The Harvard Law Record: 2015-2016, Issue 10

Record The Harvard Law

MONDAY, APRIL 11, 2016

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 10

IN THIS ISSUE:

Sarah Gitlin ’16 asks why the abortion debate at HLS is so gender-segregated , p. 3 Marlen Thaten LLM ’16 and Tess Peacock LLM ’16 exchange views on Reclaim’s Postergate response, p. 5

Bruce Fein ’72 condemns Harvard Law School’s failures of moral leadership, p. 8 Pete Davis ’18 explains what we need to do to create a moral community, p. 8

Annaleigh Curtis ’16 thinks the marketplace of ideas needs sensible regulations , p. 11 Michael Shammas ’16 makes the case for intellectual humility in current campus debates, p. 12

Gender Gaps Persist on Law Review and in Grades Data reveal significant disparities in Law Review and HLAB membership, distribution of Latin honors; Board of Student Advisors statistically even.

By the Women’s Law Association

Starting in the spring semester, 1Ls are inundated with offers of lunch panels and coffee chat invitations from the two-year student organizations on campus. Membership to the Harvard Law Review, Harvard Legal Aid Bureau, and the Board of Student Advisors is highly selective and the organizations are frequently viewed as “honor societies” within the HLS community,

making them approximate measures of normative law school success. The Shatter the Ceiling Committee of the Women’s Law Association analyzed the number of men and women in each of these organizations to see whether male and female students are gaining membership to these organizations at equal rates.

Of the three student groups examined, both the Harvard Law Review (“HLR”)

Harvard Law Review membership

and the Harvard Legal Aid Bureau (“HLAB”) had statistically significant deviations from the expected gender breakdown, based on the total number of male and female students in the classes of 2016 and 2017. Interestingly, the gender disparities skewed in different directions. For the classes of 2016 and 2017, HLAB had significantly

Female 36% Male 64%

For the last several weeks, the walls of the protestor-occupied “Belinda Hall” have been covered with messages from Reclaim HLS, a coalition of students seeking institutional change at the Law School. But on March 28, there was a new message — one equating the movement with Republican presidential front-runner Donald Trump, claiming that both Trump and Reclaim are anti-free speech.

The signs were posted by thirdyear student Bill Barlow, who has been a vocal opponent of perceived censorship by Reclaim HLS. Barlow

ANALYSIS

Gender continued on page 3

Postergate beckons coalition for change

believes some of the protestors’ demands impinge on academic freedom and stifle dissent — a conviction this incident reaffirmed for him.

Shortly after Barlow taped up his signs, he sat down to discuss his message with protestors — a conversation he referred to as “tense but civil.”

Later that afternoon, members from Reclaim HLS removed Barlow’s critical posters. And shortly thereafter, Barlow received an email from the Dean of Students Office requesting an informational meeting with Dean of Students Marcia Sells.

NEWS

A defense of removing posters

By Duncan Kennedy

Unlike many colleagues, I do think there is a principled defense of Reclaim’s actions with respect to posters in Belinda Hall, one ­which I find persuasive, though with some reservations, which I will explain.

The defense applies even to what many of the faculty seems to see as the “red line” of taking down antagonistic posters in the occupied space, and a fortiori to moving them to another space. I don’t think it is coherent to frame the issue as whether (in one colleague’s phrase) “acceptance of this situation by us, in what I take it we still regard as a public space of the law school, could be explained consistently with free-speech and common-membership principles for our school and university to which I’d assume we are all committed.”

As I understand it, the occupants do not regard the space as “public” in the same way that many colleagues, do.

They understand themselves to have “occupied” it. This means different things to different participants in our discussions. One meaning is a “nationalist” one that claims that the school’s property right to exclude minority protesters is morally illegitimate because the school is complicit, at least, in an overall racial regime that is morally illegitimate. This doesn’t at all mean

Posters continued on page 2 that any particular action of occupiers is OK, just that nothing is settled by the appeal to the notion of “public space.” In the nationalist version of occupation, those who have asserted this claim of moral right also claim to be entitled to regulate the space according to their own democratic procedures. This claim is parallel to “our claim” as HLS to regulate the space.

“Our claim” includes all kind of

The school’s response to the occupation has created a reasonable reliance interest. rules about posting, and includes procedures for taking down posters that violate those rules. The fact that space at HLS is in some sense public does not at all at all mean that students or faculty can post anything they want anywhere they want. The Reclaim claim to a similar kind of occupier regulatory jurisdiction may strike you as absurd or evil, but it is “principled” in what I think is the common sense of the term.

I have a lot of sympathy with black nationalist ideas, and always have, so long as they aren’t turned into claims of radical autonomy, without consideration of consequences for “others,” or reduce every argument to racism, as has sometimes happened to the discredit of the nationalist cause.

OPINION

Kennedy continued on page 2

By Tyra J. Walker ’18

Photo by Jim An

Reclaim HLS has put up an area in the WCC lounge to segregate posters with messages they see as “silenced” or privileged.”

The Academy and the virtue of contest

By Scott Brewer

This past Wednesday evening I attended the screening of the film Bridge of Spies that Dean Minow and the Program on Negotiation hosted here at HLS. I had known nothing of the main subject of the film, James B. Donovan, a 1940 HLS alum (played in the film by Tom Hanks) who had a distinguished career as a lawyer-statesman-negotiator.

Donovan’s career came to mind as I listened to conversations among some of my colleagues about the controversial contest over student use of a WCC space that some students have been, as they put it, “Reclaiming” (actually, “claiming”?), while other students (one, Mr. Barlow, has been especially prominent) have been seeking to use it to speak by means of posters even as Reclaim has sought to deny him that speech.

The film made clear that Donovan was willing to champion robust advocacy, as a matter of principle, even in support of deeply unpopular causes, at personal cost and risk. As far as I can tell, the historical record of Donovan’s life seems to support the conclusion that the real-life Donovan really had and lived by these views. The Harvard Gazette summed it up this way:

professors’ “Hunting Ground” statement.

By Kamilah Willingham ’11

To: Elizabeth Bartholet, Scott Brewer, Charles Donahue, Jr., Nancy Gertner, Janet Halley, Bruce L. Hay, Philip B. Heymann, David W. Kennedy, Duncan M. Kennedy, Randall L. Kennedy, Charles J. Ogletree, Jr., Richard D. Parker, J. Mark Ramseyer, David Rosenberg, Lewis D. Sargentich, David L.

Shapiro, Henry J. Steiner, Jeannie C. Suk, Laurence H. Tribe: There was no mutuality that night. The sense of entitlement to grope, mount, fondle, even penetrate — to any extent — any female body within reach that has a pulse, is not something that anyone should accept as reasonable, non-abusive, excusable behavior, even for a drunk guy. When this sense of entitlement is demonstrated, admittedly acted upon, and defended as such, it is clear that the person responsible, as well as the community he belongs to, has a serious problem.

This is from my statement to

The academy should be a place where expressed views are allowed to mix it up in contests.

How can you defend a foreigner who came to the United States with the likely intent of causing harm to Americans? For attorney James B. Donovan, a 1940 graduate of Harvard Law School, the real question at the height of the Cold War was: How can you not?

In representing accused Soviet spy Rudolf Abel in the late 1950s, Donovan ‘probably had the most unpopular client since John Adams defended the British troops in the Boston Massacre of 1770,’ as newscaster David Brinkley put it. Donovan was no fan of communism, but he felt it was his patriotic duty to give Abel a strong defense and thereby demonstrate the

OPINION

HLS grad to former professors: do better Student condemns

Female 37% Male 63%

Reclaim HLS Removes Critical Posters in Lounge

By Lindsay Church ’16

Class of 2015 Latin honors

Harvard Law School’s Administrative Board on September 19, 2011. Ten months earlier, a friend and I were sexually assaulted by one of my classmates at Harvard Law School.

The Administrative Board found, by clear and convincing evidence, after months of investigation and a daylong hearing, that Brandon Winston had sexually assaulted me and my friend while we were incapable of consenting. I remember the incredible feeling of relief that washed over me when I learned of their decision: Harvard Law was a school I could Letter continued on page 5

Brewer continued on page 7

I’ve found myself in an interesting place as a black, female, first-generation law student in the midst of the socalled “Postergate” controversy. I am still processing the recent flurry of activity, but there are a few things I know, and wish to share: I support Reclaim HLS and the spirit of its mission. This first year of law school has been difficult for me, and while I hate to admit my weaknesses, particularly in such a public way, I have no doubt that some of the difficulties I’ve faced in disambiguating traditional legal reasoning have everything to do with being a first-generation law student with relatively few prior connections to the law.

I’m not alone in this feeling, and it is experiential disparities like these that Reclaim is trying to address, amongst other issues. Moreover, this effort not only supports students of color, but also those from various marginalized populations.

OPINION

I’ve found myself in an interesting place as a black, female, first-generation law student.

Law schools have made great strides in diversifying their populations across many facets of diversity, but they have not done nearly enough to ensure that sufficient support systems exist to deal with these demographic changes.

Nor have legal curricula appropriately evolved to draw connections between legal thought and the historical contexts in which the law has been used.

Although I do not support every decision Reclaim has made in the midst of Postergate (particularly the controversial claiming of jurisdiction over Belinda Hall by its plenary committee vote), I truly, deeply understand them.

Walker continued on page 2

LETTER TO THE EDITOR Belinda Sutton, not Royall To the editor: The “Belinda” of “Belinda Hall” fame was named Belinda Sutton.

Although she appears in her most well-known 1783 petition as “Belinda” and as “Belinda Royal” in two document in 1785, “Sutton” was her married name, as a later petition in 1788 indicates. It has long been known that enslaved people did not always take the last names of their enslavers, and many had their own last names.

“Belinda Sutton” is the only name

that we can say that she, in any way, chose.

Therefore, it is proper and respectful to call her by her real name. I brought this to the attention of the Royall House, and they agree wholeheartedly with me, and will use Belinda Sutton from now on. The changes are already reflected on their website.

Annette Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School.

2

Harvard Law Record

April 11, 2016

OPINION

Walker: HLS should focus on Reclaim’s goals, not missteps Walker continued from page 1 I understand them as the decisions made when a group reaches a boiling point because change isn’t happening fast enough. I understand them as the actions of students who have effectively been told by society to put our heads down, work hard, and assimilate for as long as we can remember, in order to gain access to ivory towers like Harvard Law. Despite decisions made in light of their administrative roles, I would imagine that, through being well-versed in the United States’ historical struggle for educational parity, Dean Minow and Dean Sells at minimum understand Reclaim’s actions too.

I haven’t attended as many Reclaim events as I’ve desired, but those that I have attended were truly empowering — they embraced sharing stories of vulnerability, considered pedagogical approaches to subvert classic power structures, educated, and provided just a touch of the humanity that many of us feel is sometimes missing from the spirit of the law and from classrooms. I think Reclaim has thus played a crucial role in transforming the community I’ve encountered thus far, and I hate to see all of these transformative moments erased in the wake of a specific set of actions.

Despite supporting Reclaim, I also understand how its actions are legitimately seen as disruptive in an environment like Harvard Law, an environment where a majority made it here by following the rules to a tee, by holding “order” in high regard, and by keeping a safe distance from contexts in which it’s okay — perhaps even encouraged — not to be “civil.” I understand that to a large portion of the community, everything that Reclaim represents is utterly foreign — and to be fair, that’s because it is utterly foreign to the law school tradition, and deliberately intends to be so.

I am thus convinced that what

was at stake during Postergate goes deeper than the apparent clash over free speech. By way of example, a Harvard Law alumnus posted the following on The Record website as part of his commentary on recent events: “My plenary committee held a democratic vote on what to do with the post-graduation resumes of repulsive little fascists, with a 100% return for ‘wipe our asses with them.’” While free speech is an undeniably essential freedom, comments such as this demonstrate the type of pure vitriol Reclaim is protecting itself from when free speech has no bounds whatsoever in an educational environment.

It seems that this was the threat that Reclaim felt it was facing with Bill Barlow’s original posters in Belinda Hall. Was it right of them to see those posters as a similar affront?

Debatable. We often speak about subjective and objective standards in the law, but I don’t believe we sufficiently consider these issues in the context of personal interactions like those in the present case. I think it’s an easy conclusion that repressing the free speech of dissenting voices in an educational community is objectively wrong. However, I think that if we ignore the very real, lived experiences of students and the power structures in which they’ve operated that led to Barlow’s actions being perceived as an affront, then we’re desperately missing the point.

Indeed, the wall of “silenced” and “privileged” voices created by Reclaim, seen by some as de facto segregation of speech, cannot be written off as an entirely mythical reflection of the law school environment. Of course, the danger of such portrayals is that they obscure the reality that we are all privileged by having the truly exceptional privilege of calling Harvard Law School our home. Ultimately, “silence” and “privilege” thereby become a matter of perspective and degree, and are

If we ignore the very real, lived experiences of students, then we’re desperately missing the point. labels that arguably fail us in our efforts to move forward, which I think — I sincerely hope — remains the shared goal.

These matters can be endlessly debated back and forth between aspiring legal minds. But one thing I find very clear is that conflicts like so-called Postergate arise when not enough is being done to create spaces for this type of debate to happen directly, regularly, openly, and sustainably. Although the administration has been very responsive to creating these spaces in the wake of particular incidents and targeted movements, what we seem to be witnessing is an unspoken signaling that mere responsive action is insufficient.

I am not a stranger to tensions like these playing out. For two years before HLS, I worked in the administration of The Dalton School in New York, which I also attended from first grade to twelfth grade. One of my greatest honors was seeing my school transform from taking a reactive approach to diversity issues as they arose, to leading a pedagogical and administrative overhaul that crafted a proactive regime for addressing these issues.

During my first year, two scandals emerged that made the pages of the New York Times and the New Yorker.

The administration responded by creating opportunities for community members to voice their concerns.

However the next year, the leadership of the school decided to take a new approach. They required the faculty

and staff to participate in mandatory trainings with an educational equity consultant prior to and throughout the school year, created a space for faculty and staff affinity meetings, created a regularly convening “Equity Council,” and had students participate in a full-day colloquium on race and equity, featuring a screening of the documentary I’m not Racist, Am I?, with a subsequent panel and small group discussions.

That year was rough, raw, emotional, and imperfect. It was far from seamless, and there were numerous moments of ideological tension. But it was also honest, productive, and generated as many breakthroughs as it did questions on how to move forward.

Many students customarily regarded as “privileged” grappled for the first time with the notion of deliberate social structures that ultimately predestined many of their opportunities in life. Students customarily regarded as “marginalized” had a unique opportunity to share the realities of their lived experiences with fellow students who were previously ignorant of such disparities merely due to a lack of structured opportunities to engage in this way.

Faculty engaged with each other to determine how pedagogical approaches could be coordinated to better reach the diverse range of students on the receiving end of their instruction. And individual faculty members were challenged to consider how notions of race and privilege have played into their own lived experiences and to redesign their curricula to more directly engage students with related issues of equity. Finally, staff members were empowered to communicate the support they desired to pursue leadership roles and achieve greater mobility in the school ranks.

Through creating these expansive opportunities for all of its constituents, Dalton effectuated a new regime, sending the firm message that

Reclaim “plenary committee” approved removal of signs Over 50 anti-Reclaim posters were removed from the WCC Lounge.

Posters continued from page 1 Because of Harvard’s status as a federally tax-exempt educational institution under Section 501(c)(3) of the Internal Revenue Code, it is required to refrain from engaging, directly or indirectly, in any political campaign on behalf of, or in opposition to, any candidate for elected public office. The Trump sign, Dean Sells explained to Barlow, might run afoul of these obligations. Barlow sought guidance about his rights to post contrasting signs without reference to political candidates throughout Belinda Hall, and reports that he was told he had a right to post a similar message that did not reference Trump.

Dean Sells issued a statement to The Record reaffirming Harvard Law’s commitment to free speech.

“In recent weeks, faced with questions of pressing importance to our community, we have respected the extraordinary use of space in the WCC lounge as a place for the expression of views through, for example, the display of posters and fliers and the holding of teach-ins and the like,” Dean Sells told The Record. “The University’s and Law School’s commitment to freedom of speech and academic freedom, however, requires that those who use shared space for expressive purposes must respect the rights of others to do the same, including those who disagree with them. These values of free exchange are essential to an academic community. They are also central to the legal profession, which at its core requires debate and discussion. We expect all members of this community to uphold these values.”

But unlike Dean Sells, AJ Clayborne,

a third-year student and a Reclaim HLS organizer who was one of several students who has removed Barlow’s posters, said that anything posted in Belinda Hall must be approved by Reclaim first.

“Belinda Hall has been reclaimed by Reclaim HLS for the purpose of creating an anti-racist environment for all and, accordingly, has a new governing body to protect that cause in a way that the institution’s existing structure, including DOS, has not,” Clayborne stated. “Anything that violates anti-racist values has no place in Belinda Hall.”

“We will not legitimize a dispute on whether racism is a problem at Harvard Law School.”

— AJ Clayborne, 3L After learning about Harvard’s 501(c)(3) obligations, which could bar signs referencing Trump, Barlow created new signs void of political content and hung them up on March 29.

One read “Reclaim Harvard Law= [Censored by Reclaim Harvard Law].”

Those posters were also removed from Belinda Hall. The group held a vote with its “plenary committee,” described above by Clayborne, to decide that only approved signs could be posted. They voted to deny Barlow’s signs.

Barlow said that one protestor told him that if he wanted to post a sign, he could attend Reclaim’s plenary meetings and vote with them about whether or not certain speech should be approved. But he could not, he was told, post a sign without prior approval from Reclaim.

Clayborne said the removal of these

signs, too, was justified.

“Reclaim HLS also removed those posters [not referencing a candidate for elected office],” Clayborne said.

“Reclaim HLS operates as a democracy and has consistently invited all students who share in its anti-racist mission to participate in its democratic body. We have a process for approving signage in Belinda Hall that was established by majority vote.”

This voting process, Clayborne recalled, was implemented the night after the Trump posters were hung.

Not all supporters of Reclaim approve the removal of Barlow’s signs.

Mark Hamlin, a third-year student who expressed his support for Reclaim HLS in The Record’s #HLSUntaped series and who also witnessed the incident over the Trump posters, questioned whether removing Barlow’s fliers was the right move.

“Just because I disagree with Mr. Barlow’s comparison (I do) or find it offensive doesn’t justify censoring it, at least in my mind,” Hamlin said.

“Furthermore, given the message Mr. Barlow has consistently tried to convey — that those opposed to the Reclaim Harvard movement feel pressured into silence — I felt like removing the flier only reinforced this message.

This was especially so as I felt like the grounds for removal [of the first flier referencing Trump] was largely based on pretext. If the flier was meant as an endorsement for Trump, then ‘=’ implies it was also meant to endorse the Reclaim Harvard movement, which is clearly not the case.”

Hamlin suggested that counter-messaging might have been a more effective alternative to censorship. He went on to note that these are difficult decisions and ultimately have not affected his support for the movement.

Movement leaders dispute concerns over its responsiveness to opposing voices.

“Reclaim HLS has never targeted

students at Harvard Law School,” Clayborne said. “We invite discussion in Belinda Hall rather than defiling of the space, but we suggest that these voices make the institution the target of their dissent and simply present ideas on how to make it more inclusive. Given student testimony and administration’s admission, we will not legitimize a dispute on whether racism is a problem at Harvard Law School — that is clear.”

On March 30, Barlow tried a third time to hang posters throughout the Hall. In this round, the message was one explicitly about free speech: “Reclaim Harvard Law = Suppression of Free Speech.” And again, protestors took them down.

“Reclaim Harvard Law has removed over 50 anti-Reclaim posters from the lounge area. This is absolutely unacceptable and a violation of the ethics of free speech that we uphold here at [HLS],” Barlow said.

Following the online publication of this article, The Record received updates from the community. Several students continued to post signs, which were removed by Reclaim HLS. After Dean Minow sent an email reaffirming the Law School’s commitment to free speech, protestors began moving signs critical of Reclaim from their original locations to a designated area on a wall for “privileged” voices.

On April 2, some Reclaim posters were defaced with the words “no censorship. The following Friday, Reclaim reported that it found a recorder taped to the bottom of a table in the fireside lounge. Harvard police are currently investigating, but the Crimson reported that students declined to provide HUPD with evidence.

Please send any updates to Co-Editorin-Chief Lindsay Church at lchurch@ jd16.law.harvard.edu or to News Editor Brianna Rennix at brennix@ jd18.law.harvard.edu.

Kennedy: There may be principles for removing posters Kennedy continued from page 1 But there is a second quite different argument in defense of Reclaim’s actions that I regard as also “principled” in the usual sense. It is a basic common law idea that reliance can be both a moral and a legal basis for a claim to rights of some kind asserted against an undisputed prior title holder. Deciding whether there was reliance, and whether it was reasonable, and what should follow from reasonable reliance, is the juristic work to which many of us in different contexts have been devoted. Cf. Henry Hart’s

astonishing article about the sit-down strikes of the 1930’s, denying I would propose that the school’s response to the occupation up to now has created a reasonable reliance interest: an expectation of some accommodation of occupiers’ claims, as opposed to insistence that the space remains perfectly “public.” Of course, there is no definition up to now of what that might mean in the case of a diabolically clever provocation of the type that has occurred.

Reclaim claims that Belinda is a space appropriated to their use as a marginalized minority of minority

dissidents. There are demanding that the school grant them a space similar to what the obviously political journals and recognized student political organizations have — not just in terms of recognition and money but also in terms of officially allocated real estate somewhere in the school. Their action seems to me defensible “in principle” on the ground that a reasonable interpretation of the toleration of the occupation to date grounds a claim not to have to share the space with posters that attack the legitimacy of their whole enterprise.

However, this is all highly

debatable. It might be better for example to recognize that in spite of reliance there is an obvious “public” aspect of Belinda, by reserving a space within it for posters attacking it, and permitting the occupiers to put up barriers, sheets or whatever, so they wouldn’t have to look at them. In any case, the notion that the students’ action is in some sense beyond the pale, so that no one (even yours truly) could defend it, is wrong.

Duncan Kennedy is the Carter Professor of General Jurisprudence Emeritus at Harvard Law School.

equity and education could not be treated in isolation moving forward.

This shift created some of the most meaningful moments of connection that I’ve experienced in my adult life.

What I want to see from Harvard Law is for the administration to truly embrace the challenge before them as my former school did. I want the school to not merely take symbolic actions, but rather to create a genuine coalition of faculty, staff, administrators, alumni, and students that will determine how this school can best serve the students who now represent the Harvard Law name. This coalition could be a permanent structure with rotating leadership, signaling the school’s revamped commitment to equity, diversity, and inclusion. It should seek to identify areas for pedagogical, curriculum-based, and extracurricular modifications and innovation, integrating feedback from groups like Reclaim and individual students alike, and should determine the appropriate steps to enact change. Further, this coalition need not start by aiming shots in the dark, for there surely exists no shortage of professional consultants confident of exactly where to begin (perhaps our very own Executive Education team could help serve this purpose).

I know it’s not easy, but, we students have entrusted our education to this institution, and are paying a lot of money for it, so this commitment seems like the least we deserve. Perhaps demands cannot be answered overnight, but it seems entirely reasonable for a coalition to be established relatively quickly. I may be wrong, and I’m just one voice of many, but I genuinely believe this commitment will do justice (no pun intended) to HLS’ self-proclaimed mission of “educating leaders who contribute to the advancement of justice and the well-being of society.”

Tyra J. Walker is a 1L.

If you have a response to any piece in The Record, contact Editor-in-Chief Michael Shammas at mshammas@jd16.law. harvard.edu or at editor@hlrecord.org.

The Harvard Law Record Independent at Harvard Law School since 1946 Harvard Law School Record Corporation 1585 Massachusetts Avenue Cambridge, MA 02138 Editor-in-Chief Michael Shammas ’16 Co-Editor-in-Chief Lindsay Church ’16 Deputy Editor-in-Chief Jim An ’18 Online Editor Pete Davis ’18 Opinion Editor Alene Anello ’16 Deputy Opinion Editor Nic Mayne ’18 News Editor Brianna Rennix ’18 Deputy News Editor Teddy Grodek ’18 Special thanks to Ralph Nader ’58

April 11, 2016

Harvard Law Record

3

ANALYSIS & OPINION

Stats Show Gender Disparities in Group Membership Gender continued from page 1 more women than would be expected (c2 = 6.933, P = 0.008), with 68% women and 32% men, while HLR had significantly more men (c2 = 6.721, P = 0.01), with 36% women and 64% men.

There was not a statistically significant difference in membership to the Board of Student Advisors (BSA), which had 58% women and 42% men.

The gender disparity among the editors of the law review isn’t unique to Harvard. A study by Lynne Kolodinsky examining the representation of men and women on the top twenty law reviews in the country, including most of the T14, found a persistent gender disparity in law review membership.

While some schools did not have such a gap, the study did not find that any particular selection method used for law review membership, including the use of affirmative action practices, had a major causal effect on the overall gender disparity. Rather than assuming more women aren’t chosen for law review because of biased selection methods, Kolodinsky proposed that more women may be affirmatively choosing to not join in the first place.

Preliminary research from HLR suggests self-selection could be a contributing factor to the gender gap seen in Harvard’s law review membership.

Michael Zuckerman, the President of the Harvard Law Review, said, “Because our competition is fully anonymous, our data is imperfect, but the data we do have suggests that the disparities are in large part a function of who completes the competition.”

HLR’s preliminary data shows that in addition to more men completing the writing competition, more men than women also pick up the competition packet.

Comparisons to other schools show that there are ways to address the gender-based disparity in grades.

Finding that HLAB has statistically significantly more women than men provides possible support for the hypothesis that women self-select out of participating in law review. Simmi Kaur, Vice President for Membership at HLAB, said, “We are proud of the central role women play in the Bureau and believe that the representation of marginalized identities is consistent with our goals as an organization.

Women take on significant leadership roles in the Bureau and our female applicants can see that, which may lead them to apply in larger numbers.”

While it’s not clear whether students who elect to apply to HLAB also choose to not take part in the law review writing competition, Zuckerman expressed, “All of us at the Law Review take building an inclusive and diverse membership extremely seriously, and we strongly encourage first-year students from all backgrounds to take our writing competition, which is the one necessary step to becoming an editor.

Editors of all genders — and certainly including our majority-female leadership team, our recruitment team, and our Women’s Committee — have spent

Harvard Law Review

A recent piece in The Record called attention to persisting gender disparities at HLS, including on Law Review, HLAB and with Latin honors. (Editor’s note: That piece is printed on page 1 of this issue.) This week revealed another stark gender disparity at the law school: women appear to be far more pro-choice and men far more pro-life. The gender disparity on this issue at the Law School is much greater than the national divide, leading to a hypothesis that stems from how women got into the room in the first place: women need reproductive justice to have an equal shot at professional achievement and admission to law schools like Harvard.

On Tuesday, Students for Reproductive Justice and Students for Life held competing lunch talks.

One was about telling the Supreme Court stories about women’s experiences with abortion in the context of the Whole Women’s Health case. One was about the argument that fetuses are full persons. Both events were well attended. But at the pro-choice event, the crowd was 80-90% female.

Board of Student Advisors

% of students graduating with Latin honors Male 53%

Male 38%

Female 36% Male 64%

Male 42%

Female 62%

Female 49%

45%

Female 58%

31%

19972004

20142015

Class of 2015

Class of 2015 cum laude Class of 2015 magna cum laude Female 25% Male 52%

countless hours this spring working to build on the efforts of previous volumes to encourage full participation in our competition and move the organization toward full gender parity.”

One prong of HLR’s recruitment efforts this year has been to correct misconceptions students may have about the law review. For instance, one such misconception is that you need top grades to gain membership. While 14 of the editors invited to join HLR each year are selected based on an equally weighted combination of first-year grades and competition scores, 20 are selected based solely on competition scores, and the final 12 are selected based on a more holistic review that can include grades if disclosed, but also includes self-disclosed identity information and competition scores.

Zuckerman also explained that HLR is working to establish connections between current law review editors and 1Ls thinking about participating in the writing competition. These relationships can take the form of informational coffee chats, but HLR also hopes that the law review representative will become a future source of motivation and support for students who may feel discouraged from taking part in or who start to second guess themselves during the week long competition.

The gender gap in law review membership is a problem HLR has long been aware of and one it is trying to address. While the number of female editors still lags behind, there are currently 11 openly LGB editors on HLR, many of whom are in leadership positions, and there was an openly trans editor last year. Such evidence indicates the law review has had some success diversifying its membership and becoming more inclusive.

The more serious gender disparity at HLS, which can’t be explained through self-selection, is the difference in the number of men and women graduating with Latin Honors. An analysis of the students graduating in 2015 found

Where are the women?

By Sarah Gitlin ’16

Harvard Legal Aid Bureau

At the fetal rights event, attendees were 80-90% male.

I posted photos of the two crowds on Facebook, and a friend pointed out that national numbers are somewhat closer: 54 percent of women identify as pro-choice, compared to 46 percent of men. Yet there were too many people at each event for the gender difference to have been a statistical fluke. What then explains the divergence at Harvard Law? There are many reasons why the Harvard Law student body is not representative of America at large. We skew younger, more progressive and are from wealthier backgrounds. But there’s one other key difference: we are all high-achieving. And control over whether and when to have children is far more crucial in enabling women to advance professionally than it is for men. At the law school, I know dozens of male students with children of varying ages. I only know three women with kids. That’s not to say it’s impossible for women who have kids at a young age to succeed at the highest levels — after all Elizabeth Warren had her first child at 19 — but there is a hugely disparate impact, often due to the expectation

Female 48%

Male 59%

a statistically significant difference between the number of men and women graduating with Latin Honors after controlling for gender representation within the entire class (c2 = 12.37, P < 0.001), with women receiving 36.86% of total Latin Honors awarded and men receiving 63.14%.

The disparity in the number of male and female students graduating with Latin Honors has been a long-standing issue at HLS. A 2013 article in The Crimson by Dev Patel quoted Dean Minow saying, “We don’t need to have a study, we need to work on making this better…You don’t have to prove anything to me; I’m already committed to addressing these issues, as is the faculty.”

However, comparisons between a 2005 study on women’s experiences at HLS, which found from 1997-2003, 44.9% of women graduated with Latin Honors (compared to 53.4% of men), and the data from the HLS classes of 2014 and 2015 (where 30.63% and 30.53% of women and 48.68% and 51.15% of men graduated with Latin Honors, respectively) suggest little progress has been made in addressing the gender disparity in law school performance, as lower percentages of women have received Latin Honors in more recent years.

While Dean Minow says she is “committed to addressing these issues,” the lack of transparency with students has made it unclear whether the administration and faculty have taken steps towards addressing the gender gap in grades. The data collected suggest that if such steps have been initiated, they have had negligible (or even negative) effects on the gender disparity in academic performance.

Interestingly, the gender grade disparity may not be the same at other law schools. In 2013, visiting professor Laura Rosenbury said at Washington University in St. Louis, women outperformed men for grades. Similarly, Stanford Law School reported closing

and reality that most women put in far more than 50% of the effort into raising a child, not to mention the physical burdens of pregnancy.

In the wake of posting the event photos, pro-life men have pointed out to me that plenty of women agree with them. That is true. But in part due to a lack of control over their reproductive lives, those women are far less likely to be able to end up at HLS or anywhere comparable.

In the pending Supreme Court case Whole Women’s Health, the lawyers’ brief told the stories of 112 female lawyers who maintain that they would not have been able to achieve their professional success had they not had abortions when younger.

I doubt their male partners would have faced the same degree of professional limitation had abortion not been an option.

Since Roe v. Wade, abortion has been framed as a privacy interest.

The attendees of the Students for Reproductive Justice event know a truth that many of our male classmates and our judges would be wise to learn: without access to control over our reproductive lives, women can never have a shot at equality either at HLS or in the broader world.

Sarah Gitlin is a 3L.

Female 41%

Male 75%

the gender gap in academic performance after moving to an honors-pass grading system and reducing class sizes. However, such gender parity at HLS remains elusive, despite the grading system reform in 2009.

One ongoing roadblock in solving the gender disparity in grades at HLS is the lack of transparency from the administration and faculty concerning both the gender disparity in grades and any measures to combat it. Despite the professed commitment to addressing the gender gap, since the 2005 study, the school has released no data about gendered differences in performance.

The HLS approach that seems to try to sweep the gender differences under the rug stands in stark contrast to the Harvard Business School (“HBS”) approach. HBS also had a longstanding gender disparity in academic performance. However, in 2011, HBS reshaped its curriculum, rules, and social rituals to foster female success.

Many of these initiatives were aimed at ensuring equal participation from male and female students in class discussions, which comprised 50% of business school grades. By training students to raise their hands affirmatively, changing the first-year curriculum, and allowing professors to analyze their calling and grading patterns by gender, the gender gap in academic performance had disappeared by 2013.

While there are certainly differences between the law school and business school — such as the fact that participation is so heavily counted for business school grades — the most crucial difference for gendered disparity in grades is that HBS has transparently, comprehensively, and successfully taken measures to address its gender gap, while HLS has consistently refused to do so.

Given that exams are graded blindly, determining why the gender disparity in academic performance at HLS persists is a challenging task exacerbated by the lack of information

Finding the one

By Alene Anello ’16

Graduating means moving on to the next stage of life. This often includes commitment and settling down. In other words, you may find yourself fantasizing about getting a dog.

If so, I have a tip on the best way to find your best friend: adopt.

If you like online dating, you can find a cute, friendly, adoptable animal on Petfinder.com. To recreate the Tinder experience, use the Petfinder app. Or, if you prefer the bar scene, you can swing by your local shelter to scope out the crowd. (Around here, try the Massachusetts Society for the Prevention of Cruelty to Animals.)

Adopting lets you save a life.

Shelters have fun, playful, clever animals who need a home, just waiting for you.

As you probably know, dogs sold at pet stores come from cruel puppy mills. Puppy mills keep dogs in dirty, overcrowded cages, force female dogs to give birth repeatedly, and often deny the animals vet care.

Class of 2015 summa cum laude Male 100%

Self-selection could be a contributing factor to the HLAB gender gap. available to students regarding factors professors consider when grading exams and the lack of official data on exam performance. A previous study found evidence that the gender disparity on exams varied with the gender of the professor. Compared to 1L courses taught by female professors, those taught by male professors showed slightly larger gender disparities in exam grades. Seeing as there are more than twice as many full-time male faculty members compared to full-time female faculty members, it is possible that lack of gender diversity among the professors at HLS could be trickling down and affecting the performance of students.

What is clear is that women entering HLS are just as capable and qualified as male students. There is something about the Harvard Law School experience that negatively impacts female students’ academic performance. Comparisons to other schools show that there are ways to address the gender based disparity in grades. Rather than feeling discouraged, female students at HLS should feel confident in their qualifications and capabilities and demand that the administration address this institutional issue in a transparent and collaborative way.

For more information about this piece, contact Alison Burton, co-chair of the Shatter the Ceiling Committee at the Women’s Law Association.

Mollie Swears contributed statistical analysis.

Even dogs from expensive breeders suffer health problems as a result of inbreeding. Mutts are healthier than purebreds on average. If it is problematic for us to have babies with our relatives, isn’t it problematic to force dogs to have babies with their relatives? Plus, doesn’t the notion of calling someone’s lineage “pure” disgust you a little? That said, if you feel set on a particular breed, you’re in luck: you can find a dog of any breed to adopt!

Shelters often have purebreds, and virtually every breed has a breed rescue network that you can find online.

Another benefit of adopting is that adoption will let you get a calm, housetrained, adult dog, who has stopped chewing furniture. A puppy demands near-constant attention. Imagine trying to provide all the affection, stimulation, and training a puppy needs while also starting your legal career!

That said, if you do want a puppy, shelters have tons of puppies, too. Just select “baby” on Petfinder.

We have an animal overpopulation crisis. At this point, every new dog bred means one extra dog sitting alone in a shelter, waiting for someone to love her.

So go love her.

Alene Anello is the opinion editor of The Record.

4

Harvard Law Record

April 11, 2016

OPINION LETTERS TO THE EDITOR Harvard Law School and Corporation flunk history To the editor: The Harvard Corporation has endorsed the Law School’s wish to withdraw its sheaves-of-wheat seal.

The seal is now damned as derived from the family crest of the father of the School’s early benefactor, Isaac Royall, Jr., an 18th-century slaveowner. In justifying its decision, the Corporation abuses historical reasoning. “When the shield was adopted [in 1936],” the Corporation notes, no “attention was given to the prospect that its imagery might evoke associations with slavery — a circumstance that, if recognized at the time, would quite likely have led to a different choice” (my emphases). In short, the Royall emblem became the Law School’s seal because its adopters back in 1936 lacked the anti-racist awareness of 2016. Had those old-timers been more alert, it is speculated, they would have behaved better — that is, like the Law School’s later-day saints — and rejected the seal. This wishful thinking echoes the classicist Benjamin Jowett’s Victorian faith that apparent homosexuality in Plato’s Phaedrus was really heterosexual; Plato’s lovely youths were actually young women, and had he “lived in our times he would have made the transposition himself.”

Worse is the sophistry of the Law School’s request to depose the seal. “The Law School of the present is very different,” claims its Committee, “from the Law School of 1937 for which the family crest

of a slave-owner could be chosen as its official symbol without anyone seeing the association with slavery.”

This implies an eighty-year transition toward modern rectitude. But today’s mea culpa reflects only recent repentance. Use of the Royall seal became most prominent in the 1990s. Apparently not until last year did anyone at Harvard notice, let alone object to, the seal’s slavery linkage. Law School staff and students were neither aware of nor “even thought to ask how the Royall family amassed its fortune” not only in the benighted 1930s, when “few people ...asked such questions,” admits the Committee, but up to “the near present.” Only “our new awareness of the shield’s connection to slavery” makes it a painfully divisive “reminder of an exclusionary past that should have no place in an inclusive present.” This fudges the issue. Is it the exclusionary past or its reminder that should have no place?

If it is the reminder, will not today’s discomfort give way to tomorrow’s desire for visible historical memory?

Is the “inclusive present” a reality, an ideal, or a pipe dream? Finally, the Committee self-righteously arraigns Washington and Jefferson — and by implication all slaveholders — as having “moral feet of clay,” though slavery was a morally accepted practice for most of human history.

Reclaim Harvard Law’s tactics discourage diversity To the editor: Recent events of censorship on campus are deeply troubling. As a proud liberal and holder of multiple minority identities, I have been embarrassed this year by a small group of students hijacking progressive values and using bullying, exclusion, and heckling to achieve progress.

I am no longer of the opinion that these students want equality. They seem to want to put their own views, agenda and identities above the diversity this community represents.

Any time the occupiers violate school rules, they invent creative names for their activities. Defacing school property with black tape in the Fall was “Art.” Posters in the fireside lounge are nothing more than a “Decorating Policy.” An occupation of the most-used common space is an “Office of Diversity,” an odd misnomer for a space that rejects diversity. The occupiers, through their beliefs regarding school rules and free speech, have become a law unto themselves.

As a direct consequence of Reclaim’s protest, HLS is no longer a welcoming place. Tearing down posters in the fireside lounge is equally an “act of violence” as the taping of some black professors’ portraits in the fall.

An important difference is that there is no question as to who perpetrated the current violations. The impunity those students have enjoyed for their escalating infractions has not gone unnoticed and seems to embolden them. I hope that the students are offered a fair hearing and are brought to face swift and certain sanctions.

David Lowenthal, College ’44, is an Emeritus Professor of Geography at University College London.

Faculty open letter unfairly dismisses Reclaim HLS

Anti-white language is racist To the editor: The following was written before I learned of the anti-white racial language directed at my classmate Bill Barlow. Before I learned that “the beauty of Belinda Hall is that whiteness, in all its forms, including the obsession with persuading white allies, does not occupy the center.” I wholly agree with Reclaim that racism has no place at Harvard Law. I am now convinced, more than ever, that racism is alive and well at HLS. But as long as the political left continues to legitimize anti-white racism and use it as a tool to achieve its goals, racial harmony will remain a dream deferred.

Try explaining American racism and discrimination to the Dominican spouse of a Harvard Law student in today’s campus climate. It can get pretty confusing, but it’s something I have tried to do during the two years that my husband has lived with me

In defense of Dean Minow Editor’s note: The following was submitted to The Record as an open letter to the law school community by the undersigned professors.

As members of the law faculty, we have all been proud of the activism, motivation and goals underlying Reclaim Harvard Law School. We fully support the University’s decision to retire the Law School’s Shield containing the Royall Crest, and acknowledge that this result would never have occurred were it not for the actions of Reclaim Harvard Law School and other individual students and groups who have pressed the school to face up to this part of its history.

But it is equally clear that the school would not have been able to achieve this important goal without the leadership of Dean Martha Minow. Which is why we believe that it is both wrong and counterproductive that some members of the Reclaim Harvard Law School

movement and other individuals and organizations have singled Dean Minow out for such sharp and unfair criticism.

No one, of course, should be immune from criticism — particularly not the Dean and the faculty. And it is easy to see why, as the Law School’s formal leader, students would target the Dean with their criticism of the institution. But much of the criticism of the Dean has been exaggerated and unfair, failing to acknowledge the enormous contributions that Dean Minow has made in the past — and continues to make today — in furtherance of the very issues of social justice that motivate Reclaim Harvard Law School’s efforts. As the University’s decision on the shield amply demonstrates, there are good reasons and much value to a reasoned process of decision-making.

Procedural justice and basic norms of fairness require allowing those who thoughtfully object to proposed

Editor’s note: The Record published an open letter from seven faculty members, printed below, attacking Reclaim for unreasonably criticizing Dean Martha Minow.

This is a response to that letter.

I find it troubling that a group of faculty would endorse a letter filled with the very errors they spend so much time encouraging students to correct. We are taught not to make unsubstantiated claims, but instead to connect claims with evidence, and to demonstrate logically how the evidence supports our conclusion.

Yet the faculty members who wrote the open letter in The Record simply asserted — despite substantial evidence to the contrary, including a recent article that appeared in the very pages of The Record — the following claims: “[M]uch of the criticism of the Dean has been exaggerated and unfair, failing to acknowledge the enormous contributions that Dean Minow has made in the past – and continues to make today – in furtherance of the very issues of social justice that motivate Reclaim Harvard Law School’s efforts.... For those seeking to reclaim Harvard Law School’s history, disregarding this critical piece of it both unfairly denigrates Dean Minow’s accomplishments and ultimately disserves their cause.”

How could a reader of their letter fairly assess the merits of their argument without being presented with any supportive evidence? What particular criticisms of Dean Minow, a reader must naturally wonder, do

they have in mind? For example, is it true — as the letter states multiple times — that members of Reclaim are failing to acknowledge the “enormous contributions” of Dean Minow’s work prior to her role as Dean? Which criticisms, exactly, do they find “exaggerated and unfair”?

When and where has Reclaim leveled these criticisms?

Having presented no specific evidence to assess, the letter amounts to empty rhetoric, and so ends up undercutting the authors’ call for Reclaim to be “thoughtful about the charges that they make, and the language with which they make them.”

Now, in the end, it’s possible there is something to what these faculty members are saying; I think this is a subject where people can look at the same set of facts and arrive at different conclusions. That might make for a constructive conversation. But implying that student activists at HLS are unreasonable without providing any support serves only to create more division.

Especially when there is direct evidence to the contrary. Less than three weeks ago, Reclaim member AJ Clayborne addressed head-on the tension between student criticism of Minow’s actions as Dean and her extensive scholarship of racial justice advocacy — i.e., the very issue these professors raised. In his op-ed, Clayborne opens by anticipating the letter writers’ concerns: “Our critics seem to think that we are unaware of Dean Minow’s scholarship and her contributions to the legal field in advancing the causes of gender and

racial equality. Yet we did not protest in ignorance. Indeed, we protested precisely because we are intimately acquainted with her work.” He then goes on to quote writings by Minow and discusses how these writings conflict with various positions she has taken as Dean.

Clayborne is clearly not “ignor[ing] Dean Minow’s long history of championing issues” that Reclaim has addressed, so why didn’t the faculty respond to Clayborne’s criticisms of Dean Minow directly? Perhaps one answer is that if these faculty members critically engaged with the points made by student protesters, it would be far more difficult to depict the story with such a broad brush.

Yes, Dean Minow has devoted much of her career to issues of racial justice. It costs us little to remind each other of that. But it also gets us little in return. What we need is to take a hard look at why so many students — and particularly students of color — have taken issue with how Dean Minow has responded to racial discord on campus. These conversations will cost us time and energy and will require us to confront uncomfortable truths about our community and our broader society. Dean Minow’s advocacy and scholarship can form part of the background for these efforts, but they alone cannot move us forward.

as a member of the HLS community.

The greatest challenge is attempting to unpack our community’s struggle with “structural racism” when overt acts of discrimination toward whites and whiteness are common, accepted and openly encouraged.

Exhibit A is [Reclaim’s designated areas for “privileged” and”silenced” speech, pictured on page 1. This is] HLS’s official White Zone for speech, a stone monument of white segregation in our diverse community: Though the White Zone may not bear that official name, a proxy for “white” screams from the top of the wall: “privileged.” At HLS and in leftist parlance, “privileged” is code for white, usually white and male (but this is not a hard and fast rule; some argue, and I agree, that we are all privileged by virtue of attending HLS). “Privileged” as a descriptor is usually used as an insult and as an attack on whites and whiteness, whether or not a white individual enjoys any personal privileges beyond the color of their skin. (As one of our colleagues eloquently reminds us, racial disparity in America is measurable, pervasive, and unacceptable.)

We are told that the White Zone and “white spaces” are the appropriate fora in which white students can express themselves. What are those “white spaces”? What makes a

space “white”? From what I can see, the only “white space” on campus is the aforementioned White Zone. It is a scar on our community, one that I hope is dismantled and denounced by its creators as antithetical to the ideals of diversity and inclusion.

The fireside lounge isn’t the only place where whites and whiteness have been policed on campus. Last year, a group of students in Lambda supported a “pro-diversity” bylaw that operated as a race and gender quota for the group’s board. I believe that the rule was well-intentioned, but debate over the quotas divided a community that was otherwise universally in favor of diverse representation and participation in Lambda’s activities. The only disagreement was how to achieve the ideals of diversity and inclusion.

Detractors were labeled “anti-diversity” and “white supremacist.”

Discussions of the effects of such a quota were, at the time, theoretical.

Up to and including last spring’s elections, we did not have the white or male supermajority that the bylaw was intended to prevent. Thus, when I stood up for the rights of a male or a white board member who might be stripped of their position on account of their gender or race — which would happen by invalidating the election results and forcing a series

of elections until the quotas were met — I was only speaking about the hypothetical student. But things have changed.

This year, in an uncontested election, Lambda elected a supermajority of white students to lead the organization. If the former Dean of Students had not intervened and required removal of the bylaw, we would have seen this year’s election results invalidated. We would have seen white students removed from the office to which they were elected solely on the basis of race, even though they bring to the board a diversity of experiences and viewpoints that, I am confident, will make them strong and effective as a group.

There are many reasons to support diversity, affirmative action, and even quotas, in a number of settings. I won’t argue those merits here. But it is difficult to heed a call for diversity and inclusion when it is accompanied by segregation. Power structures, imagined or real, do not justify targeting students because of the color of their skin — period. And if we continue to police whites and whiteness, diversity and inclusion at Harvard will be all the more difficult to achieve.

decisions to express their views and have those views no less thoughtfully and respectfully considered. All of our thinking and reasoning are necessarily enriched as a result, making any final decision all the more enduring. Dean Minow’s decision to create a committee to undertake an inclusive and careful review of the shield was plainly correct and an important step in convincing the Harvard Corporation to make the change.

Nor is it fair or productive to ignore Dean Minow’s long history of championing issues like this throughout her distinguished career. It was precisely this record of commitment that led Brandeis University to confer upon Dean Minow one of its highest awards, in honor of her path-breaking scholarship on the legacy of desegregation in education and her efforts to promote international peace-building in divided nations. Dean Minow championed these causes long before they were popular — and long after people told her that being associated with such issues might jeopardize her professional

Record Announces New Submissions Policy

By Michael Shammas ’16

The Record is happy to host discussions that are productive and that truly contribute to an environment of learning and understanding. But our paper is not a sounding-board for people’s accusations, biases, hit pieces, personal vendettas, and so on. We have rejected multiple pieces by students who wished to remain anonymous because we believed that the pieces attacked members of our

community in a way that should not be allowed absent an attached name.

Thus, in the interests of improving the tenor of the discussion, The Record has decided to take the following steps: (1) We will not publish anonymous pieces by individual students about Reclaim HLS. If you wish to write a piece, you must attach a name.

(2) Groups publishing pieces (related to this debate) must now publish the name of at least one person

who is responsible for the piece. The HALT piece and the Reclaim piece published in the past week were put online before we finished formulating this policy. From this instant forward, even if the board of an organization submits a piece, there should be a name attached. If a group singles out individual students in a negative manner, then individual students should be responsible for what they are saying. We will not allow anyone to hide behind a group name.

Isaac Cameron is a 2L. He is a member of Reclaim HLS, but the views expressed here are his alone and do not represent the views of Reclaim HLS.

The two preceding letters were written by Stephen Manuel Silva. Silva is a 3L.

career. And, as those of us who have served along side her for several decades can attest, since she has been in a position to do so, Dean Minow has done more to advance these issues than virtually any other Dean in the history of this law school, or any other. For those seeking to reclaim Harvard Law School’s history, disregarding this critical piece of it both unfairly denigrates Dean Minow’s accomplishments and ultimately disserves their cause.

We appreciate that Reclaim Harvard Law School includes a broad spectrum of voices in our community and no student organization can purport to speak for even those who support its mission, let alone for the entire law school community. But that makes it more not less important for those who support the ultimate goals of this movement to be thoughtful about the charges that they make, and the language with which they make them. As we stated at the outset, we are proud of the goals of Reclaim Harvard Law School and of the student activism spurring Harvard Law to become a better place. But we

are also very proud of our Dean, her work on behalf of the entire law school community, including her thoughtful and good faith efforts to respond to the important issues Reclaim has raised.

We respectfully submit that the members of Reclaim Harvard Law School and the students who support them should be so as well.

We have not circulated this letter to our faculty colleagues beforehand in an effort to secure maximum number of signatures although we fully expect many share our view. Our goal here is not to mount a referendum by numbers but to express our support and deep appreciation for Dean Minow and all that she has done during this difficult and important process, and to advance the cause of justice throughout her long and distinguished career.

Glenn Cohen Randall Kennedy Richard Lazarus Todd Rakoff Carol Steiker Kristen Stilt David Wilkins

(3) Some students have treated members of our staff, including editors, with unwarranted disrespect.

From now on, in order to be published in our paper, respect for others you are interacting with will be a consideration. Again, be inconsiderate to me all you want; but our masthead is large and criticizing any single member for a collective decision we make is misguided and, more to the point, not a very nice thing to do.

Please note that this point (like the others) is not directed to either “side” of the ongoing discussion. There has been disrespect coming in from a lot

of places.

(4) In addition to not publishing videos taken of students without their consent, we will not publish photos taken of students without their consent. We are aware that other news organizations have chosen to publish both photos and videos; that’s fine.

We are not those other news organizations; we’re a part of this community and we will treat fellow students like what they are: Community members.

Michael Shammas is the tor-in-chief of The Record.

edi-

April 11, 2016

Harvard Law Record

5

NEWS & OPINION

Harvard to Retire HLS Shield Harvard Corporation requests new shield for HLS by 2017.

After several months of protests and the formation of a committee to study the Harvard Law School shield, Harvard Corporation has decided to retire the current shield representing the Law School. Harvard Corporation, which along with the Board of Overseers governs Harvard University, has requested that the Law School propose a new shield, “ideally in time for it to be introduced for the School’s bicentennial in 2017.”

The letter from Harvard President Drew Gilpin Faust and Harvard Corporation Senior Fellow William Lee accepting the change is below.

Dear Dean Minow,

We write on behalf of the Corporation in response to your memorandum dated March 3, 2016, and the report of the Harvard Law School (HLS) committee that examined issues related to the HLS shield. With you, we are grateful to the committee you appointed for its careful work and thoughtful report.

We especially appreciate the efforts

by Professor Bruce Mann and the committee to solicit a wide range of views from across the entire HLS community, to weigh competing considerations, and to engage in the kind of reasoned argument and deliberation that is central to the Law School’s ideals. We are also grateful to Professor Annette Gordon-Reed for the cogent arguments she raises in her separate opinion, joined by Annie Rittgers. And, of course, we are grateful to everyone in the wider HLS community who took the time

to join in this important discussion.

Following a review of the committee report, the “different view” conveyed

by Professor Gordon-Reed and Ms. Rittgers, and your own memorandum, the Corporation agrees with your judgment and the recommendation of the committee that the Law School should have the opportunity to retire its existing shield and propose a new one. As you note, the current shield does not appear to be “an anchoring part” of Harvard Law School’s history. The committee points out that it was not adopted until 1936 — the occasion of the University’s 300th anniversary — when the Law School was already well into its second century; that the School’s use of the shield in the ensuing several decades was sporadic; and that the regular widespread use of the shield as a symbol of HLS “is of relatively recent vintage,”

apparently dating to the mid-1990s.

What is more, the report indicates that when the shield was adopted, it does not appear that any attention was given to the prospect that its imagery might evoke associations with slavery — a circumstance that, if recognized at the time, would quite likely have led to a different choice.

Given these circumstances, and with the Law School’s own bicentennial approaching in 2017, we believe the School should have the opportunity to propose a new shield that, in the report’s words, “more closely represent[s] the values of the Law School” — one conducive to unifying the Law School community rather than dividing it. At the same time, we agree with the committee’s unanimous view “that modern institutions must acknowledge their past associations with slavery, not to assign guilt, but to understand the pervasiveness of the legacy of slavery and its continuing impact on the world in which we live.” While we accept the request to

change the shield, we do so on the understanding that the School will actively explore other steps to recognize rather than to suppress the realities of its history, mindful of our shared obligation to honor the past not by seeking to erase it, but rather by bringing it to light and learning from it. Many thanks again to you, to the committee, and to the HLS community for your thoughtful and nuanced consideration of a complex issue. You should feel free to discontinue use of the shield as soon as you see fit, and we will look forward to receiving your eventual recommendation for a new shield, ideally in time for it to be introduced for the School’s bicentennial in 2017.

Sincerely, Drew Faust President William F. Lee Senior Fellow

Minow Emails HLS to Reaffirm Principles After Poster Removals On April 1, Harvard Law School Dean Martha Minow sent the email below to the entire law school community following Reclaim’s removal of critical posters in the WCC Lounge. More information can be found in The Record’s coverage of the news, which starts on page 1 of this issue.

Dear members of the Law School community: As our community has focused on questions of race and inclusion, which we regard as issues of pressing importance to the nation and our community, the Law School has respected the extraordinary use of the WCC lounge as a space for protest and discussion. When a shared space is made open for such a purpose, even temporarily, the values of free exchange that define an academic community require that every member of the community

has the right to use that shared space to express views, to express differences, to engage in debate.

That freedom to disagree makes us stronger and better. It is essential to the integrity and success of an academic community—and especially to members and future members of the legal community—that we operate on the bedrock foundations of openness and free debate.

Harvard University guarantees these rights of free exchange to all members of this community.

In its Statement of Rights and Responsibilities, the University places “special emphasis” on certain values that it deems “essential to its nature as an academic community.” Chief among them are “freedom of speech and academic freedom, freedom from personal force and violence, and freedom of movement.” The Statement makes clear that “[i]nterference with any

of these freedoms must be regarded as a serious violation of the personal rights upon which the community is based.” In its published Protest and Dissent Guidelines, the Law School has interpreted and implemented these rights by providing that “[u]sing or threatening force or violence, such as defacing a sign or assaulting a speaker or a member of the audience, is never permitted.

Any interference with freedom of movement or with freedom from force or violence is a serious violation of personal rights.”

We reaffirm our commitment to the values of free exchange and free speech for all members of the Law School community. Protection of these values means that in shared spaces, all students must be able to voice their opinions and express their dissent equally. To that end, the Law School will take the following steps:

In shared spaces, all students must be able to voice their opinions and express their dissent equally.

1. The Law School will shortly provide a centrally located space for students to post their opinions, express their dissent, voice their protest, and exchange views. We will establish guidelines, moreover, to ensure that all students have access to this forum.

2. The Law School will take steps to ensure that students and student organizations have ample opportunities to use space to engage in study, discussion, teach-ins, and

Reclaim Harvard Law, please stop destroying yourself The following letters were submitted to The Record following Reclaim’s removal of critical posters in the WCC Lounge. More information can be found in The Record’s coverage of the news, which starts on page 1 of this issue.

By Marlen Thaten LLM ’16

Dear Reclaim Harvard Law, You broke me today. I am shocked and appalled by the actions you have taken in the last couple of days. But I am writing to you because I still have hope that you might stop this madness and come to your senses. Before you read on, let me make one thing clear: Since

A tearing issue

By Tess Nolizwe Peacock LLM ’16

I am glad you have been a supporter of Reclaim since the beginning. For over a month now we have been in occupation of the Belinda Hall. The point is to create a sanctuary for marginalized groups on campus, to engage in critical discussion about the system propping up the status quo, and to disrupt the complacency with which the institution has dealt with racial injustice — overt and systemic. Belinda Hall is designed to disrupt the white-washed wall of elitism that otherwise pervades the campus.

the day you arrived on campus, I have been a staunch supporter of your cause. When the pictures of our black faculty were defaced, I was outraged just like you. When the administration refused to sufficiently engage with your demands, I was angry just like you. And when Royall finally fell, believe me, I was happy just like you. But now things have taken a turn in a very unsettling direction. You have taken over Belinda Hall not just physically, but mentally. Everyone who dares to disagree with you is labeled a racist or an extremist. People are being silenced, posters are being taken down. You have made it your exclusive right to decide what

is being said and done in our very own student lounge, and opposing views are simply not welcome. Oh wait, they are, but only after they get approval from your “plenary committee.”

Seriously?

You are turning from the oppressed into the oppressor, and you don’t even notice it.

When I look at your movement now, I see not only rightful indignation, I also see self-righteousness.

I see people who are so invested in their mission that they think it is actually okay to tell every member of the Harvard community what to think, what to feel and that it is okay to silence everyone with a

different view. I want to strongly caution you against this. For the sake of your own movement, for all the good things that you are trying to achieve, you should stop it now.

Don’t you see that you are creating an atmosphere where everyone who is not of your opinion, and your opinion alone, is not allowed to express themselves?

The way to convince people of your mission can never be to suppress critical voices; it can only be to out-argue them. And that includes the risk that they argue back.

That can sometimes be hard, and yes, it can sometimes hurt. Deeply.

But that is the very nature of argument, of discourse. That is academic

And make no mistake — it is an occupation.

Bill Barlow has baited Reclaim, sure. We have engaged him for months. People have sat down with him for hours discussing critical race theory and our demands to him in greater detail. He has written many posts in The Record. He has written many letters and spoken at public meetings.

Despite all of this, at which point did you conclude that he was silenced? At the point where he deliberately and provocatively put posters up and demanded to have his posters put up on the walls of an occupied space named Belinda Hall in honor of a former slave of Isaac Royall? At the point where he walked past black men in the space but when only black women were

around threatened them and filmed them without consent and put those films on the Internet to publicly persecute them? You concluded he was silenced when people, who you claim to support, were degraded and had the only sanctuary they have on campus defiled, despite him having a plethora of avenues to access and ventilate his speech.

occupation has rules. This is how our occupation works. You make this a free speech issue, a holy cow of democracy and all that but this is really a power play about a bully who wants to destroy everything you said you admired about Reclaim in the first place. You have been baited too.

Are you going to write a follow-up piece now that many posters in Belinda Hall were vandalized this morning? Or now that all the posters Reclaim put up around the WCC have been taken down? Were you ever going to write a piece supporting Reclaim, or condemning the black tape incident on campus?

Instead you chose to write a piece defending the already powerful.

Reclaim is disrupting the status quo and beginning to tear at the silences revealing the fist of the

You make this a free speech issue, a holy cow of democracy.

Yes, we vote about what gets put up. It is an occupation and yes, this vibrant, dynamic and brave

Is Reclaim taking a turn for the worse?

By Marlen Thaten LLM ’16

Tess, thank you for taking the time to respond to my worries. I am glad to hear that you are out there listening. Unfortunately, I feel that my message has not come across clearly enough, so I am happy to take the chance to clarify.

Let me put one thing out there right up front: Yes, I am not an active member of your movement. I have never claimed to be — I have not slept in Belinda Hall like you, I have not staged walk-ins like you, I have not had discussions with Bill Barlow (thank God!) like you. But that doesn’t mean I wasn’t there.

I was there all the way. My voice

might not have been as loud as yours but it was heard — in opinion polls, in community meetings, in the Shield committee. It was the voice of the silent majority of this university that has carried you to your victory.

But this is not about me. This is about you. You are the group who is demanding change. You are the group who is demanding attention.

You are the group that is fighting for a fairer and more equal society. Or so I thought. Your behavior during the last days is, unfortunately, pointing in the complete opposite direction. You claim to have a right to decide what is being said and done in certain areas

of our university — you and you alone.

Free speech to you is “the holy cow of democracy.” A cow you are all too ready to slaughter for the political goals that you — and I — hold so dear.

Take it not from me, but from history: This is a bad idea.

No matter how good your intentions, if they make you silence other people, then something is wrong with them. This has been true in the French Revolution as it has been on countless other occasions. As a daughter of East Germany, I am happy to provide insight on the matter if you actually choose to engage. And believe

Your movement has turned self-righteous, single-minded, flatout authoritarian. me, I would love to engage. I have so many questions. Like many others, I am wondering — where exactly does your movement lead?

Is this how you actually think a society should be run? Opening a place for “diversity and inclusion” just to shut everyone out who is not of your opinion? The irony seems to be lost on you.

But let me restate this once and for all: I am not your enemy,

other forms of collective speech and action.

In the interim, we will continue to make the WCC lounge available as a temporary space for the community to engage in speech. But that space must be available to all who wish to use it for such expression. We hope and believe that our community will affirm the values, norms, and policies that we have articulated. Blocking those who wish to post signs or tearing down the signs of others violates those values, norms, and policies. At the same time, we are committed to using available procedures and protocols to ensure that these values are observed and respected at the Law School.

Martha Minow Morgan and Helen Chu Dean and Professor Harvard Law School

You are turning from the oppressed into the oppressor. freedom; that is free speech. That is the very foundation of democracy.

To erode it, in the name of whatever “good” purpose, is the first step down a very dangerous path. And to go so far as to make free speech subject to “majority approval” is an outright disastrous proposition. It scares me that a group of astounding and intelligent people like you could come to such a conclusion.

Marlen Thaten is an LLM of the Class of 2016. powerful who refuse to understand.

We are told how to protest, how to speak, how to plan, how to negotiate and, I fear, becoming re-molded and re-silenced again. People say do not use words that white people grow weary of. Many others say “if only they did it this way, then that would be better.” And the powerful say to the oppressed “you are silencing me.”

Let’s not make claim to “free speech” without listening more than we are speaking. Let’s be curious, kind and vulnerable and emerge from those secure arm chairs, writing vague critiques which conceal a desire to pacify, whether you are aware of it or not.

Tess Nolizwe Peacock is an LLM of the Class of 2016.

I am your friend. And as a friend, I am doing what I would want my friends to do for me when I am not seeing clearly: Stand up and tell me the truth when I have become too blind to see it. That is exactly what has happened here. Your movement has turned self-righteous, single-minded, f lat-out authoritarian.

Against this backdrop, your invitations to “talk” and “engage” ring hollow. However good the goals are that you pursue — if you want to pursue them in a society that only values your opinion and no one else’s, then this is a society I cannot stand to live in. Therefore, with all due respect, I disagree.

Marlen Thaten is an LLM of the Class of 2016.

6

Harvard Law Record

April 11, 2016

OPINION OPPOSING VIEWS Editor’s note: These op-eds are part of a new Harvard Law Record feature highlighting opposing views from members of the HLS community.

Texas is lying about abortion laws

In defense of HB2 and life

Texas legislators’

Politicization of abortion

arguments for women’s health are disingenuous.

By Sarah Gitlin ’16

Does anyone, on any side of the abortion debate, sincerely believe Texas when it says it is enacting draconian laws targeted at closing abortion clinics because it wants to improve women’s health? Does anyone really think that restrictive regulations that will close the majority of access points to health care, regulations that the American Medical Association believes are unnecessary and counterproductive, regulations that will force many women into the far more dangerous medical procedures of either childbirth or D.I.Y. abortions, are there to protect women from the almost non-existent dangers of their safest option once they are pregnant?

The closure of many clinics in response to the regulations of HB2 has led to weeks-long waiting lists at the remaining clinics – it is bad both for the health of a woman and for those who care about the developing fetus to delay the procedure until later in the pregnancy due to inadequate clinic access.

We know why Texas framed its abortion restrictions to pretend that they advance women’s health; the Casey decision leaves health as a valid state interest in regulation.

But that does not mean their motives are what they say. As Justice Kagan pointed out in oral argument, “Texas [says it is setting] much, much higher medical standards, … for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work? Am I right?… And I guess I just want to know, why would Texas do that?”

Let’s take a closer look at some of the Texas regulations. First, Texas requires that Doctors who provide abortions obtain admitting privileges at hospitals within 30 miles of their clinics. Texas is spread out enough that there is frequently only one hospital within 30 miles and Texas knows that many hospitals, including notably Catholic hospitals, will refuse to provide admitting privileges specifically because these doctors perform abortions. Second, if a woman needs to go to the hospital in an emergency, the hospital will accept her regardless of whether or not her doctor has admitting privileges. Third, legal abortion is an extremely safe procedure; complications requiring a trip to the hospital occur in only five out of ten thousand procedures, far less frequently that the complication rate of procedures like Liposuction, and dramatically less than the complication rate for birth. In fact, other hospitals will refuse admitting privileges to abortion providers because abortion is so safe that those doctors never refer many patients to the hospital in the first place.

HB2 also contained a provision, similarly enacted in the name of women’s health, requiring women receiving “medication abortions” (pill based abortions without any surgical elements) to make more doctors appointments – and hence take more time off work – than the medical standard of care required and to take a far higher dose of the drugs, potentially leading to many more side effects. Does that sound like the actions of a state worried about protecting women’s health?

So let’s drop the pretense that Texas was acting to protect the health of the woman by enacting regulations that limit her choices and push her to far more dangerous medical procedures, either birth or illegal abortion.

Texas was attempting to radically restrict abortion access in a way that they hoped the Court would find palatable. Once the real goals of Texas are unmasked, the question then becomes, is Texas justified in trying to reduce access to abortion?

This may seem absurdly obvious, but when a pregnant woman opts not to have an abortion, the result is almost always a baby.

First, if we are actually concerned about a woman’s medical health, childbirth is dramatically more dangerous than legal abortion. But second, if the timing in a woman’s life is wrong or if her partner is wrong, that child could reasonably cut her off from the ability to participate equally in modern life.

An Amicus Brief in Whole Women’s Health contained the stories of 100 female lawyers discussing their own decisions to have abortions and the overwhelming likelihood that they would not have been able to become attorneys without the option to have an abortion and the ability to decide their own futures.

Many anti-choice advocates zoom way in and focus only on the zygote, embryo or fetus. They focus on the decision to have an abortion or not, but fail to note that the fetus is inside of a woman and that if there is no abortion, there will soon be a child that she will be responsible for. (To Nic’s point about adoption, I highly recommend The Girls Who Went Away which documents the lifelong P.T.S.D. faced by women and girls in the 1950s and 1960s who were forced to bring pregnancies to term before legal abortion and coerced into relinquishing parental rights due to the stigma surrounding unwed motherhood.

Adoption may work well for the families who freely choose it, but putting a woman in the situation of forcing her to have a child she does not want and does not feel she can provide for and then giving her only the limited choice of abandoning her own child or destroying her future life to raise it is not much of a choice at all.)

It is an entirely consistent and sensible position for even the most ardent supporters of choice to wish that abortion is safe, legal, accessible, and rare. As an old saying goes, “no woman wants an abortion. Either she wants a child or she wishes to avoid pregnancy.” I’m glad to see that Nic agrees with increasing accurate sex education and creating access to the most effective types birth control – unfortunately Republicans typically oppose both of those common sense initiatives and the fights to defund and persecute Planned Parenthood would eliminate access to birth control for millions, with the effect of dramatically increasing the demand for abortion when unintended pregnancies inevitably follow.

Of course, we cannot forget that, when denied the opportunity to have a safe and legal abortion, many desperate women will seek to end their pregnancies by whatever means available, no matter the risks. The New York Times recently documented “The Return of the D.I.Y. Abortion” that showed Google searches for how to self-induce an abortion soaring in areas where regulation had shut down clinics. In 2011, there were 16.9 abortions a year per 1000 women of reproductive age. Immediately before Roe v.

Wade, the number was 16.3. Abortions will occur no matter if all the clinics are closed, they will simply be far, far more dangerous.

As comedian Samantha Bee asked recently – if Republican legislatures are going to restrict access to abortion while pretending to care about women’s health, “Have [they] thought about regulating the safety of back alleys?”

Abortions will occur no matter if all the clinics are closed, they will simply be far, far more dangerous.

Sarah Gitlin is a 3L at Harvard Law School.

Interrupted reclamation!

Reclaim HLS member responds to criticism of Reclaim’s methods.

By Mawuse Vormawor LLM ’16

No matter what one conceives of her task, the minority wins not when she has convinced those in power of the righteousness of her cause but when she has drawn the silent and perhaps even indifferent majority to her side. While the comfort and lack of urgency of ‘those perceived as having no skin in the game’ is most disabling to any social movement, alienating them further rather than winning them over is the guillotine on which many a righteous cause have breathed their last. But here is the catch; even more righteous causes have become

diluted and completely irrelevant while stretching themselves to appeal to the recalcitrant armchair majority.

Worse still for social activists, the seeming propensity sometimes of self-professing sympathizers to raise their voices in criticism of social activists — or as Tess Peacock puts it eloquently “writing vague critiques which conceal a desire to pacify” — more often than they are given to questioning the status quo is a fundamental source of frustration and resentment.

The ongoing conversations in Harvard Law School these past few days on the use of Belinda Hall and of the place of dissenting — read hate- speech within a social movement that prides itself on leveraging diversified voices and on the diversification of academe and legal thinking as well as the institutions and assumptions that sustain same

debate hinders search for solutions.

By Nic Mayne ’18

In a few weeks, an 8-justice Supreme Court is set to hear a case challenging “HB2”, a Texas law that could close more than three-quarters of the state’s abortion clinics. Pro-choice advocates have vehemently opposed the legislation from the start, citing the devastating impact the restrictions could have on women’s health. Pro-life advocates champion HB2 as a common sense protection of women’s safety.

Three of the bill’s provisions are specifically challenged in the upcoming Supreme Court case. First, HB2 requires that abortion-clinic doctors have access to a hospital within 30 miles of the clinic.

Second, HB2 outlaws abortions after 20 weeks. Third, HB2 requires that abortion clinics meet the minimum health and safety standards adopted under Section 243.010 of the Health and Safety Code.

Essentially, HB2 demands higher standards of care from abortion clinics, and seeks to protect the unborn from a point where it is feasible that a fetus could feel pain, and reasonably survive. 20 weeks, admittedly, errs on the side of caution.

Available evidence suggests fetal pain capacity may develop slightly later on, between 24-30 weeks. Still, the provisions of the bill don’t seem to be inconsistent with common principles of the political left. Even if the motivation behind HB2 was to restrict access to abortion, the text of the law itself simply sets minimum standards for women’s health care, and protects the rights of a marginalized group: the unborn. These goals seem to align with the common aims of the liberal left.

Abortion is one of the few issues where Democrats, not Republicans, seem to simply oppose legislation for sake of political face-saving, even when it may be consistent with their ideals. On abortion, Republicans are willing to concede power to the government to protect a marginalized group.

Democrats, or at least a strong majority, emphasize deregulation. It is a perplexing exchange of values, seemingly motivated more by proverbial ‘lines in the sand’ than sound reason.

As I’ve come to realize from my conversations at the exceptionally left-leaning Harvard Law School, liberals too perceive the paradox. In fact, the more I inquire, the more I realize that deep down, stripping away the stigma linked to the terms pro-life and pro-choice, even the staunchest liberals are to an extent, in favor of defending life.

Casting aside the antagonism perpetuated by decades of fierce debate, I know the majority of Americans agree that less abortions would be better.

What we disagree on is not whether or not we should end more lives, but what methods would best serve the common goal of reducing abortions. If advocates on both sides were willing to admit that, we would be better equipped to cut into the nation’s astounding 1.2 million annual abortions.

Laws nationwide, enacted by both Republicans and Democrats, further suggest that abortion is inconsistent with an American perspective on the value of life. 38 states have fetal homicide laws protecting the unborn. Some include a fetus in the definition of person for the purpose of criminal punishment. Others set lesser punishment than murder for killing a fetus, but still punish offenders for taking multiple lives.

highlight historical tension in social activism. The fact remains that those who speak against the status quo bear a larger burden than those who defend it. The actions of those who call for reform are scrutinized way more crudely than those who caution against change.

When characters are assassinated, both literally and figuratively, those characters are less those in charge but more those who invite our institutions to introspect.

Yet the more I read reactions and counter-reactions to the debacle, the more troubled I am by the success of the disruptor. By enrolling Reclaim Harvard Law in his disruption, Bill Barlow has managed to not only gain more attention from the administration than Reclaim has for substantive issues thus far but also managed expertly to distract attention of the “silent majority” from the pressing and valid proposals Reclaim Harvard Law has invited this community to ref lect on in order to improve our spaces.

This extends beyond murders of pregnant women too; Colorado Democrats passed a law in 2013 punishing those who cause pregnant women to lose their child in domestic violence and vehicle accident cases.

Protecting the unborn is overwhelmingly consistent with American values and legislative history. Perhaps HB2 is too restrictive. Perhaps legislation restricting access to abortion isn’t the best answer. But let us at least recognize that one of the most contentious moral issues we face is one where significant commonality exists.

There are policies aligned with both political sides that would dramatically reduce the number of potential human lives lost each year. Switzerland boasts one of the world’s lowest abortion rates, despite fairly liberal abortion policy. The Swiss have achieved what many Americans desire without heated court battles, filibusters, and divisive legislation, but with education, healthcare, and economic growth.

Many conservatives firmly oppose contraception and even sex education, though the two have proven on smaller scales to be among the most effective means for eradicating abortion. Perhaps the answer is as simple as ‘getting rid of abortion by getting rid of abortion’ – not through legislation, but by gradually reducing abortion rates to a level where complete eradication is actually plausible.

Democrats often cite the need for access to abortion in cases of rape and incest, and many Republicans are unwilling to budge, but those cases make up just 1% of all abortions.

A question to ponder, then, is this: would you rather work to save over one million potential lives per year, or continue to perpetuate gridlock over approximately 12,000? Can we really be advocates for the value of life, yet value life less than the political cost of concessions regarding extreme cases?

Furthermore, adoption law and policy is in dire need of reform. International adoptions have steadily declined, now at the lowest level since 1982. Domestic adoption rates have failed to fill in the gap. The United States has done little to facilitate adoption, and in many unfortunate cases, including some of recent prominence, the emphasis on keeping children with their birth mother even in dangerous situations has had disastrous results.

Legislation is far from the only option to address America’s abortion problem, and even if politically possible, reducing access to abortion may be far less effective than other means. I don’t claim to have all the answers, but I do know we won’t find those answers by continuing to quarrel, enacting and repealing in a constant back-and-forth policy brawl.

As the nation’s highest court considers Whole Woman’s Health v. Hellerstedt, which with just eight justices may not be completely resolved, coverage will no doubt reignite fierce debate, and those on both sides of the issue will seek to stand firmly behind the dividing line. Yet there is much we agree upon, and much we can do, regardless of the Supreme Court’s decision.

Whatever that decision may be, and whatever the succeeding narrative, it is time both the left and right acknowledge a shared interest in protecting one of the nation’s most marginalized groups. It is time we stop holding onto unrealistic extremes on both sides, and come together to seek agreeable solutions. It is time to do away with division, begin reasoned conversations, consider alternative solutions, and combine our collective power in defense of life.

Even the staunchest liberals are, to an extent, in favor of defending life.

Nic Mayne is the Deputy Opinion Editor of The Record.

In the advocacy for the hearts and minds of the couch protestor and of the indifferent majority, Reclaim’s conservative adversaries have by disruption set the movement up.

While it is true that the privileged distance of the silent sympathizer frustrates us, and her sharp rebuke at each turn may seem disingenuous, ours is not to disbelieve the honesty of their disappointment. After all, they too have been played. The fact is, when I read Marlen Thaten wrote to Reclaim that “You broke me today,” my soul hurts way more than it does when when Bill Barlow compares me to Donald Trump or calls me a Fascist.

The disruptive tactics of Bill Barlow and supporters itself is not new, my suspicion is that this is not the end of such antics.

Reclaim’s burden however is to remind itself that “the function, the very serious function of [your adversary], is distraction. It keeps you from doing your work. It keeps

When I read Marlen Thaten wrote to Reclaim that “You broke me today,” my soul hurts. you explaining, over and over again, your reason for being. Somebody says you have no language, so you spend twenty years proving that you do. Somebody says your head isn’t shaped properly, so you have scientists working on the fact that it is. Somebody says you have no art, so you dredge that up. Somebody says you have no kingdoms, so you dredge that up. None of that is necessary. There will always be one more thing.”

Mawuse Vormawor is an LLM of the Class of 2016.

April 11, 2016

Harvard Law Record

7

OPINION & FEATURES

Brewer: Administration should step in to enforce free speech norms Better arguments emerge from competitive debate than one-sided discussions.

Brewer continued from page 1 fairness and integrity of the U.S. legal system. ‘If the free world is not faithful to its own moral code,’ Donovan said, ‘there remains no society for which others may hunger.’ He refused to give up even when Abel was convicted in federal court in Brooklyn. Donovan not only argued down the spy’s sentence from death to 30 years, he appealed the conviction all the way to the Supreme Court, losing narrowly.

In conversations and published communications that I’ve examined, there seems to me to be a strong concern, nay, a fear, that, should the HLS administration act (as it has announced this past Friday it will act) to enforce norms of toleration, that is, use power, if necessary, to keep spaces open for differing and competing voices, HLS might receive bad press or bad social media.

More specifically, I perceive a fear that, if the HLS administration insists that non-Reclaim students be allowed to publish speech (including posting posters that are not removed or defaced by other students) in the same speech zone that the Reclaim students have for a good while now been occupying with some degree of speech-repressing force, HLS will suffer significant reputational harm with segments of the “viewing” publics.

Some countries have censorship boards, in which citizens must submit texts that they wish to publish to an administrative apparatus that decides what speech is permitted to be heard. As I’ve understood it from posted descriptions, this seems to be the same process that the Reclaimants have sought to use with Mr. Barlow (and would presumably use with other students who wish to speak in the ways that Reclaimants

do, including postering, in the same space).

We should not fear adopting and standing by — up to and including enforcing rules in a duly procedural Ad Board tribunal — the principle that all students be allowed to speak in an area of HLS designated for student speech. All students should be permitted to speak there (whether it’s in WCC or some other designated student free-speech space), even if they have other avenues of speech as well — as is surely the case with the Harvard Law students engaged in this contest. More specifically, our deliberations on this matter should not be driven by the fear that such a stance might be unpopular with alums, admits, print and broadcast and social media.

As I learned of it last Wednesday night I was deeply impressed by Donovan’s principled view about representing unpopular causes. If we fear using power to enforce norms of toleration because it might be unpopular, we might well take counsel from Donovan’s example. I should add that I cannot tell how unpopular Mr. Barlow’s position is, since there has as far as I know been no reliable polling data about his specific views among HLS “citizens,” and indeed many students who might be sympathetic to Mr. Barlow’s position, or who have other positions contrary to those of the Reclaimants, may well be chilled from expressing themselves by virtue of the very fact that, as of late last week, HLS seems to have ceded to Reclaim so much speech-chilling power.

A Catch-22 hovers here. It may well be (and I suspect the Reclaimants believe) that theirs is the unpopular position — a concern for racial justice in an atmosphere that has been very cogently described by one Reclaim sympathizer as “a dominant cultural and economic ideology at Harvard: corporate liberalism.” And if Reclaim

members are brought before the Ad Board, surely a Donovan would feel it his duty to defend them. But so likewise would he feel it his duty to defend a Barlow or anyone else no matter how unpopular the defendants might be in their political climate. (Surely, we may be confident, he would also defend a Socrates, no matter how “short” his fellow citizens believed he “came.”) We may not be able to tell who has the Real Unpopular Cause (or who may claim the vaunted politically potent label — in our culture of complaint — of “victim” in need of protection and favor), but what we do know is that there are competing forces and interests that want their say, some of whom want their say to the exclusion of others’ say (perhaps feeling that those oth-

Power can be used virtuously or viciously. ers already have too much “say” — the Who Has The Most Say calculus can be a delightfully rhetorically skillful casuistic ratiocinative process).

There are many ways to articulate the values that might underwrite Donovan’s position. I like Mill’s On Liberty, which argues a view of the value of having robust vigorous tolerant space for debate (a view that those great agonophilic portmanteau thinkers Nietzerson and Emsche could have appreciated).

The Academy should be a place where expressed views (the more vigorously expressed the better, for my taste) are allowed to be heard and to mix it up in contests, both within and beyond classrooms. I do not think of this as a position of “neutral liberal space” — a type of space I have a hard time imagining, since there are always some losers in such a space (such as those who would prefer a theocratic space). The kind of free-speech spaces that power can

wisely create and maintain do favor one type of skill, one “lifestyle,” one set of intellectual virtues: the power of cogent, compelling argument. The Academy’s virtues are Logocratic, not theocratic.

I have pursued this principle in my own teaching here at HLS, including last semester and this semester. I have repeatedly sought out guest or co-teaching appearances with colleagues who offer powerful articulations of positions on topics that matter to me a great deal, with which I disagree, sometimes profoundly. I do this because I know I learn a great deal from these competitive collegial exchanges, and I believe the students in these classes do as well.

If anything, our HLS debate space seems to be already too limiting, too willing to privilege and be worried about some views at the expense of others. I wonder what kind of response Reclaim supporters would think it appropriate for the HLS administration to take if faced with a White Supremacist, or Black Supremacist, or Taliban or ISIS student protest group that wanted to “occupy” the WCC lounge.

Surely their response might be, “But our cause is the just cause, that’s why we deserve to control the speech space.” Of course, whenever there are competing claims of justice, the proponents of the view think that theirs is the just view — that is why it is their view. I have gotten the impression — from some very thoughtful colleagues who are deeply sympathetic to the Reclaim views and actions — that some Reclaim students insist that we listen to them and not be so quick to assume the familiar role of teachers of students who are in need of intellectual correction.

When I hear of such demands, I wonder what these students would now tell us that we haven’t already heard, and also whether what they claim is not only some kind of right to be heard but also a right to be believed, to be persuasive. It is almost too obvious to state that being persuasive is not a right but a privilege that must be earned by cogently forceful arguments in an arena of intellectual contest.

We should let “the world” (admits, alums, and beyond) know that we take very seriously indeed the principle of

Being persuasive is not a right but a privilege that must be earned by cogently forceful arguments. not allowing some students to drown other students’ speech because they disagree and think they own, or should be allowed exclusively to possess, the speech-space. I am happy to associate myself with the principled stand, of the sort that I think analogous to Donovan’s, that spaces for student expression must be kept open to all students — “kept open” to the point of enforcing rules that insist on letting all students have their say: Barlow, Reclaim, and whatever others might want to voice in. Is that really a principle we should fear asserting? We need not go as far as another of the great agonophilic thinkers, our own Oliver Wendell Holmes, Jr., in proclaiming that “when men differ in taste as to the kind of world they want the only thing to do is to go to work killing,” nor that “[d]eep-seated preferences cannot be argued about ...and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way, ” nor that we “don’t see that ...reason stands any differently from my preference of champagne to ditch water.”

The Academy should foster the skill, tool, weapon of reason and argument, and use power to do so.

There is a vast and vital difference between suppressing speech and enforcing norms of toleration. Power can be used virtuously or viciously.

Using administrative power to enforce a norm of toleration against speech suppression is a virtuous use.

I would like to see HLS create and maintain tolerant spaces for cooperation and opposition, for collaborative and competitive deliberation, for assertion and denial, spaces that are fields and arenas for both plowshares and swords.

Scott Brewer is a professor of law at Harvard Law School.

Unique Museum Teaches Visitors Importance of Tort Law

By Richard L. Newman

The American Museum of Tort Law opened in Winsted Connecticut on September 26, 2015. Remarkably, it is the first and only law museum of any kind in the United States. The Museum was conceived by Harvard Law School graduate Ralph Nader to educate, inform and inspire American citizens about tort law — the law of wrongful injuries — and trial by jury, an important right guaranteed in the 7th Amendment to the Constitution, in the Bill of Rights.

Most lay people (if our experience is anything to judge by) have no understanding of what tort law is, or why it is an important safeguard of our health, safety and welfare. Worse still, very few people seem to have either an understanding or an appreciation of that pillar of our democracy — trial by jury. But how do you distill something as complicated and textheavy as case law and legal opinions into an interesting and engaging museum, while at the same time retaining accuracy and authenticity?

The answer was a partnership between legal scholars and design experts. Professor Joseph Page of the Georgetown University School of Law selected the leading tort cases: both those cases which have shaped the law, and other cases which have led to a safety society for all of us.

Still, the challenge remained — how to translate these cases into visually appealing, engaging exhibits. The Museum relied upon the design skills of Eisterhold Associates to present the exhibits in a simply, visually interesting, accurate manner. Their design was ingenious. They recruited a variety of illustrators, including Pulitzer Prize-winning cartoonist Matt Wuerker, to create cartoons and illustrations to explain each of the cases selected. Then, Professor Page distilled the essential details of each case down to a single text block (some of the larger cases have more than one text block). Together, the combination of a relatively small amount of text, combined with clear, often humorous cartoons, helps the visitor understand the importance of each case that is presented. The exhibits are designed for adults and children from middle-school grades and older, i.e. 12 and older.

Here’s what visitors learn: A frieze outlines, in broad overview, the history of tort law, from

its roots in the English common law centuries ago, to its current shape.

Significantly, visitors learn that just as tort law has adapted from medieval to modern times, so it will continue to evolve and keep pace with the torts of the future — if, for example, a drone falls from the sky and kills someone, or a driverless car is hacked and goes off the highway.

Because of jury verdicts and the work of trial lawyers, the country as a whole is safer.

A gallery is devoted to precedent-setting cases. Among these are the first case which recognized the need for fault before there could be recovery of damages (Brown v.

Kendall (1850)). This was the birth of the reasonable person standard for conduct.

Byrne v. Boadle (1863) adopted the doctrine of res ipsa loquitur.

Sioux City & Pacific Railroad Co. v.

Stout (1873) set forth the doctrine of attractive nuisance, and held that a landowner must take reasonable precautions to prevent injury to minor trespassers. This case serves to foster discussion about what is meant by “reasonable,” and how a jury might decide that issue. Other cases include the two products liability cases, MacPherson v. Buick Motor Co. (1916) and Greenman v.

Yuba Power Products, Inc. (1963) which held manufacturers strictly liable for manufacturing and design defects, respectively. Visitors learn about Hoffman v. Jones, the 1973 decision from Florida which was the first to adopt the comparative negligence rule Another case is Daubert v. Merrell Dow Pharmaceuticals, the 1993 decision which articulated a new standard for the admissibility of expert testimony.

A movie highlights the importance that the Founding Fathers placed on the trial by jury. One of the complaints in the Declaration of Independence (after taxation without representation) was the claim that King George III had deprived Americans of the right to trial by

jury. The right of trial by jury was important enough that it appears three times in the Constitution, including in the 7th Amendment, which creates the right to trial by jury in civil cases. The movie also demonstrates the broad public benefit of some tort cases, with footage relating to asbestos litigation, the Ford Pinto, and the McDonald’s hot coffee case.

The Museum is not limited to precedents, however, but includes a number of cases showing how tort law and trial by jury protect rights of individuals against wrongdoers in such fundamental areas as health, safety, privacy, and more.

Interactive panels, for example let visitors learn about cases such as Donald v. United Klans of America (1987), in which the plaintiff was able to prove a conspiracy between two murderers and the United Klans of America, resulting in a $7 million verdict which put that organization out of business, and Kline v. 1500 Massachusetts Ave. Apartment Corp. (1970), which held that landlords have a duty to take steps to protect tenants from foreseeable criminal acts committed by third parties in common areas of landlord’s property.

There is a small gallery featuring dangerous and unsafe toys, which highlights the progress that has been made in improving safety for products aimed at children. Lawn darts, choking hazards, and bow and arrow sets are all on display — and the dangers of each are described.

Three important purposes of tort law are: To compensate those who have been wrongly injured; To disclose the acts of wrongdoing that caused or cause harm; To deter wrongdoing in the future.

Many of the exhibits at the American Museum of Tort Law reveal how powerful the second factor — disclosure — is for exposing wrongdoers and holding them accountable. This means more than just compensating the injured victim or victims (although that is important, too). It means that time after time, lawsuits filed against corporations have led to the discovery and disclosure of knowing, intentional conduct by the corporate defendants. In other words, people have been injured or killed not by mistake, but as a result of conscious, deliberate decisions.

These cases include Grimshaw v.

Ford Motor Co. (1981), which involved

litigation about the defective design of the Ford Pinto. During the trial the plaintiff found documents showing that improving the safety of the car could have been made at minimal cost ($5.00 — $8.00 per vehicle), but that Ford executives decided not to make those improvements, based upon a calculus that paying damages of $200,000 per death would cost the company less. The jury returned a verdict of $125 million in punitive damages.

Another such case is Borel v. Fibreboard Paper Products Corporation (1971), the first asbestos case to result in a plaintiff’s verdict, based upon a theory of strict liability. The cases which followed led to the discovery that the manufacturers had known of the dangers of asbestos since the 1930s, but had concealed that knowledge from workers, and had attempted to suppress knowledge of the hazards.

Liebeck v. McDonald’s is wellknown, but often misunderstood (by our visitors at least) case. Liebeck suffered third degree burns that required skin grafting when she spilled a cup of McDonald’s coffee on her lap.

During trial, the plaintiff discovered not only that McDonald’s was knowingly serving coffee at roughly 190 degrees, but that it had had roughly 700 prior complaints of burns due to the hot coffee. The temperature is important because (a) most of us will, at some time or another, spill something on ourselves; and (b) a liquid at that temperature will cause full-thickness skin burns in just three seconds. The

jury verdict included punitive damages for $2.7 million, representing 2 days of McDonald’s coffee sales.

Visitors who have only heard anecdotally about the case often think that it was “frivolous” until they learn the facts.

These cases and others in the Museum demonstrate that because of jury verdicts and the work of trial lawyers representing specific victims, the country as a whole is safer.

Products have been improved, or removed from the market; civil rights have been protected and defended; and the environment is cleaner. Tort law and trial by jury today are more important than ever in protecting our citizens from corporate wrongdoing and governmental overreach.

In his remarks at the opening of the American Museum of Tort Law, Pulitzer Prize — winning historian Eric Foner stated that tort law is “the weapon of the weak.” This is a brilliant shorthand phrase that perfectly encapsulates the importance of both trial by jury, and tort law: They permit individuals — any of us — to hold the powerful accountable, to protect our health, our safety, our well-being, and in so doing, to make life better for all of us.

I encourage you to visit the American Museum of Tort Law. The American Museum of Tort Law is located at 654 Main St., Winsted CT 06098. Open Daily (except Tuesdays), from 10:30 — 5:00. Tel. 860-3790-0505. Visit www.tortmuseum.org.

8

Harvard Law Record

April 11, 2016

FEATURES & OPINION

HLS must confront contemporary moral crises

By Bruce Fein ’72

Dante’s Inferno warned that, “The hottest places in Hell are reserved for those who in times of moral crisis preserve their neutrality.”

That warning made Harvard Law School graduate and then United States Attorney General Francis Biddle agonize over the moral crisis he was then confronting.

The date was February 18, 1942.

Only weeks had elapsed since the December 7, 1941 Japanese attack on Pearl Harbor, which President Franklin Roosevelt had decried as “a date which will live in infamy.”

The Attorney General was looking at his own day of infamy. President Roosevelt was prepared to issue an odious executive order (E.O. 9066) to herd 120,000 loyal Japanese Americans into concentration camps to appease popular hysteria at a time when Adolf Hitler’s extermination camps were filling with Jews.

The Harvard Law graduate had concluded that E.O. 9066 was unconstitutional and morally nauseating.

Among other things, it rested on the racist views of Lt. General John L. DeWitt, who had reported from the West Coast: “In the war which we are now engaged, racial affinities are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted…. It, therefore, follows that along the vital Pacific Coast over 112,000 potential enemies of Japanese extraction are at large today.

There are indications that the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”

Mr. Biddle made a Faustian bargain to remain as Attorney General.

On February 19, 1942, he acquiesced in the Executive Order, and silently witnessed 120,000 Japanese American men, women, and children uprooted from their homes and businesses and stigmatized as traitorous.

The day before the Faustian bargain, the Attorney General had written to the President: “My last advice from the War Department is that there is no evidence of an imminent attack and from the F.B.I. that there is no evidence of planned sabotage.”

That was not the end of his moral obloquy. The Attorney General permitted the Department of Justice to deceive the United States Supreme Court in twin cases upholding the constitutionality of the Executive Order. The Department represented that military officials believed time constraints precluded a case-by-case determination of Japanese American loyalty. But time was not the problem.

The military held the racist view that

since i to the Occidental eye “all Japs are alike,” even limitless time would not enable a separation of the guilty from the innocent. The Department’s concealment of the military’s racism and assertion that time was of the essence when it was not became the cornerstones of the Court’s decisions in Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v .United States, 323 U.S. 214 (1944).

They were later repudiated by Congress in the Civil Liberties Act of 1988, and by lower federal courts in coram nobis proceedings which invalidated the convictions of Gordon Hirabayashi and Fred Korematsu.

Attorney General Biddle was not alone in his moral cowardice. Supreme Court Justice Felix Frankfurter had starred as a Harvard Law School student and had acquired glittering renown as a Harvard Law School Professor of Law. Before elevation to the Court by President Roosevelt, Frankfurter had supported his court-packing plan to destroy judicial independence. After his elevation, Justice Frankfurter voted to uphold compulsory flag salute requirements as a condition to public education, and to endorse Mr. Biddle’s defense of Executive Order 9066.

Meanwhile, Harvard Law School faculty and students earned a scarlet letter “S” for their collective silences as the Constitution took a bullet.

McCarthyism confronted HLS with another moral crisis. It failed again.

Like a dog that returns to its kennel when danger appears, HLS retreated from Senator Joe McCarthy’s assaults on academic freedom instead of taking up legal arms against him. As the late Alexander Cockburn recounted in CounterPunch (Feb. 20, 2009), “The Lawyer’s Tale: Harvard Law School’s Hour of Shame,” HLS students and faculty ostracized Jonathan Lubell and his twin brother David after the two students had received subpoenas to testify in 1952 before the Senate Internal Security Subcommittee, notorious for witch hunting. The two defended academic freedom by refusing to cooperate in reliance on their rights secured by the First and Fifth Amendments, for which they were shunned by HLS. Then Dean Erwin N. Griswold, albeit belatedly, was one of the few in academia who challenged McCarthy. . Jonathon Lubell related to Mr. Cockburn the following after he and his brother entered the Dean’s office: “Griswold was furious and told us that others at the Law School would be talking to us.

At that time, the dean expressed the position that the Fifth Amendment was available only for those who were involved in criminal activities. Some nine months later, changing his position, the dean wrote that the Fifth Amendment was available to the innocent.”

Illustrative of the hysteria which fueled the McCarthy era was the

Wisconsin Senator’s attack on George C. Marshall. He, had served as Army Chief of Staff — the American military’s highest-ranking officer — during World War II, and then as Secretary of State and Secretary of Defense in the Truman administration. The Senator accused Marshall of “having made common cause with Stalin” in “a conspiracy so immense and an infamy so black as to dwarf any such venture in the history of man.”

Yet Harvard Law School giants Zechariah Chafee and Arthur Sutherland argued in a letter to the Harvard Crimson, January 13, 1953 regarding witnesses called to testify before congressional committees investigating Communist ideas or affiliations: “…The underlying principle in considering the subject of [teachers or others who invoke the Fifth Amendment privilege] is the duty of the citizen to cooperate in government…[T]he fact that disclosure of present or past association with the Communist party will cause trouble for the witness with his church, his lodge, his union, his employer or his university, does not excuse him from answering questions about it when subpoenaed before a competent body….”

To be sure, Harvard Law School today is not what it was during the Japanese American concentration camps or the heyday of McCarthyism.

There is much more gender, racial, and ethnic diversity amongst the students, faculty, and administration.

But has anything else really changed?

At present, the Law School, faculty, and most students remain passive while the Constitution and rule of law are daily torn asunder by the trillion dollar military-industrial-terrorism complex that President Dwight D. Eisenhower flagged as the scourge of the nation in his 1961 Farewell Address: “This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence — economic, political, even spiritual — is felt in every city, every State house, every office of the Federal government… [W]e must not fail to comprehend its grave implications….

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

“Our perpetual unilateral presidential wars not in self-defense flout both the Declaration of War clause of the Constitution and the War Powers Resolution. This usurpation is a clear and present danger to the Republic. As Cicero observed, “In times of war, the law falls silent.” Thus,

Alexis de Tocqueville warned in Democracy in America that war is the shortest and surest means to destroy the liberties of a democratic nation.”

Since 9/11, the President plays prosecutor, judge, jury, and executioner — the very definition of tyranny according to James Madison in Federalist 47 — to kill citizens and non-citizens alike whom he deems is a national security threat based on secret, untested evidence. The consequences are grim.

Consider the 65-year-old Pakistani grandmother exterminated by a predator drone while picking vegetables with her 9-year-old granddaughter, Nabila.

At a Congressional briefing, Nabila elaborated: “It was the day before Eid. My grandmother asked me to come help her outside. We were collecting okra, the vegetables. Then I saw in the sky the drone and I heard a ‘dum dum’ noise. Everything was dark and I couldn’t see anything, but I heard a scream. I don’t know if it was my grandmother, but I couldn’t see her. I was very scared and all I could think of doing was just run. I kept running but I felt something in my hand. And I looked at my hand.

There was blood. I tried to bandage my hand but the blood kept coming.”

Her 13-year-old brother, Zubair, whose leg was injured by shrapnel in the drone attack, testified, “I no longer love blue skies. In fact, I now prefer grey skies. Drones don’t fly when sky is grey.”

Republican and Democratic presidents alike substitute executive agreements, executive orders, and signing statements for the Treaty Clause and congressional legislation in order to circumvent the Constitution’s separation of powers.

Presidents invoke state secrets to thwart congressional oversight and judicial redress for government assassinations, torture, or kidnappings.

The Executive Branch imprisons persons indefinitely at Guantanamo Bay without accusation or trial — even those who have been cleared for years by the military as neither an enemy combatant nor a threat to the United States!

President Obama (based on political expediency) refuses to enforce laws, for instance, declining to prosecute torture in the interrogation of Al Qaeda suspects (including waterboarding) as chronicled in the Executive Summary of the Senate Intelligence Committee Torture Report. (Publication of the full report has been blocked by President Obama because of alleged concerns over the disclosure of classified information).

Both Republican and Democratic presidents have trampled on the Fourth Amendment by warrantless, non-particularized spying on American citizens by the military under Executive Order 12333 or

otherwise conducting surveillance outside the Foreign Intelligence Surveillance Act. A former Director of the National Security Agency, Michael Hayden, speaks of the intelligence community problem of dealing with the “notyet-guilty,” a concept more befitting George Orwell’s 1984 than a nation where the rule of law should be king.

As recounted in Mr. Hayden’s book, Playing to the Edge: American Intelligence in the Age of Terror, Article III Foreign Intelligence Surveillance Court, Judges Royce Lamberth and Colleen Kollar-Kotelly met secretly with national security officials and Department of Justice lawyers after 9/11 to discuss the legality of foreign intelligence programs operating under alleged inherent Article II powers of the president in contradiction to the Foreign Intelligence Surveillance Act. Judicial independence was compromised.

Shouldn’t Harvard Law School professors and students be in the vanguard of protest? Aren’t these selfanointed stewards of the law saddled with a moral obligation to save it from vandalization?

Isn’t the rule of law is the salvation of our Republic?

That understanding sacralized the battles at Lexington and Concord and the midnight ride of Paul Revere.

Yet Harvard Law School is scampering away from teaching about the epidemic of executive branch lawlessness and revising its curriculum and actions accordingly. Most HLS students are preoccupied with money, celebrity, and power. Justice — the purpose of law and the end of civil society — is ignored.

But if Harvard Law School administrators, professors, and students with all their brains and access to power refuse to reenact Paul Revere with different choreography, then who will?

The moral crisis they confront is greater than the crises created by the Japanese American concentration camps and McCarthyism.

The Republic itself and rule of law hang in the balance.

One choice is to follow in the footsteps of Francis Biddle, Felix Frankfurter and their like. We know what ignominy that will bring.

Another choice is to “pledge their lives, their fortunes, and their sacred honor” to defeating the military-industrial-terrorism complex in all its lawless moods and tenses, and to restore justice as the lodestar of the legal profession and of the nation.

To do otherwise is to dishonor Harvard Law School’s own signature gospel emblazoned over the Main Entrance to Langdell Hall: “Non sub Homine sed sub Deo et Lege” (Not under man but under God and Law).

Bruce Fein is a 1972 graduate of Harvard Law School. He was the general counsel to the Federal Communications Commission.

“Postergate” and the Return to Law at the Law School

Massachusetts case law favors Reclaim’s right to remove flyers from lounge.

By Kendra Albert ’16 and Chike Croslin ’16

Over the past few weeks, Harvard Law School has been embroiled in a debate about the validity of a set of speech claims, about the value of protest, and about the role of the school in policing debate. Many students have expressed deep concerns about the alleged “silencing” of speech occurring in Belinda Hall.

In our opinion, much of the worthy talk about the sanctity of free speech and exchange and the dangers that suppression of speech might bring—and the commentary branding Reclaim as a “speech-chilling” organization comparable to countries with “censorship boards”— largely misses a key point. Reclaim is not a country engaging in censorship. Not even close. Instead, it is an expressive association engaged in an expressive demonstration that occupies space for the purpose of its expression. And, so long as we as a community are exploring various lenses through which to understand what Reclaim is and what it has been doing, let’s actually discuss the doctrinal root of free speech within the United States: the First Amendment.

We submit that if it were appropriate to review under the Supreme Court’s precedents whether Reclaim could be sanctioned for removing posters that attack Reclaim’s message (that is, assume we are in a hypothetical world in which the First Amendment does

apply), First Amendment principles would likely demand that the issue be resolved in favor of Reclaim.

The key case—notwithstanding any normative misgivings the present authors might harbor about its reasoning or ultimate holding (which are substantial)—is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston [GLIB], 515 U.S. 557 (1995).

Hurley dealt with the South Boston Allied War Veterans Council’s refusal to allow GLIB to have a contingent in the Council’s privately organized St. Patrick’s Day parade. GLIB wished to march under their own banner in order to express pride as openly gay, lesbian, and bisexual people of Irish heritage, and in solidarity with a similar group attempting to march in the St. Patrick’s Day parade. Massachusetts law prohibited discrimination on the basis of sexual orientation, and GLIB sued for inclusion of their message in the parade. Note that individuals affiliated with GLIB were permitted to march in the parade in any contingent — what GLIB sued for specifically was the right to express their message of pride and solidarity. GLIB won in the Massachusetts courts but lost at the Supreme Court, which held that the Council’s right to exclude speakers based on their expressive message trumped anti-discrimination law.

The rule of Hurley might be stated as follows: my expressive event or assembly is my speech. I control the message my speech is meant to convey. This means that I control the

messages communicated at my own expressive events and assemblies, and that no one can undercut my expressive message by forcing their own expressive message into my event — even in a public place. Correspondingly, and in order to facilitate my “autonomy to choose the content of [my] own message,” I have the right to exclude unsupportive messages from my own expressive events—and to be free from government (-like!) compulsion to do the opposite—lest such compulsion constitute “an order essentially requiring [an organizer] to alter the expressive content of their [event].”

Incontrovertibly, Reclaim HLS is currently staging a protest in WCC for the purpose of expressing ideas. That makes it an expressive event. When Reclaim excludes an unsupportive message from their protest, apply Hurley. You do the math.

RHL is an expressive association that occupies space for the purpose of its expression.

But those of us who’ve studied the First Amendment might wonder the following: so long as we are drawing on constitutional law, surely the WCC is most analogous to a public forum, and surely everyone is allowed to speak in a public forum. That’s certainly true as an abstract principle,

but applied concretely, it does not confer any sort of right to speak in precisely the same spot and at the same time as another person or group—that is, the rules governing public fora afford no right to seed your message into the message of another expressive group occupying one part of a public forum. Hurley is clear on this: there, the expressive event in question in fact occurred in a public forum, and the Court still unanimously permitted exclusion of GLIB’s message from the parade.

As we’ve already mentioned, Reclaim HLS’s occupation of the WCC lounge is an expressive event.

Reclaim is currently using the full lounge space—including the walls—as a means of communicating its message of racial equality. Meanwhile, the vast majority of the public forum– like space that is the WCC and accompanying outdoor patios remains completely unoccupied. Anyone who wishes to express disagreement with Reclaim HLS’s message may step one foot out of the lounge in any direction and proceed to express themselves ad nauseum — just like those excluded from the parade in Hurley could presumably have expressed their message on the sidewalk alongside the parade, subject to applicable garden-variety (and content-neutral) time, place, and manner restrictions.

Nor does the duration of Reclaim HLS’s protest have any bearing on the issue. First of all, rules about duration simply aren’t in Hurley, and that makes sense, since the complaint that Reclaim HLS has been protesting too long just boils down to a complaint that Reclaim HLS

expresses itself too much and too continuously—hardly the preferred position of one concerned to maximize expression. Secondly, the duration of Reclaim HLS’s speech imposes no burden on a hypothetical dissenter wishing to express her own message; she may feel free to express whatever she likes for as long as she likes in spaces not already enlisted by others for an actively expressive purpose. In sum, dissenters can have their speech in the public forum, and ReclaimHLS gets to have their (unencumbered) speech too.

The reality is that much of the rhetoric around free speech is as untethered from First Amendment doctrine as U.S. society is from ideals of racial equality. If folks who disapprove of LGBTQ communities can keep those communities’ messages out of their speech, then certainly ReclaimHLS can preserve the integrity of its message of racial justice by excluding from it the messages of those who express fondness for the rather less egalitarian status quo.

By invoking rhetorical free speech to punish protesters who would not want the messages posted by others burdening and diluting their own message at their own event, conservatives and liberals alike provide cover for suppression of the ideas that students of color aim to convey.

Indeed, the tragic irony of our recent free speech panic is that it may end up producing precisely what it purports to fear—viewpoint-based suppression of speech.

Kendra Albert and Chike Croslin are 3Ls.

April 11, 2016

Harvard Law Record

9

FEATURES

Willingham: Trusted HLS professors let me down Letter continued from page 1

be proud of, where I was valued and standards went beyond rape myths and “boys will be boys.”

It would never have occurred to me that five years later, we would be here: You, as members of the Harvard Law School faculty, would have revoked that decision and become a vocal minority very publicly doubling down on the side of the man who assaulted me and my friend.

You — my former professors — have joined together to silence and discredit my story of sexual assault and its institutional mishandling through letters, op eds, and vitriolic social media messages. Your attacks promote myths about sexual assault that allow a loathsome rape culture to thrive on our campuses and across our country. You omit key facts of the case, including the perpetrator, Brandon Winston’s own statements, to advance your own false narrative in his defense under the guise of racial justice.

Even while claiming without evidence that Black men are disproportionately and wrongly implicated in on-campus sexual assault proceedings, you — charged with shaping some of the brightest legal minds in the country — ignore well-established research on the disproportionate rate at which women of color are sexually assaulted. It is for these women that I write — the ones who will be sexually violated at Harvard Law School without accountability if you do not do better by them than you did by me, and for all of the sidelined victims whose pain is mocked, disparaged, or worse, ignored.

I’ve come to think you do believe me. You just don’t think that what he did is worth the consequences.

Endorsing Mythology I don’t know what evolved version of his story my perpetrator sold you, but I’m sure the truth was cloaked in sensational, classic rape myths. It must have been compelling enough for you to overlook what an Independent Fact Finder, an Administrative Board that included your peers, the supplemental Hearing Officer, the Cambridge police, and the Middlesex District Attorney saw as persuasive evidence that Brandon Winston committed multiple sexual assaults that night.

What I do know is that you are not unbiased, erudite commentators on this case. Not one of you was among the professors who sat on the Ad Board and decided, after extensive evidence and confronting me and many other witnesses, that Brandon committed sexual assault. You did not hear the evidence. However, I assume that most, if not all of you were among those who decided that those findings were invalid based on your secretive process, a process I criticized in The Hunting Ground and in a successful Title IX complaint. Your open letters, press releases, and the website you promote reek of retaliation and forsaken arrogance.

The Office of Civil Rights found the secret process by which you allowed the man you affectionately refer to as “our student Brandon” to be re-admitted to Harvard Law to be unequal, unfairly favoring the accused. I was not invited to offer additional testimony or evidence to the faculty, as Brandon was, nor was I even notified of any subsequent process until after

the fact. I can only wonder whether Brandon, who did have notice and an opportunity to participate, appealed to any of you with his mythologized version of events before you voted to overturn the multiple findings that he was responsible for sexually assaulting us. None of you asked to discuss this case with me.

The message you’re sending is clear: don’t bother reporting unless you have a written confession, a witness, and — oh, wait, we had those things! This raises a great question, actually: what would it take for you to believe a sexual assault survivor?

I have given the same account, consistently, since the beginning; Brandon has changed his story several times.

Excerpt from 1/15/2011 text message conversation with Brandon Winston, as read into evidence at his criminal trial: Kamilah: Hahaha... but for realz... did you put your p in her v?

Brandon: No!! I passed out after some minor touchings no more than what you and I were doing a finger briefly in the v at most Tell her not to worry!

Excerpt from 1/17/2011 instant message conversation:

Kamilah: and i’ve been thinking it over and over, and i dont know how you can excuse any of that Brandon: I can’t - it was reckless of me and I apologize.

Brandon: K - I remember it better now, there wasn’t any real touching going on, no fingering, I took her shirt off and then passed out the next day i was still so wrecked I couldn’t remember it very clearly Kamilah: seriously?

Kamilah: and her bra, and her jeans?

Brandon: yes Kamilah: and how was any of that okay when you saw how wrecked she was at middlesex Kamilah: and when she passed out the moment we got into my apartment?

Brandon: it wasn’t i’m sorry it wasn’t i was hoping she would wake up but when I realized she wasn’t I quit it.

Kamilah: when is it EVER okay to initiate something with someone while she’s asleep?

Brandon: never, I was seriously wrecked and I went too far Brandon: I wasn’t trying to force her I know it sounds like it, I was talking to her the whole time and she was talking back, but in that passedout mumbling way that is essentially being asleep and I was totally reckless i know I don’t think you care about Brandon Winston, nor do I believe you care about the persecution of Black men for false rape charges. If you did, you wouldn’t be going out of your way to raise the profile of one who admitted to sexual assault. I did not publicly name him outside of court — he was first named by a victim-blaming columnist who sought to discredit me. And you continue to bizarrely draw attention to him as you chase the spotlight, basking in his supposed victimization via exposure — exposure you are feeding as you opportunistically stoke your own.

Smoke and Mirrors a/k/a Straw Men and Shiny Red Herrings In your press release, you wrote: “There was never any evidence that Mr. Winston used force, nor were there even any charges that he used force.”

Are you familiar with this case? Did you review the extensive fact-finding report, or even my complaint, before

voting to overturn your colleagues’ finding in our favor? As some of your students are thankfully aware, bruises and broken bones are not actually necessary to establish that a sexual assault occurred. Unconsciousness and incapacitation are widely recognized as circumstances indicating the absence of consent to engage in sexual activity. Such circumstances tend to render the use of “force” moot.

In most cases of so-called acquaintance rape, perpetrators do not rely on force so much as exploit their position of trust. In our case, focus on the absence of force fits well with my perpetrator’s suggestions that we had a prior romantic relationship. There was no romance between us and no desire for any on my part. That insinuation summons the myths that women lie about rape out of disappointment and jealousy, or that being friendly with a man means you secretly want to be raped by him.

You also wrote that “No evidence whatsoever was introduced at trial that he was the one responsible for the inebriated state of the women who are portrayed in the film as his victims.” What is that supposed to mean? If a man finds himself with two intoxicated, unconscious women friends, their bodies are fair game and he shouldn’t be held responsible for treating them as such? That one loses the right to be treated as anything more than a sex doll the moment she drops her guard?

I drank that night, and did a small amount of cocaine hours before the assault. I’m not proud of it, but I refuse to apologize or be ashamed because I would have been perfectly safe had there not been a predator in the room.

I did not say, and it was never alleged in the HLS hearing or in court or in the film, that he was responsible for our state, though the possibility that we were drugged certainly crossed our minds. We will never know, but people who are unconscious, or who are so intoxicated that all they can manage to do is mumble incoherently, are not asking to be touched sexually.

If you believe that people should not refrain from undressing and probing the bodies of unconscious peers, you have no business teaching law. The notion is insulting to the man you defend, as well as anyone who prefers not to be fingered while they’re asleep.

In accusing me of a conscious set-up by having a used condom tested for DNA, you seem to believe that I am at once witty, cunning, and desperately stupid. How little you must think of me and your colleagues and law enforcement who believed me.

Actually, I’ve come to think you do likely believe me. You just don’t think that what he did is worth the consequences. So which is worse: not being believed or being believed but being valued so little it doesn’t matter?

[R]ace in the hole Like the absence of “force” and evidence that Brandon was responsible for our intoxication, your trotting out of historical biases against Black men to silence and disregard the victimization of this Black woman is another straw man. You should be deeply ashamed of yourselves for using such an important issue in such a manipulative way.

In describing the refusal of a mostly-white grand jury to recognize my victimization, you said, “It is of course highly unusual for a grand jury to reject a prosecutor’s request to indict.” Is this the norm you cited every time a grand jury refused to indict the badge-wielding murderers of Black men last year, even when there were multiple witnesses and video evidence? Do you insist on the infallibility of the criminal justice system each

time it disregards the lives of Black men and their families, refusing to acknowledge their victimization?

Indeed, when the time comes to address the role of race on campus, instead of the passionate concern I see in your aggressive defense of Brandon Winston, most of you have been silent, if not dismissive. Randall Kennedy, you recently condescendingly criticized the “inflated sense of victimization” among Black students pushing for change at Harvard. Janet Halley, you proudly tout your position as Royall Professor of Law — an honor memorializing the Royall family’s generous use of riches gained from the labor of enslaved Black people. Jeannie Suk, you’ve speculated without evidence that Black men are disproportionately accused of sexual assault in schools, while turning a blind eye to well-established research on the disproportionate rate at which women of color are subjected to sexual assault. If you are concerned with the intersection of race and sexual assault, why not start there?

As to how grand juries respond to most cases of alleged sexual assault or rape: they don’t, because these cases are rarely brought before them.

In most stereotypical “he said, she said” cases, “she” usually says nothing; she decides not to report her sexual assault. When she does, the script is nothing nuanced: She says “I was raped;” he says, “It was consensual, she’s a lying slut.” Because rapes do not always leave evidence of bruises and broken bones (and even when they do, he says “she’s a lying slut who likes it rough”) and because there are rarely witnesses, prosecutors seldom press charges in these “impossible-to-prove” cases. They’re impossible to prove because they require believing the victim beyond a reasonable doubt. In a “he said, she said,” there will almost always be “reasonable” doubt so long as reasonableness means the rape myth that women lie about sex and believing her over him is considered unreasonable.

In Brandon’s case, the grand jury returned indictments only for the crimes that had an additional witness (me) and his written and recorded confessions. The one resulting conviction was for touching my friend’s breast without her consent — there was no “reasonable” doubt because I witnessed it and he described this crime several times in his own words.

In the end, the jury compromised and recognized only the lesser-included offense of simple or “non-sexual” assault. Although the crime of assault is by definition a non-consensual and offensive touching, and he was clearly touching her breast in a sexual way, they apparently were not convinced of the seriousness of this action, which was originally a felony charge. It should not be surprising to you to find a sexual assault trivialized.

We’re told to consider it a victory that we even made it to court and that there was any conviction at all. But Brandon’s other victim and I see this conviction as an outrageous reminder of the long-term and continuing failures of the criminal justice system when it comes to addressing sexual assault seriously, and of how the odds are stacked against sexual assault survivors. To attempt to frame this misdemeanor conviction as anything else is perilously misleading.

Charles Ogletree, I feel a particular sense of betrayal by you, a Black leader I looked up to and thought valued the experiences and pain of Black women. Now, you’re part of a group that is engaging race in exactly the same way Clarence Thomas did when, counting on his colleagues’ white guilt to distract them from the substance of Anita Hill’s claims, he called her efforts to hold him accountable a “lynch

mob.” You saw through that. Why can’t you see through this? The racial conscience you conjure and rely on here acknowledges only the historical wrongs suffered by Black men, while situating the dual oppression of Black women as marginal, irrelevant, and not about race at all.

I expect more, just as I expected integrity from the Black man who used to be my friend.

An invitation In his interview on June 13, 2011, Winston said, “…I remember getting into bed with ___ and I remember she was laying down and I remember shaking her to arouse her and she responded with — she barely responded just with like ahhhh, sort of a groggy answer.”

He went on: “I remember lifting her shirt off. Well, I remember laying there and like speaking into her ear and like shaking her on the shoulder and I was like, ‘___, sit up.’ And I like — she tried to sit up and I remember like holding her back while she sat up.

And then we started making out, and I went to lift off her shirt and like she wouldn’t lift up her arms and I said, ‘lift up your arms.’ And she did and I pulled her shirt off.”

“And when I like — I mean, she seemed — she was definitely out of it, but she was I guess awake enough to like kiss me back when I made out with her.”

Is this just a typical, confused, ambiguous drunken sexual encounter to you? If so, I ask that you consider what it means to accept this as normative behavior, and I suggest that you educate yourselves on the realities of sexual assault, especially the kind that happens on campuses.

Meanwhile, you are not helping men by promoting the idea that they shouldn’t be responsible for predatory behavior. You are not helping Black men by defending the actions of one who had to hold a barely conscious woman up so that he could put his tongue in her mouth. You are not helping women by asserting that they deserve to be assaulted if they become intoxicated. You are not helping to foster a safe environment for current or future Harvard Law students by institutionally betraying a former student who is a survivor.

You’ve made current and future students who have been or who will be assaulted at Harvard Law School feel less safe and be less safe.

I am tired of being treated as if I don’t matter. I am hurt by how much more easily you believe a man when he says “she’s lying” than a woman when she says “he sexually assaulted me, and I deserve better.” I am angry with you for forcing me, as my assailant did, to assert my value. But, most importantly, I am not alone. I am only one of the increasing number of survivors who reject the silence that you have endorsed in this situation and are trying to impose. You will not succeed in silencing my story - I’m just one of many survivors in our community whose very real pain you will have to reckon with.

From you, I expect more, just as I expected integrity from the Black man who used to be my friend. The Harvard community deserves better.

We all do. To all of you 19 Harvard Law Professors: Do better.

A version of this piece originally appeared in Medium.

Give Your Harvard Degree a Smoochy, Says Gucci Scaramucci

By Joe Lieberman ’16

If I invited you to meet a Harvard Law alumnus who founded and co-manages a global investment firm with $12.6 billion in assets, a man who formerly held executive positions with Goldman Sachs and Lehman Brothers, the host of Fox Business’s Wall Street Week and a regular contributor on Fox News and CNBC, a man who received a cameo in Oliver Stone’s Wall Street: Money Never Sleeps and a nickname from President George W. Bush, you would probably expect to get a certain sort of advice.

And you would be dead wrong.

“I have one piece of advice I want all of you to take with you when you leave this school: immediately quit acting like you went to Harvard Law School,” said Anthony Scaramucci ’89, during a 45-minute fireside chat hosted by Alex Rienzie, President of

the Harvard Association for Law and Business, on Tuesday, March 22nd.

“The sooner you stop acting like a Harvard alumnus, the better off your career will be.”

Atypical advice from an atypical man.

That advice hit home for the attendees because Mr. Scaramucci was so clearly genuine. Though confident and sharply dressed — as befits a man whom President Bush refers to as “Gucci Scaramucci” — he did not try to sell us a bill of goods. In fact, he didn’t sound like a salesman at all. He took pains to avoid truisms, meaningless clichés about getting ahead by working hard, and instead highlighted his mistakes in hopes that we could learn from his experience.

That was how he arrived at his central piece of advice.

To much of the country, he is best known for becoming the punch line

of a rant by Jon Stewart on The Daily Show after Mr. Scaramucci appeared on live television in 2010 asking President Obama when he would “stop whacking Wall Street like a piñata.”

The media response quickly turned Mr. Scaramucci into something of a piñata himself. He expressed no bitterness, however, saying he quickly “realized that I came off as an elitist, and I regret that.”

The rest of the talk went much the same way. Mr. Scaramucci acknowledged his mistakes as well as his good fortune in ending up where he is, often telling stories in which he was not the hero if he thought we could learn from them. For example, he told his audience about failing the bar exam twice, getting fired from Goldman Sachs and almost losing his entire business after the financial crisis. Throughout his talk, he was unusually humble and almost shockingly candid.

His message, though, was simple, honest, even elegant. He claimed that his early failures were the result of letting his Harvard degree go to his head, and choosing jobs for prestige rather than for goodness of fit.

“From age 12 to age 20,” he said, “there’s something you did that you were passionate about. … Working with your hands, writing, selling, etc.

For me, my experience selling motorcycles in my uncle’s shop showed me … my passion [for sales]. So I tapped into that passion, and now I am doing what I love”: managing SkyBridge Capital, a leading fund of hedge funds, and running the SkyBridge Alternatives Conference. He said he wanted us to do the same, encouraging us not to get stuck in the trap of chasing money, power, or prestige. “Think about your passion and find a way to incorporate it into your job.”

In the wake of his Daily Show

caricature, Mr. Scaramucci was widely panned as the quintessential self-promoting salesman, an out-oftouch elitist who thought only of himself. That could not have been further from the truth. At the end of his talk, Mr. Scaramucci urged us to stay in touch with him and promised us that he would help us out as much as he could. Many prominent lawyers and businessmen who are Harvard alumni come to campus, but few, if any, make that offer.

Then again, he did tell us to “quit acting like you went to Harvard Law School.”

Harvard students often find themselves awash in advice from successful alumni. It seems that Mr. Scaramucci is perhaps that rarest of all breeds: a man who listens to his own advice.

Joe Lieberman is a 3L.

10

Harvard Law Record

April 11, 2016

OPINION & NEWS

The moral community in the wake of Postergate HLS should seek to foster true ideological diversity and serious moral inquiry.

By Pete Davis ’18

The first editorial published in the Harvard Law Record this year was entitled “We Owe Each Other a Moral Community.” This project — of doing the hard work of turning spaces into places, strangers into neighbors, and a professional training ground into a moral community — has seen better weeks than this one. It is strange to see warring groups of our neighbors communicate via the symbolic tit-fortat of postering, ripping, and re-postering. It is disturbing to see one of our neighbors videotaping another one so as to provide clickbait for his political tribe’s media outlets. The events of the last two days may have created new heroes and villains, may have scored a few points for a few folks within their respective filter bubbles, and may have made most of us — and the distant readers reading about us — angry. But what these events did not do was build understanding. This is a shame, because if we are to build a moral community together, we must work to understand each other.

The Catholic heroine Dorothy Day — herself a masterful moral community builder — once said that compassion arises out of curiosity. To show compassion to our neighbors, we must be curious about their actions, feelings and plights. Failures to care are often failures of wonder: failures to ask “I wonder what it’s like to live like that” or “I wonder what they are trying to say” or “I wonder what made someone make that choice.” If we are to be a community, we must work to tame our impulse to respond to surprising arguments and actions with dismissive judgment, rather than compassionate curiosity.

In that spirit, I would like to share my best understanding of the tangled knot at the center of our campus, as well as some thoughts on steps forward. Before I do, it is important to note that, because I am me — a white suburban guy and also, more significantly, a flawed, uncertain soul — this is a limited understanding, so take only what you want from it. In fact, the best way to understand what is going on is to listen to the people involved themselves, who have, on multiple occasions, explained their message.

My only aim here is to, by speaking in a venue and vocabulary separate from the fight itself, help surface the kindest readings of our neighbors’ messages in the hopes that it might spark some much-needed curiosity, compassion and understanding.

The plague of racial disparity Any attempt to understand this controversy must begin with taking seriously the enduring civic plague at the center of it: racial disparity in America. The problem has been articulated multiple times by Reclaim Harvard Law, but it is always worth restating. Four in ten black children in our country live in poverty. The 2011 median white household had $111,146 in wealth holdings, while the median black household had $7,133.

Among Fortune 500 CEOs, only five are black, while 75 corporations in the S&P 500 have not a single black director. The NFL, NBA, and MLB have 92 teams, of which only one is principally owned by a black man. While only 1.4% of the top 1% of households by income are black, 40% of incarcerated Americans and 35% of death row inmates are black. This racial disparity is a national emergency to which our generation must urgently respond.

To those who think “that’s just the way that the world goes ‘round,” we must remember that most of these disparities were created by racial policies often designed and implemented by lawyers very similar to our future selves. The New Deal and The GI Bill — the building blocks of the American middle class in this past century — had racial disparities built into their execution. It was the explicit policy of the Federal Housing Administration to bar suburban subdivision developers from qualifying for FHA loans if they did not commit to excluding black Americans. When technological

changes revolutionized the workplace over the past decades, white suburbanites had access to well-resourced public schools — the keys to the new information economy — while urban schools populated by black and Latino children were significantly under-resourced. During the housing bubble, black Americans were more than twice as likely as comparable white Americans to be targeted by subprime lenders. Despite using and selling drugs at remarkably similar rates, black men are nearly twelve times as likely to be imprisoned for drug use as white men. Racial disparity is not “just the way it is”: it is the creation of public policies that our generation — and especially our generation of well-resourced lawyers — has the ability to reform.

When racial disparities linger — as they have for four centuries on this continent — they become imprinted on our collective psyche. Our brains — all of our brains — learn and use patterns to navigate our daily lives.

Most of these patterns are good for us: we quickly associate fire with burns, ice cream with happiness and people wearing ski masks and holding knives with danger. But this pattern-making is dangerous when racialized policies and disparities — even ones that have been partially ameliorated in the past decades — leave a legacy of racial prejudice in the form of implicit racial biases: inaccurate racial pattern-making wired into our brains; racial pattern-making that reams of psychology studies show we cannot easily escape even if we consciously believe something different. This is the dark imprint of slavery, Jim Crow and the Drug War: 95% of respondents, when asked to envision a drug user, seeing a black man despite white and black Americans using drugs at similar rates; job applications with names like Emily and Greg being selected over equal applications from Lakisha and Jamal; and doctors recommending fewer treatments to black patients than white patients for chronic illnesses, even when those two groups have the same insurance status.

Implicit bias is a significant factor in how an institution like Harvard can be both colorblind on paper and yet still suffer under racial discrimination in practice; in how a group of Harvard students can be both empowered in one way, yet marginalized in another. Indeed, relative to the nation as a whole, even the most marginalized Harvard Law students are some of the most empowered Millennials in America. It is insulting to the fifty-one percent of working Americans making less than $30,000 a year (five times less than the starting salaries of Harvard Law students entering corporate interest law jobs) to not acknowledge this. Indeed, Harvard is one of the more racially progressive institutions in our country. It is insulting to prior generations who fought for that racial progress to not acknowledge this.

And yet, no American community — no matter how colorblind it is on paper; no matter how empowered its members are — is immune from the implicit racial biases deeply imprinted on our national psyche by centuries of racial discrimination.

This reality’s impact on Harvard is starkly documented in the Socratic Shortcomings blog, which has provided students an opportunity to share what fellow student Bianca Tylek has called the “things that happen — whether it’s walking down the hallway or in classes; things that professors say or things that the students say — that just kind of tell you what position you hold within the community.” If you read the studies on implicit racial bias — or if you experienced the hard end of bias yourself — the blog posts are not surprising: raised hands not called on, ideas dismissed, perspectives ignored, and minds condescended to. No matter how far down you feel that the project of “ensuring that all Harvard Law students feel included” should fall on

Campus Erupts in Expressions of Love & Understanding Reports incoming that HLS students of all political ideologies are coming together in kindness and love today, really trying to empathize with one another and to understand different points of view. FedSoc members have admitted that “maybe that Obama guy isn’t so bad after all,” while Bill Barlow ’16 was spotted in Belinda Hall giving hugs of

kind understanding to all. HLS Dems, embroiled in a brutal civil war over whether to support Bernie or Hillary, have called a temporary ceasefire. Keep your eye on The Record for developments to this heartwarming story.

This story was published online on April 1.

the list of national priorities, such work — of diversity and inclusion, of surfacing alternative perspectives — should always be a high community priority. It is our duty as neighbors to care about it.

Even more, because of Harvard Law School’s influence in national politics, changes made in Harvard community dynamics can help spur change nationwide. If more Harvard Law graduates — who are disproportionately represented in positions of national political and legal power — leave Harvard with a better understanding of the experiences and perspectives of marginalized groups (because those groups’ presence in the community and curriculum was increased), they may better serve those groups’ needs during their career. If more Harvard Law faculty come from diverse backgrounds, more legal research and curricula will be devoted to issues that are important to a wider range of people. If issues of racial disparity are prioritized in the public discourse — an objective achieved by Reclaim Harvard Law in the past year — then implicit bias is weakened, for such bias thrives when it is left unsurfaced.

Acknowledging all of this — that racial disparity is a national emergency in our country, that implicit racial bias has not been overcome in even the most colorblind communities; that reforms at Harvard not only can change our school but can help change the country — it seems like the major question at hand is not whether Reclaim Harvard Law is overzealous, but rather why the rest of us are not zealous enough. No matter what one thinks of their tactics, those in Reclaim Harvard Law are some of the only students who have put forth a solution to this public problem of racial disparity at Harvard.

but rather that they did not want people walking by their tightly messaged public display to be confused by the mixed signals that come from opening up the space to multiple messages. If other causes entered the space, their method of breaking through the noise would be rendered inert and their message would fade back into noise.

This splits the events at hand into two questions: the original question of what are we are to do about racial disparity at Harvard and in America; and the meta-question of what are we to do about surfacing public causes in public spaces at Harvard Law School.

It was heartening to read in a recent email from Dean Minow that the project of answering the second question has already begun: “The Law School will shortly provide a centrally located space for students to post their opinions, express their dissent, voice their protest and exchange views.” If this work of building civic spaces is successful — if disruption is built into our civic infrastructure, better facilitating the surfacing of public problems and solutions in our community discourse — then future students will not have to disrupt spaces designated for other purposes. This is a project all sides can come together on: balancing the need to surface issues of importance in public spaces with the need to maintain open access to those spaces.

However, amidst this meta-work, we cannot ignore the original question of what we, as a community, can do to fight racial disparity at Harvard and in America. If one quibbles with Reclaim Harvard Law’s tactics, the best action is not to solely fight their tactics, but to provide an alternative means of achieving their same ends.

Or, if one quibbles with their ends, perhaps the best action is to provide an alternative answer to their same questions. Conservative — as well as moderate liberal — solutions to the problem of racial disparity would not only deepen the discussion of solving the problem of racial disparity; it would also deepen the projects of conservatism and moderate liberalism. But to dismiss the project as a whole — to dismiss the important questions asked by Reclaim Harvard Law — is inadequate, unneighborly, and unbecoming of moral community members.

Debating tactics And yet, despite this emergency, the entire discussion seems stuck on debating tactics.

Reclaim Harvard Law’s theory of change has been to surface the issue of racial disparity through ‘claiming’ a public space for the purpose of publicizing their cause, thus breaking through the noise of the dozens of issues fighting for our attention.

Claiming spaces for political causes has a long and often successful record in the history of American protest. In fact, claiming public spaces temporarily for public causes was so important in American history that we enshrined it in the Constitution, with the right to assemble, and in the design of our nation’s capital, with the National Mall. Their theory of change has been somewhat successful: the Royall crest has been removed, most national news stories about Harvard Law in the past year have spotlighted racial disparities at the school, and the administration has been forced to prioritize discussions of diversity and inclusion. This is not half bad for a year of political work.

Of course, this theory of change’s feature — being disruptive — is also its bug. Eventually, those with other goals wonder: why cannot we use this space, too? This question was dramatized by this week’s provocative conservative posterers. When their dissenting posters were torn down by Reclaim Harvard Law members, they cited it as an example of left-wing students not wanting to hear dissenting speech. However, I believe a more accurate reading of why Reclaim Harvard Law students tore the posters down is that they — like all activists — simply did not want their public message to be muddled. It was not that they did not want anyone to hear the opinion of, say, Trump supporters,

Cultural conservatives in the heart of corporate liberalism However, if we dismiss the vocal critics of Reclaim Harvard Law as (at best) priggish or (at middle) provocateurs or (at worst) racist, we miss the chance to understand an issue of importance to a small group of culturally conservative Harvard students. There is a dominant cultural and economic ideology at Harvard: corporate liberalism. Most Harvard Law students are secular liberals on cultural issues and corporate-minded technocrats on economic issues. Put another way, they are skeptical of moral language and groups (with the exception of rhetoric around individual rights and tolerance), but faithful to the powerful, centralized institutions — be they powerful law firms, corporations, universities, media outlets or government entities — that most of them populate after graduation. Meanwhile, half of American believe the opposite: almost half of American women are pro-life; about half of Americans say grace before meals; Rick Warren’s The Purpose Driven Life is the best selling hardcover book in American history; and trust in national institutions is at an all-time low. The silence around this disparity is a source of consternation among our campus’ few cultural conservatives.

I think it is disingenuous to argue that this disparity is on par with the racial disparity in our country. Racial disparities have plagued almost every institution in our country since before its founding. They have inflicted immense suffering on and shackled the dreams of millions of Americans.

The supremacy of corporate liberalism in American culture is only a generation or two old. Cultural conservatives — even those in Northeast liberal colleges — have well-resourced institutions to turn to: organizations,

If we are to build a moral community together, we must work to understand each other.

alumni, donor networks, and political coalitions.

Nevertheless, the experience of being a cultural minority in an institution with a dominant cultural ideology should not be ignored. Students should not have to fear discussing how their religious faiths inform their world views. Our policy discourse should be broadened beyond questions about the individual and the state (issues of special interest to cultural liberals) to include questions about the mediating institutions of family, church, neighborhood and moral culture (issues of special interest to cultural conservatives).

Without ceding ground on the inclusion of diverse lifestyles in our pluralist institution, we can open up conversations about the values and inheritances that inspire and inform cultural conservatives. Without forcing our beliefs down each others’ throats, we can re-introduce morality — questions of duty, of what we ought to do — into our language.

Harvard Law School’s political culture of corporate liberalism not only excludes cultural conservatives; it excludes left-wing folks, too. As a labor-minded lefty raised on Catholic social teaching, I too have felt out of place here, as words like dignity, solidarity, community, grace and even labor union are seldom spoken in the halls of Harvard Law School. I suspect those in Reclaim Harvard Law — like me, like cultural conservatives — also feel alienated by a culture dominated by corporate liberalism.

(Indeed, if one is concerned about Harvard’s role in exacerbating racial disparities, what should be thought of the fact that we send a vast majority of our graduates to work for organizations designed to advance the legal interests of groups who are disproportionately white — wealthy people, corporate managers, and corporate stockowners — while sending only a tiny sliver of our graduates to work for organizations designed to advance the legal interests of groups who are disproportionately black — legal aid clients, impoverished Americans and incarcerated Americans?)

When you feel different than the dominant ideological group, free speech becomes especially important to you. This is why, I suspect, the conservatives who hung the provocative posters this week are so passionate about their posters being torn down: they saw the ripping as a symbol of how Harvard treats their views; they saw it as a perfect example of the double-standard over how their outside-of-the-box views are treated differently than Reclaim’s outside-ofthe-box views.

The reality is that both world views are not dominant at Harvard Law. You are not going to hear the Harvard Law School administration — nor most Harvard Law students — speaking in terms of family values and the sanctity of life, but you are also not going to hear them speaking in terms of anti-colonialism and critical race theory.

It is in the interest of both the cultural conservatives and those in Reclaim Harvard Law to loosen the grip of corporate liberalism on campus politics and cultivate a flowering of true ideological diversity on campus.

A surprise in spring What better time to cultivate this flowering than the beginning of Spring? After this week, the prospect — of Reclaim’s critics actively joining the project of tackling racial disparity at Harvard or of Reclaim joining forces with conservatives to loosen the grip of the dominant campus ideology that both groups feel alienated by — seems improbable.

However, whenever something seems improbable, I take solace in a Pope Francis meditation in which he said that “God is a God of the Law, but also a God of surprises” and challenged us all to be “open to the God of surprises” rather than attached to our closed systems of ideas.

We still owe each other a moral community. To get there, we will need to surprise.

Pete Davis is the online editor of The Record.

Housing Agency Head Shouted Down by Protestors

By Jim An ’18

Last Monday afternoon, protestors shouted down Melvin Watt, director of the Federal Housing Finance Agency, from an event hosted at Harvard Law School.

As Watt began to speak, the protestors stood up and began to complain loudly of malfeasance from Fannie Mae and Freddie Mac, which the FHFA oversees. With chants of

“Mel Watt you can’t hide, we can see your greedy side,” the protestors drove Watt and Professor Hal Scott, who introduced Watt, from the room. The protestors were affiliated with City Life/Vida Urbana, a nonprofit that HLS supports through the Harvard Legal Aid Bureau and Project No One Leaves.

While protestors filled much of the room, there were only a few students at the event, which

was sponsored by the Program on International Financial Systems and Fidelity Investments.

However, some of the students who were there were impressed by what they saw.

“I thought it was really cool,” said 2L Joshua Friedmann. “We don’t get the chance to see really organic community organizing.

We’re pretty used to our walls being closed off.”

April 11, 2016

Harvard Law Record

11

ANALYSIS & OPINIONS

Inequality in the Market for Speech Unregulated speech markets, like unregulated economic markets, entrench privilege.

By Annaleigh Curtis ’16

There’s a lot of talk of free speech in contemporary American discourse in general and at Harvard Law School in particular. Despite all this talk, very little is said by way of explaining what it would mean for speech to be free.

There is a deep-seated — sometimes healthy, sometimes not — distrust of speech regulation, both institutional and social in this country (much of which is notably absent in peer countries, like Canada). This distrust is rooted, quite clearly, in the tradition of political liberalism.

Even today people appeal to the Millian notion of a marketplace of ideas. In this market, the answer for speech that is bad, for example, clearly false or offensive, is not regulation, but rather competition against other ideas on the open market. In this competition, the good ideas, given enough time and advocacy, win out by appealing to our reason and better judgment.

But that is where the discussion of the market for speech typically begins and ends. Here I want to explore the market analogy more fully, asking what follows from a more developed look at the market for speech. As it turns out, the analogy does provide some useful insights, but perhaps not the insights those who invoke it have in mind. First, I map some ways in which both economic markets and speech markets are already heavily regulated by institutions. Second, I explore some of the ways actors within these markets intervene to shape them. Finally, I argue that systemic inequalities in both markets allow seemingly neutral laissez-faire rules unacceptable if the ultimate goal is fair competition.

Institutional Regulation We do not have a free — meaning unregulated — market for speech, just as we do not have a free market for goods and services, nor should we.

We do not allow certain kinds of violent transactions in either market, for example. I cannot legally contract with you to kill another person, nor can I legally announce (threaten) that I will kill you.

We also have restrictions on how and where a business can operate, just as we have so-called “time, place, manner” restrictions on speech.

Though I could obtain permits and run a coffee shop down the street, I cannot legally run one out of my house. Similarly, though I can play music in my house or give speeches on the sidewalk outside, I cannot legally do so in the middle of the night when it will disturb my neighbors.

We do not allow discrimination in public accommodations or even through some purely private transactions like racially restrictive covenants. Similarly, we do not allow certain types of speech that rise to the level of harassment under civil rights laws like Title VII and Title IX. In addition to restrictions, institutions subsidize some higher cost

activities. Economic actors regularly receive subsidies from the government, whether to grow corn, develop new technology, or keep their bank afloat. Speech actors, too, receive subsidies, as I learned in Professor Tushnet’s First Amendment course.

When a rally is held, extra trash clean-up by the municipality may be required, or if the speaker is inflammatory or the cause unpopular, extra police presence may be deployed to monitor the situation. In both cases, the speaker receives a subsidy — paid out of tax dollars — for their speech.

While regulations may make these markets less free in that they constrain individual actors, they make people who act in the market’s context more free on the whole, assuming arguendo that these regulations are good ones.

This is part of the lesson of Professor Joseph Singer’s recent book on regulation in the subprime mortgage context, No Freedom Without Regulation. Singer argues, among other things, that property rights, a cherished idol of the free market crowd, require governmental regulation for their existence and functioning. One who defends the market view of free speech must also recognize that regulation of speech is required for the market to function well. We can disagree about the best regulations, but not about whether they should exist.

Self-Help and Organizational Interventions In addition to institutional regulations of the economic and speech markets, we also tend to think that certain forms of self-help are legitimate interventions by market actors.

Boycotts on products, divestment campaigns, and debt strikes are all ways to insert oneself into the workings of a market in an effort to shape it as one sees fit.

At the same time, speakers engage in self-help to shape the market for speech by, e.g., refusing to speak at a conference with a known harasser or on a panel with no women. Another form of self-help comes through what we might call annulment. If I dislike how you act in an economic market, I can find ways of rendering your action moot. If you put a song I hate on the jukebox, I can pay a premium to delay the song by making music I like skip yours in the queue (at least on fancy electronic ones). This is an economic action that effectively annuls yours, at least for a period.

I could similarly annul your action by overwhelming its effect. If we are competitors, and you invest in one widget to improve your business, but I have more money than you, I can invest in 20 widgets to improve my business by so much that your improvement is worthless.

Speech actors, too, may engage in self-help through annulment.

Consider the “people’s filibuster” that protestors packing the Texas statehouse engaged in at the end of Wendy Davis’ filibuster to prevent a vote on a restrictive anti-choice bill in 2013. It was obstructive in the most beautiful

OCS emails at odds with HLS’s mission

By Pete Davis ’18

Harvard Law School’s official mission statement is: “To educate leaders who contribute to the advancement of justice and the well-being of society.”

Last November, in a letter to Dean Martha Minow, I attempted to account for why it is the case that for every Harvard Law School graduate in 2014 who pursued work designed – as our mission statement impels – to advance justice and societal well-being, five graduates joined corporate interest law firms. I argued that the school does not explicitly tell students to pursue corporate interest legal work, but rather nudges students into such work by making it appear that the “default option” for students is to go into such work.

Examples of such nudges include the fact that: the hypotheticals in courses often presume you are working for a corporate client; the only required field trip for 1Ls is to a corporate interest law firm (at the end of the winter Problem Solving Workshop); the office primarily tasked with encouraging corporate interest careers is given a generic name (The Office of Career Services) while the office tasked with

encouraging public interest careers is given a specific name (The Office of Public Interest Advising); and the structure of student loan forgiveness results in those pursuing corporate interest careers having not just an easier, but a simpler, time paying back their loans than those pursuing public interest careers.

Today, we can add “tracking and pursuing students not interested in corporate interest work” to the list of ways Harvard Law School nudges students into corporate interest work. This morning, every 1L who has not expressed interest in participating in the Early Interview Program — HLS’ program designed to lubricate the process of entering corporate interest work — received the following email from the Assistant Dean of the Office of Career Services: Subject: Checking in about EIP Orientation Hi there – I am writing because you are on a list of students who have not yet RSVP’d for the EIP Orientation and Market Mixer event which takes place this Wednesday, March 9, from 5:00 – 8:00 p.m. in Milstein. If you plan to participate in

way.

As in the case of the people’s filibuster, self-help is often effected through organization. In the economic market, this organization may take the form of labor unions, consumer groups, or corporations, to name a few. In the speech market, organization is prototypically done by protest and activism, but organized speech may come from many other groups with some expressive ends, like physicists, political parties, or religious groups.

Organization is valuable in a number of ways, perhaps most obviously because it amplifies the effect of whatever is being done. In an economic market, a strike by an entire factory is effective where a strike — if we can call it one — by an individual employee is impotent (unless, of course, that particular employee is very powerful for some reason, like if she knows all the computer passwords).

Similarly, a protest with hundreds of attendees demands attention that a protest by a single person — a sort of protest I engaged in exactly once, but do not recommend! — does not.

Inequality in the Market(s) So far I have discussed some largely uncontroversial similarities between prevailing views on the workings of markets for both goods and services as well as speech. Now I want to move on to a deeper similarity that has to do with the effects structural inequality can have on the function of a market.

Inequalities in the economic market constrain the choices of some actors, while enabling and enlarging the choices of others. This happens in almost too many ways to mention, but let’s keep the examples simple.

If different actors in a single market have different resources, that will affect the range of choices they have in both the near and far term. A person with enough money is able to do things like buy in bulk, shop at larger stores with lower prices, place money into interest-bearing accounts, and countless other things that make each dollar they spend go further than the dollar of a person who may lack the money, time, and car it takes to get to a cheaper store, and who may be paying usurious rates for check cashing and other credit services. This is a problem for many reasons, but just from the perspective of the market functioning properly, it is a problem because it serves to encourage the concentration of wealth in a few people who already have the most while denying basic access to economic goods to those with the least.

In the market for speech there are also inequalities that make the market hostile to historically oppressed groups.

Philosopher Miranda Fricker writes about one such problem, which mirrors the example above: maldistribution in credibility. When we evaluate claims made by others we attribute some level of credibility to them.

For example, a claim about what a statute means coming from a law professor may carry more weight than the exact same claim coming from your cousin, the insurance salesperson. This kind of credibility

the Early Interview Program (EIP) in August, then I highly encourage you to attend this program which will address important information about preparing for EIP over the coming months. This will be the last program about EIP before August.

Additionally, you will be able to meet a lot of employers from the specific markets in which you are interested.

It’s actually a lot of fun and there will be tons of food....

To RSVP click HERE. If you are going to be late, in addition to RSVP’ing, please reply to this email letting us know that you will be there after your class ends.

I hope to see you on Wednesday.

This reminder email was not sent to every student: it was only sent to students who had not shown an interest in pursuing corporate interest legal work. It resembled an official administrative email aimed at everyone — similar to ones that remind you to register for courses or to sign up for on-campus housing — rather than one about career or extracurricular opportunities specific to certain groups of students.

In saying that students uninterested in legal work serving corporate interests were on a “list of students” who had failed to complete a task the administration was tracking, the email embodies the exact “default option”-setting that I described in November: it implies — like with the in-class hypotheticals, the Problem

assessment is totally banal. We do it all the time, pretty automatically.

Unfortunately, these credibility assessments are more sinister when they track social categories, which they do — a lot, as it turns out.

Controlling for everything else (and with some provisos), a claim made by a woman will tend to carry less weight than the same claim made by a man. So too for Black or Latino speakers as against white speakers, disabled speakers as against able-bodied speakers, rich speakers as against poor speakers, and so on.

In this way, each unit of speech (if the reader will permit such a reduction), like each dollar above, goes further for a white speaker or a male speaker. And these values interact at the intersections.

Just as with the economic market, we should be troubled by the implications of this maldistribution in credibility: credibility will tend to concentrate in those who have it by virtue of their social identity. This means that people in the market will be less able to evaluate the claims and arguments made by others on their merits, which undermines the supposed function of the free market in ideas.

Those ideas advanced by speakers whose identities are afforded the most credibility will be the ones that ring true more often. This effect makes it particularly hard for a heterodox view from a marginalized speaker to get to uptake.

A second kind of inequality has to do with what kinds of resources develop thanks to market demands and incentives. This inequality, too, makes it difficult for heterodox views to get uptake. Fricker calls this kind of inequality hermeneutical injustice.

A hermeneutical injustice occurs when there just isn’t a concept — or an existing concept is not well-developed or adequate — to express an experience. One of her examples, well known to followers of Catharine MacKinnon’s work, is the concept of sexual harassment. There was a time, not so long ago, when the concept and words for sexual harassment did not exist — instead the conduct that now goes by the name was boys being boys or just a joke or a friendly back rub or an opportunity for advancement.

It was not until women got together in consciousness raising groups and started talking about their experiences in their workplaces that the experience got a name. From there, armed with a name and the knowledge that it was not just them, women began to articulate their experiences to others.

Of course, people still routinely disbelieve people’s claims of harassment and assault on the job and elsewhere, but advancements have been made, in the law and in the social imagination. Still, trying to get uptake for the idea that your story of harassment should be believed or that there is this thing called sexual harassment that many people experience is difficult under conditions of inequality.

Put another way, there is a tax on the development of these missing or suppressed concepts — a tax paid by members of marginalized groups who have to spend their time organizing, developing resources that should already be available to them, wondering if they were wrong all along, and arguing with overly

Solving Workshop field trip, and the loan forgiveness structure — that corporate interest legal work is the presumptive career choice for Harvard Law School students.

There are many reasons a student might not have RSVP’d to an EIP orientation. For some, it will be the knowledge that if you enter corporate interest law immediately after law school, it becomes highly unlikely that you will enter public interest work later in your career: only 7.2% of lawyers who entered a large corporate interest firm immediately after law school were practicing public interest legal work a decade later; only 0.2% of those who did worked in legal services or as a public defender a decade later.

For others, it might be that they had been turned off by the Office Career Services’ recent encouragement for students to participate in Washington revolving door corruption, in which they explicitly recommended that students who want to work in Washington should: (1) work first for a corporate interest law firm, then (2) work for a government agency or department “that governs the activities of private sector clients facing specific regulatory issues” (which, the document reminds us, “provides contexts and skills to re-apply to the private sector”) and then (3) return to a corporate interest law firm as a senior associate.

For others, it might be that they

Sadly, our market for speech, like our economic market, is manifestly unjust. skeptical interlocutors (who, remember, are also valuing their word at less than perfect market value). The laissez-faire market for speech, then, disincentivizes the uncovering of certain kinds of truths.

While many books and articles have been written about the ways that social inequality and injustice affect knowledge production and exchange, I hope I have given the reader enough to see the beginnings of the problem. The market justification for unrestricted speech depends on the idea that speakers come to the marketplace on relatively equal footing, that interlocutors will be swayed by the force of reasons, and that the slate of views will be accessible to all.

Sadly, our market for speech, like our economic market, is manifestly unjust. Under such conditions of injustice, neutral rules will favor those with more power and resources.

Flat taxes, for example, tend to be regressive.

Neutral speech rules, too, can be regressive, hitting those with the least the hardest. Requiring a marginalized group to leave untouched the message of an interloper who, in fact, holds the status quo view can hamper the sort of intellectually productive idea development that helps the overall market function.

Imagine that every time the consciousness raising groups of the 1970s were discussing their inchoate experiences with harassment, a hostile man barged into their meeting and told them that they were all wrong, to lighten up, or that it was really them who were sexist. That would have been understandably upsetting, even terrorizing, and it would have delayed the development of the concept considerably. Privileging an ostensibly equal speech situation in that isolated moment would have the effect of undermining the function of the market in the long term.

Free exchange of ideas, discussion, dispute, and debate are vital to the functioning of any society. We have an imperative as citizens, and perhaps especially as members of an academic community, to guard these values. But we betray these values if we resort to easy slogans like “the cure for bad speech is more speech.”

It’s not that easy. We are dealing with nothing less than the weight of long-standing structural injustices on our backs when we engage in the exchange of ideas.

Only an understanding of, and sensitivity to, this reality will allow us approach the market for speech in a responsible way that avoids entrenching existing inequalities, incentivizes innovation, and allows the best ideas to rise to the top. This might require taxes, subsidies, boycotts, strikes, and other quasi-economic tools, but our market for speech will be better for the effort and care we take in regulating it.

Annaleigh Curtis is a 3L.

have learned that the lure of pro bono hours is often a mirage, because they read the reminder in one OCS document that “firms like to emphasize their commitment to pro bono” but that “firms are increasingly mindful of becoming more like a business where billable hours and profitability reign supreme.”

Whatever the reason, students who have avoided the pull of corporate interest careerism should not have to also fight off an Office of Career Services that keeps lists of them and sends them official emails encouraging them to participate in a corporate interest career program.

If one insists that such a list is kept and such emails allowed, we should, at the very least, empower the Office of Public Interest Advising to keep a similar list of students who have not signed up for public interest work and repeatedly send them official emails encouraging them to participate in public interest programs, as well. That way, students will not feel as strongly that there is an administration-endorsed career path.

Indeed, perhaps the first step the Office of Career Services can take in serving our mission of educating leaders who contribute to the advancement of justice and the well being of society is to take their official thumb off of our personal career choice scale.

Pete Davis is the online editor of The Record.

12

Harvard Law Record

April 11, 2016

OPINION & ANALYSIS

Harvard Law students, you might be wrong Editor-in-chief encourages students to cultivate self-doubt, discuss difficult topics.

By Michael Shammas ’16

Over the last few days, I’ve struggled to come up with an article that captures my conflicting thoughts about what’s going on right now at Harvard Law School. I’ve been depressed that the maturity of an important discussion on group identity has utterly failed to meet even the low standard set by my family’s internecine Lebanese dinner parties. So initially I came up with four words instead, words that are apparently controversial here at Harvard Law School, but that — when applied to all — facilitate respectful debate: “You might be wrong.”

I wince to realize that saying even this might be controversial in our current climate, where everyone is only too eager to make sweeping assumptions about the motives of their classmates. Even now, some of you are reading this through the lens of assumptions about who I am; these assumptions are coloring your perceptions of my motives, which are in turn coloring your willingness to process my argument with empathy, or even fairness. It’s okay; I do the same thing. We’re only human.

Still, as I sit wrapped in a blanket, pre-coffee, staring at my favorite JFK poster on conformity being “the jailer of freedom and the enemy of growth,” I realize that the fear of speaking because one might be wrong is also a “jailer of freedom” and an “enemy of growth.” Ditto for the fear of speaking due to possible blowback.

So let’s get to business.

On the one hand, I agree that many “anti-Reclaim” students, some

of whom I know personally, are using free speech as a red herring with which to oppose the movement. As a distraction. Yes, many care about free expression, deeply so, but some are engaging with the free expression concept at the expense of important racial justice issues that Reclaim has been discussing for weeks. I hope that you take the time to really listen to what Reclaim has been saying with regard to racism on campus. Why not hire more diverse faculty? Why not initiate effective diversity training for staff? Even if a critical race theory class isn’t mandatory (I don’t think it should be), why not expand opportunities for students to learn about racism’s close and troubling relationship with American law? I’ve had discussions with a lot of you over the past few days, and I still don’t know your answers. Why not? Engage me on this instead of just the free speech issue. Please.

The free speech issue is important — but the other issues are too.

I also hope that many of you who are “anti-Reclaim” acknowledge an obvious truth: Your background affects how you see reality.

This simple intuition is captured by sometimes-misused concepts like white privilege. The recognition that background biases information processing doesn’t mean you have to reduce yourself to a gender or race.

You should not do that. It simply suggests that one can learn from a healthy awareness of personal bias, from realizing that personal context informs what we can see and what we can’t see. If someone responds to your argument by saying “you

are a white male” and stops there, they are being narrow-minded and idiotic; but I promise you, most Reclaim activists don’t use the white privilege concept in that elementary, offensive manner. Emphasis on the word “most.”

The free speech issue is important — but the other issues are too.

So go talk to Reclaim in the lounge; you’ll see! Heck, you’ll see and you’ll learn! But please, when you go to the lounge to speak with activists, talk about more than free speech. For Reclaim has brought several other important issues to light. (Like the fact, too-often conveniently forgotten, that the law can legitimize bad things, horrible things … things like slavery. Things like discrimination. Things like differential incarceration. Law is not morality.)

On the other hand, despite my strong belief that the two “sides” are not morally equivalent and that Reclaim is right in its prescriptions to a much greater extent than the other “side,” I have been thoroughly depressed by some of the historically and philosophically myopic claims made by Reclaim — in op-eds in this paper, on its Twitter account — that imply that free expression is “nothing but a shield used to protect ideas that contribute to harming the oppressed.” That is, simply, wrong.

Freedom of expression is the liberal innovation that has perhaps contributed most to the emancipation

of the oppressed throughout human history. Just ask abolitionists; just ask civil rights protestors; just ask heretics in Renaissance Europe like Giordano Bruno, burned alive by confident fools too afraid to admit they might be wrong. Ask modern agnostics and atheists in some Middle Eastern countries. Ask Socrates.

There are people all over the world right now, especially in the Middle East, fighting for their right to express a view without incurring horrific consequences; what a precious right we have here in the West. We should work to protect it. We should celebrate it. We should not denigrate the right to free expression.

Free expression protects more than hate speech. Indeed, Dean Minow’s opening of the lounge to protestors when she could have clamped down from the beginning was partly due to her considered recognition of free expression’s importance. I’m deeply concerned that some Harvard Law students want to condemn Socrates to death. Again.

Out of a fear of opposing opinions.

This is intolerance disguised as tolerance. Let me suggest that, with few exceptions, you should not support illiberal means in pursuit of liberal ends; for those means cheapen the ends.

This is the point where some of my friends will become angry with me. I’m not sorry. I’m very consistent in my view on free expression: A few weeks ago, I published a piece

by A.J. Clayborne in this very paper that was critical of me. Why? Because, I recognized I could have been wrong in the piece he was responding to. Indeed, looking back now, with more knowledge and hindsight, I think I was a bit misguided.

I’m glad I was able to learn from A.J. He — not I — was right about some

things. If I had censored A.J.’s piece simply because he said things that made me feel bad, I would have lost out. I would have negated an opportunity for personal growth. I would have injured not only A.J., but also myself.

I would rather learn than avoid discomfort.

• To all of you, I suggest three things. (1) You might be wrong.

Perhaps after reading this piece you are annoyed for one reason or another. Maybe you’re displeased due to simplistic, identity-based assumptions you’re making about my motives. Perhaps you’re saying “Mike just believes what he said because of his white male privilege” or perhaps you’re saying “Mike just believes what he said because he is a far-left Bernie supporter with Lebanese parents who hates conservatives and all that is good about America, including McDonald’s!” (I love McDonald’s.) Maybe these assumptions come from stereotypes or heuristics. Maybe not. Maybe you have excellent reasons for being displeased. Whatever the case, since you might all be wrong on some things, take a moment to digest what I said before reflectively responding with instant opposition. It won’t kill you; it will make you a better person.

(2) I might be wrong. Heck, I might be wrong about the fact that I might be wrong! If you consider what I say, truly consider it, and still disagree, let’s grab coffee, beer, lunch, or some combination of the three and do something novel: Let’s talk.

(3) Whichever of us, dear reader, is wrong about these issues, I know one thing I’m not wrong about: Neither of us has all the answers.

Michael Shammas is the editor-in-chief of The Record.

Insurance, Gambling, and Law Students: Pools of Hope Hope is a central tenet of the legal profession, says young New York City lawyer.

By Deborah Beth Medows

When I served as Associate Counsel to the Speaker of the New York State Assembly as an attorney only a few years out of law school, the topics on which I advised were insurance and racing and wagering. At first glance, there could be no greater difference between those areas of law. What in the world could excess line or health insurance have in common with people watching horse races in fancy hats in Saratoga, or millennials playing games of chance at a bachelor or bachelorette party during a fun weekend with their former college roommates?

Upon further ref lection, the topics are fundamentally similar, and their significance resonates with the experiences of law students. Both insurance and racing and wagering involve the premise of individuals pooling their money together, while hoping that to paraphrase the best-selling series The Hunger Games, the odds will be ever in their favor. Now, how does this relate to your experiences as a student at HLS intent on establishing a career in the legal field? The overall theme of hope that unites both these avenues of law is one of utmost importance to law students universally.

Hope is one of the most powerful human emotions. It is the power of hope alone that caused throngs of people to line up in the recent ground-breaking Mega Millions lottery sale, although the odds of winning were so negligible that if you had a “stack of pennies the height of the Empire State Building,” you would “need to buy 1,000 lottery tickets to have the same probability of winning the Powerball jackpot as you would have to pick the one penny out of the stack the height of the Empire State Building.” As Charles Dickens wrote, “such is

hope, Heaven’s own gift to struggling mortals pervading like some subtle essence from the skies, all things, good and bad; as universal as death, and more infectious than disease!”

Let us compare your experiences as a law student to insurance and racing and wagering. People join an insurance pool, hoping that the odds will favor them and that they will never see the return on the money that they invest, since it is better to live longer than to have a wealthy beneficiary (that is, unless you are the beneficiary). Conversely, people bet money on games of chance by putting money in a pool, hoping that they will beat the odds and wind up with a windfall. Gamblers hope.

The insured hope. Law students and lawyers hope. In fact, if I had to state one word upon which the field of law is predicated, I would use the word “hope.”

The life of a law student can be undeniably stressful. It is easy to get overwhelmed by the daily grind. Law school is exhausting, with seemingly little short-term “rewards” other than student loans, piles of laundry that seem to perpetually accumulate, and your significant other who continually complains that you never write and you never call. There is always one more case to brief, one more outline to read, one more class to prepare for, and one more assignment to conquer.

Yet, law students everywhere are inspired to persevere because of the hope that all of those countless hours spent earning the degree and immersing themselves in the practice of law will eventually prove to be worth the effort. They continue to hope that the light at the end of the professional tunnel is the ability to transform into the caliber of attorneys that they went to law school to become. Law students know that future clients will come

to them because lawyers are essentially peddlers of hope. Apart from business transactions, people tend to approach lawyers often when they are at the most miserable, vulnerable points in their lives, when life gets them down and all seems hopeless.

They see lawyers when they get divorced and are battling for the custody of their cherished children, when they are injured in devastating accidents, when they are arrested and frightened, and when they sue relatives over blood-boiling will contests. It is the lawyer’s role not only to address the legal matters, but to be there for the client and restore the client’s hope that he or she is a professional who cares and is looking into the issues.

It is often said that what lawyers sell is their time. That may be true, but what they often dispense is also hope, as people put their trust in them that they will ultimately be vindicated through the lawyer’s representation. What a wondrous responsibility for someone to have such faith in another!

To my friends at HLS, the first step in succeeding as a future attorney is to realize that the current stage of your professional career is challenging. Don’t be hard on yourself. Recognize that the beginning of your legal career is also a rewarding time as you incrementally equip yourself to be a trained and skillful advocate. Keep your hope alive and nurture it despite whatever frustrations may come your way. It is easy to lose your confidence, especially if this is the first time that you find yourself intimidated by your classmates, but know that the hope that you had when applying to law school that you would be a success will sustain you in your journey to becoming an attorney. Recognize that with hard work and effort, you have it within you to succeed, even if success may not come as soon as you would like.

One of the most beautiful book titles is President Obama’s book, The Audacity of Hope. Never

Donate to the Harvard Law Record

By Michael Shammas ’16

The Record, the oldest independent law school newspaper in the country, relies on donations to continue publishing, and we would be extremely grateful if you could donate — even a small amount — to help us operate.

Before last year, The Record — a presence since the 1940s — had stopped publishing regularly and had

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But last year, with the generous help of former editor-in-chief Ralph Nader, we’ve been able to publish bimonthly and to serve as a forum for Harvard Law students and others to debate issues shaking the campus and the broader community.

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The law is about more than only “the law”; the law is about the law’s effects on real people. The Record is one of the few places where that reality is truly acknowledged and grappled with.

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underestimate the value of hope.

Hoping truly is an audacious, brave action. Rather than merely wishing for something to come true, the act of hope means having the faith that there will be a possibility, no matter how slight, that things will work out in a certain way. Hoping means mustering the courage to be emotionally invested in an action. Hope is bold. Hope is visionary. Hope looks as circumstances not as they are, but as they have the potential to become. Hope is willful.

Law is a hopeful profession when contextualized. Lawyers refuse to accept society as it is. They refuse to settle for the injustices of the world.

Lawyers are the visionaries who can view society normatively, and have the courage to use the legal system to make this world a better place for ourselves and our future children.

It is lawyers who will spend time on cases against sometimes ostensibly insurmountable odds, doing research, filing papers, and appealing cases when lower courts don’t rule favorably, simply because lawyers hope to be able to take a stand for the causes that they believe in because they have the hope that circumstances can actually change.

One of my mentors, Fred, is an accomplished lawyer and one of the most fundamentally decent human beings I have the pleasure of knowing. As I graduated from law school less than five years ago, I value the mentorship of someone with his legal acumen and hard-earned experiences gained from decades of practicing in the field.

We ended up having a conversation and passed by a lemonade stand whose proprietors were pintsize girls selling cups of lemonade that probably could have been confused for cleaning fluid on the basis of how unappetizing the lemonade looked. I shook my head, smiled, and continued the conversation.

Fred stopped and chastised me.

“Always buy the lemonade,” he said, plunking down two quarters and buying a cup for each of us. As he explained later, “this probably

Keep your hope alive and nurture it despite whatever frustrations may come your way. tastes as good as it looks, and I’m not sure whether I want to drink it. But I didn’t just buy lemonade there. I bought hope. Hope is the cheapest thing to buy, but it is the purchase that lasts the longest.”

Now, I’ve learned many things from legal mentors over the years.

I’ve learned about submitting briefs, about maintaining a work/life balance, about drafting legislation. But as a relatively young attorney, that lesson was one that resonated the most with me, because its implications are the most far-reaching.

It is no surprise that Passover and Easter, which are among the two most observed holy days in the Jewish and Christian traditions, are both holidays that epitomize hope.

Even people in both religions who consider themselves to be irreligious often attend celebrations for those holidays that, respectively, celebrate redemption from slavery and the hope of freedom, and the hope of resurrection after destruction. This is because hope is a universal need.

At the end of a gloomy Cambridge winter, there comes the hope of Spring eternal, of joy and fulfillment after dreariness and bleakness. And so, as a law student at HLS, you must remember that as a future lawyer, you represent more than legal knowledge; you are a beacon of hope for a society that looks to you for guidance.

Here’s hoping that you have a wonderful semester.

Deborah Beth Medows is a Senior Attorney in the Division of Legal Affairs at the New York State Department of Health. She can be reached at dbmedows@gmail.com.

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