IS THE DEATH PENALTY A ‘DEAD MAN WALKING’? / NEGOTIATING CLIMATE / REFLECTIONS FROM BLACK ALUMNI Harvard Law Fall TR2016 DEbulletin Should the U.S. joinj a the Trans-PacificTrans-Pacific Partnership?artnership? Expertsperts debate. C1_HLB FA16_r1.indd c1 10/14/16 11:42 AM CONTENTS | Fall 2016 | Volume 68 | Number 1 Gina Clayton ’10 founded Essie Justice Group to empower women whose loved ones have been incarcerated. ▼ FEATURES 16 A Time for Action Participants in the Celebration of Black Alumni reflect on accom- plishments and aspirations. 26 Trade Pluses and Pitfalls Trade experts weigh whether the U.S. should join the Trans-Pacific Partnership. 34 Architect of the Breakthrough Todd Stern ’77 caps two decades of work to curb climate change with the landmark Paris accord. 38 New Technology on the Block Exploring the legal and regulatory implications of the blockchain Primavera De Filippi first came to HLS to research the potential of the blockchain: a new technology that may reshape financial and property markets. ▶ JESSICA SCRANTON (2) SCRANTON JESSICA c2-15_65_HLB_FA16.indd c2 10/12/16 4:09 PM DEPARTMENTS Professor Samuel Moyn ’01 studies 2 the history of From the Dean human rights and wants to know why 3 they have made Letters “agonizingly little difference in world 4 affairs.” Writ Large: Faculty Books ◀ The nation that almost never was; Regu lated to death; Books in brief 9 Inside HLS Invisible wounds of war; A work in progress; Sharing ideas for shareholders—and others; Taking on a new cause; Hearsay 49 Class Notes Collegial counselor; On Cape Cod; A citizen’s Constitution; Will power; The road less traveled; Gaining ground in Ghana; The wordsmith; Harvesting progress; HLS authors 64 In Memoriam 66 HLSA News 68 Gallery HLS and the vice presidency 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 Michelle Bates Deakin 1053-8186) is published two Christine Perkins times a year by Harvard Law Lori Ann Saslav School, 1563 Massachusetts Ave., Cambridge, MA 02138. (2) SCRANTON JESSICA DESIGN DIRECTOR © 2016 by the President and Ronn Campisi Fellows of Harvard College. Sylvester Turner ’80 is mayor of Houston, the city in which Printed in the USA. he grew up and that he has committed his career to serving. ▲ c2-15_65_HLB_FA16.indd 1 10/12/16 4:09 PM FROM THE DEAN | Imagining the future t ogether Each moment bridges past and future; moments at HLS invite refl ections on the past and renewed focus for the future. In September, more than 800 African-American alumni and guests returned to campus for the fourth The past and future of currency and Celebration of Black Alumni at Harvard Law School. fi nance—and their supporting legal frame- Few moments at HLS have been as powerfully moving works—come into sharp relief through investigations at HLS of blockchain tech- or meaningful as CBA IV. Refl ecting on times great and nology, best known through its connection diffi cult, participants honored the extraordinary to bitcoin. Providing new, online meth- leadership of our African-American graduates in ods for streamlining and recording transactions, the worlds of law practice, the judiciary, business, blockchain technology presents unprecedented legal entertainment, politics, religion, the arts and ed- and practical challenges to long-standing regulatory ucation. Those gathered also brought imagination frameworks. Innovative work on this technology and energy to the crucial unfi nished business of engages faculty, students, and researchers at our racial justice. Sharing insights with current stu- Berkman Klein Center for Internet & Society. Note dents, reconnecting with old friends, and making it now bears the name of Michael R. Klein LL.M. ’67, new ones, returning alumni demonstrated how the whose transformative gift will ensure the center’s extraordinary network of the hugely talented and leadership in research, scholarship and policy relat- accomplished black graduates of HLS can help build ed to the digital universe. a more inclusive and just future. This issue The past and future of criminal punishment have On the brink of off ers refl ections by CBA attendees, and long occupied scholars and students at HLS; this there is more coverage online at bit.ly/ moment marks a critical juncture. An important 2017, we stand HLSCBA16. new book predicts that the death penalty is now “in at a crossroads The past work of Todd Stern ’77 off ers a a terminal decline.” HLS Professor Carol Steiker ’86 in the nation and key to all of our futures, for he is a leading and her brother, Jordan Steiker ’88, law professor at architect of the watershed achievement in the University of Texas, have each devoted their ca- in the world. the global eff ort to fi ght climate change. reers to death penalty research and advocacy. They His decades of work came to fruition last off er striking fi ndings and pathbreaking arguments December, when, as the State Department’s chief here in an interview. climate change negotiator, he helped secure the As HLS remembers Professor Emeritus Victor landmark Paris agreement by 195 countries pledg- Brudney, who passed away in April, we salute this ing to curb greenhouse gas emissions and create a towering and inspiring teacher and scholar with sustainable future. a panel discussion at the school on the future, Last spring, HLS hosted more than 175 offi cials, inspired by his searching inquiry into fundamen- scholars, and lawyers from across the world to tal issues of fairness, equality, and freedom in the address the past and future of the World Trade worlds of corporate law and fi nance. Organization’s Appellate Body. This issue off ers We stand at a crossroads in the nation and in the insights of alumni experts about the proposed the world. And we stand on the brink of 2017, when Trans-Pacifi c Partnership. After years of global we will mark the 200th anniversary of our school’s negotiations, TPP, if approved by Congress, would founding. In the upcoming bicentennial year, look become the largest regional trade accord in history. for lively programs on campus, online, and at alum- It has also become a fl ash point and symbol of ni gatherings around the world—opportunities for sharply contrasting visions of the future. We off er alumni, faculty, students, and staff to engage with a variety of views along critical challenges for legal education, for the pro- with a preview of the fession, and for justice worldwide and to envision next generation of trade the next century of legal initiative and leadership. lawyers, currently students As Albert Einstein once said, imagination is “the at HLS, where they learn preview of life’s coming attractions.” Let’s imagine from Assistant Professor the future together! Mark Wu and the tremendous opportunities he has created here. 2 HARVARD LAW BULLETIN Fall 2016 c2-15_65_HLB_FA16_r2.indd 2 10/14/16 3:30 PM LETTERS | How will developing technol- avoid creating a regulatory ogies aff ect human values? regime that would prevent ELAINE MCARDLE’S “THE the IoT from delivering on its New Age of Surveillance” promises. describes how the Internet Hendrik Bourgeois LL.M. ’93 of Things (IoT) has creat- Brussels ed a hot legal debate over privacy versus security, Alter corporate law to make highlighting the Berkman fi nancial decision-makers Center for Internet & accountable Society’s expert report and PROFESSOR SCOTT DOES ALL superb teamwork on this economic policymakers and important issue. analysts a major service with But the silence is deaf- his explanation of the diff er- ening with no mention of ence between connectedness the human impact to be ex- and contagion and the sig- pected from this “tectonic nifi cance of this distinction shift” in technology—when [Writ Large: Spring 2016]. sensors everywhere and In particular, by debunking data about our every move- the myth that our Fed erred ment/preference/habit (all in its 2008-2009 actions, he cloud-connected) mean less makes much less likely hav- face-to-face interaction ing a cyclical problem turn and much-altered cultural into economic catastrophe. norms about human However, it is also useful to inter personal relations. address why such analysis is The younger generation’s It correctly points out that analytics would generate a needed. relaxed assumptions around the rise of the Internet of staggering US$300 billion That is, what created the texting private information Things holds the promise of savings by 2030. So when fi nancial panic of 2008? (versus how my generation creating signifi cant eco- thinking about how to pre- Putting aside the politically views such texts) is a case in nomic growth, and bringing vent the IoT from becoming charged dialogue involving point. innovative and very con- the “Wild West of the Inter- alleged depredations of In anticipating how we’ll sumer-friendly products net,” policymakers should “Wall Street,” it is clear that feel about privacy-vs.-secu- to the marketplace. But its avoid adopting legal instru- the ultimate cause was a rity in this new age, we must potential consequences for ments that are designed for cascade of bad decisions by begin by anticipating how privacy and human rights consumer and personal data both lenders and borrowers, we’ll feel—about ourselves are stark only when the IoT protection, and fail to clear- which led to the creation of and those around us. The enables devices to exchange ly exclude industrial or B2B so much impaired debt and legal debate is much less personal information.