially how sharply business assets were separated from personal assets when creditors made claims on business enterprises in ancient Rome.” Roman laws apparently could accommodate highly utilitarian entities such as the societas publicanorum—akin to a limited partnership but available only for specialized purposes. But such niche forms lacked the legal powers required to support large enterprises. “The most robust Roman entity was arguably the extended family whose assets were formally owned by its paterfamilias or patriarch,” Kraakman explains. “Rome relied on the estates It’s Still a Matter of Information prices,” Kraakman explains. “A modest of wealthy aristocratic families for Costs,” Kraakman and his co-author concept of market effi ciency remains much of its commerce, even if the argue that contrary to common a reasonable working hypothesis nobles of these estates would engage opinion, the global economic crisis for describing and explaining rapid in commerce only through slaves and did not undercut the long-standing price reactions to new information subordinates.” The authors conjecture Effi cient Capital Market Hypothesis in markets for publicly traded stocks. that Rome failed to create true legal that stock prices respond rapidly to Why these markets function as entities for general use in part because new information in actively traded effi ciently as they do is important,” he its aristocracy had contempt for markets. The crisis “disproved” the says, “and has continuing implications commercial activities, although in ECMH only if analysts took market for regulatory reforms that attempt later centuries the imperial state’s effi ciency to mean that prices to mitigate the inevitable risks distrust of large private enterprises precisely mirrored the fundamental posed by new and complex fi nancial also discouraged legal innovation. value of fi nancial assets—“a slippery instruments”—like the infamous Shifting to the present, in “Market concept because fundamental value collateralized debt obligations during Effi ciency after the Financial Crisis: is inherently unobservable, unlike the subprime mortgage crisis.

Fall 2015 HARVARD LAW BULLETIN 31

14-48_HarvardLawBulletin_FA15_v4_r1.indd 31 9/28/15 4:56 PM Beyond Obergefell: What’s Next?

After the landmark ruling, the Bulletin looks at the territory ahead BY LANA BIRBRAIR ’15

32 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 32 9/25/15 11:44 AM BEYOND OBERGEFELL Alumni Advocates for LGBT Rights Refl ect on the Challenges That Remain

IN THE WAKE of the Supreme to gender stereotypes. According to willing to extend existing protections. Court’s decision in June in the EEOC, LGBT individuals should For this reason and others, many agree Obergefell v. Hodges holding also be able to seek recourse under that a sweeping bill explicitly off er- that states cannot deny Title VII, under the theory that such ing protections on the basis of sexual persons the constitutional discrimination is based on employees’ orientation and gender identity is alleged failure to present their gender, necessary. right to same-sex marriage, or choose their partners, in the way the LGBT activist community employers expect based on their born is tackling the questions of sex. Feldblum fears that if people hear TRANS what the movement will look that the law does not protect them, RIGHTS they will think there is nothing they like after the blockbuster can do. Instead, she prefers to say, SINCE THE MOMENT CAITLYN JENNER win and how to engage the “You can get married in the morning became a transgender icon, it’s as if public with causes that have and fi red in the afternoon. But if you the country has suddenly awoken to received comparatively scant get fi red, thank goodness the EEOC a conversation about trans rights it has opened its doors to taking your didn’t realize had been missing. When attention. charge.” Alex Chen ’15, who wrote an article for Though Renn and Feldblum may the Harvard Law Review about how diff er in the framing, they agree federal agencies have begun accommo- AN OMNIBUS LGBT wholeheartedly on the goal: Congress dating trans individuals, applied to law RIGHTS BILL needs to pass an omnibus bill in the schools, he said, “it looked like there mold of the Civil Rights Act of 1964, had been glacial movement. The fact WITHIN DAYS OF OBERGEFELL, PROPO- which widely outlawed discrimination that things have moved so fast in the nents of LGBT rights were chiming on the basis of race, color, religion, sex past fi ve years has caught me totally off in with a common refrain, a warning or national origin. In the 1990s, Feld- guard.” not to rest easy. As Peter Renn ’06, a blum had worked with legislators on A few of the most important changes staff attorney at Lambda Legal, puts drafting such a bill. Then, in 1994, the involve routine paperwork. Com- it: “You can get married on Monday, military instituted Don’t Ask, Don’t monplace tasks, from going to the fi red from your job on Tuesday, evicted Tell, a policy allowing LGB citizens doctor to applying for a job to doing from your house on Wednesday, and to serve in the military, but forcing business at the DMV or requesting thrown out of a business on Thursday, them to remain in the closet. “When Social Security benefi ts, can present all because of who you are.” you lose that badly on Capitol Hill, you herculean obstacles for a trans person, Not all agree with that description. really lose momentum,” Feldblum re- whose identifying legal documents Chai Feldblum ’85, a commissioner of calls. The bill was scaled back to cover and gender identity often don’t match. the Equal Employment Opportunity only employment, and the result, the As of just a few years ago, to change Commission, disagrees with the part Employment Non-Discrimination Act, a person’s sex designation on offi cial about being fi red. Since April 2012, the has been introduced in almost every documents, most federal agencies EEOC has worked to include transgen- Congress since 1994 and has failed to no longer require evidence of sexual der, gay, and bisexual employees under pass each time. reassignment surgery—which is rarely its interpretation of Title VII’s ban on In the meantime, regulators and liti- covered by health insurance and not public and private employers’ ability gators have tried using existing legisla- always recommended for or desired by to discriminate “on the basis of sex.” tion such as Title VII to protect LGBT individuals who are transitioning. For decades, courts have interpreted workers. But while the EEOC, as an Obstacles remain, such as the Title VII to prohibit discrimination agency, has signifi cant discretion to do requirement of a doctor’s note, which against employees who do not conform so, courts have been less consistently several countries have eschewed in

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14-48_HarvardLawBulletin_FA15_v4.indd 33 9/25/15 11:45 AM BEYOND OBERGEFELL

favor of a simple declaration from an untouchable or unspeakable in certain adopting the framework that “the individual of his or her gender identity. contexts.” That begins with schools, mere existence of a gay person in And trans rights can seem particularly he says. It means adopting curricula the workplace or in your business subject to the political climate, says that are LGBT-inclusive, refusing to substantially burdens your religious Chen, who pointed to a decision by a turn a blind eye to bullying in schools, exercise.” He cites a GLAD case in Virginia-based federal judge in July and accommodating trans students in which a food services manager at a refusing to apply Title IX protections— bathrooms, in locker rooms, and on Catholic high school cafeteria had which prohibit sex discrimination in overnight fi eld trips, for starters. his job off er rescinded after he listed schools—to a male-identifying trans his husband as an emergency contact student’s request to use male bath- on employment forms. In that case, rooms. The opinion repeatedly refers RELIGIOUS Wu says, the man’s job had nothing to trans identities as a mental illness. ACCOMMODATION to do with religion and he would “With people like that on the federal have had almost no interaction with bench and a possibly less favorable RELIGIOUS ACCOMMODATION AND THE students. administration,” Chen says, “we could balancing of First Amendment rights see a period of retrenchment.” with principles of nondiscrimination pose two of the greatest challenges IT IS RARE FOR A CONVERSATION ABOUT for the LGBT community. In late LGBT rights not to touch on how CONNECTIONS TO POVERTY, March, Indiana gained attention swiftly the movement has galvanized ISSUES IN SCHOOLS when it passed its own version of the the public. Renn, in fact, fears that the federal Religious Freedom Restoration LGBT movement could fall victim to its ALL ELSE BEING EQUAL, LGB PEOPLE, Act, aimed at allowing individuals own success—that people will believe particularly women, are more likely and companies to obtain religious the fi ction that “because we’ve won to be poor and to not have adequate exemptions from laws of general marriage, the fi ght is over and people daily food than heterosexuals. The applicability. Indiana’s law sparked can pick up their tents and go home.” statistics concerning trans people are a nationwide debate about whether From this side of history, it may well even grimmer: They are four times wedding photographers, caterers and seem that way, says NeJaime. “Yes, more likely than the general popula- others should be required to serve there’s something dramatic about tion to live in poverty, twice as likely LGBT customers if doing so interferes the rate of support that the marriage to be unemployed, and nearly twice as with their religious beliefs. equality cause achieved in a relatively likely to be homeless. Inevitably, LGBT According to Wu, the country can short time, but it’s also been a very long rights are intertwined with other social pick one of two paths. First, people battle that a lot of people have fought justice concerns about poverty and could see LGBT discrimination as for a long time.” discrimination. “A right not to be fi red exactly the same as all other forms Months after Obergefell, attorneys from your job doesn’t mean all that of prohibited discrimination. “The and advocates for whom same-sex much if you can’t get a job,” says Doug- second and more dangerous path sees marriage was a job description las NeJaime ’03, a professor at UCLA LGBT discrimination as diff erent—as look back on the day and declare, School of Law and faculty director of acceptable in certain situations,” he unequivocally, that it was a civil rights its Williams Institute, a national think says. “That path forgets the long histo- victory in the vein of Brown v. Board of Education, which desegregated schools, or Loving v. Virginia, “You can get married on Monday, fi red from which barred anti-miscegenation your job on Tuesday, evicted from your house on statutes. But such comparisons can be worryingly revealing, particularly of Wednesday, and thrown out of a business on the limits of law. Brown was decided Thursday, all because of who you are.” in 1954, yet de facto segregation —PETER RENN ’06 persists in many schools to this day. Standing alone, without vigorous social movements that reinforce and act in tank on sexual orientation and gender ry of religiously based discrimination accordance with the legal changes, identity law and public policy. against other groups, like diff erent judicial opinions can fail to create According to Janson Wu ’03, execu- races and women.” the long-lasting eff ects envisioned tive director at Gay & Lesbian Advo- While Wu recognizes the need for by their authors. “Legal victories cates & Defenders, the end goal of the balance and the important religious are great,” says Wu. “But they’re just LGBT movement is “to create a world liberty protections ingrained in words on paper unless they make a real where our community isn’t treated as the Constitution, he warns against diff erence in people’s lives.”

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CHAI FELDBLUM ’85 believes that in addition to eff orts on DOUGLAS NEJAIME ’03 sees LGBT rights other fronts, Congress needs to pass an omnibus LGBT as intertwined with other concerns such as civil rights bill in the mold of the Civil Rights Act of 1964. poverty and discrimination.

PETER RENN ’06 fears that “because we’ve won gay mar- JANSON WU ’03 sees the end goal of the LGBT movement riage, ... people will believe the fi ction that the fi ght is over as creating “a world where our community isn’t treated as and people can pick up their tents and go home.” untouchable or unspeakable in certain contexts.”

Photographs by (clockwise from top left): BROOKS KRAFT, AMANDA FRIEDMAN, WEBB CHAPPELL, AMANDA FRIEDMAN

14-48_HarvardLawBulletin_FA15_v4_r1.indd 35 9/28/15 4:58 PM BEYOND OBERGEFELL Religious Liberties Proponents Survey the New Landscape

ONE YEAR AFTER a major Virginia, opponents of same-sex ’81, a Princeton University professor win in Burwell v. Hobby marriage base their opposition on and recent visiting professor at HLS, Lobby, advocates for “decent and honorable religious or see Obergefell as another in a line of philosophical premises.” cases, including Roe v. Wade, in which religious accommodation Religious exemptions, according the Court overstepped its bounds and fear Obergefell could herald to Rassbach, are thus a question decided an issue better left to voters. a narrowing of space for of religious liberty, not blanket Although he hopes that the political those who oppose same-sex discrimination. He rejects what tide will change and the decision he calls the red herring arguments will be reversed or overturned by marriage to express their involving “lunch counter” discrim- constitutional amendment, he says views and could lead to a ination, whereby owners of private that the bigger battles in the coming trampling of their beliefs. businesses could refuse to serve years are likely to involve the tension customers they know or suspect to be between LGBT and religious rights. ERIC RASSBACH ’99 OF THE BECKET LGBT. Nobody, he believes, is really For example, George argues, those Fund for Religious Liberty, which fi led arguing for such a broad right to refuse who seek to restrict religious liberty an amicus brief in Obergefell urging service. Instead, he says, the real, exemptions only to “religious ac- the Court to leave room in its decision thornier debate involves free speech tivities,” and not to secular actions for religious rights, was heartened by rights and participation in same-sex performed in religious institutions, at least one aspect of Justice Anthony marriage ceremonies themselves, misunderstand the nature of reli- Kennedy’s majority opinion. Kennedy citing the common examples of bakers gious institutions. “Religious people ’61 signaled that the Court seemed to and wedding photographers who cannot draw that distinction,” he says. understand that, unlike the racists oppose same-sex marriage. “They see religion pertaining to the who defended the anti-miscegenation Strong opponents of same-sex whole of life, especially when it’s the statutes overturned in Loving v. marriage, such as Robert P. George life of a religious institution.” Among

ROBERT VISCHER ’96 calls for more ERIC RASSBACH ’99 says religious ROBERT GEORGE ’81 believes the nuanced conversations about the exemptions are a question of reli- Court overstepped its bounds in scope of religious liberties. gious liberty, not discrimination. Obergefell as in Roe v. Wade. MIKE EKERN, BROOKS KRAFT BROOKS MIKE EKERN,

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other concerns, George cited the possibility that religious organi- zations might lose tax-exempt status if they fail to accommo- RELIGIOUS ACCOMMODATION IN THE date same-sex marriage. AGE OF CIVIL RIGHTS Although litigation and legisla- tion involving religious rights are A major conference leads to scholarship exploring divergent views quickly moving through courts and legislatures, Robert Vischer “I HAVE BEEN a gay remember that this customers are not ’96, dean of the University of St. In April 2014, at rights advocate tension is among harmed.” Thomas School of Law and a fre- a conference held at HLS, “Reli- for more than 25 civil rights claims.” —ELIZABETH quent author on religious rights years. Here in this —RICHARD W. SEPPER, associate issues, agreed that many of the gious Accommo- article, for the GARNETT, professor professor, upcoming battles will likely be dation in the Age fi rst time, I make of law and of Washington political science, University School cultural as much as legal. He of Civil Rights,” common cause University of Notre of Law, “Gendering believes opponents of same-sex panelists artic- with my longtime adversaries. I have Dame, “Religious Corporate marriage have overrelied on ulated tensions within constitu- worked very hard Accommodations Conscience,” traditional characterizations and—and Harvard Journal of tional and stat- to create a regime of marriage that have long been in which it’s safe to Among—Civil Law and Gender eroded by the rise of no-fault utory civil rights be gay. I would also Rights: Separation, divorce and the “cultural cheap- commitments. like that regime Toleration, and “ONE DEFENDER OF Accommodation,” ening of marriage.” In the after- Scholarship to be one that’s accommodations safe for religious Southern describes them math of Obergefell, Vischer ex- stemming from the conference dissenters.” California Law in these terms: pects to see social conservatives Review was published —ANDREW ‘Religious people focus on bolstering the tradi- profes- are subject to two this year in KOPPELMAN, tional institution of marriage—a sor, Northwestern “DISCRIMINATION sets of sometimes goal separate from eradicating special issues of Law School, “Gay represents a seri- competing obli- same-sex marriage, which he three journals: Rights, Religious ous harm in its own gations; a secular Accommodations, thinks is politically unlikely. For the Southern right—regardless government that and the Purposes of of the availability is decently modest example, he said, states may see California Law Review, the Antidiscrimination of alternatives. A about its own a potential uptick in laws such as Law,” Southern Harvard Jour- black person made pretensions will try those in Arkansas, Arizona and California Law to sit at the back of to accommodate Louisiana that allow couples to nal of Law and Review the bus is harmed, those allegiances if enter into “covenant marriages,” Gender, and the though he arrives it can.’ A statement which limit the grounds available Harvard Law and “IF ‘RELIGIOUS at his destination. I once heard at a for divorce. Policy Review. liberty’ does not A woman denied conference on reli- In these issues, include a ‘right to employment gious liberty from More importantly, post- discriminate’ then, on the basis of the Mennonite Obergefell, Vischer looks forward authors with divergent views obviously, there is sex is not made theologian John to more nuanced conversations very little confl ict whole, though she Howard Yoder sug- regarding the scope and limits of explore how best between ‘religious secures a posi- gests a response. religious liberties. Until now, he to respect both liberty’ and tion elsewhere. A As I recall the said, arguments have cut clean religious freedom antidiscrimination same-sex couple statement, Yoder laws. But, in fact, refused service by said, ‘It’s not the lines, with those who favor same- and guarantees religious liberty one bakery suff ers Christian’s role to sex marriage arguing, almost of individual equality and dig- does sometimes injury, though a tell Satan how to do automatically, that religious second bakery will his job,’ the refer- nity in intimate include a right to liberty exemptions ought to be discriminate in serve them. By ent of ‘Satan’ being limited, and those who oppose relationships. ways that would the logic of Hobby ‘the government.’” same-sex marriage arguing Excerpts from otherwise violate Lobby, however, —HLS PROFESSOR the opposite. “These are hard several of the civil rights laws. any time a state MARK TUSHNET, ... Although it or private entity “Accommodation issues, and as a country, if we’re articles follow. —E.N. cannot plausibly fi lls the gap caused of Religion 30 going to continue to care about be defi ned away or by a business’s Years On,” Harvard religious liberty, we have to take declared illusory, it discriminatory Journal of Law and the question seriously and avoid is still crucial to denial of statutory Gender these simplistic, black-and-white rights, its employ- responses,” Vischer said. ees and would-be

Fall 2015 HARVARD LAW BULLETIN 37 CVideo of the “Religious Accommodation in the Age of Civil Rights” conference: bit.ly/HLSConference

14-48_HarvardLawBulletin_FA15_v4_r1.indd 37 9/28/15 4:59 PM GETTING TO OBERGEFELL Evan Wolfson Rests His Case

AT 10 A.M. ON FRIDAY, JUNE 26, Evan Wolfson ’83 sat tied to his phone, repeatedly refreshing SCOTUSblog and Twitter.

He was surrounded, as he had been for days, by fellow staff members in a Manhat- tan conference room at the offi ce of Freedom to Marry, the national advocacy group he had founded in 2003. Suddenly, the news broke. Justice Anthony Kennedy ’61 was reading the major- ity opinion in Obergefell v. Hodges, the decision hold- ing that same-sex couples have a constitutional right to marry in all 50 states. Cheers erupted and cham- pagne bottles popped open. Wolfson retired to his offi ce to read the opinion in full, and was surprised to fi nd EVAN WOLFSON himself in tears. Thirty-two , founder of Freedom to Marry, has been years had passed since he arguing for a right to same-sex marriage for 32 years. wrote a paper as a student at Harvard Law School arguing for the right to same-sex marriage, all, including same-sex couples. Nelson, the only Supreme Court case and two decades since he had served Wolfson was not the fi rst to explore on the matter pre-Obergefell—present as co-counsel in the fi rst state case to this topic. Three years earlier, the “a substantial federal question.” gain real traction for that right. The Harvard Law Review had published While for Wolfson, working on legal battle was over. He was fi nally, “The Right to Join a Family: Tradi- his paper was a personally profound gloriously, out of a job. tional Marriage and the Alternatives,” experience melding law, history, To call the legal and cultural battle a student note setting out possible culture, and political thought, he was for same-sex marriage Wolfson’s life- constitutional arguments in favor of met with mostly benign skepticism work is no exaggeration (presuming same-sex marriage, notably that mar- and indiff erence. He needed a faculty that for attorneys, life really begins in riage is a fundamental right that the supervisor and was turned down by law school). At Harvard Law, in his 3L state lacks a suffi ciently important in- the obvious candidates, professors paper—the thesis then required for terest to deny. Indeed, Wolfson wrote whose work directly involved issues graduation—he developed an interdis- his paper 10 years after the fi rst cases of family law, constitutional law and ciplinary argument for understanding made their way through American even LGBT rights. Some thought the marriage as a human, individual right courts seeking a right to marry, and subject too trivial or, as the Baker guaranteed by the U.S. Constitution to failing to—as in the words of Baker v. Court had put it, too insubstantial,

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to serve as a capstone to three years of By Wolfson’s third year, a photo ap- hands with Koukoutchos and Michael law school. Others found the topic not pears with IDs—but only a fraction of Hardwick, the ultimately losing plain- nearly radical enough, as it advocated COGLLI members were pictured, and tiff , as Tribe faced questions from the for a traditional relationship that Wolfson was not among them. justices comparing sodomy to incest many feminist thinkers at the time One student smiling in the 1983 and bigamy. opposed. Finally, Wolfson approached photo, however, was Wolfson’s close In 1996, Wolfson and the movement Professor David Westfall ’50, an expert friend Brian Koukoutchos ’83. He was enjoyed a brief win when a Hawaii on family law and trusts and estates, a double rarity—a student who was lower court held, in Baehr v. Miike, who agreed to oversee his work. willing to be a public face for that the state had no rational reason Wolfson thought of Professor COGLLI, and a heterosexual member to deny marriage licenses to same-sex Westfall as a very “bread and butter” of the group. Koukoutchos felt he was couples under the state constitution, man—not edgy at all. He is sure that essentially immune from attack, but only to fall back again when Hawaii the paper Westfall ultimately received he remembers walking into on-campus passed a constitutional amendment was not the one he was expecting— job interviews and being met with hos- to prevent same-sex marriage and relatively brief in its exploration of tility. When he asked if there was an the U.S. Congress responded with the law, and sweeping in its engagement issue with COGLLI, the sole extracur- Defense of Marriage Act. In 2000, with questions of gay history and ricular activity listed on his resume, he Wolfson argued before the Court in Boy Scouts of America v. Dale, in which the Court ultimately decided that the Boy Scouts had a First Amend- If they lost Obergefell, they would pick up the ment right to exclude openly gay men. pieces and start again. Wolfson was ready for that. Fifteen years later, as Wolfson sat in his offi ce—months away from fi nally “But, boy, was I glad not to have to,” he said. shutting its doors for good—reading the Kennedy opinion, he was fl ood- ed with memories of conversations social change. Wolfson admits he was faced an uncomfortable silence—and a he had had over the years with the disappointed to receive a B. Years quick end to the interviews. pioneers of a right to marry, the men later, however, he was tickled to read In Wolfson’s years at Harvard, and women who had brought cases Westfall interviewed about him saying COGLLI became increasingly polit- throughout the ’70s and ’80s. They laid simply, “It’s so refreshing to see a ically active. One project involved the groundwork for him and for other student apply something he learned in questioning employers who planned to advocates such as Mary Bonauto, the law school.” interview at HLS about whether they movement’s lead lawyer in Obergefell. Observers, including the dissenters would abide by Harvard’s nondiscrim- Everything they had been arguing in Obergefell, often note that the LGBT ination policy. And at a time when for—the language of dignity and core, movement has seen swift change. To- student identity groups frequently basic humanity—appeared on the day, HLS’s LGBT student group Lamb- sponsored moot courts, COGLLI screen before him in the majority da boasts more than 100 members. A joined in with its own, focusing on opinion. At fi rst, he thought that was yearly career fair at the Lavender Law issues involving LGBT rights. what had made him so uncharacter- conference draws over 130 law fi rm Wolfson never published his paper, istically emotional. But mostly, he recruiters seeking LGBT lawyers. but in 2004, he published a book, realized afterward, he was relieved. By comparison, in 1981, three “Why Marriage Matters: America, For decades, Wolfson had been Mr. years after the founding of HLS’s fi rst Equality, and Gay People’s Right to Marriage (he was married himself, LGBT group, the Committee on Gay & Marry,” that drew heavily on themes to Cheng He, in 2011). Wolfson never Lesbian Legal Issues, or COGLLI, was he had fi rst explored 20 years prior. By doubted that the marriage movement represented in the law school yearbook then, despite an upswing in support would eventually prevail, but it was for the fi rst time. Beneath the photo for LGBT rights, he had endured a easy to overlook, on such a jubilant of six men and two women, a caption career fi lled with painful losses. day, how many losses the movement states that the members chose to After law school, he worked with had suff ered on the way. On the dark- appear “after careful consideration of Koukoutchos, who pursued a career est of days, he would rally the troops the possible personal and professional in appellate litigation, and Profes- and make speeches about moving ramifi cations, to give expression to sor Laurence H. Tribe ’66 on Bowers forward. He knew that if they lost the eff orts of those who fi ght unjust v. Hardwick, a case that ultimately Obergefell , they would pick up the piec- discrimination on all fronts, especially upheld a Georgia anti-sodomy law. In es and start again. “I was ready for that with regard to the right to love.” The 1986, he sat in the audience of the Su- if I had to do it,” he said. “But, boy, was caption includes no student names. preme Court’s oral arguments, holding I glad not to have to.” —LANA BIRBRAIR

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Change is coming to the legal profession—whether attorneys like it or not— and HLS is at the forefront of efforts to anticipate it, and prepare students

BY ELAINE McARDLE

Illustration by OLIVER MUNDAY

41 Harvard Law Bulletin Fall 2015

14-48_HarvardLawBulletin_FA15_v4_r1.indd 41 9/28/15 5:01 PM THE WARNING BELLS have been ringing for at least two and organization are radically transformed in a decades: The legal profession as we’ve known it is relatively short period of time, when new com- doomed, and lawyers must adapt—or face extinction. petitors arrive to off er low-cost alternatives at the bottom end of the market. The incumbents ig- For the most part, these dire predictions have been nore these upstarts—until the disruptors become ignored, even as globalization and technology have the norm and the old guard adapts or is replaced. revolutionized markets, aff ecting everything from Personal computers replacing mainframes, airline travel to taxicabs. Yes, law fi rms have been cellphones replacing landlines, retail medical clinics replacing traditional doctors’ offi ces, and outsourcing legal research to India, and electronic Uber replacing taxis are important examples, discovery is taking over some basic tasks. But lawyers Wilkins says. The legal market—which has main- have tended to see themselves as immune: a guild of tained some of the highest profi t margins for highly educated advisers whose wisdom, savvy and professional service businesses—faces the same challenge. Legal information is being digitized, deep understanding of a complex series of laws are and low-level tasks are being outsourced. Now irreplaceable. the inspiration aspect of legal work—the solv- ing of complex problems—could soon be facing Then a computer named Watson beat a human competition from sophisticated computers. on “Jeopardy!” Now all bets are off . Meanwhile, consumers are turning eagerly to Watson’s victory showed that artifi cial in- low-priced alternatives to traditional lawyering, telligence can master what was considered a such as online divorces and wills, and new online uniquely human realm: using judgment to select matchmaking services through which lawyers best options after sorting through huge amounts can compete for clients—like Uber, but for law. of complex information communicated in real Avvo, a tech-savvy method making it easier and language. Cancer doctors from the nation’s top cheaper for people to get legal advice, was found- research institutions were among the fi rst to ed by Mark Britton, the fi rst general counsel for recognize the broad implications. Today, they are Expedia, which revolutionized travel planning. working with the IBM Watson proj- Shake, a new technology that provides consum- ect to sort through massive amounts ers with online contracts, legal advice and other The inspiration of data to try to fi nd new ways to legal services for free—or at very low prices—has aspect of legal work diagnose and cure the disease. If a this mission statement: The “legal market is computer can displace doctors—or huge, ineffi cient, underserved by technology, and could soon face at least, signifi cant aspects of what begging for change.” doctors do—who’s next? High-end lawyering won’t be immune, since competition from In fact, lawyers may be far more clients there, too, are looking for alternatives. computers. susceptible than physicians, says Indeed, Legal OnRamp, a virtual informa- Harvard Law Professor David B. tion-sharing platform for lawyers launched six Wilkins ’80, vice dean for global ini- years ago, is working with the IBM Watson proj- tiatives on the legal profession. As a rules-based ect and major banks to fi gure out how Watson can system, law is similar to chess, he notes, in which help banks analyze tens of thousands of deriv- Watson’s predecessor, Deep Blue, prevailed 14 ative contracts in order to respond to the “too years earlier, beating the world chess champion. complex to manage” challenge, says Paul Lippe “The Watson people say, ‘We won’t replace doc- ’84, Legal OnRamp’s CEO. That collaboration tors or lawyers; we’ll just help them be more ef- sprang from a summit of representatives from fective,’” Wilkins laughs, adding, “But of course, banks and major law fi rms in July, which itself they will replace some doctors and lawyers.” The grew out of a 2014 HLS conference, “Disruptive question, he says, is which kinds of lawyers, and Innovation in the Market for Legal Services,” how big a share of the legal market? sponsored by the Center on the Legal Profes- Because of technology, globalization and other sion, Lippe says. At the same time, a leading major market pressures, “law is ripe for disrup- New York law fi rm is working with OnRamp to tion,” says Wilkins, faculty director of the HLS “Watson-ify” some of its large M&A client en- Center on the Legal Profession, which is a leader gagements. “No one is looking to ‘disrupt’ per se,” in research and analysis in this area. Lippe says, “just fi nd ways to manage work better Disruptive innovation, a term coined by Clay- in a complex world.” ton Christensen, a professor at Harvard Business The relative resistance to innovative tech- School, occurs when existing patterns of work nology is seen as cultural or structural, “but it

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actually is a fi nite phenomenon that arises from the low- and middle-income consumers who will There will the market dynamics of the last 30 or 40 years,” fi nally have access to aff ordable legal services always be a space for says Lippe. As those dynamics shift dramatically, through these new alternatives, he says. sophisticated so does the imperative to innovate. These changes also mean a shift in the way legal services, Indeed, since the fi nancial crisis of 2008, all law is taught. “We need to teach students how to says Professor David Wilkins. clients—especially general counsel at major unbundle legal problems and collaborate across “The question companies—have had more market power than organizational boundaries with other providers, is how big that ever, “and they aren’t likely to give it back,” says which is the biggest challenge,” Wilkins says. space will be and how many Scott Westfahl ’88, HLS professor of practice and “We have to work across divides, including with will be in it.” faculty director of Executive Education. the disruptors themselves.” ▲ “The leverage is now all with clients,” agrees Romeen Sheth ’15, who this year won an inter- Eyes on the Profession national competition in legal innovation by No one should be surprised by the rise of new designing a cloud-based system for managing forms of competition to traditional legal ser- M&A work. vices, says Wilkins, who has been studying the In other words, lawyers not only have the legal profession for 30 years. Yet many lawyers, capacity to adapt—they have to, at all levels of he says—including at sophisticated law fi rms— the profession. While these legal disruptors remain quite unaware, or unconvinced. “I fi nd currently are focusing on the easiest targets, such when I talk about this, particularly to people who as legal research, “eventually they will go on to are not quite in the middle of it anymore, they other things,” says Wilkins. The implications are are stunned,” he adds. “They have no idea what’s huge not just for Big Law but for lawyers across going on.” the spectrum, including the 80 percent in the The Center on the Legal Profession is focusing U.S., in small fi rms or solo practice, who will signifi cant resources on disruptive innovation have to fi gure out new ways to off er services at in the legal market, with data-driven research; lower costs. Some of the biggest winners may be publications including its digital magazine, The

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14-48_HarvardLawBulletin_FA15_v4.indd 43 9/25/15 11:47 AM particularly where consumers are less sophisti- cated about the quality” of what they’re getting, Wilkins says. The center is working to develop better ways to evaluate the quality of lawyering. “None of this means that law fi rms are going to disappear, I don’t think,” says Wilkins. “But I do believe there’s a signifi cant amount of change coming and we shouldn’t be surprised—because we’ll just be seeing in law the kind of change we’ve been seeing in the rest of the economy.”

Innovation Training In the new economy, Westfahl believes, collabo- ration is among the most important skills. Last spring he launched a new team-based course at JESSICA SCRANTON JESSICA HLS, Innovation in Legal Education and Prac- Scott Westfahl Practice; executive education; and the convening tice. ’88 launched a of top thought leaders from around the world. Drawing from other disciplines, including new team- based course Last year’s conference on disruption included neuroscience and psychology, Westfahl modeled at HLS, Inno- Christensen and others leaders, such as Mike the course on the work of Michele DeStefano ’02, vation in Legal Rhodin, senior vice president of the IBM Watson a professor at the University of Miami School Education and Practice. project. of Law, who is a visiting professor at HLS this ▲ Wilkins expects disruption at all levels of the academic year. The course teaches students how legal world. But unlike some others, “I don’t to design and maintain eff ective teams, requiring think we’ll see the death of Big Law because there them to work to identify challenges in the legal will always be a space for sophisticated legal ser- world and come up with solutions. Among team vices,” he says. However, “the question is how big proposals were a better mentoring program for that space will be and how many will be in it. For new HLS students, and a means to encourage high-priced, high-profi t-margin work, how much mindfulness meditation training at law fi rms in of that could be done by other providers?” order to lower stress and increase error-free pro- There is plenty of opportunity for lawyers who ductivity. Class participants say the collaborative are willing to adapt: Megafi rm Morgan Lewis, approach has been a liberating experience. for example, has developed its own electronic “Students in law school are taught to be apex discovery department so clients won’t go else- predators, alone and armed to the teeth against where for that aspect of services. everyone else. But these days, that is [neither] a Lawyers willing to make these kinds feasible way to build a practice nor how the law The HLS Center on of innovations themselves have a works,” says Caitlin Hewes ’15, who was part of natural advantage because the legal a team that designed ways to make the 3L year the Legal Profession disruptors haven’t yet really fi gured more effi cient and useful. is exploring better out the legal market, Wilkins says. With 80 percent of students entering HLS with “They’re a bunch of hammers look- at least a year of work experience after college in ways to evaluate the ing for nails. They equate everything a wide variety of settings, “we need to leverage we say about the distinctiveness of that experience,” says Westfahl. “It’s a huge gift quality of lawyering. practicing law as protectionism, but to the law school to have all these people here I don’t think that’s true. Lawyers are together.” not exactly like taxicabs, which can be replaced “The skills involved in being able to come up by Uber”—although, he warns, “they’re a lot more with an innovative proposal, to make a compel- like cabs than lawyers want to think.” ling presentation as a team in front of real-world, Without a good way to evaluate legal work, con- critical judges—that’s what law students will be sumers may see no diff erence between fi lling out called upon to do later in life, and the majority of an online contract and getting the guidance of an them will need those skills,” says Westfahl. “We experienced lawyer. “The disruptors are mostly haven’t traditionally helped law students under- trying to measure quality in the same way Uber stand how to work eff ectively in teams; [this is] does, which is through customer satisfaction. unlike business schools, where teamwork and That’s not irrelevant but it’s a very crude mea- building networks are seen as a central part of sure of quality and might work less well in law, the educational process.”

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14-48_HarvardLawBulletin_FA15_v4_r1.indd 44 9/28/15 5:02 PM Michele DeStefano ’02, a visiting pro- fessor at HLS this year, is the creator of Law- WithoutWalls, an innovation space for law students and lawyers. ◀ JESSICA SCRANTON JESSICA

Law schools could make real strides by adding As Westfahl notes, innovation is not some- a business-case-type problem into torts, civil thing many lawyers are trained to foster, however procedure, and other classes, he says, “so we much they believe they are: “A managing partner could build skills without sacrifi cing traditional will call in the professional development people educational and critical legal thinking, which we and say, ‘We really need to do something inno- do well and shouldn’t give up.” He and Wilkins vative on how we recruit. What’s everyone else are two of the seven instructors for the HLS Prob- doing?’” lem Solving Workshop, which uses such methods Disruptive innovation is not limited to Big and is required of all J.D. students. Law and servicing corporate clients, Westfahl Westfahl also draws on his experience heading emphasizes; he, like Wilkins, sees enormous up Executive Education at HLS, where manag- potential for solving a broad range of law-related ing partners at major law fi rms and other legal problems, including access to justice for low- leaders exchange ideas and gain cutting-edge income people. exposure to the world of disruption and inno- Some HLS clinics are already exploring that vation. “How do you rally your team? How do potential. The HLS Cyberlaw Clinic, for example, you work with others in the business to get to has been assisting the Massachusetts Supreme the right answer?” asks Fred Headon, assistant Judicial Court as it seeks to leverage new technol- general counsel for labour and employment law ogies to help people, including pro se litigants, at Air Canada, and chair of the Canadian Bar As- navigate the legal system. sociation Legal Futures Initiative, who recently “I’m excited,” says Westfahl. “The evidence is took the HLS executive education course. “That’s right in front of us, that if we help students and a skill set that’s crucial to successfully practicing lawyers to work together more collaboratively, but is something that doesn’t really show up on to understand how to work in teams and how to the curriculum of most law schools.” drive innovation together, our graduates and the

Fall 2015 HARVARD LAW BULLETIN 45

14-48_HarvardLawBulletin_FA15_v4.indd 45 9/25/15 11:47 AM Gender lawyers who come to our programs will have so much more impact on the world.” Thinking Outside the Walls STUDY In the fall of 2010, frustrated by how slowly the legal world was responding to the fast-paced changes swirling around it, Michele DeStefano ’02 launched an innovation space for law stu- A new HLS report charts dents and lawyers. “I felt that the world was changing but the law progress and obstacles market, legal educators and lawyers were not for women in the law changing to meet the 21st-century marketplace,” she says. Her creation, LawWithoutWalls, a kind of “American Idol” meets “Shark Tank,” has grown from 23 students each year to 100, from an initial Since Harvard Law School fi rst admitted group of six law schools (HLS among them) to 30 women in 1950, the school has progressed law and business schools. It now comprises 750 toward gender parity in admissions, with “change agents”—academics, lawyers, multina- the Class of 2017 the fi rst to be 50 percent tional business professionals, venture capitalists female. and others—in a global “collaboratory” dedicated Yet among HLS graduates who work at law to innovating the future of legal education and fi rms, men are signifi cantly more likely to be practice, DeStefano says. equity partners and to be in positions of lead- “There’s nothing else like it, and that’s what ership than their female classmates—even makes LawWithoutWalls so rewarding—that I though women work more hours, on average. can be a catalyst for change,” she says. “I help Women experience signifi cantly more work- students fi nd their passion that was either buried place consequences, including loss of senior- or that they didn’t think they could ity, as a result of having a child, and twice as apply to law.” Students who apply are many female partners as male partners do not Law students have selected because they can add value have children. The percentage of male law traditionally been to the collaboratory and can benefi t partners who are married far outpaces the from it—their law school grades percentage of female partners. taught to be “apex aren’t even considered, she empha- These are among the provocative fi ndings sizes. of the fi rst systematic empirical study of predators, alone and Combination hackathon, con- the career trajectories of HLS graduates, armed to the teeth.” ference, webinar, and professional conducted by the HLS Center on the Legal network, LawWithoutWalls convenes Profession. Begun with a grant from a group students from around the world of HLS alumnae, the study examined data and places them in teams with a broad base of collected in 2009-2010 from four HLS mentors: lawyers, academics, businesspeople. classes and was released this year as “The It charges them with identifying a problem in Women and Men of Harvard Law School: Pre- legal education or practice and gives them four liminary Results from the HLS Career Study” months to create a business plan for a startup (see bit.ly/HLScareer2015). that would solve that problem. It kicks off with “These fi ndings are especially important interactive exercises to foster idea generation because they underscore that even wom- and teamwork; then, using the latest technol- en who have all of the same educational ogies, teams e-meet every week. Finally, they credentials as their male peers continue to present their proposals before a panel of multi- experience important diff erences in career disciplinary judges including venture capitalists. outcomes, particularly in obtaining leadership LawWithoutWalls teaches skills not empha- positions in private law fi rms,” says David B. sized in traditional law classes or executive edu- Wilkins ’80, vice dean for global initiatives on cation courses, including cultural competency, the legal profession and faculty director of the teamwork, presentation skills, communication, center, who co-wrote the study with Bryon project management and leadership, says DeSte- Fong, the center’s assistant research director, fano, who worked for eight years in the business and Ronit Dinovitzer, associate professor of world before attending HLS and helped the →48 sociology at the University of Toronto.

46 HARVARD LAW BULLETIN Fall 2015

14-48_HarvardLawBulletin_FA15_v4.indd 46 9/25/15 11:47 AM Factors of Satisfaction—Across Employment Sectors man—it is made for a man who has a wife who does not work,” Wilkins says. “These patterns of work, organization, and advancement will 0.3 MALE FEMALE have to change signifi cantly in the coming years if the legal profession is to continue to 0.2 0.159 attract and retain the quantity and quality of 0.121 talented lawyers that clients and society will 0.1 need to tackle the complex legal problems of 0.003 the 21st century.” 0 Both women and men report extremely -0.017 high levels of satisfaction with their decision -0.1 -0.075 to attend law school and with their overall careers. But men report being more satisfi ed with the rewards—that is, money—while -0.2 women are satisfi ed with the substance of -0.254 their work. Neither women nor men report be- -0.3 ing particularly satisfi ed with the control they have over their work and personal lives. W Substance of Work W Rewards W Control Among other fi ndings: Students with work experience between col- BOTH MEN AND WOMEN ARE HAPPY TO BE LAWYERS, BUT FOR lege and law school have increasingly become the norm at HLS. DIFFERENT REASONS: Men report being happy with the pay; women, → Just over one-third of HLS graduates enter with the substance of the work. Neither men nor women are particularly happy with the control they have over their work and personal lives. public-sector positions in their fi rst jobs, with women slightly more represented in this sector than men. Even as the legal profession stands at a cohort. The biggest factor appears to be that → Women and men entering the public sec- pivotal point of transformation, the status of men who aren’t practicing law are more likely tor have higher grades in law school than women in the law presents its own complexi- than women to work in business, where their those joining law fi rms. ties. The number of women entering the legal total compensation is far in excess of that of → Across all cohorts, women are signifi cantly fi eld has increased dramatically—with women even highly paid law fi rm peers, it found. more likely to be working part time or not in leadership positions at many major legal Even as women enter the legal profession to be in the paid workforce. institutions, including three female justices in increasing numbers, “the typical career → About a quarter of women and men work- on the U.S. Supreme Court—but the percent- path in the profession is not just made for a ing full time in their current jobs do not age of women in top positions practice law. lags far behind that of men. → Men make higher grades as 1Ls, but that The study’s And women, even those who results were first gap largely disappears with respect to achieve prestigious positions, presented to an cumulative grades. are leaving the legal profession audience of HLS The study examined the careers of HLS alumnae. “in alarming numbers,” the graduates across the past six decades, study found. through surveys of four classes: 1975 (one There wasn’t a large gender of the fi rst classes in which women made up gap in pay between HLS men a signifi cant percentage), 1985, 1995 and and women in their fi rst jobs 2000. To establish a baseline for comparison, out of law school, probably be- it collected data from the 1950s and ’60s cause over 60 percent worked and it used data from admissions records and for law fi rms, where there are transcripts, which was anonymized and re- standardized salaries, accord- ported only in the aggregate. It also compared ing to the study. But there are fi ndings from “After the JD,” an American signifi cant income diff erences Bar Foundation-sponsored longitudinal between men and women in study co-written by Wilkins, which has been their current jobs, with the tracking the professional lives of more than gap narrowest for the Class of 5,000 lawyers, including graduates of many

1985 and largest for the 1995 STEWART MARTHA law schools.

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14-48_HarvardLawBulletin_FA15_v4.indd 47 9/25/15 11:48 AM ←46 / Adaptation

school launch its executive education program. Student as Innovator It has also become a global multidisciplinary net- “If HLS produces one innovative company that work that breaks down barriers between lawyers changes the legal industry, that’s blockbuster and clients, law and business, and professors success. I think the possibility of that happening and students. Its supporters and participants is very, very high.” include major international law fi rms such as So says Romeen Sheth ’15, who someday London-based Eversheds, as well as American may very well do just that. In April, as a 3L, Express and the Ethics Resource Center. Sheth won the international LawWithoutWalls Among its student proposals in the startup competition. His team created CORE—a stage is Advocat, a multilingual computer inter- product that helps law fi rms and in-house face that helps immigrant children in the federal lawyers manage their use of legal process detention system work with their advocates. A outsourcing and better analyze its value—and national leader in advocacy for these they won $25,000 in seed capital to develop it children—there are 70,000 immigrant further. “We have to work child detainees in the U.S. today—is CORE isn’t Sheth’s fi rst legal innovation. across divides, looking to pilot Advocat across the U.S. During his 1L summer at a law fi rm in Atlanta, Another project, the website and app he was perplexed at the incredibly outdated, including with ProBono123, connects law students and ineffi cient way fi rms manage M&A work. “You lawyers with pro bono opportunities and have 150 shareholders signing 10 documents the disruptors tracks and verifi es their hours. each, which they’re sent in an email, and I’m themselves.” In September, LawWithoutWalls keeping them all tracked and collated, marking won the Faculty Innovative Curriculum them off in a Word document—this is a terrible, Award from the International Associa- terrible process! Lawyers hate it, and we’re tion of Law Schools. not billing for it,” he recalls. Calling upon his “I set out to transform the way law and busi- experience in other industries, including with ness professionals partner to solve problems,” hedge funds, which he says are miles ahead of says DeStefano. That transformation starts, she law technologically, Sheth devised a cloud-based believes, with helping today’s law students think project-management system to streamline the diff erently about innovation and creativity in the process and help stakeholders communicate legal world. better, a system he developed at the Venture Incubation Program at the Harvard Innovation Lab. LAWYERS, ETHICS AND CHANGE “This has nothing to do with lawyers wanting to change—it has to do with them wanting to The HLS Center on the at WilmerHale, have a job,” says Sheth, who is now the business Legal Profession has lecturer at HLS, development lead at Ravel Law, a Silicon Valley been looking at ethical and member of the startup that has raised $9.2 million to improve questions for lawyers Harvard Corpora- the analytics behind legal research. “In this in today’s new envi- tion, addressed that economic environment, they have to evolve.” ronment. How does WILKINS question and others in Yet law is a conservative profession, and law adjust to these their article “Lawyers lawyers remain averse to new ideas. In an article changes, asks David as Professionals he wrote for The Practice, Sheth noted that Wilkins, the center’s and as Citizens: Key legal startups aren’t thriving: Investment in faculty director, “while Roles and Respon- them declined sharply last year after attracting preserving the core sibilities in the 21st $150 million in 2013. Among the barriers was commitment of Century” (see bit.ly/ that lawyers tend to want an idea to be fully law as a public HEINEMAN CLPessay2015). They developed before they’ll invest in it, which profession?” Wilkins, presented the paper precludes the iterative development that with Ben W. Heineman at an April conference leads to startup success. And the billable hour Jr., Distinguished hosted by the center, incentivizes ineffi ciency, so technology that Senior Fellow at the which was attended reduces it eats into the bottom line. center and former by a range of law Despite the obstacles, “I think in the next general counsel of fi rm leaders, general fi ve to 10 years, the legal industry is going to General Electric; and counsel and legal dramatically change,” says Sheth. “To me, it’s LEE William F. Lee, partner academics. a no-brainer—this industry will be completely turned on its head.”

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EUROPEAN PRESSPHOTO AGENCY A SUPREMEOPERA Ginsburg ’56-’58Ginsburg andAntoninScalia’60, time centerstage—this onceagaintook 2014-2015last opinionfor the wordsoftwo term,the justices, ofits Bader Ruth ning.) miere wasJustice herself. Ginsburg (The realJustice eve- ScaliawasinRomethat decisions,on their diff their unoffi the (sopranoEllenWieser).Ginsburg It’s “an called been aff Justice adversary intellectual assistanceofhiscolleagueandfrequent the so with byMozart’s trials(inspired ries ofsupernatural “The MagicFlute”), andhedoes ase- bytenorJohn hastopassthrough above) Overholt,pictured lia (portrayed Festival Castleton the County, inRappahannock onJuly Virginia, 11. Justice Sca- singers. ofopera mouths outofthe coming They attend together, often opera audiencefor pre- inthe the those andamong “Scalia/Ginsburg,” Wang, byDerrick acomicopera its worldpremiereat had cial leaders of [the Court’s] of[the cial leaders wings,” andliberal conservative anddraws Just U.S. the two after about weeks its issued SupremeCourt ering views of the Constitution—and their friendship. their Constitution—and views ofthe ering ectionate, comic at ectionate, look 9/28/15 5:35 PM 49-63_HarvardLawBulletin_FA15.indd 50 9/25/15 12:00 PM PROFILE

A PASSION FOR REFORM Jeff Robinson wants you to be uncomfortable with mass incarceration in the U.S.

Jeff Robinson ’81 worked as a After 34 years as a Seattle criminal defense lawyer criminal defense for 34 years—a span of time that, attorney, Jeff he notes, “basically coincided Robinson is the new director of the with the largest increase in our ACLU’s Center for incarcerated population in the Justice. history of the United States.” Now, as the newly appointed director of the ACLU’s Center for Justice—a job previously held by Vanita Gupta, the Justice Department’s top civil rights lawyer—he will be tackling that metastasis head-on. The 59-year-old’s passion for criminal defense ignited after he attended, at age 11, a march led by Dr. Martin Luther King Jr.—just a week before his assassination— in Robinson’s hometown of Mem- phis, Tennessee. The march “end- ed in violence,” and Robinson’s tried more than 15 civil cases just the system’s “front end”— don’t behave like it is.” father—a school principal and but “99 percent” of his work was challenging everything from Robinson hopes to help change lifelong educator who later moved criminal defense. During those foundational “economic justice” the policies with which America the family to a white area and sat decades, America became the to jurisdictions that force public answers that question through in the driveway with a shotgun world’s most incarcerated nation, defenders to fi eld 700-plus cases a combination of litigation, across his lap for several nights with just 5 percent of the earth’s per year—but also how people advocacy and education. While to stare down hostile neighbors— population but 25 percent of its are treated in prison, and what acknowledging that people took him to court to see the ar- prisoners. And that incarceration opportunities are available upon should expect plenty of the fi rst rested marchers’ hearings. “I saw boom, Robinson notes, has been release. “The majority of people two—“The ACLU has never been these guys called criminal defense far from colorblind. who go to prison are coming afraid to litigate our cases,” he lawyers who seemed to come out “If a federal law-enforcement out,” Robinson points out. “So, says with a smile—he seems of nowhere, and they were making agent came and said, ‘I know that how would you like for them to especially excited about the new these arguments, and saying how black people and white people have been treated in prison when job’s educational opportunities. the police were wrong for what smoke marijuana at about the that happens? Would you like “These are problems that we they did,” Robinson recalls. “And I same rate, and I know there are them to have been in a system can solve,” Robinson says of the came out of the courtroom asking, more white people than black where they were abused, given no panoply of wrongs that attend Who are those guys, and how do people, so there’s many more education, physically and mentally American mass incarceration. “It’s you be one of them?” white people smoking marijuana terrorized—and then the doors just going to take getting uncom- Robinson never wavered. He than black people, but I want to open and it’s ‘Good luck’? Or fortable enough.” came to HLS set on criminal arrest black people at rates four to would you like to see somebody “You know, if I put enough itch defense, and accepted an off er fi ve times higher than white peo- who has been treated humanely powder on your arm, at some point after his 2L summer to work as ple, just so that we can get them and with respect and who actually you will scratch it,” he continues. a King County public defender into the criminal justice system,’ now has a chance to improve “And so that may be part of the in Seattle. After fi ve years there that person would be rejected in himself by coming back into the nature of my job: to go around the and another three as an assistant every state in the country,” Robin- community with a chance to be a country with a big old can of itch federal defender for the Western son observes. “But that’s exactly success?” powder, and keep throwing it on District of Washington, he entered what we’ve done.” “That seems to me a very people until they’re ready to start private practice at Schroeter At the ACLU, which he joined in simple question with a very simple scratching.” Goldmark & Bender, where he September, Robinson attacks not answer,” Robinson says. “But we — MICHAEL ZUCKERMAN ’17

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A LEADER ON NATIONAL SECURITY Adam Schiff has carved a niche as the top Intelligence Committee Democrat

The most likely place to fi nd whether the one approved by Congressman Adam Schiff Congress in 2001 after the ’85 these days is in a suite 9/11 terror attacks is appli- of windowless offi ces three cable to the newer threat. fl oors below the Capitol. Schiff ’s role as a leading Schiff can’t discuss much voice on national security of what he reviews in this for congressional Democrats underground “bunker” when was previously fi lled by Jane he speaks with constituents Harman ’69, another South- back in his Southern Cali- ern Californian who served fornia district—or even with as top Democrat on the most of his own staff . Such Intelligence Committee, said is the routine since he be- Michael Genovese, a political came the top Democrat on science professor at Loyola the House Permanent Select Marymount University in Los U.S. Rep. Adam Committee on Intelligence in Schiff says his Angeles. January. work on national “He’s not fl ashy, he’s not “It’s deeply interesting, security is “deeply bombastic, he might not interesting but very but also very isolating and isolating.” be the most charismatic very time-consuming,” person,” said Genovese, Schiff said. “But given the “but he’s demonstrated very broad array of threats to the prudent judgment, and he’s country these days—from ISIS and all my poli sci friends thought He landed seats on the a very solid source for what Dem- and Al Qaeda to a newly aggres- I made the wrong decision, and International Relations and ocrats are thinking about national sive and expansionist Russia to an then I went into politics and Judiciary Committees. His security issues.” ascendant China to Iran negoti- everyone thought I screwed up,” priorities included intellectual Beyond national security, Schiff ations—there’s no shortage of a Schiff joked. property rights—an issue has taken up the cause of getting need for good intelligence.” He worked as an assistant U.S. of particular interest to the Turkey to recognize the Arme- After 15 years in Congress, attorney for six years in California, Hollywood studios within his nian genocide, learning enough Schiff has emerged as a leading where he prosecuted an FBI agent district—and juvenile justice. His Armenian to deliver a speech in Democratic voice on national se- in a sex-for-secrets case. When a experience as an AUSA explains the language on the House fl oor, a curity—not an entirely unexpected fellow prosecutor ran for the state why he was tapped to serve as gesture appreciated in his district, outcome for someone who began Legislature, Schiff said, he started a prosecutor during the 2010 which is home to a large Armenian his career as an assistant U.S. thinking about doing the same. impeachment trial of a federal population. attorney prosecuting an FBI agent In his fourth try for public judge. “It’s a very hot bench,” said Schiff was briefl y mentioned for espionage. offi ce, Schiff won a seat in the Schiff of the panel of 12 senators earlier this year as a potential Schiff wasn’t always certain state Senate in 1996. The Los who heard the case. Senate candidate after Barbara he wanted to be a lawyer. Born Angeles Times named him one of His investigative background Boxer announced plans to retire, in Massachusetts, he grew up in the “stars of the freshman class” also explains why then Speaker news that came the same day he Scottsdale, Arizona, and Alamo, for his ability to negotiate and of the House Nancy Pelosi had was named top Democrat on the California, where his father owned build consensus. (Another Times asked him in 2008 to serve on Intelligence Committee. He said a lumberyard. He considered story labeled him a “tenacious the Intelligence Committee, which he gave a run “serious thought” himself pre-med at Stanford while technocrat.”) was probing the destruction of but was “reluctant to leave” the majoring in political science and In 2000, he defeated Re- CIA interrogation tapes. new post. Still, he’s not entirely wound up taking both the MCAT publican James Rogan, in what He has pushed for the revision ruling out a run for higher offi ce in and LSAT before enrolling at was then the most expensive of the Foreign Intelligence Surveil- the future. Harvard Law School. ever House race, to represent a lance Act and for a new autho- “There will be other opportuni- “All my pre-med friends Southern California district that rization for the use of military ties down the road,” Schiff said. thought I made the right decision, included Burbank and Pasadena. force aimed at ISIS, questioning —SETH STERN ’01

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THE POWER OF THE OUTSIDER As FTC chair, Edith Ramirez has focused on protecting consumers in the age of big data

Edith Ramirez ’92 still considers herself a Washington outsider, even with the fourth-fl oor Penn- sylvania Avenue offi ce provided to the chair of the Federal Trade Commission with views of the Capitol dome and National Gallery of Art. Born in Southern California to Mexican immigrants, Ramirez returned to her home state after graduating from Harvard Law to clerk for a 9th Circuit judge Edith Ramirez has and then began her career as been credited with a litigator at Gibson Dunn. She helping to “bring later moved to Quinn Emanuel, the Federal Trade Commission into where her practice included both the 21st century.” intellectual property and antitrust work. She might never have left the West Coast, if not for the usernames and phone numbers. and privacy organization, credits termining whether to exercise its election of President Barack To Ramirez, the Snapchat case Ramirez with “helping bring the authority to challenge unfair com- Obama ’91. They fi rst met while “illustrates that there is no data Federal Trade Commission into petition. Ramirez said she was serving together on the Harvard privacy without data security,” a the 21st century.” glad to be able to build consensus Law Review, and Ramirez served lesson borne out repeatedly during “Her focus on ensuring the among commission members as a Latino outreach coordinator her tenure, which has seen mas- agency protects vulnerable for a “broad, fl exible” approach during his 2008 presidential sive data breaches involving retail consumers, including low-income rather than a prescriptive code of campaign. He nominated Ramirez giants such as Target. Americans, and addressing unfair regulation. to a seat on the fi ve-member FTC Ramirez has also focused practices targeting minorities is For most of her term, Ramirez in 2009 and chose her to be chair on the privacy implications of incredibly important,” Chester has stood out in Washington four years later. Internet-enabled devices, or the said. for the degree to which she has As head of the primary govern- “Internet of things” in the age of In addition to her work protect- avoided the public spotlight, ment agency tasked with pro- big data. For example, companies ing the digital rights of consum- said Janis Kestenbaum ’92, who tecting the rights of consumers, score consumers and then use the ers, Ramirez has devoted much of fi rst met Ramirez at Harvard and Ramirez has focused much of her scores to deny them the ability her time to the FTC’s competition served on her staff at the FTC for eff orts on digital privacy, often in- to complete transactions, a trend work, including consideration four years. volving products that didn’t exist she’s described as “discrimination of major mergers ranging from “She’s really about the sub- at the time she came to the FTC. by algorithm.” Express Scripts and Medco (ap- stance and the job, and she’s not Last year, for instance, Ramirez Of particular concern is the way proved) to Sysco and US Foods really all that interested in pro- announced an FTC settlement “unscrupulous organizations can (rejected). moting herself,” said Kestenbaum. with Snapchat, a photo- and use big data to [target] mislead- In August, the commission Asked in August about her video-sharing app that launched ing off ers or scams to the most adopted new principles explaining plans for this fall, after her term in 2011 and promises its images vulnerable prospects,” Ramirez how it will exercise its authority at the FTC would expire, Ramirez will “self-destruct” within sec- said in a June speech at a big data to confront unfair or deceptive said she remains focused on the onds of being opened. In reality, conference in Hong Kong. practices in response to internal job at hand. the FTC alleged, recipients had Jeff rey Chester, executive and external concerns that its “I’m not even at all thinking several ways to save the images, director of the Center for Digital approach wasn’t clear enough. about what I’m doing after I leave and a security failure led to the Democracy, a Washington, For the fi rst time, it detailed the FTC,” she said. “There’s still disclosure of 4.6 million Snapchat D.C.-based consumer protection the three factors it will use in de- more to come.”

PHOTOGRAPH BY CADE MARTIN Fall 2015 HARVARD LAW BULLETIN 55

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LASTING LAUGHS Jonathan Goldstein has forged a career in Hollywood as a comedy writer—and now a director

Sometimes attorneys face a pre- cedent that makes it challenging to succeed. Jonathan Goldstein ’95 knows this well. In his case, the precedent was more than 30 years old but still held great infl u- ence among people he was trying to persuade. His strategy? Well, it was pretty much what he tries to do in every case. Be funny. Over the summer, Goldstein made his directorial debut with the movie “Vacation,” a sequel to the popular 1983 comedy “National Lampoon’s Vacation.” The new fi lm, which he co-wrote and co-directed with his longtime writing partner, John Francis Daley, marks the most high-pro- Jonathan Goldstein (left) fi le eff ort yet for Goldstein, who wrote and directed began writing comedy, initially for “Vacation” with TV and later for fi lms, shortly after his longtime writing partner, his HLS graduation. For “Vaca- John Francis Daley tion,” he wanted to make a movie (right). that stood on its own yet was respectful of the original version for the many people who have fond memories of the Griswolds’ idea how to channel that interest appeared, he soon progressed to the character Kevin Spacey played misadventures on a family trip. into a career. Instead, he went to write for TV sitcoms, and then in “Horrible Bosses,” loosely based “It’s a lot of pressure. We knew Harvard Law, which was like a life later sold fi lm scripts he co-wrote on some partners at the fi rm. that going in,” said Goldstein. “For insurance policy, he said—a way to with Daley, including “Horrible People in comedy generally a lot of the audience, they come in acquire a marketable skill. Bosses,” “Cloudy with a Chance of aren’t big on teaching valuable wanting to hate it. You’re so nos- That seemed to work out when Meatballs 2,” and “The Incredible lessons. Famously, the motto for talgic about something from your he got a job with a six-fi gure Burt Wonderstone.” Now he is in the classic sitcom “Seinfeld” was: youth and you love it so much, you salary at a large New York law talks to write and direct a sequel No hugging, no learning. But when feel like, ‘This can only be worse.’” fi rm. But he soon realized that his to “Vacation,” as well as to write Goldstein refl ects on the winding But he approached the interest lay elsewhere, particularly a new fi lm in the Spider-Man journey that eventually took him assignment—including directing when he heard that his friend Ted franchise. to a place he always wanted to go, established stars like Ed Helms Cohen ’95, with whom he had In some ways, his unconven- he off ered some advice: and Christina Applegate, and the written humorous columns for The tional path helped propel him to “Look deep inside and forget stars of the original version, Chevy Harvard Law Record, had landed success in the entertainment about money for a minute and Chase and Beverly D’Angelo—with a writing gig on the hit TV show industry. His time at Harvard Law, [ask] that guidance-counselor the confi dence that propelled him “Friends.” So Goldstein quit his he said, “gave me confi dence to question, If you could do anything, to Hollywood in the fi rst place. job in 1998 and ventured to Los think that if I could do this, there’s what would it be? And then fi nd He had always loved comedy, Angeles, where he read scripts no way I couldn’t do other things the job that lets you do that. having grown up devouring Monty for agencies for around $400 a like working in Los Angeles in fi lm That’s the only path to happi- Python, Woody Allen and the week with no benefi ts. As dubious and television.” Even his time at ness.” Marx Brothers. Yet he had no as that career move may have the law fi rm inspired him to write —LEWIS I. RICE

PHOTOGRAPH BY BARRY KING/GETTY IMAGES Fall 2015 HARVARD LAW BULLETIN 57

49-63_HarvardLawBulletin_FA15.indd 57 9/25/15 12:01 PM SPRING REUNIONS 2015: BRINGING PEOPLE TOGETHER “We have entered a phase of our nation that is overly partisan,” said Julián Castro ’00 in his keynote address during HLS Spring Reunions in April. The secretary of the U.S. Depart- ment of Housing and Urban Development appealed to his fellow alumni to use their skills as lawyers to bring Amer- icans together: “[The law] gives us that perspective—that moderation—that oftentimes in our national discourse is in too short supply.” H is brother, Texas Congressman Joa- quin Castro ’00, also participated in the reunion—the larg- est in HLS history, with more than 800 alumni and guests (see bit.ly/HLS2015SpringReunions).

49-63_HarvardLawBulletin_FA15_r1.indd 60 9/28/15 5:12 PM TENACITY REWARDED For Yas Banifatemi, a 10-year arbitration fi ght ends in a record $50 billion settlement

Yas Banifatemi LL.M. ’97 was at home in Paris on July 18, 2014, when an email arrived revealing the outcome in an arbitration case that had consumed her career for much of the previous decade. In three decisions spanning 1,800 pages, the Permanent Court of Arbitration in The Hague awarded her clients $50 billion for Russia’s improper expropriation of the Yukos oil company. Yas Banifatemi says it was an The Yukos case, with its larg- HLS class in est-ever arbitration award—which international French Vanity Fair described as arbitration that fi rst led her to Vladimir Putin’s “most crushing consider it as a defeat” in 15 years in power—was career. the culmination of a career in international arbitration, which took root at Harvard. Banifatemi fi rst came to ment treaty arbitration, she said. “The case was about the her colleague Emmanuel Gaillard Harvard Law School as a visiting The Yukos case began in Octo- discriminatory treatment of when they spoke about the case researcher in 1993, while working ber 2003 with the arrest and Yukos and the expropriation at an HLS event earlier this year. on a Ph.D. in public international imprisonment of the company’s of our clients, Yukos’ majority “In holding that the Russian law back in France. (She was born billionaire chairman, Mikhail shareholders,” she said, “so these Federation breached its obliga- in France, where her father earned Khodorkovsky. The Russian human rights aspects were very tions under the Energy Charter a Ph.D. in nuclear engineering, and government subsequently brought important to the understanding of Treaty, the tribunal also did not she moved back there from Iran enormous tax claims against the the political nature of the case.” hesitate to venture into a political- at age 12 following that country’s company and forced it into state In 2008, Banifatemi and her ly sensitive case involving a major 1979 revolution.) control, a takeover shareholders colleagues fi nally argued the tri- power, thereby demonstrating the She returned to Harvard in claimed was politically motivated. bunal’s jurisdiction in The Hague. potential reach of international 1996 for an LL.M. while writing After Khodorkovsky’s arrest, Four more years would elapse be- law,” Wu said. her 500-page Ph.D. thesis, a feat Banifatemi and her colleagues fore the fi nal hearing in the fall of Banifatemi was happy to see which earned her the nickname were approached by the majority 2012, and it took two additional the Yukos case end, although her “E.T.” among HLS friends. Learn- shareholders of Yukos, then Rus- years before the tribunal issued its work on it hasn’t quite ended. ing about the high-stakes cases sia’s largest oil company. fi nal awards in 2014. Eff orts to enforce the award con- and complex legal issues involved Dealing with the extremely “It was a great moment: fi nding tinue in a number of countries. in international arbitration in Ar- complex issues the case raised out that we had prevailed, fi nding She has resumed a more thur von Mehren’s class prompted involving international, Russian out that we had also prevailed on normal routine, dividing her time her to consider it as a career. and tax law occupied “60 to 150” the costs of the arbitration, and between serving as an arbitrator, After graduating, she went to percent of her time in the years adding up the fi gures and trying teaching and working on public work for Shearman & Sterling in that followed, Banifatemi said. to work out how many billions our arbitration law cases involving Paris and within four months was She traveled to Finland, where clients’ compensation represented countries from Egypt to Croatia. asked to help on a case brought by Khodorkovsky’s terminally ill crim- in total,” Banifatemi said. She also has a book in the the Czech state bank against the inal lawyer provided testimony The award was “historic and works and “dreams” of starting Slovak Republic. It proved to be about “the inhuman and degrad- groundbreaking” for more than the fi lm and photography projects. just the fi rst of “a very long series ing treatment of every person amount of money involved, said “My problem is that I can’t stay of public international law cases,” even remotely related to Yukos by HLS Assistant Professor Mark put—I need to be active,” she said. fueled in part by a boom in invest- the Russian authorities.” Wu, who hosted Banifatemi and —SETH STERN ’01

PHOTOGRAPH BY LEON NEAL/AFP/GETTY IMAGES Fall 2015 HARVARD LAW BULLETIN 61

49-63_HarvardLawBulletin_FA15.indd 61 9/25/15 12:02 PM HLS AUTHORS

Selected Alumni Books

that covers the progress that has been “Seattle Justice: The Rise and made in saving lives on the roads—and the Fall of the Police Payoff System in people responsible for it—over the years. Seattle,” by CHRISTOPHER T. BAYLEY ’66 He writes of safety champions ranging (Sasquatch Books). from the little known, like an Indiana state In the early 1970s, as the newly elected trooper who in 1950 initiated a statewide prosecutor in King County, Washington, study of fatal accidents that pointed to Bayley was intent on changing the culture faulty equipment as the leading cause, to of corruption in Seattle that had been in perhaps the most infl uential, Ralph Nader place for a century. His memoir tells the ’58. Though many people died unneces- story of how he and a group of other young sarily because of lax safety standards, idealists made it happen. ultimately the book is a history of triumph, Lemov writes, resulting in a changed public attitude about car safety and cars “A Time for Truth: Reigniting the designed to protect their occupants. Promise of America,” by TED CRUZ ’95 (Broadside). A Republican candidate for the presidency “How to Raise an Adult: Break Free in 2016, Cruz shares his personal story of of the Overparenting Trap and growing up the child of a Cuban immigrant Prepare Your Kid for Success,” by and his ascension to the U.S. Senate, where JULIE LYTHCOTT-HAIMS ’94 (Henry Holt). his actions have often roiled members The phenomenon of “helicopter parent- of his own party as much as those of the ing” took root in the 1980s, according opposition party. The book includes his to Lythcott-Haims, amid fears of child refl ections on his time as an HLS student, kidnappings and the burgeoning self-es- which led to a U.S. Supreme Court clerk- teem movement. She saw it when she was ship, and notable moments such as his Stanford University’s dean of freshmen, work on behalf of George W. Bush during has admittedly lived it as a parent herself the 2000 presidential vote recount and his and off ers a prescription for breaking away marathon fi libuster seeking to stop the from it in a book that examines how Aff ordable Care Act. Citing Ronald Reagan overparenting harms not only children but and Margaret Thatcher as inspirations, also parents. Among her suggestions: Give he states his case by touting “opportunity children unstructured time; let them chart conservatism,” using the free market to lift their own paths; prepare them for hard every American to prosperity. work (she touts the benefi ts of chores); and consider a variety of colleges. Parents, she writes, should support children “in being “Pirate Hunters: Treasure, who they are rather than telling them who Obsession, and the Search for a and what to be.” Legendary Pirate Ship,” by ROBERT KURSON ’90 (Random House). Kurson recounts the true story of mod- “Democracy in the Dark: The ern-day swashbucklers in search of the Seduction of Government Secrecy,” ship that proves as elusive in modern times by FREDERICK A.O. SCHWARZ JR. ’60 (New as it was during the golden age of piracy Press). in the 17th century. John Chatterton and Informed by his experience as chief coun- John Mattera seek the Golden Fleece, sel for the U.S. Senate’s Church Commit- which the author calls the greatest pirate tee, which 40 years ago investigated secret ship that ever sailed. Their quest turns into government activity, Schwarz details “the a quest to understand its captain, Joseph ways in which its overuse undermines our Bannister, a wealthy English gentleman experiment in democracy.” Secrecy has who unaccountably stole the ship for a held a “seductive” power throughout his- rogue’s life at sea. tory, he writes, which he demonstrates in cases from America’s founding to present times, particularly in response to the 9/11 “Car Safety Wars: One Hundred attacks. While he acknowledges legitimate Years of Technology, Politics, uses of secrecy, it is too often used to hide and Death,” by MICHAEL R. LEMOV ’59 embarrassing or illegal conduct, he writes. (Fairleigh Dickinson). The book also explores the role of nonprof- Of course, much has changed about auto- it watchdogs and investigative journalism mobiles since they fi rst were introduced at in exposing secrecy, and recommends the turn of the 20th century. But perhaps reforms that Schwarz contends would the biggest change is the expectation of bring the openness that would strengthen their safety, as Lemov details in a book America without compromising security.

62 HARVARD LAW BULLETIN Fall 2015 ILLUSTRATION BY MELINDA BECK

49-63_HarvardLawBulletin_FA15.indd 62 9/25/15 12:02 PM IN MEMORIAM

1930-1939 RICHARD L. WELLS ’50 EDWARD M. LEVIN ’58 1970-1979 May 1, 2015 May 3, 2015 GILBERT HELMAN ’39 RICHARD L. BERKMAN ’70 July 2, 2015 SAMUEL FREED ’51 PETER M. MEZEY ’58 Feb. 20, 2015 May 17, 2015 April 16, 2015 SANDRA Y. ROSENBLITH ’70 1940-1949 WILLIAM E. LANG ’51 RICHARD D. SPIZZIRRI ’58 May 26, 2015 June 22, 2015 May 12, 2015 REGINALD H. SMITH JR. ’40 PETER J. RUBIN ’70 Dec. 8, 2013 WARD J. LARSON ’51 JOHN H. WHITE ’58 April 17, 2015 July 27, 2015 July 28, 2015 SAMUEL W. ALLEN ’41 ANDRE G. SASSOON LL.M. ’70 June 27, 2015 ERWIN MILLIMET ’51 KELTON M. BURBANK ’59 Nov. 16, 2013 July 20, 2015 June 29, 2015 HOMER H. CLARK ’42 LL.M. GARY BANKS ’71 ’52 DONALD SHACK ’51 JOHN H. MCCHORD ’59 April 27, 2014 March 19, 2015 July 12, 2015 May 17, 2015 TERRY A. BARNETT ’71 IRVING M. FANGER ’42 LUCIUS H. BIGLOW JR. ’52 A. KEITH MCCLUNG JR. ’59 May 19, 2015 Sept. 1, 2015 June 8, 2015 May 16, 2015 HARVEY J. GOLUBOCK ’71 HENRY P. HOFFSTOT JR. ’42 MARCUS “PETE” AARON II ’53 JAMES H. OLTMAN ’59 April 2, 2015 June 29, 2015 May 28, 2015 July 21, 2015 PHILIP G. VARGAS ’71 GILES R. “SCOF” SCOFIELD DAVID M. ATCHESON ’53 Feb. 28, 2015 JR. ’42 April 25, 2015 1960-1969 June 12, 2015 ELMER W. “TIM” HANAK III JOSEPH S. BALSAMO LL.M. ’53 GILBERT E. GOVE ’60 ’72 (’74) ROBERT SHULMAN ’42 (’46) Feb. 25, 2015 July 18, 2015 April 19, 2015 April 6, 2015 LEWIS T. BOOKER ’53 JOHN W. “BILL” MALONE ’60 JOHN QUINN ROUNSAVILLE DONALD F. POTTER ’44 (’47) April 4, 2015 June 25, 2015 JR. ’72 Aug. 6, 2015 April 2, 2015 EDGAR H. BOOTH ’53 DAVID M. SPECK ’60 S. CURTIS DWORKEN ’44 (’48) Feb. 21, 2015 June 4, 2013 MARK E. ASHBURN ’73 March 21, 2015 June 3, 2015 WILLIAM S. LYNCH ’53 LAURA LOU MEADOWS DWIGHT D. TAYLOR ’44 (’49) July 13, 2015 TAGGART ’60 PATRICK J. BRUGGEMAN ’73 May 18, 2015 April 23, 2015 May 14, 2015 WILLIAM B. MATTESON ’53 SHERWIN GROSSFIELD ’45 May 8, 2015 JERRY B. FULMER ’61 ROSCOE TRIMMIER JR. ’74 May 7, 2015 May 22, 2015 July 30, 2015 WILTON B. PERSONS JR. ’53 HASKELL M. GOODMAN ’47 April 3, 2015 CHARLES A. GOLDSTEIN ’61 STEVEN J. AGRESTA ’75 (’48) July 30, 2015 Jan. 2, 2015 April 13, 2015 FORREST G. SCHAEFFER JR. ’53 BENJAMIN P. HARRIS III ’61 GARY P. ENCINAS ’75 MITCHELL AARONSON ’48 June 19, 2015 June 28, 2015 May 23, 2015 April 28, 2014 ALEJANDRO A. LICHAUCO ’54 JOHN B. JOHNSON JR. LL.M. DOUGLAS R. MAXWELL ’75 CHARLES M. ALLEN ’48 May 22, 2015 ’61 July 3, 2015 March 23, 2015 May 18, 2015 H. MARTYN OWEN ’54 DANIEL J. MELTZER ’75 THEODORE ANASTOS ’48 March 23, 2015 JEROME A. PACKER ’61 May 24, 2015 April 6, 2015 July 2, 2015 EDWARD G. SPARROW JR. ’54 VICTOR A. VITLIN ’77 JOHN TIMOTHY HARRINGTON April 23, 2015 MAURICE DEG. “MO” FORD ’62 May 19, 2015 ’4 8 April 14, 2015 April 25, 2015 ARTHUR A. FRANKL ’55 MARC R. POIRIER ’78 May 30, 2015 STEPHEN GURKO ’62 Aug. 2, 2015 HARRY C. MARTIN ’48 Sept. 24, 2014 May 3, 2015 HELMUT J.F. FURTH ’55 July 14, 2015 MAURICE M. HENKELS JR. ’62 1980-1989 PAUL MISHKIN ’48 May 19, 2015 July 6, 2015 PAUL G. “GRIFF” GARLAND ’55 ALAN TALKINGTON ’81 March 16, 2015 HARVEY MCGREGOR, Q.C. Nov. 18, 2014 JERROLD SCOUTT JR. ’48 S.J.D. ’62 DANIEL A. GUTTERMAN ’55 June 27, 2015 HELEN DEISS IRVIN ’84 Feb. 27, 2015 Sept. 24, 2014 June 8, 2015 BENTLEY TOBIN ’48 JOHN H.R. PLEWS ’62 June 1, 2015 DANIEL ASHLEY JENKS ’55 March 18, 2015 SHEILA E. VADEN-WILLIAMS July 15, 2015 ’84 RICHARD J. BARTLETT ’49 IRVING H. WELFELD ’62 April 19, 2015 May 6, 2015 SHELDON KARON ’55 Oct. 3, 2014 April 26, 2015 MARC J. MAROTTA ’87 THOMAS D. DOLAN ’49 WILLIAM F. WACHTER ’63 April 8, 2015 May 5, 2015 SAMUEL PISAR LL.M. ’55 June 24, 2014 S.J.D. ’59 WILLIAM M. HORNE ’49 July 27, 2015 ALFRED T. MCDONNELL ’64 1990-1999 April 21, 2015 April 18, 2015 DAVID A. PRESSLER ’55 CAREY W. GABAY ’97 EDWIN S. MCKEOWN ’49 June 11, 2015 GEORGE SZABO-IMREY ’64 Sept. 16, 2015 June 1, 2015 July 13, 2015 RENALD A. MANETTI ’56 CYRUS A. NEUMAN ’49 June 22, 2015 FRANK E. SAMUEL JR. ’65 2010-2015 March 9, 2015 Oct. 20, 2014 PETER W.L. BRAUNS LL.M. ’57 MAYAR DAHABIEH LL.M. ’12 March 20, 2014 THEODORE S. CURTIS JR. ’66 March 31, 2015 1950-1959 April 24, 2015 JORGE L. CORDOVA JR. ’57 HANS H. ANGERMUELLER ’50 June 17, 2015 PAUL M. HAYGOOD ’67 VISIT THE IN MEMORIAM July 11, 2015 June 13, 2015 SECTION ONLINE AT bit.ly/ CHARLES DAVENPORT ’57 Inmem2015 FOR LINKS TO ROBERT A. BEHRMAN ’50 April 15, 2015 LEON LETWIN LL.M. ’68 AVAILABLE OBITUARIES. July 16, 2015 July 13, 2015 JOHN D. ELLIS ’57 ROBERT E. BRADNEY ’50 May 15, 2015 CHARLES L. HOOD ’69 July 15, 2015 April 11, 2015 OBITUARY INFORMATION JOHN J. O’GRADY III ’57 Notices may be sent to the IRVING D. ISKO ’50 July 10, 2015 JOHN L. WEST ’69 Harvard Law Bulletin, 1563 March 20, 2015 June 22, 2015 Mass. Ave., Cambridge, MA JOHN A. PALLADINO ’57 02138 or to bulletin@law. ELLIOT N. MARKELL ’50 May 17, 2015 Jan. 25, 2015 harvard.edu. ROBIN L. SHARWOOD S.J.D. ’57 April 12, 2015

Fall 2015 HARVARD LAW BULLETIN 63

49-63_HarvardLawBulletin_FA15.indd 63 9/25/15 12:03 PM IN MEMORIAM

Harvard Law School lost two beloved professors this year. Story Professor Daniel J. Meltzer ’75, a renowned authority on federal courts and criminal procedure, who was a valued legal adviser to President Barack Obama ’91, died on May 24. David Abraham Grossman ’88, a clinical professor and lawyer who devoted his career to addressing the legal needs of the poor, died on July 12. Here, they are remembered by former students.

DANIEL J. MELTZER ’75: 1951-2015 THE GIFT OF IMPOSSIBLY HIGH EXPECTATIONS

By Ernest A. Young DAN MELTZER WAS MY FAVORITE teacher in law school, and he remains the person I most want to be when I grow up. But I must confess that his class was often one of my more stressful experiences at Harvard. Part of it was that Federal Courts had a reputation as the biggest, baddest course in law school. And it didn’t help that, walking into class on the fi rst day, I spied nearly every class- mate I had ever worried was smarter than me. But the worst of it, frankly, was Dan. Not because he was mean or overbearing—quite the opposite. Dan’s brilliance was obvious, but he paired it with a profound gentleness and an obvious confi dence that we were up to the diffi cult task he set before us. What stressed us out was that we loved Dan from the fi rst day, and nobody wanted to let him down. In his gentle, unassuming way, Dan off ered his students the gift of impos- sibly high expectations. Contempo- rary law schools have largely rejected the Kingsfi eldian model of terrorizing we think about our calling. Harvard Legal Process school of jurisprudence students, but sometimes intellectual expects its students to assimilate vast that gave birth to Federal Courts as rigor gets thrown out in our rush to quantities of doctrinal detail while a distinct fi eld of legal study. That make students comfortable. Dan was also rubbing their noses in the law’s approach coped with widespread far too kind a soul to play Kingsfi eld. indeterminacy and frequently politi- disagreement about underlying val- But he paid us the compliment of cal nature. This can be terrifying—it’s ues—think of disputes about race or assuming that we were people basically awfully hard to devote yourself to an- abortion—by focusing on legitimate like him—that is, prepared to work as swering diffi cult legal questions when processes for dispute resolution. By hard and think as deeply as it took to you also suspect that those questions opening this line of thought, Dan did understand a very diffi cult set of legal may not have “one right answer” at all. more than any other teacher to help problems. We wanted desperately to Accepting much of that indetermi- me keep believing in the law. show that we shared this samurai-style nacy and fl ux, Dan still insisted that Dan’s way of thinking also infl u- professionalism. law could resolve disputes in a coher- enced how we treated one another. Dan also off ered us a way of think- ent way. He was not simply our leading Harvard students can be opinionated ing about the law that, for many of Federal Courts scholar; Dan was the and prone to self-importance, and the his students, profoundly shaped how best exemplar in his generation of the combination produces heated polit-

64 HARVARD LAW BULLETIN Fall 2015 PHOTOGRAPH BY GEORGE SIMIAN

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the years he became a won- derful mentor in our shared fi eld. No other fi gure more profoundly shaped who I am as a lawyer and a scholar. But the best part is that I can claim him as my friend. Nowadays, the polarization in society at large is creeping into the law, and one despairs that people from diff erent camps can ever persuade one Daniel Meltzer first joined the HLS faculty another of much of anything. in 1982. We need Dan’s generosity of spirit, insistence on analyti- cal rigor, and ability to see ical disputes. But an essential point why I tell my students that “Federal the legitimacy of opposing positions of Federal Courts law is that we often Courts is a way of life.” And it is no now more than ever. His untimely must respect a particular actor’s legiti- doubt why Dan was able to befriend so passing leaves a yawning gap in both mate claim to decide a question even if many people whose political views di- his scholarly fi eld and the profession we would answer it diff erently our- verged signifi cantly from his own. at large that can never be fi lled. But we selves. Dan constantly asked whether Years after graduation, I returned can still try hard not to let him down. a court’s or an agency’s decision was to Harvard as a young scholar to give reasonable, even if we thought it was a Harvard faculty workshop. Dan Ernest A. Young ’93 is the Alston & Bird incorrect. Of course, the principle that showed up ahead of time to wish me Professor at Duke Law School. others must be respected as reasonable luck, which surprised me because → The December issue of the Harvard Law even if we disagree extends far beyond I had been fairly anonymous in his Review will include essays on Meltzer’s problems of federal jurisdiction. It is class. But Dan remembered, and over scholarship.

DAVID GROSSMAN ’88: 1957-2015 A PASSION FOR SOCIAL JUSTICE AND FOR MENTORING STUDENTS TO JOIN THE FIGHT

By Marielle Macher AFTER I LEARNED THAT DAVID Grossman had entered hos- pice care, I sat at my comput- er, trying to write a goodbye email, but the words were not coming. I did not know how to express how much Dave’s mentorship impacted my life and my career, and I still do not. Eventually, I gushed out how much Dave meant to me and hit “send.” Then I pictured him reading it, and Clinical Professor smiled, realizing how much David Grossman was faculty director of the he would be teasing me for its Harvard Legal Aid sappiness. That was just his Bureau. nature—he was simultaneous-

PHOTOGRAPHS BY JOHN CHAPIN (TOP), MARTHA STEWART Fall 2015 HARVARD LAW BULLETIN 65

64-69_HarvardLawBulletin_FA15_r2.indd 65 9/29/15 10:34 AM IN MEMORIAM

ly inspiring, kind, generous, and brilliant while also tough and self-eff acing with an irreverent sense of humor. I had the incredible privilege of being one of Dave’s and Pattie Whiting’s students in the Harvard Legal Aid Bureau’s housing practice from 2009 to 2011. At the Bureau and Housing Court, Dave was truly a hero. During our very fi rst day at Housing Court, Dave rushed from shepherding around his new students to jumping straight into winning motions for low-in- come tenants he had met in the hallway only minutes “That was just his nature ... inspiring, beforehand. He never hesi- kind, generous, and tated for a moment to help brilliant while also a client about to lose his or tough and self- effacing.” her home. Dave expected the same fi erce determination from outstanding representation defense clinic on Friday, and times drove me crazy, I have his students. He always to many). His true then conducting outreach to found myself missing Dave’s pushed us to challenge passions were using direct others facing foreclosure on intentionally mispronounc- ourselves by taking on representation as a tool Saturday. ing my last name at every more and more cases, by to support social justice Despite this demanding possible opportunity (look delivering the best possible movements and mentoring pace, Dave never seemed up “macher” in a Yiddish work for our clients, and his students to join him in to grow tired. Instead, he dictionary) more than his by developing new tools for the fi ght. He spent nearly seemed to thrive on it, superhuman qualities. I will advocating for low-income every Tuesday night with answering emails from his also always be grateful for communities. Many times, his team of students at students late into the night how he continued writing to especially during my fi rst City Life/Vida Urbana—a and sometimes showing up me, as well as so many other year at the Bureau, Dave community organizing to Saturday’s foreclosure students, to off er advice and pushed me past what I had group leading the fi ght outreach with his children words of encouragement thought was (but what was against foreclosure-related alongside him. Dave’s ener- years after we graduated, not) my breaking point, displacement—counseling gy ensured that he always even when he was far sicker helping me see that I was tenants facing potential had a following of students than I was willing to believe. capable of delivering more. I eviction, and then joining willing to join him, and And although it has been am grateful to Dave for this CLVU members in chanting helped to spread CLVU and incredibly diffi cult to fi nd perhaps more than anything “When we fi ght, we win!” He Dave’s law and organizing meaning in Dave’s untimely else. Without Dave’s push- then jumped immediately model for fi ghting foreclo- passing, there is no doubt ing and encouragement, I into overseeing his students sures to cities across the that Dave’s legacy will live am certain I would not be a in preparing for Housing country. on through his clients, his legal aid lawyer today. Court on Thursday, where But perhaps what was students and the movement Dave was not content, he ensured that every most amazing about Dave he inspired. however, with simply single person facing a was how, despite mentoring providing high-quality foreclosure-related eviction hundreds of students over Marielle Macher ’11 is a representation to as many had representation. The the course of his career, he legal aid lawyer with the low-income individuals week wrapped up with him managed to have a diff erent Community Justice Project as possible (although he supervising his students in relationship with each of us. in Harrisburg, Pennsylva- undoubtedly provided running a pro se foreclosure Indeed, as much as it some- nia.

66 HARVARD LAW BULLETIN Fall 2015 PHOTOGRAPH BY MARTHA STEWART

64-69_HarvardLawBulletin_FA15.indd 66 9/25/15 12:41 PM HLSA NEWS | A Powerful Platform Salvo Arena on making connections through the HLSA

Halfway into his enal and benefi cial term as president resources that we can of the Harvard Law have being part of this School Associa- community.” tion, Salvo Arena Beyond the details LL.M. ’00 says one of what has been of the questions he accomplished, when hears most often people ask Arena when he meets about what the HLSA with other alumni does, his answers is, What exactly come down to its po- is the HLSA and “The extraordinary tential to connect. what does it do? power of the HLSA “I do believe that is people,” says Salvo Part of the answer is Arena. “Alumni can alumni can really help logistical: The HLSA is help each other in each other in very really “like the mother very powerful ways.” powerful ways,” he ship,” he explains, says. “And again, it’s overseeing and pro- all about the network. viding coordination and Europe and Asia.” door. But once you open We are talking about a central services to all HLS One of Arena’s goals is the door, the extraordinary potential network of 38,000 clubs and shared interest to have the HLSA be more power of the HLSA is peo- people. The network is not groups around the world. connected to the alumni as- ple—it’s the alumni, which just your class,” says Arena, Recently, Arena says, it sociations of other Harvard is something astonishing. an Italian attorney practic- has helped to launch three schools. He imagines a col- What we are trying to do is ing in New York City, “but new shared interest groups: laboration with the Harvard make the alumni more and a global network of all Har- the Private Equity and Ven- Business School Alumni more aware of the phenom- vard Law School alumni.” ture Capital Network; the Association, for example, In-House Counsel Network which would lead to a joint and the Entrepreneur’s Net- leadership forum. “I believe work. It also has bolstered that is the direction we need the eff orts of clubs that to go.” have undergone leadership He also wants to focus on changes. improving mentoring ac- He is proud of the fact tivities both on a local basis that during his tenure the and on a national basis. HLSA has recognized two Later this fall, the HLSA outstanding HLS profes- will offi cially launch its new sors, William Alford ’77 and website, which will make it Charles Ogletree ’78, with much easier to fi nd events HLSA AWARD RECIPIENTS the association’s highest all over the world and “to honor. facilitate the connection of William Alford ’77 and Charles Ogletree ’78 share a number of HLS He is also proud that the alumni.” milestones. Both graduated from HLS in the ’70s, joined the tenured HLSA has enlarged its exec- The association has added faculty in the ’90s and now direct HLS programs. Alford, a Chinese utive committee. “We have more content on Linked In, law and legal history scholar and passionate advocate for the dis- lawyers and judges, as in the started an Instagram ac- abled, leads the East Asian Legal Studies Program and is chair of the past, but we now also have count and improved content Harvard Law School Project on Disability, and Ogletree, a legal the- members engaged in the on existing social media orist and infl uential social justice advocate, heads the Charles Ham- private equity sector, invest- channels. ilton Houston Institute for Race & Justice. This year the longtime ment bankers, lawyers from “These are all tools,” says friends shared a distinct recognition when each received the HLSA

MARTHA STEWART MARTHA the Americas, but also from Arena, “keys to open the Award in honor of their visionary leadership and commitment to HLS.

Fall 2015 HARVARD LAW BULLETIN 67

64-69_HarvardLawBulletin_FA15_r2.indd 67 9/29/15 10:35 AM HLSA NEWS

A European (Re)Union Celebrating the HLSA of Europe at 50

THIS PAST MAY, HARVARD LAW neer in the fi eld of international School Dean Martha Minow law and negotiation, told alumni: joined HLSA President Salvo “[I]t is not the law school but each Arena LL.M. ’00 and more than alumnus himself who has to bear 200 other alumni at a celebra- the ultimate responsibility for tion to commemorate the 50th legal order in the world.” anniversary of the founding of Minow told this year’s attend- the Harvard Law School Asso- ees: “You bear that responsibility ciation of Europe, held at the so well. Our alumni are leaders in Cercle de l’Union Interalliée in government and public service, in Paris. Among the 200 attending law and business, throughout the was Willem Stevens LL.M. ’63, world. We are so proud of what a Dutch graduate who helped to you have accomplished and grate- organize the HLSA of Europe’s ful for your ongoing engagement inaugural meeting some 50 years with, interest in, and support earlier in the ornate rooms of the for the law school. We would not same Union Interalliée. be the extraordinary institution In her opening remarks, Minow we are today without you. And as praised Stevens, the fi rst sec- gatherings like this demonstrate, FIFTY YEARS AGO, Class of 1963 LL.M. retary of the HLSAE. She also we are a global community and a graduates Heinz Bongart (left) and Willem recalled the words of the late global force for justice.” Stevens (right) helped found the Harvard Law Professor Roger D. Fisher ’48, who At the May event, HLS Profes- School Association of Europe. They served delivered the keynote address at sor William Alford ’77, an expert on HLSAE’s inaugural board with founding that inaugural gathering in 1966. on Chinese law and legal history, President Jean Pierre LePaulle LL.M. ’22 According to the July 1966 Har- addressed alumni, focusing his (second from left) and Charles Torem ’38. vard Law Bulletin, Fisher, a pio- presentation on “China’s Chal-

This past May in Paris, HLSA of Europe President Hen- At the 50th anniversary of the HLSA of Europe, Dean Minow thanked HLSAE alumni rik Rossing Lønberg LL.M. ’01, Professor William Alford for their commitment to HLS: “We are proud of what you have accomplished and ’77, Dean Martha Minow and HLSA President Salvo grateful for your ongoing engagement with, interest in, and support for the law Arena LL.M. ’00 celebrated the HLSAE’s founding. school. We would not be the extraordinary institution we are today without you.”

68 HARVARD LAW BULLETIN Fall 2015

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lenge: Legal Development in the LL.M. ’06 S.J.D. ’12, an assistant People’s Republic of China.” professor in global economic and Join the Club! During the celebration, Alford, comparative law at Sciences Po, Be Part of the Global HLS vice dean for the Graduate Pro- Paris. Alford and Felicia A. Hen- Alumni Network gram and International Legal derson ’97, a leadership consul- Studies, received the HLSA Award tant and adjunct law lecturer at With a robust network of U.S. and in- in recognition of his service to the Sciences Po, Paris, moderated. ternational associations and a growing legal profession and to the HLS The reunion also included a community of shared interest groups, community. day trip to the Chantilly castle the Harvard Law School Association of- During the academic session, about 25 miles outside the center fers alumni a variety of networking and Harvard Law of Paris and a private tour of the professional enrichment possibilities. →Next year’s Professor George C. Marshall Center, which Take advantage of the global community HLSAE reunion Charles Nesson is located in the building that was and join alumni initiatives and events will be held in ’63, who has used by the U.S. State Department at www.hls.harvard.edu/alumni. Copenhagen taught evidence, as headquarters for the adminis- from May 5 to 8, criminal law, tration of the Marshall Plan. Harvard Law School Association Clubs 2016. trial law, torts This year’s event was organized UNITED STATES and ethics, by Henderson; Roger Benrubi California: addressed alumni. Nesson de- LL.M. ’50, senior counsel, Cleary Los Angeles Northern California signed his talk in the mode of his Gottlieb Steen & Hamilton, Paris; Orange County new online course, JuryX, which Jacques Salès LL.M. ’67, partner San Diego explores the art and history of at Salès, Testu, Hill, and former Florida (South) Illinois the deliberative process through president of the HLSAE and the Maryland (Baltimore) large-scale online discussions of HLSA; Anne-Marijke Morgan Massachusetts contemporary issues. de Rivery LL.M. ’80, general Michigan Minnesota (Twin Cities) A panel discussion on “Lawyer- counsel, GE Capital France New Jersey ing in the 21st Century” featured and former HLSAE president; New York City Ohio: panelists Eckart Brödermann Nathalie Younan LL.M. ’99, Cincinnati LL.M. ’83, a partner at Bröder- partner, Foucaud Tchekhoff Cleveland mann Jahn in Hamburg, Germa- Pochet & Associés, Paris, and Pennsylvania (Philadelphia) Rhode Island ny; Willem Stevens LL.M. ’63, a vice president, HLSAE; and Texas: tax expert who served as senior Anne-Caroline Urbain LL.M. ’06, Dallas Houston partner at Baker & McKenzie, associate, Jones Day, Paris, and Utah Amsterdam; and Dina Waked vice president, HLSAE. Washington, D.C.

INTERNATIONAL The Power of the Network Arabia Fifteen years ago, Harvard Law School hosted the fi rst Celebration of Black Brazil Europe Alumni. Planning is underway for the 2016 Celebration, which will be held Sept. France 16-18, 2016, at HLS. To fi nd out ways to get involved, go to: http://hls.harvard. Germany edu/dept/alumni/reunions/. Japan Korea Mexico Philippines Turkey United Kingdom

Shared Interest Groups

Asian Pacifi c American Alumni Network Black Alumni Network Entrepreneur’s Network In-House Counsel Network Latino Network GLBT Alumni Network Native American Alumni Network Private Equity and Venture Capital Network Recent Graduates Network Senior Advisory Network Women’s Alliance Network ATLANTIC PHOTOS ATLANTIC

Fall 2015 HARVARD LAW BULLETIN 69

64-69_HarvardLawBulletin_FA15_r1.indd 69 9/28/15 5:22 PM LEADERSHIP PROFILE | A conversation with James A. Attwood Jr. J.D./M.B.A.’84

As the law school’s Campaign for the Third Century kicks off Oct. 23, it fi nds itself in very able hands: One of its co-chairs is Jim Attwood J.D./M.B.A. ’84, a managing director at The Carlyle Group, a global alternative asset manager with $200 billion under management. Since 2000, Attwood, a member of the HLS Dean’s Advisory Board, has directed Carlyle’s private equity investments in the matics, and I have a master’s global telecommunications and media industries, and more recently in technology as well. After in statistics, so I sort of graduating from Harvard Law and Harvard Business schools, he became an investment banker at already had that. I did learn Goldman, Sachs & Co. He next served as executive vice president for strategy, development and a tremendous amount about planning at GTE Corp. before assuming a similar role at Verizon Communications. He was a key player society from law school—the in several industry-shaping transactions, including the merger of Bell Atlantic and GTE (creating rules established by our Verizon) and the creation of Verizon Wireless. society and how we use them. My legal education has been incredibly valuable over What is your scope at very stimulating. Tech- What is your fondest the course of my career by The Carlyle Group? nology is literally changing memory of HLS? enabling me to understand I direct our fi rm’s private eq- the world we live in. I enjoy I met my wife, Leslie, at what is important and what uity investment activities in looking at new investment HLS. We were both in the isn’t in a whole host of trans- telecommunications, media opportunities, but quite Class of ’84, and we were in actional contexts: contracts, and technology. While I’m frankly what’s most enjoy- Bob Clark’s [’72] fi rst-year IP, legal proceedings, tax, not practicing law, I certain- able and fun is working corporations class. She corporate structure, etc. ly use what I learned at HLS. with our portfolio company caught my eye: She was the management teams to cutest girl in class. Leslie is Why are you involved in the Cam- Why focus on this sector? help them improve their retired from the law now, paign for the Third Century? I got involved in the tele- businesses and create but has many interests, Harvard Law School is really communications industry value. particularly in food safety a unique institution. Obvi- in the 1990s because it was and healthy eating. She is ously, it occupies a rarefi ed a fascinating area that was What do you see coming incredibly knowledgeable spot in the history of legal undergoing a period of rapid next in this arena? about this whole area. As education, but beyond that, change, both legally and I think we’ll see change an aside, Leslie’s third-year look at the impact it has had structurally. The Telecom- continue to accelerate. paper adviser at HLS was on society at large. I really munications Act of 1996 We’ll also see the further a young professor named don’t think any other institu- fundamentally changed the evolution of intelligence in Martha Minow. tion comes close to it. rules of the road and created software: It’s extraordinary I started to get back a lot more opportunities for to see what software is now How was the law school involved in the law school new entrants and invest- able to accomplish that diff erent from Harvard when Elena [Kagan ’86] was ment. That coincided with used to be the province of Business School? dean. She did a wonderful an explosion in technol- hardware. Penetration of The students and environ- job of giving the law school ogy in the mid-’90s: The mobile devices and Internet ment couldn’t have been a bit more of a soul and bit World Wide Web came to access will continue to rise. more diff erent. The law more of a heart, and I think be, which created access to Today there are almost 3 students were generally the school was in need of the Internet for the mass- billion Internet users and 7 smarter and had higher IQs, that. She also led the eff ort es. That, combined with billion mobile phone users while the business students to build the new building, higher-speed data networks worldwide. More people had higher EQs [emotional which has had a profound and the increasing ubiquity access the Internet today quotients]. They were less impact on the campus and of mobile devices, created from their mobile devices academic but more socially students. The experience a potent witch’s brew that than from computers. The comfortable, more prac- students are having today has carried forth to today to number of people connected tical, and networked a lot is fundamentally diff erent create this digital world we to the Net globally will be more. from when we were there in now live in. I was involved in much bigger in fi ve years, the ’80s, when I don’t think the creation of Verizon and particularly in developing How has your law degree many people were happy as Verizon Wireless, and have countries. Developing been helpful to you? students. Now when I visit stayed active in the sector as countries are leapfrogging A lot of people say law HLS, there seem to be a lot an investor ever since. what we went through in school taught them to think more students happy to be this country, where it was deductively and logically, there. People used to come to What do you enjoy fi rst fi xed line networks, taught them to be analytical. campus, go to classes, then most about it? then mobile. In developing As an undergrad at Yale, I leave. Now they come to cam- The sector is intellectually countries, it’s mobile fi rst. majored in applied mathe- pus, go to classes, and stay.

70 HARVARD LAW BULLETIN Fall 2015

70-c4_HarvardLawBulletin_Fa15_r1.indd 70 9/28/15 5:25 PM “HLS trains you to be more than a lawyer—it trains you to be a leader, a contributing member of society at many levels.”

To me, what’s happened in Harvard Law School attracts after law school. Giving three in Chicago and two in the last decade or so at HLS the most extraordinary them the ability to do that Santa Clara, celebrating the is remarkable, and I really talent, gives them a great sooner rather than having band’s 50th anniversary. want to be part of continu- education, and then they go to pay back student loans is ing the journey for the off and do amazing things. important. You’re a Deadhead? school in a positive way. It’s important for people [He laughs.] I also chair to understand contract What do you do in your an important music What do you hope for the law and torts but equally spare time? organization here in New school’s future? important for them to We like to go to Martha’s York, Caramoor Center What the school needs to understand how to use the Vineyard, where we happen for Music and the Arts. recognize, and they’ve done law and the legal process to be neighbors of Alan Caramoor was historically this to some degree, is that to promote many societal Dershowitz. I am a wine col- oriented toward classical HLS trains you to be more objectives that are outside lector, and I love music—all music, but recently we have than a lawyer—it trains you the strict defi nition of varieties, from classical to expanded the programming to be a leader, a contributing law. Leslie and I have been jazz, folk and rock. to include folk, roots and member of society at supportive of public interest jazz. In fact, we have just many levels. Recognizing fellowship s at HLS and of Who’s your favorite rock band? begun a collaboration with the broader impact that easing the fi nancial burden I’m a big Grateful Dead fan. Jazz at Lincoln Center for an HLS education has on for those who want to take Last summer I saw all fi ve of our jazz program. It’s all society is really important. the public interest track the “Fare Thee Well” shows, very fun.

PHOTOGRAPH BY BETH PERKINS Fall 2015 HARVARD LAW BULLETIN 71

70-c4_HarvardLawBulletin_Fa15_r1.indd 71 9/28/15 5:26 PM GALLERY | Turning Over a New Leaf

A new digital collection reveals Greenleaf’s vision of law as a ‘moral science’

In September of 1845, Harvard Law School was shaken by the death of Professor Joseph Story (1779-1845). His Dane Hall was home to passing left Simon Harvard Law when Simon Greenleaf (1783-1853) Greenleaf the sole teacher at HLS. joined Joseph Story in efforts In the dozen years since to reinvigorate the school. Greenleaf’s arrival in ▶ 1833, he and Story had been equal partners. Greenleaf, after all, had joined the legendary Story to prop up the ailing law school and arrived at an HLS (of respect) with visitors to acquaint bring it back to sturdy that had enrolled a myself.” themselves with Simon Green- record 56 students. The recent Greenleaf himself: life. In 1829, the year leaf viewed the Story arrived, HLS— law as a flexible, “We have shared the digitization of the an unsung “genius,” living social toils together,” Story Simon Greenleaf according to HLS shakily about to enter instrument influenced by wrote to Greenleaf papers—26 boxes of Visiting Professor its third decade—had the currents of in 1842, and “you are letters, cases, legal Daniel R. Coquillette an era. in every way entitled opinions, tracts, and ’71. (Coquillette is six students. The ▼ coursework was lax, to an equal share complexly layered co-author of a new manuscripts—doc- history of Harvard the library scanty; uments a collabora- Law School. See Page competition was still tion between the two 6.) fi erce from traditional men so thorough it Greenleaf’s schol- included acquiring arship, he suggests, apprenticeships and artwork to decorate foreshadowed from rising proprietary the law school. (We the case method schools like the one in learn this from an approach of Chris- Litchfi eld, Connecticut; 1840 letter from topher Columbus Greenleaf and Story Langdell LL.B. 1854 and Harvard itself was to Chief Justice and the legal realism rocked by a fi nancial Lemuel Shaw of of Oliver Wendell crisis. By the fall of the Massachusetts Holmes Jr. LL.B. 1833—with the law Supreme Judicial 1866. Court, looking to ac- Visitors to the school propped up by quire a bust of Shaw Greenleaf papers a benefactor (Nathan to display in Dane can “open” folder Dane) and a new Harvard Hall.) 10 in box 2 and see president (Josiah The collection also Greenleaf’s inscrip- provides the oppor- tion on the bound Quincy)—Greenleaf tunity for virtual collection of 65 COLLECTIONS & SPECIAL HISTORICAL 1848; HLS HEALY, PETER ALEXANDER GEORGE BY PORTRAIT

72 HARVARD LAW BULLETIN Fall 2015

70-c4_HarvardLawBulletin_Fa15_r2.indd 72 9/29/15 1:32 PM letters from Story. “suite,” searchable They can look for let- by words, dates, ters from abolition- names, document ist Charles Sumner types and themes. LL.B. 1834, legal the- Meanwhile, visitors orist Francis Lieber can navigate or the plain-spoken Greenleaf’s digital Josiah Quincy. They papers to assess his can see letters and legal reasoning and documents related his deep editing, to the Temperance and even to peruse Movement, the his clothing bills American Coloni- (always less than zation Society, and he spent at the Liberia (Greenleaf butcher). They can drafted the original also fi nd glimpses constitution)—in- of the private, terests that refl ect scholarly man who the evangelical helped save Harvard In 1842, Simon Greenleaf published the the centuries-old use of reason to defend Christian beliefs Law School. In fi rst volume of his masterwork, “Treatise and explain Christianity. that Greenleaf wove one letter, Charles on the Law of Evidence.” He would go In fact, Greenleaf regarded law school on to write a book that used the rules of itself as a form of Christian evangelism, into his ideal of how Sumner summed evidence, cross-examination, and other wrote Alfred Konefsky in his study the law should be up both Greenleaf legal tools to investigate the Gospel “Piety and Profession,” just like the taught: as a moral and his writing accounts of Jesus, the crucifi xion and Bible, temperance, colonization and science. style. “Neat, apt,” the resurrection. “The Testimony of the peace movements that drew his lifelong The same visitors he wrote, “polished, Evangelists,” as it is now known, made sympathy. A law school graduate, might take note of lucid.” him prominent among 19th-century according to Greenleaf, would be Greenleaf’s rapid, —CORYDON IRELAND practitioners of Christian apologetics, humane, legally adept and morally active. right-slanting hand and its generous spacing between words, as if to say— Greenleaf lawyer-like—that and Story set out to acquire each has an inten- artwork de- tional, hard-fought picting great meaning. Greenleaf jurists to dis- play in Dane also had an appetite Hall, pictured for energetic editing here in 1880, and rewriting. His nearly 30 years after bound volumes, Greenleaf’s foldouts, overlays, death. Por- glued-on new para- traits on dis- play included graphs and spidery a painting marginalia all made of John Marshall, the digitizing the papers fourth chief a challenge. justice of the Within a year, the United States. ▶ Greenleaf collection will be online as a

70-c4_HarvardLawBulletin_Fa15_r1.indd c3 9/28/15 5:28 PM Harvard Law Bulletin Nonprofi t Org. Harvard Law School U.S. Postage Paid 1563 Massachusetts Ave. Burlington, VT Cambridge, MA 02138 05401 Permit 347

BACK COVER | Degrees of Verdigris LORIN GRANGER LORIN

The copper on the roof of Langdell Hall was replaced this summer for the fi rst time in 40 years. The shine will quickly give way to a weathered patina—green, like the ornate metalwork above it.

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