The Harvard Law Record: 2015-2016, Issue 11

Record The Harvard Law

MONDAY, MAY 9, 2016

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 11

IN THIS ISSUE:

Delcianna J. Winders describes the cruel fate of Ringling elephants, p. 2 A sexual assault survivor reaches out to prospective students, p. 2

YLS women write in support of HLS women, p. 2 Jim An ’18 reviews Eligible, a story of modern love, p. 3 Angel Everett ’16 describes how she conquered fear and cold calls, p. 6

An open letter to a law student for life

By Sarah Gersten ’16

To the HLS student who gave me this flier and told me that “self-control” is an adequate form of birth control: I envy you. I envy the fact that you do not have to live in a world where whether you actually have “control” over your body is a contested issue.

I envy that your control over your body is not constantly threatened, as mine is, whether it be through explicit acts of sexual violence exerted over my body, or through more subtle normative suggestions about what is the right or appropriate way to use my body.

Women who are victims of rape have lost control over their bodies, just as women who feel obligated to engage in sex, or who feel obligated to have children, whether it be by their partners or societal pressures, have also lost a degree of control over their bodies. And when institutions or individuals then decide that women do not have the choice to determine the outcome of those external forces acting on their bodies, they have been doubly subjected to an elimination of their autonomy and their personhood.

While I think pushing “self-control” as an effective method of birth control makes about as much sense

OPINION

Alene Anello ’16 tells Harvard labs to stop animal cruelty, p. 7 Sean Cuddihy ’16 breaks down contemporary LGBTQ life at HLS, p. 8

Break open Harvard’s inner ring

I envy that your control over your body is not constantly threatened as mine is. as not warning teens of the dangers of drunk driving because they should be exercising self-control and not engaging in drinking in the first place, I urge you to think about frameworks where encouraging self-control might be productive.

Encourage young (and adult) men to exercise self-control in their interactions with women. Encourage them to exercise self-control in their intimate and familial relationships. Perhaps promoting Letter continued on page 6

By Pete Davis ’18

Members of Law Students for Life gave out the above fliers at a lunch event. The director of the organization that printed the fliers objected to calling them “fliers” because she considered them “postcards.”

Civil jury trials are becoming extinct Decline of jury trials, rise of summary judgments have been boon to businesses but not citizens.

By Stephen Sussman

As any trial judge or trial lawyer knows, the number of trials has been decreasing dramatically since 1986.

This is occurring in both state and federal courts, in all venues and in most kinds of cases. It has occurred in both criminal and civil cases, but for different reasons; and in both jury and nonjury civil cases for similar

but not identical reasons.

The general public is unaware of this trend because of the increasing fascination with trials on television and in the movies.

While no one denies that civil jury trials could soon become extinct, there is little agreement on the reasons for this. Some have suggested that there are fewer civil trials

because the rules of civil procedure encourage the use of pretrial discovery rather than the trial itself, to reveal what really happened, that after discovery is complete, an expensive trial is superfluous. However, it was in the late ‘80s that civil trials began to decline, and the liberal discovery rules were operative long before then. Nor did anything

ANALYSIS

happen around that time to make trials more expensive.

In federal courts the decline coincides with the Supreme Court’s 1986 decisions instructing trial courts to grant summary judgments unless the plaintiff proves the probability of his allegations. It is clear that those decisions and other judicially created Trials continued on page 2

A statement on recent anti-Semitic comments JLSA pens response to a student insult to visiting Israeli politician; student apologizes.

Editor’s Note: The event referenced in this article was recorded by the Harvard Law School Program on Negotiation. The individual who made the comment has issued an apology.

That apology is included.

By Officers of the Jewish Law Students Association

Dear HLS Community, Anti-Semitism is still very real today, and it just showed itself in our community at Harvard Law School.

At the Q&A section of an event last Thursday, an HLS student asked Jewish, Israeli dignitary Tzipi Livni: “How is it that you are so smelly? … A question about the odor of Ms. Tzipi Livni, she’s very smelly, and I was just wondering.”

We are writing to condemn what we view as blatantly anti-Semitic rhetoric. We demand a public apology to Ms. Livni, the Jewish students of HLS, and Harvard Law School at large. Further, we demand respectful behavior from students at our events in the future.

Thursday’s event was hosted by the Program on Negotiation at Harvard Law School and co-sponsored by the Jewish Law Students Association and Harvard Hillel. It was titled “The Israeli-Palestinian Conflict & the U.S.” The event was a conversation between former Israeli Foreign Minister (and current Israeli Parliament Member) Tzipi Livni and American Diplomat Dennis Ross. It was a civil discussion, moderated

by HLS Professor Robert Mnookin, on the complex and important topic of the Israeli-Palestinian peace

negotiations.

Given the opportunity to ask a question and to engage in productive dialogue with an Israeli political leader, this HLS student, who is the president of a student organization on campus, revived the antiquated and offensive notion of the “smelly Jew” — a term reeking of anti-Semitism — in order to insult her.

Discussions about Israel cannot devolve into ad hominem attacks against Jews. A quick Internet search will show that the stereotype of “the Jew” as “smelly” or “dirty” has been around since at least the 1800s. The Nazis promoted the idea that Jews “smell” to propagandize Jews as an inferior people. The idea that Jews can be identified by a malodor is patently offensive and stereotypes Jews as an “other” which incites further acts of discrimination. The fact that such a hate-filled and outdated stereotype reemerged at Harvard Law School is nothing short of revolting.

To be clear, we encourage dialogue. The Jewish Law Students Association is an umbrella organization for all Jews at HLS across a spectrum of ideologies. We believe that law school is a marketplace of ideas and a forum for constructive debate, and to that end we encourage all students to attend our events and to ask difficult questions as part of those discussions.

But derogatory terms and stereotypes are not constructive. They are divisive. They breed hatred and inhibit mutual understanding and respect.

When this student suggested that Tzipi Livni was a “smelly” Jew, he not

only vilified her, but he vilified every Jewish student, faculty, and staff member at Harvard Law School.

This anti-Semitic rhetoric is not acceptable. It is not dialogue. It is not productive. Rather, it is hate speech.

It is offensive. It is wrong. A statement like this denigrates our school and our shared purpose, and we as a community cannot tolerate it.

Jeremy Salinger ’17, Co-President of the Jewish Law Students Association 2016-2017 Jacqueline Wolpoe ’17, Co-President of the Jewish Law Students Association 2016-2017 Jonathan Gartner ‘16, President of the Jewish Law Students Association 2015-2016 An apology from the student: “I am writing to apologize, as sincerely as I can via this limited form of communication, to anyone who may have felt offended by the comments I made last week. To be very clear, as there seems to be some confusion, I would never, ever, ever call anyone, under any circumstances, a “smelly Jew.” Such a comment is utterly repugnant, and I am absolutely horrified that some readers have been led to believe that I would ever say such a thing. With regards to what I actually did say, I can see now, after speaking with the authors of this article and many other members of the Jewish community at HLS, how my words could have been interpreted as a reference to an anti-Semitic stereotype, one that I was entirely unaware of prior to the publication of this article. I want to be very clear that it was never my intention

Fighting the impulse to harm

By Michael Shammas ’16

After recent events during this “Harvard Law Spring,” let’s pause.

Do we want to inhabit a culture of human dignity, or an honor culture where every slight is met with face-saving, self-important insults?

Do we want to transcend harm — or

to cause it? Do we want to allow the indignant ill will swirling within our flawed human souls to overflow, or to temper such poison with its only true antidote — empathy?

Our professional goals lend these questions import.

As lawyers, we will be responsible

for how the state directs its monopoly on the legitimate use of force. To me, this means we must rise above “the impulse to do harm,” which is something humans naturally feel after being slighted. We must suppress our biases. We must embrace System 2 thinking over

OPINION

Inside: Responses to and opinions on what happened.

Pages 4, 5, and 6 to invoke a hateful stereotype, but I recognize now that, regardless of my intention, words have power, and it troubles me deeply to know that I have caused some members of the Jewish community such pain with my words. To those people I say, please reach out. Give me an opportunity to make it right. I will assure you, as I have already assured many, that had I known it was even possible that some listeners might interpret my comments as anti-Semitic, there is absolutely no chance that I would have uttered them. I trust that those that know me and have engaged with me on a personal level will not find this at all difficult to believe. Many members of the Jewish community — some of whom hold strong differences of opinion with me — have reached out to me on their own to let me know that they did not interpret my words as anti-Semitic, because they know me well enough to know that that is not at all consistent with who I am as a person. I want to thank them and any others who have given me the benefit of the doubt, and I am writing this note in the hopes that more of you will do the same. I say this, however, fully cognizant of the fact that no amount of writing can serve as a substitute for genuine human interaction. So please, if there remains any doubt at all, do take me up on my offer above and reach out so that I can make this right to you on a more personal level.”

System 1 impulse. We must strive to see others, especially others who are “the Other,” as human beings rather than political beings.

As a law school community, we are failing to be kind. We are failing to realize that to advocate for a cause, one need not advocate against people. One can disagree with ideas instead of disagreeing with people. One can view people — all people — as flawed beings

Dear Editors of the Harvard Law Review, In 1944 at the University of London, C.S. Lewis gave a speech entitled “The Inner Ring,” in which he warned the audience about a perennial human failing that would not be unfamiliar to Harvard Law School students a half a century later. In the speech, he described how inside any community — in “whatever hospital, inn of court, diocese, school, business or college you arrive” — you will find Inner Rings: exclusive internal communities on which you find yourself on the outside. If you break into any of the Inner Rings, Lewis explains, you will find “that within the ring there [is] a Ring yet more inner.” To Lewis, the desire to enter the next Inner Ring — and the terror of being left outside — is one of the dominant forces in our lives.

He warned the audience against

The desire to enter the next Inner Ring is one that is never sated. becoming an “inner ringer”: one who — whether “pining and moping outside Rings that you can never enter, or by passing triumphantly further and further in” — organizes his or her life around breaking into evermore exclusive communities.

When we become Inner Ringers, Lewis warned, we run two risks.

First, when the next Inner Ring is perceived as so close and the reward for entry is perceived as so much — when “the cup [is] so near your lips”; when “it would be so terrible to see the other man’s face … turn suddenly cold and contemptuous, to know that you had been tried for the Inner Ring and rejected” — we become willing to bend the rules and sacrifice our values to get inside. “And then, if you are drawn in,” Lewis cautioned, “next week it will be something a little further from the rules, and next year something further still.” Just like with any addiction, what one is willing to do to get their fix will spiral out of control, and the end will be a bottoming out, either externally, in scandal, or internally, in quiet dissatisfaction.

Second, the desire to enter the next Inner Ring is one that is never sated. To build one’s life around the desire, Lewis argues, is to become like the mythic Greek Danaids: condemned to fill a perforated jug of water for the rest of eternity. As an Inner Ringer, “you are trying to peel an onion” and “if you succeed there will be noting left.”

To avoid this fate, Lewis advises that we must “conquer the fear of being an outsider,” break the Inner Ring and become craftsmen, believing in our work as an end in itself: “The quest of the Inner Ring will break your hearts unless you break it. But if you break it, a surprising result will follow. If in your working hours

OPINION

Davis continued on page 2

worthy of good-faith treatment, as ends rather than means to the fulfillment of one’s parochial sense of self-righteousness, of anger, of political vindication.

This semester proves, to me, that there is only one thing we can do on this campus that is truly revolutionary. We can be kind.

Michael Shammas ’16 is the editor-in-chief of The Record.

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Harvard Law Record

May 9, 2016

OPINION & NEWS

A letter from a survivor

By HLS ’16

Dear Admitted Students, You’re getting a lot of advice, I know. And there a lot of things to think about when you start law school. I hope this isn’t one of them, but if it is, here’s something that I learned the hard way.

If you are a survivor of rape or sexual abuse — You are not alone.

Just because you have to come to this place that puts the expansion of the mind above all else, does not mean you have to sacrifice the sanctity of your body. You can be a Harvard Law Student and a survivor. Our identities are complex, and anyone who would ask you to deny your past to become something shiny and new understands far less about what it means to be human than you do. You will never

be too educated to be hurt; no degree should demand that you stop feeling; no school should ask you to prioritize arbitrary grades over your ability to care for yourself and others.

When I came here, I assumed I was the only one with this secret.

When I sat through the 1L discussion of rape in criminal law, I thought I was the only one — that when they talked about the lying

accuser it was just me who felt personally attacked. I was wrong. As soon as I started paying attention, it became clear that there were survivors all around me. I thought that being a survivor made me less, made me damaged goods. But I want to tell you that your opinion is no less valid because it is colored by personal experience. You are not less of an expert, because you can talk about rape in the first hand.

And there are people here who will believe you, who will support you both knowingly and unknowingly.

Find those people. Know that your rape and your story don’t have to look like everyone else’s to be valid.

You are not a policy argument; you are a person. I hope you feel free and secure enough to tell your story, but that you don’t feel obligated to. I hope you remember how strong you are. I hope you know how brave it is to go into the law and in whatever you decide to, to make change. Your presence here is important. I hope you will continue the fight.

With much love, A 3L

Jury trials vital to preserving public trust in justice system Citizen participation is the essense of American democracy.

Trials continued from page 1 obstacles to trials were the products of the “lawsuit abuse” movement that gave us so-called “tort reform, securities law reform, antitrust reform, class action reform and patent reform.”

Those judicial obstacles — erected by judges who had never tried jury cases — to protect businesses from having to confront juries, include: enhanced pleading, summary judgment motions, mandatory mediation, Daubert motions, class certification hearings, and motion in limine practice.

There has been so much emphasis on managerial judging and speedy case disposition that some judges view it a failure if they have to try a case. And the many judges who really want to try more cases say they can’t find lawyers who want to go to trial.

They say we have created a generation of lawyers and trial judges who are uncomfortable trying cases to juries.

Finally, the Supreme Court’s affection for arbitration as a form of private dispute resolution makes it an obvious alternative to any form of public trial.

Last fall the Civil Jury Project at NYU School of Law was established to study the reasons for the decline in civil jury trials, whether it matters and whether anything can be done to reverse it. It is the only academic center in the country devoted exclusively to the exploration of these issues. On its website are listed hundreds of judicial, academic and jury consultant advisors.

Its projects range from empirical research on why trials are declining, whether jury service makes for better citizens, and whether various innovations can improve the result for the parties and the experience for the jurors; to what judges can do to make jury trials more accessible, including providing training opportunities to young lawyers.

Innovations being suggested and studied include: opening statements before voir dire, substantive preliminary instructions on elements of proof, juror questioning of witnesses, interim attorney arguments, allowing jurors to discuss evidence before deliberations, back-to-back expert witnesses, and time-limited trials.

Currently judges are being surveyed on whether they have used or would be willing to try, any of these innovations. Trial lawyers are being surveyed as to why jury trials are disappearing. The project has sponsored an all-day conference on the State of Civil Jury Trials and a public discussion with the only Supreme Court Justice — Justice Sotomayor — who has conducted a jury trial. It has announced the program for an all-day conference on The Trial By Jury of Patent Cases for September 30 at NYU. The right to trial by jury of civil disputes, guaranteed by the Seventh Amendment and virtually every state constitution, is unique to our country and there are good reasons, apart

from that, to protect that right. Today 75% of lawsuits are filed in state courts where most judges are selected in partisan elections with few limits on campaign contributions by users of the courts. The process of confirming federal judges has become so partisan that today 47% of the people distrust even federal judges.

We have created a generation of lawyers who are uncomfortable trying cases to juries.

Litigants who are not repeat users of civil courts have good reasons to insist on being able to submit their disputes to juries rather than judges.

And it is important to the preservation of the rule of law that how those disputes are decided be visible to the public. Privatization of dispute resolution by the use of privately-hired

Yale Law Women: Speak up & shatter the ceiling By the Board of Yale Law Women

We write to congratulate the Harvard Women’s Law Association on the publication of their most recent Shatter the Ceiling study, and to emphasize that we are in this fight together.

In 2016, it is both disheartening and frustrating that women are still underrepresented on the Harvard Law Review and receive fewer academic honors than men. Yale Law Women’s recent “Speak Up: Now What?” report presented similar findings on women’s underrepresentation in traditionally prestigious academic pursuits at Yale Law School. In our prestige-conscious profession, in which women continue

to earn less money and occupy fewer leadership positions than men, these imbalances matter.

We have made important strides, but our work is nowhere near done.

Like the WLA, Yale Law Women strives to address gender disparities at our school head-on. The first step towards fixing these problems is to

reveal them, in detail. There is no substitute for hard data, and the Shatter the Ceiling study and “Speak Up: Now What?” leave no question that gender inequality at top law schools is real. In the two short years since the YLW report, the data has inspired change at Yale. YLW and other affinity groups forged a partnership with the Yale Law Journal to reach out to women and other historically underrepresented groups to better facilitate their participation. We are also in constant dialogue with Yale Law School administrators and faculty about how to create a law school environment and a legal profession in which women can thrive. Together, we have made

important strides, but our work is nowhere near done.

Both Harvard and Yale can and must do better by their women law students. We are confident that the Shatter the Ceiling report will spark renewed dialogue around vital issues of gender equality at Harvard Law School and beyond, and we applaud the WLA for their tireless efforts in pursuit of this goal.

This piece was submitted by the 201617 Board of Yale Law Women: Catherine Chen, Cecilia Cheng, Rachel Chung, Lauren Hobby, Lauren Miller, Elizabeth Pierson, Emily Wanger, and Helen White.

Where are Ringling elephants really headed?

Ringling Circus elephants subject to conditions as questionable as those found at SeaWorld.

By Delcianna J. Winders

On May 1, after more than a century of featuring elephants in its shows, the Ringling Bros. circus will wrap up its very last shows with these majestic animals. We’re told that the elephants are being “retired,” but where are they actually going?

While SeaWorld recently pledged to stop breeding orcas, Ringling has made clear that, though it will no longer use elephants in traveling circus acts, it has every intention of continuing to use them as breeding stock at its Florida compound — despite acknowledging that there is no possibility of the animals Ringling breeds ever being released.

Elephants in the wild are active for about 18 hours every day, but according to Ringling’s own testimony, elephants at the Florida facility are typically chained on concrete by one front and one back leg for more than half of every day. Often, including in the case of pregnant elephants and babies forcibly removed from their mothers, they are chained for 23 hours a day or even longer. According to an elephant expert who inspected the compound under a court

order, the elephants have spent so much time chained that they have worn grooves into the concrete.

Even when unchained, the elephants have access to only a tiny fraction of the space they would roam in the wild. While Ringling brags that its center has more than 200 acres, the elephants don’t have access to the vast majority of this space. Analysis reveals a total of less than sixteen acres divided up for dozens of elephants, with an average of about just one third of an acre per elephant. Wild Asian elephant ranges are thousands of — and sometimes more than a hundred thousand — acres.

Under conditions that so starkly contrast with the wild, it should come as no surprise that Ringling’s medical records reveal that nearly all of the elephants have suffered from painful (and often fatal) foot problems and arthritis — both virtually unknown in the wild.

Many also have tuberculosis, which is aggravated by close confinement and stress. Elephants can carry the human strain of TB and easily transmit it to people through the air. According to the Department of Agriculture, Ringling’s facility

has had the highest incidence of elephant-borne tuberculosis in the United States. As of October 2015, more than half of the elephants at Ringling’s compound were under government-mandated quarantine for tuberculosis.

Earlier this year, twoyear old Mike became the latest to die from a herpes virus.

Ringling’s medical records also reveal a recurring pattern of wounds consistent with bullhook abuse.

Bullhooks are devices with sharp hooks on the end that resemble fireplace pokers and are used to hurt and punish elephants. Most zoos no longer use these weapons, and many jurisdictions have banned them. But Ringling continues to handle elephants with bullhooks — as well as electric prods.

Chilling photographs from the circus’s Florida compound show electric prods and bullhooks being used on baby elephants. According to the sworn testimony of a former Ringling trainer, “Raising a baby elephant at Ringling is like raising a

kid in jail.” In describing the manager of Ringling’s Florida facility’s training of an elephant, the former trainer explained, “[B]eatings were daily … She had quite a few hook marks on her and we used quite a bit of electricity.”

One baby elephant died after shattering his legs during a training exercise at the facility. Wielding bullhooks, circus trainers were attempting to force the eight-month-old to perform on a circus-style pedestal.

Numerous other baby elephants have also died at the compound. Just earlier this year, two year old elephant Mike became the latest to die from a herpes virus that is closely associated with stress.

Taking elephants out of the circus is an important first step, but it’s not enough. Ringling should follow SeaWorld’s lead and immediately stop breeding elephants who are doomed to be confined to what are effectively tanks on land. And the elephants who have endured so much — and made millions of dollars for Ringling — deserve to be retired to a true, accredited sanctuary where they will have space to roam and never again be subjected to bullhook abuse or any other form of punishment.

Delcianna J. Winders is Harvard Law School’s Animal Law & Policy Fellow.

At 5:15 p.m. on April 21, a person posted red and yellow notes on several professors’ portraits located on the first floor of Wasserstein. Yellow tags were placed on male professors’ pictures, reading “Right to Impregnate” or “No Right to be Pregnant.”

Red tags were placed on female professors’ pictures and said “Right to be Pregnant.” Justice Elena Kagan’s portrait had a second tag that read, “No right to impregnate.” The notes were removed around 6:40 p.m.

It is unclear whether the individual who posted the notes is affiliated with HLS.

Steve Susman established The Civil Jury Project at NYU School of Law. He has been trying lawsuits for almost 50 years.

Have something to say?

Write for The Record. 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

Notes Posted on Professor Portraits in Wasserstein Hall

By Lindsay Church ’16

judges in confidential arbitration proceedings threatens the development of the common law.

Furthermore, the idea of having a group of fellow citizens decide the fate of others either at the ballot box or in the jury room is the essence of American democracy. Those who serve on juries benefit as much as the litigants because jury service gives ordinary citizens a chance to collaborate with a diverse cross section of their community; teaches them how our justice system works; allows them to be part of government.

The reasons for protecting the right to trial by jury seem so compelling that it would be a mistake not to act until we know all of the reasons trials are disappearing. What the Project is proposing may not prevent the demise of jury trials in civil cases, but it certainly can’t hurt and may, cumulatively, be effective.

Teddy Grodek ’18 Special thanks to Ralph Nader ’58

Photos by Lindsay Church

Tags were placed on professors’ portraits, including Justice Elena Kagan’s.

Jim An ’18 and Brianna Rennix ’18 will serve as editors-in-chief beginning May 10, 2016.

May 9, 2016

Harvard Law Record

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OPINION RECORD REVIEW

In Eligible, Austen’s characters find a home in modern America

By Jim An ’18

It is a truth universally acknowledged, that a valuable piece of intellectual property must be want of money-grubbing spinoffs, sequels, and adaptations.

Pride and Prejudice is a tough tale to adapt to modern times, with the fee tail and male-only inheritance being main plot devices of the novel. Today, of course, women can hold jobs, inherit property, and are not generally obliged to marry by 22.

Eligible by Curtis Sittenfeld addresses these limitations by upping the age of the characters (Jane is now 39, while Lizzy, now called Liz, is 38). New financial troubles are introduced, and new causes for familial and romantic strife are created.

Among them is the Bachelor-like reality show called “Eligible,” which recurs throughout to incite action avnd variously separate and reunite characters.

(I suppose I ought to be grateful to my roommate for having me watch a few episodes of the Bachelor this season, for my enjoyment of the novel was rather increased by my increased background knowledge of such shows.)

Ms. Sittenfeld does a terrific job bringing the main characters to life.

The younger Bennet sisters seemed even more alive and three-dimensional than in the original. Droll middle child Mary particularly takes on a breath of life, despite being considered by Liz and everyone else as the most unattractive and unpleasant Bennet sister.

The setting is removed to

Cincinnati, which I suppose Ms. Sittenfeld chose as a close-enough stand-in for her hometown of St. Louis. Skyline Chili (a local restaurant chain featuring cocoa and cinnamon as spices in its namesake chili) is featured prominently, and Darcy’s supposed unpretentious sensibilities are apparently illustrated by his love of the restaurant.

Darcy, with his “long, hairy, muscular body,” seems like a bit of fan-service. Given his absurd levels of wealth and education (he is now a literal brain surgeon), there hardly seems to be any reason at all for him to be in Cincinnati, which he seemingly loathes. Yet if readers may suspend their disbelief, they may indulge in fantasies about a cool, sarcastic, “practically sculpted,” Harvard-educated doctor who spends his spare time saving kittens.

Ms. Sittenfeld takes the concept of chaptering to the next level, filling the book with 181 (!) chapters, some barely longer than a half page. Almost all the chapters were well-drawn vignettes that kept the action going and helped move the 512 pages of the novel swiftly along (though some of the flashbacks were a bit plodding).

In a perhaps unintended way, the novel illustrates the mystery of love.

Jane and Bingley seemed to share a connection palpable even through mere words, though their time together was almost all off the page (as in the original). In contrast, the connection between Liz and Darcy feels rather more intellectual, which Hollywood has told me to mean one that’s somehow less powerful than one based only in raw emotion.

Still, Eligible fell short of its promise in a few ways.

An enduring quality of Pride and Prejudice is Austen’s uncanny ability to critique without being overbearing. As the title suggests, Pride and Prejudice is a sharp evaluation of its titular sins. Darcy cannot bring himself to admit his love, instead concealing it behind insults, and Lizzy is quick to judge everyone around her and makes a fool of herself in the process. Eligible abandons Pride and Prejudice‘s theme of personal prejudice in favor of group prejudice, choosing transphobia as its illustrative issue du jour. While transphobia is certainly not unworthy of stricture, the book’s quotidian take on it is less than inspiring.

In a perhaps unintended way, the novel illustrates the mystery of love.

Ms. Austen made her points not by reasoned argument, but by simply telling us who was a fool and had foolish opinions. (“Mr. Collins was not a sensible man.”; “[Mrs. Bennet] was a woman of mean understanding, little information, and uncertain temper.”). In contrast, Ms. Sittenfeld labors through her attack on transphobia (“Liz had via her smartphone learned about the kathoey in Southeast Asia and the salzikrum of the ancient Middle East. Also, she now knew to refer to

it as a gender reassignment rather than a sex change.”), and the novel and its critique of transphobia suffers for its ham-fistedness. Guess Who’s Coming to Dinner this novel is not.

On points of character, Ms. Sittenfeld also could have heightened the stakes. The original Wickham was so evil, so awful, that Darcy was as elevated by his magnanimity toward such a depraved character as Wickham was debased by his depravity. Replacing Wickham are two characters, only one of which, Wick, could be considered a villain at all.

And so diminished from the devilish original is Wick that the feeling from when Liz renounces her affection toward him is rather more like exhaustion than satisfaction.

There are a few other verbal missteps (graciously and gracefully seem to be confused at one point), and the dialogue is variously too casual (“Does he have a fake penis?”) and too stiff, even for a character such as Darcy (“Yes, it was clear that night that I’d done something to displease you.”). And in this modern age of autocorrect, I found the text messages insufferable (“Great getting to know u, u r really special person.”). Ms. Sittenfeld’s first novel, Prep, seemed more uniform and believable in its dialogue, though I admit I am not likely the best arbiter of fidelity to the speech habits of teenage prep school students.

Eligible is part of the Austen Project, which has also updated Sense and Sensibility, Northanger Abbey, and Emma. While I take no qualms with the intent of the project, I do lament for what could have been.

Courtesy of Penguin Random House

It is not that Eligible was a bad or boring book. After all, I read it in 5 hours (and then wrote this review) when God knows that I had more urgent work that I could’ve been doing. Rather, one can’t help but feel that there was some non-trivial amount of potential left on the table that could’ve been extracted with just a bit more editing and a bit more time. Nevertheless, I would recommend Eligible to any Austenite at the law school who has some time this summer or has nothing better to do during Reading Week. ★★★☆☆ Eligible by Curtis Sittenfeld, Random House, 512 pp.

Jim An is a 1L. He is a fan of each of Ms. Austen’s novels (except Sense and Sensibility, which was boring).

Ralph Nader to Dean Minow: Inform students about firm violations Students ought to know which firms have violated ethical requirements or broken the law.

By Ralph Nader ’58

Dear Dean Minow, I am writing to request your response, on behalf of Harvard Law School (“HLS”), to the important issues raised by an article published in the Harvard Law Record: Oliver Hall’s What HLS Students Should Know About the Law Firms Recruiting Them … and What the Law Firms Won’t Disclose. Although the article was published at the start of the 2015-2016 school year, HLS does not appear to have issued a formal response. I think you will agree, however, that the issues it raises not only merit a response, but also remedial action that should be undertaken without delay by HLS and law schools across the country.

Oliver Hall, the author of the article, is an attorney who has represented me in several matters. He tells the remarkable story of how he came to the conclusion, in one such case, that a law firm representing an opposing party “not only committed serious ethical violations, but also engaged in conduct which — knowingly or not — enabled a criminal conspiracy to succeed and evade detection.” Nonetheless, Mr. Hall reported, the law firm, Reed Smith,

LLP, continues to participate in the On Campus Interview (“OCI) program at HLS, and “according to Assistant Dean for Career Services Mark Weber, the firm is expected to return to HLS this fall, when it will resume recruiting students who likely have no inkling of the relevant facts.”

The main question this article raises is whether HLS is doing enough to protect students who understandably wish to avoid accepting offers of employment from firms that engage in unethical or even illegal conduct. Mr. Hall suggests that the answer is no. As he notes, “HLS does not even require law firms participating in its OCI program to disclose violations of the law or rules of professional conduct. Instead, students are simply advised to ‘conduct their due diligence’ before accepting any job offer.” Thus, Mr. Hall concludes, … law schools, including HLS, can and must do more.

When they invite law firms to recruit on campus, they provide the firms with an implicit, if not explicit, imprimatur on which students inevitably rely.

Law schools therefore have an obligation to conduct their own due diligence. At a minimum,

they should require law firms and other potential employers to disclose recent violations of the law or rules of professional conduct. After all, according to HLS Director of Admissions Tom Robinson, students are required to disclose their own disciplinary infractions — both academic and behavioral — when they apply for admission.

Law firms participating in OCI should be subject to the same standard.

Dean Minow, don’t you agree that this proposal is reasonable, and long overdue for implementation? The power and influence of large corporate law firms over the legal profession is perhaps greater today than ever, due in no small measure to the financial pressure the increasing cost of a legal education imposes on students. Many law school graduates now feel compelled to seek lucrative positions with corporate law firms — eschewing careers in public service and the non-profit sector — because they believe it to be the only way to pay off their exorbitant debts. But despite inviting such firms to campus to recruit their students each fall, HLS and other law schools fail to hold them to the same ethical and legal standards that the students themselves must meet in order to join the profession. Apparently, law school deans have few occupational incentives to regularly inform

themselves of the many dark sides of these giant law firms in conceiving, participating in and defending the mischief of their global clients.

(See Ralph Nader and Wesley J. Smith, No Contest (Random House 1998) and regular reports of the New York Times, Wall Street Journal and Washington Post, and investigative teams such as Pro Publica and the Center for Public Integrity — to name a few outlets documenting parts of the corporate crime wave.)

Law students need all the help they can get when it comes to vetting employers.

We will be contacting law schools across the country to ask that they adopt a disclosure policy that applies to any employer invited to recruit students on campus. The policy would require, as a condition of the employer’s participation in the program, disclosure of recent ethical or legal violations by the firm, its management or partners. It would not impose any sanction, but rather would establish a standard for the admission of prospective employers to campus, similar to that which law schools currently impose on

students. We recognize that such a policy cannot guarantee prospective employers’ compliance — particularly with respect to allegations or violations that remain confidential — but in a profession that is largely self-regulated, the default standard should be one of openness and transparency. Accordingly, the disclosure policy might also apply to other areas of interest to students that prospective employers may not currently publicize, such as their racial and gender diversity, the identity of their clients, the extent of their pro bono practice, and the degree of professional autonomy they afford to lawyers who wish to decline assignments on ethical grounds, among others.

As Mr. Hall’s article demonstrates, law students searching for employment need all the help they can get when it comes to vetting potential employers, and law schools are in a unique position to provide it. Moreover, implementing a disclosure policy for prospective employers would cost the law schools nothing. Will HLS be the first law school in the nation to do so?

Thank you for your attention to this matter. I look forward to your considered response.

Sincerely, Ralph Nader Ralph Nader is a 1958 graduate of Harvard Law School.

Davis: The Review could do better work with more openness Davis continued from page 1 you make the work your end, you will presently find yourself all unawares inside the only circle in your profession that really matters. You will be one of the sound craftsmen, and other sound craftsmen will know it. This group of craftsmen will by no means coincide with the Inner Ring or the Important People or the People in the Know. It will not shape that professional policy or work up that professional influence which fights for the profession as a whole against the public: nor will it lead to those periodic scandals and crises which the Inner Ring produces. But it will do those things which that profession exists to do and will in the long run be responsible for all the respect which that profession in fact enjoys and which the speeches and advertisements cannot maintain.”

Here at Harvard Law School, we are especially susceptible to Inner

Ringing. I think it is safe to assume that the desire for “being on the inside” was a major reason in why we all applied to come here. But this desire, as Lewis argued seventy years ago, is a danger. And this desire, in America — a nation built on the democratic faith in open institutions where all people, not just a select few, possess the constructive genius to co-create our shared world — is a vice. We should be working together to wean ourselves off this desire and become a community of sound craftsmen, devoted to our work — work, as our school’s mission statement impels, to advance justice and societal well-being — as an end in itself.

Unfortunately, as it is currently structured, the Harvard Law Review, which selects about 8% of students to be welcomed into Gannett House each year and leaves hundreds of our community members outside, feeds this dangerous desire. It is time to open up the Review — to break open Harvard Law School’s Inner Ring — and let any student who wants to participate to participate. This is assuredly

workable: if the Review truly is the most impactful law journal in the country, it certainly has challenges, research opportunities, and areas of development and expansion to which more students could be of use.

One can understand that there may be a certain pleasure that comes from being on the inside.

Some may argue that exclusion is a fact of life. Indeed, Lewis draws a distinction between accidental or necessary exclusion versus Inner Rings that exist solely to exclude: “In any wholesome group of people which holds together for a good purpose, the exclusions are in a sense accidental.

Three or four people who are together for the sake of some

piece of work exclude others because there is work only for so many or because the others can’t in fact do it. Your little musical group limits its numbers because the rooms they meet in are only so big.

But your genuine Inner Ring exists for exclusion. There’d be no fun if there were no outsiders. The invisible line would have no meaning unless most people were on the wrong side of it. Exclusion is no accident; it is the essence.”

We should ask ourselves whether the Review’s desire to exclude resembles the former or the latter: whether its policy of exclusion is necessary due to a lack of available tasks or whether its policy of exclusion is because “there’d be no fun if there were no outsiders.” If it is the former — if there are not a sufficient number of tasks to welcome all interested students on staff — I would challenge the Review to have a higher estimation of its own civic potential. There are major crises in the law — mass incarceration, unequal access to justice, a weakened

tort system that leaves consumers unprotected, and the institutional failure of Congress, to name just a few — that a larger, more ambitious Review could better help tackle. It would be a shame to let these crises go unnoticed by the Review next year due to a lack of staffing precipitated solely by a desire to exclude.

One can understand that there may be a certain pleasure that comes from being on the inside, watching the outsiders work hard to come in and selecting those who you believe deserve and do not deserve to join you. But, as Lewis reminds us, this pleasure is fleeting.

What is not f leeting is the joy of good work. And there is much good work to be done. End the Review‘s exclusion system so that students can get back to focusing on this work, rather than on entering the next Inner Ring.

Sincerely, Pete Davis Harvard Law School, Class of 2018 Pete Davis is the online editor of The Record.

4

Harvard Law Record

May 9, 2016

OPINION LETTERS TO THE EDITOR Do not rush to judge Husam El-Qoulaq To the editor: I am a Jewish 3L classmate of Husam El-Qoulaq who would also like to remind readers not to rush to judge Husam.

I will start by distinguishing myself from other recent signatories. I believe that the State of Israel is the most moral government in the world, a government that has shown its unwavering commitment to human rights even in the face of endless provocation from Palestinian terrorism. I also believe the disproportionate A fitting punishment To the editor: Regarding the recent question asked of Tzipi Livni: The question was offensive.

Period.

I do not think the question itself was anti-Semitic, although the questioner may well be — I A Letter in Support of Husam El-Qoulaq To the editor: We, the undersigned Jewish students and recent alumni, write in support of our friend and peer Husam El-Qoulaq, and to condemn the efforts we’ve seen to defame his character.

At a recent panel on Palestinian-Israeli negotiations (which notably featured no speaker representing the Palestinian cause), Husam spoke out in protest, as he often does.

To add some context that has gone largely unreported, the target of Husam’s protest that day was Tzipi Livni, a former Israeli Foreign Minister. Livni played a key role in Operation Cast Lead, a 23-day military operation that was condemned by the U.N. and other credible organizations for the brutality it visited upon Palestinian civilians. In 2009, a British judge even issued a warrant to Applause to JLSA leaders, not Harvard To the editor: I want to applaud Jon Gartner, Jeremy Salinger, and Jacquie Wolpoe for their remarkable restraint and interest in comity by not publishing the name of the student responsible for the comments to Tzipi Livni this past Thursday.

I hope that if the situation was

criticism and demonization of Israel is a sign that anti-Semitism is still very alive and growing in 2016.

Nevertheless, as someone who has known Husam for quite some time and as someone who has had the opportunity to discuss Israeli-Palestinian issues with him on several occasions, I am very confident in saying that Husam is not the anti-Semite the online world is trying to make him out to be.

I will not attempt to minimize the specific remarks in question, nor will I undermine the fact that they provide an important reminder for us to consider the

interplay between anti-Zionism and anti-Semitism. However, I will say that everyone makes mistakes of judgement at times, and that we should only judge a person harshly after looking at a broader survey of their actions. Husam has always only been a nice person on campus who is quick to offer his respect and friendship to Jew and non-Jew alike. Other than the comments in question, he always has only attempted to provoke reasonable and beneficial dialogue on campus. Husam also has always expressed his interest in having respectful conversations with anyone on campus who

disagrees with his views, and I know that I and others who have taken him up on those offers have had meaningful conversations with him about Israel. All in all, if all critics of Israel were to emulate Husam’s usual style of activism then the world would be a far far better place.

Based on Husam’s track record of respectful activism, we owe Husam the benefit of the doubt. Additionally, it is clear to me that many characterizations of Husam written by people unaffiliated with HLS who have never spoken to Husam and who know nothing about Husam other than

the remarks in question are completely out of touch with the reality of him as a person and all his previous conduct.

I therefore urge readers: please keep all this in mind as you think about Husam as a person. However, don’t just trust my word regarding Husam. Sit down with him, take him up on his offer, and have an actual conversation with him. I think for many of you the experience will be a lot more pleasant than you might expect.

Sincerely, Tuvia Tendler

don’t know. But the question was a deliberate and juvenile insult, not just to Ms. Livni, and not just to Jews, but to everyone.

Disagreeing with Ms. Livni is fine. Disagreeing vehemently with her is fine. Asking a question designed to draw out what you believe exposes the wrongfulness of her positions or beliefs is fine.

Asking a question that any seven year old knows is insulting, irrelevant and stupid — yes, there is such a thing as a stupid question — is obviously unacceptable.

It is the antithesis of civilized discourse.

So what is the appropriate response? Expulsion would be excessive. Letting the matter go on

the basis of the questioner’s “I’m sorry if I offended anyone, I didn’t know any better” non-apologetic “apology” is not nearly adequate.

I suggest making the punishment fit the crime, as the saying goes: Because the questioner has demonstrated that he cannot be trusted to behave appropriately at group gatherings, the questioner

should not be permitted to attend another public forum at Harvard Law School. That includes Commencement; he can pick up his diploma the same way as anyone else who is not in attendance.

That would be poetic justice.

arrest Livni on allegations of war crimes for her involvement in that operation.

Over the years, we’ve seen Husam experiment with many forms of engagement on this issue, from handing out informational fliers to asking pointed substantive questions at events. Earlier this semester he tried a different tactic, calling a male Palestinian speaker a “smelly liar.” He did the same with Livni, asking her during a Q&A how it could be that she was “so smelly.”

We understand those who criticize Husam’s words as disrespectful, reckless, or inappropriate, and we know that he would probably agree with all of those critiques.

But based on our own personal experiences with Husam, we reject the charge that our friend is an anti-Semite. Knowing Husam, we could all see that his aim was more mischief than malice. He said more about this in an apology he posted in The Record: I am writing to apologize, as

sincerely as I can via this limited form of communication, to anyone who may have felt offended by the comments I made last week. …

I want to be very clear that it was never my intention to invoke a hateful stereotype, but I recognize now that, regardless of my intention, words have power, and it troubles me deeply to know that I have caused some members of the Jewish community such pain with my words. To those people I say, please reach out. Give me an opportunity to make it right. I will assure you, as I have already assured many, that had I known it was even possible that some listeners might interpret my comments as anti-Semitic, there is absolutely no chance that I would have uttered them.

Though it should be obvious, we are not condoning anti-Semitism.

We have all felt the pangs of anti-Jewish prejudice at some point.

We strive to vigilantly confront anti-Semitism wherever we see it, and we know from seeing him do it

that Husam does too.

Husam is now the target of a vicious smear campaign. His name and face have been posted all over the Internet, where hundreds of hateful commenters pile on racist slurs, malign Muslim students at HLS who had nothing to do with Husam’s protest, and threaten various forms of violence against Husam. These tactics are part of a sadly well-worn playbook aimed at discrediting and defaming those who dare challenge Israel’s abuses against Palestinians.

Husam is one of a small handful of Palestinians on a campus where the prevailing sentiment is to back Israeli actions that he — along with much of the rest of the world — views as war crimes against his people. He is pressured either to keep silent or to speak softly about this crisis. We respect him for refusing to do either. We ask everyone else to think twice before accepting all the ignorant and hateful things that people have

said about him.

We stand in support of our friend and peer Husam, and with others peacefully protesting Israeli injustice. Effective protest should sometimes make us uncomfortable and even be disrespectful. But it should not, even inadvertently, remind its listeners of anti-Semitic tropes. That is why Husam has apologized, for which we applaud him. We know that Husam’s acts of protest are ultimately motivated by an impulse to expose and confront injustice, which he does with a bravery that we envy.

Sincerely, and Chag Sameach, Mihal Ansik Ben Apple Rebecca Chapman Sarah Cohen Sophie Elsner Anna Joseph Sam Koplewicz Jacob Lipton Jacob Loup Tess Peacock Leora Smith

reversed — and a slur (even if “only” an intentionally offensive and delegitimizing but not intentionally racist or sexist insult) was made, affected groups would show the same astounding level of restraint in the interest of furthering dialogue. As the comments were originally made (presumably?) in order to delegitimize the entire event without any substantive dialogue, I also hope that this example leads others to

choose to engage in substantive dialogue rather than jumping to conclusions that do nothing to solve complicated and emotionally charged issues.

Having said that, the decision by the Harvard Law administration to release a full video of the event — yet to explicitly censor the obnoxious and senselessly immature comments — bodes poorly on our institution, and demands an

explanation or justification.

While I fully believe that the comments were not a conscious anti-Semitic and sexist slur, they were at best still a public and personal insult on a foreign dignitary. The packed event was clearly public and clearly recorded. Harvard Law is sending a message that censorship may be appropriate if comments are embarrassing or offensive — a dangerous precedent and a signal that

Harvard does not trust us to take responsibility for our own actions.

While I recognize the unique and difficult situation that the administration has been facing over the last few months, I hope that in the future, the law school will entirely avoid this kind of censorship — or will at least be more transparent as to why they are engaging in it.

Tuvia Tendler is a 3L.

Richard M. Shearer is a 1986 graduate of Harvard Law School.

Brandon Levey is a 2L.

Record made wrong decision in anti-Semitism controversy In order to respect the Jewish Law Students Association’s initial decision not to name the student involved and in furtherance of The Record’s policy on fostering “respectful” ideologically-diverse discussion, The Record originally decided to decline to publish the identity of the student involved or to allow comments containing the speaker’s identity. The pair of letters below responded to our decision.

To the editor: Today I learned that an HLS student asked an Israeli speaker why she “smelled so bad.” The question was not pertinent to anything the

speaker had said. It is easy to infer that the question was meant to be offensive, nothing more.

I am unable to learn the name of this student. Why? Seriously, print

the name. When a sophomore at the University of Oklahoma sang a racist song on a fraternity bus, his name and picture and high school and home town were instantly

known. He was expelled days later.

Either “speech and conduct” codes are really about civility or they are just about silencing certain people, end of story. On what side of that

divide does your “independent” paper fall?

To the editor: Shame on the Harvard Law Record for refusing to reveal the name of the student who publicly said the anti-Semitic remark to Mrs. Livni.

The remarks were made in a public forum (and indeed made in front of cameras and 150 people). As an adult, the student has to face the consequences of

his actions (his paltry apology notwithstanding).

Censoring the identity of the student, including scrubbing the shameful statements from the

posted online video, is an attempt to sweep a serious problem under the rug. It makes the Record complicit in hiding the virulent anti-Semitism that infects many

so-called “Justice for Palestine” organizations.

Shame on you!

Matthew Horan is a 1976 graduate of Harvard Law School.

Alon Navon

Addendum: The Record had previously decided against printing the name of the speaker in order to comport with JLSA’s wishes, to further respectful discourse, and to recognize the fact that Husam is a member of this community. However, given the spread of Husam’s name online, and because Husam expressly gave The Record permission, we have now decided to allow his name to be printed.

A Statement of Solidarity with JLSA I unequivocally and unwaveringly condemn the recent anti-Semitic remarks at Thursday’s event

on the Israeli-Palestinian Conf lict. As the President of an organization dedicated to representing and serving students across the Middle East, including Israel,

I deplore any attack on individuals based on their race, religion, or cultural heritage.

Whatever political differences may exist within the student

community, I hope that we can all unite in condemning ad hominem, discriminatory attacks and work together to build an environment that facilitates respectful,

constructive dialogue.

No double standards for free speech

did leak out, as is to be expected; the student made the comment in a public forum as the leader of a student organization. He willingly led the vanguard and was cut down by an onslaught of criticism.

Such is the gamble we take in expressing an opinion in an open meeting — particularly when that opinion is without a semblance of intellectual merit.

But what if we choose anonymity to express our views? It is frequently the sole option for people who do not believe they will be given a fair hearing — based on their political beliefs, skin color, or other defining characteristic. To quote John Paul Stevens’ opinion in McIntyre v. Ohio Elections Commission, “Anonymity is a shield from the tyranny of the majority.”

Several days ago, the authors of the “Royall Asses” blog posted an allegation that students offended by their analysis seriously considered asking the FBI to monitor the blog. Even more shocking than law students seeking the intervention of a federal agency to stamp out dissent, the HLS administration was actively working to expose the names of the blog’s authors — according to one of the two cited emails. Clearly, the authors were right to fear retribution from their own institution; but what was their crime, beyond condemning the actions of their peers?

To someone unaffiliated with Harvard, these events are inexplicable. Are most students at Harvard Law School incapable of civil, rational dialogue? What

prompted the country’s top students to so vigorously embrace authoritarianism over liberalism?

Why did the administration work so diligently to shield one student, while simultaneously hunting others? The circumstances that have led me to ask these questions represent a cumulative travesty of the highest order.

Efforts to silence criticism do not indicate strength: instead, they indicate the absence of any defensible position. I cannot, and do not, claim to know the motivations of individual administrators, but this much is crystal clear: the HLS administration is a disgrace to the institution’s stated commitment to free speech.

Based on its past conduct, the administration appears quite happy to privilege one set of

viewpoints, and students, over another. More insidiously, they do not seem to endorse general principles of free speech: no one is immune to criticism, especially when the opinion in question has a shaky empirical basis; the medium is of the speaker’s own choosing; and authorities should not intervene so transparently for one cause over another.

One may hope that the administration will learn from its past mistakes and actively support the fundamental necessity of free speech in the future, regardless of the hierarchy’s political priors or the consequences for students expressing themselves.

Regret tably, I am not optimistic.

To the editor: There is no free lunch in the marketplace of ideas. Whenever we share our thoughts, downside risks are created. Some charge headlong into the breach of public scrutiny, while others prefer the relative safety of anonymity.

Recently, there was an alleged anti-Semitic insult hurled at an Israeli politician by an HLS student.

The administration attempted to help the student avoid further embarrassment for his careless remark by censoring footage of the event; the Harvard Law Record assisted in this regard by deleting comments on the original letter that named him.

However, his name eventually

Sahand Moarefy is a 3L. He is the President of the Middle East Law Students Association.

John Alexander

May 9, 2016

Harvard Law Record

5

NEWS & OPINION

The disturbing incident of the dean in the night David Seidler LLM ’16

I am angry.

In recent months, I have engaged in a number of heated discussions with friends involved in various aspects of the Harvard Law Spring that has swept through this campus. I have been alternatively frustrated with the way some of these movements have articulated their agendas, impressed by the range of associations which have collaborated to lend their concerns greater volume, and deeply humbled by the philosophical and intellectual heft of some of my fellow students.

But I was never angry. Until tonight.

Tonight, I received an email from Dean Minnow referring to ‘A Disturbing Incident’.

There is a concept in Internet marketing, perhaps familiar to many of you, called ‘clickbait’. If there were ever a subject line and a sender more primed to make a bleary-eyed Harvard Law School kid stop reading about strict scrutiny and click on an email, I challenge you to find it. And yet, unlike a hilarious Buzzfeed listicle about

cats doing stupid things, the Dean duped me. Yet again.

You do not have to have read the email in question to divine its contents. The template is by now terrifyingly familiar. An address to the Harvard Law School community; a rundown of the ‘incident’ in question; some law-school exam hypothetical postulation about The Constitution and Rights and Speech and Community; an invocation of the legal profession and its bedrock moral conscience; and … nothing.

Where the laugh-out-loud cat picture should have been is a grey email signature that is now so familiar as to appear in my top 10 Google Chat recommendations. I would love to Gchat with the Dean if I were not so certain it would end in equivocation, hand-wringing politeness, and a host of ambiguous and rhetorical introspective questions as take home party favors. As a loud-mouthed Australian, I can only hope that one day I will reach the apotheosis of political correctness. But the administration of one of this country’s finest law schools should not share my aspiration.

Wasserstein Hall is awash with

more demands than you can poke a stick at. Ostensibly, every other day, somebody is offended by something, and the Dean and her cronies on the third floor must pay with blood. Being the Dean, or indeed anyone involved in the administration, during this Harvard Law Spring, must be a truly thankless, exhausting experience. There is, however, one demand that has not been made. And it is the one that must be at the top of the list if myriad hours of advocacy, protest and learning are to count for anything. The demand for candor.

This should not be read as an ad hominem attack on the Dean or anyone in her administration. They do an admirable job of attending to the spotfires that seemingly flare up in the time it takes to check one’s privilege. But that depiction demonstrates the real issue. The fire extinguishers of mealy-mouthed email communications might put out minor conflagrations but only a water cannon of frank, direct correspondence will defuse the minefield of combustibles blanketing this institution.

Do not get me wrong. This is not about taking a position on whether

What is the essence of leadership … if the words we use have no meaning and are laden with fluff? or not this ‘disturbing incident’ was hate speech or just a terrible attempt at an insult. Or about whether taking down or leaving up a poster curbs freedom of speech.

Much less is it about whether the removal of the shield destroys a history we must remember or one we should forget. These things matter, of course. But they are the subjects of intense negotiation to be hashed out by my far more able, informed and aggressively intelligent colleagues. In the maelstrom that has descended over the school, I cling proudly to the ability to choose to be politically agnostic and let greater minds work out the hard stuff.

However what I do care about, deeply, is legitimate communication.

This is what angers me tonight.

What is the essence of leadership and administrative propriety if the words we use have no meaning or are laden with fluff? I am yet to run a statistical analysis of my inbox but I am fairly convinced the data would show that ‘allegedly’ is its most common word by a wide margin. I have been bewildered by the glacial pace of my friends’ advocacy movements to date but now I understand it: one simply cannot maintain momentum in the face of such a formidably blah administration. If the Law School wants the real dialogue, real space for debate and real community engagement it says it wants, it has to come to the table with more than prevarication and humdrum reportage.

In this age of information overload, I feel comfortable declaring that I do not want to hear from the administration unless it has something real to report. Concrete allegations, plans of action and meaningful policy changes would be a fitting place to start. Or a good cat video.

David Seidler is an LLM of the Class of 2016.

Penn Law student leaders write in solidarity with JLSA

By Peter Fishkind, Chris O’Brien, and Aaron Feinblatt

Dear Students of Harvard Law School, We were made aware of the disturbing incident that took place at the event you recently hosted featuring Tzipi Livni. The comments

that were made during the discussion remind us of the continued presence of intolerance that still pervades much our society. As Jewish people we are unfortunately too aware of this reality, as we have been forced to confront it time and again throughout our history. As Jews, future lawyers, and citizens it

is our duty to lead in a manner that promotes broad academic diversity and freedom. While it is essential that, as students, we are exposed to a broad range of opinions and even criticism, it is never acceptable when that dialogue turns into ad hominem attacks. It is for this reason that we write to you to offer

our voice as one of support that condemns any attempts to silence the academic diversity and freedom that is so vital to our communities.

Sincerely, Peter Fishkind President, Penn Law Council of Student Representatives J.D. Candidate Class of 2017

When a perceived injustice breeds injustice

By Tyra Walker ’18

Fighting against injustice means saying something that might be unpopular. Fighting against injustice means saying something that could — actually will — offend some. So today, I stand up to say that the anti-Semitism claim against Husam El-Qoulaq, although an understandable initial interpretation of a perceived injustice, should henceforth retire. Our community has irresponsibly relied on an isolated use of the word “smelly” — rather than on context, conversations, and attempts to discern the intent behind El-Qoulaq’s actions — to substantiate this claim. This faulty dependence is a threat both to our sense of community, and to the ethical standards to which we should hold ourselves as future lawyers and future leaders.

When I heard about the insulting remarks made at the Program on Negotiation event, I almost immediately categorized it as an injustice based on the facts presented in personal conversations, in remarks made at HLS’s 6th Annual Freedom Seder, and in Dean Minow’s initial email to the HLS community. Although I didn’t recognize the “smelly Jew” stereotype myself, my friends confirmed that the stereotype was widely recognized, and I was convinced that someone using this particular word in a public forum likely knew its derogatory context.

Still, I wanted to know more: Was he quoting this language? Was he referencing its usage in another context? I couldn’t completely wrap my head around the fact that someone in this community would hurl an insult like that without having some explanation better than being driven by pure malice.

Late last week I learned that Ms. Livni, the target of the insult, had a warrant issued for her arrest by a British court in 2009 for her key decision-making role in committing alleged war crimes during Israel’s Operation Cast Lead, in which over 1,400 Palestinians — primarily civilians — were killed in Gaza, and 13 Israeli civilians were killed.

While I did not consider these revelations to be indisputable proof of her criminality, they did represent a perspective that was not previously presented to our community. These new facts spurred me to reach out to the man behind the controversy and to listen to his explanation for choosing those words at that moment in time. In doing so, I recognized the hypocrisy of omitting to seek this firsthand explanation from the start.

We had a fascinating conversation. El-Qoulaq enlightened me that not only did he use the word “smelly” as part of another

If one so much as critiques Israel, one runs the risk of instantly being branded an anti-Semite. spontaneous protest directed towards a Palestinian speaker earlier this semester, but he also used the word in a playful song posted on Soundcloud mocking his little sister in January 2015.

I gradually understood that El-Qoulaq simply regarded the word “smelly” as a silly, unserious method of critique. When I inquired why he had chosen this method, El-Qoulaq explained that he was very familiar with and weary of conventional activist tactics such as “gotcha” questions and angry cursing, so he adopted a tactic that was more nonsensical, and, to him, entirely fitting given the already ridiculous situation of having an alleged war criminal speak as an authority on peace negotiations.

As we continued our conversation, I began to understand El-Qoulaq’s impulse to disrupt the f low of respect, which many assume to be self-legitimizing. The more he explained, I realized that his motivations were not too far off from the humor that the Silverman-Roati duo brought to their Student Government presidential campaign just weeks ago: “The world is filled with ‘serious’ people who pollute our environment, start unnecessary wars, keep all of the wealth concentrated among their friends, and turn a blind eye towards racial discrimination. It is also filled with ‘unserious’ people who speak truth to the complexities of being alive, the hypocrisy of far too many of our politicians, and the structural imbalances of our society.”

• In principle, I support an HLS student’s right to ask disruptive questions at events as they see fit.

Likewise, I also support Israel’s right to defend herself proportionately against Hamas’ attacks.

Many may continue to believe that El-Qoulaq’s question went beyond disruption, and was unnecessarily offensive. Similarly, many may regard Israel’s 2008 Operation Cast Lead and 2014 Operation Protective Edge as having gone beyond self-defense, and representing unnecessary wars of aggression on the people of Gaza. These are both entirely legitimate matters of opinion worthy of debate.

El-Qoulaq certainly intended to be provocative and inappropriate (by what standard does one critique the “appropriateness” of protest anyway?); but what is clear to me is that this was not an attack on all Jewish people everywhere — the claim that has now been amplified

in what is essentially an echo chamber of opinion on the Internet and social media. To automatically conf late El-Qoulaq’s remarks with anti-Semitism without looking beyond these actions in isolation is a slippery path, and one I’ve seen materialize far too often in relation to this incredibly politicized topic.

There are a number of valid criticisms of what took place, but the claim of anti-Semitism causes individuals to lose jobs and friends.

As members of this shared community, it would behoove us to be substantially certain of that assertion through, at bare minimum, actually conversing with an alleged perpetrator before allowing his or her name to be forever crystalized on the Internet as anti-Semitic.

Don’t get me wrong — I wish he would not have used those words regardless of what he intended; and clearly at this point he wishes he hadn’t used them either. As such, people may continue to take issue with the use of “smelly” as an insult in our educational community.

But what is odoriferous, if you will, is the fact that a dignitary can be partially responsible for the deaths of over 1,400 Palestinians in a contentious military operation without her respectability even being brought into question (note that Ms. Livni herself has referred to Israel’s disproportionate response leading to the death of over 1,400 Palestinians as “going wild,” adding, “and this is a good thing …”).

What is odoriferous is the oft-propagated myth that anyone who is fighting for the rights of Palestinians and social justice in Palestine is anti-Semitic.

What is odoriferous is the reality that if one so much as critiques Israel for its actions, one runs the risk of instantly being branded as an anti-Semite — a risk that I’m sure will actualize once the comment section to this article opens to the world, although I very much hope to be proven wrong.

What is odoriferous is the fact that another Muslim student who had no association with this incident whatsoever has now been attacked, berated, and targeted for merely existing at HLS in the midst of this controversy, as illuminated in Dean Sells’ recent email to the HLS community.

What is odoriferous is the predominant culture of an institution that accepts speakers into our hallowed halls while failing to consistently and critically evaluate whether they represent the values of justice we wish to see in the

world.

Some may object that a few of these critiques address phenomena that extend beyond the walls of this community, but this evades the question of what our duties are as community members to proactively control the prognosis of a controversy when certain results are reasonably foreseeable upon escaping our grasp.

• I’m not attempting to change the minds of those who believe that the Boycott Divestment Sanctions (BDS) movement or any iota of opposition to Israel’s actions is inherently anti-Semitic. I do not subscribe to those propositions, and I would sincerely hope that despite differences in politics my peers can discern between denouncing a state’s actions and denouncing its people. This is an appeal to those who fight for social justice, not only when it’s convenient or popular, but also when receiving some extent of disapproval is a near certainty.

I’m sure there are any number of individuals who will pass judgment on me for standing up against backlash directed towards someone who has been branded as a villain overnight. However, if it means directing some of the castigation away from El-Qoulaq so that he can productively ref lect on this experience, then that’s the price I’ll have to pay. The peer I encountered during the course of this conversation was someone genuine and passionate, but also someone who wants to be able to learn from this.

What I’ve seen transpire in the past week and a half is a perceived injustice being used to breed more injustice, and that I do not stand for. We may not be able to fully control the consequences of what people do or say out in the world, and that’s a lesson I’m sure El-Qoulaq will never forget. However, following the public and pervasive condemnation that has ensued on the Internet and beyond, I think it incumbent on us to evaluate whether the response to El-Qoulaq’s comment ref lects well on our local community and on our greater society.

Of course, if this had been the act of a fervent anti-Semite then that would be an entirely different story — but where is our impulse to ask more questions before alleging such a defaming claim that would foreseeably catch like wildfire across the Internet and communities to target one particular individual? Productive conversations did take place eventually, but not before the worst was assumed and a vilifying media frenzy ensued.

As a whole, my conversation with Husam evoked for me musings about neutrality. Here El-Qoulaq stands, trying to fight for the rights of his people, in a world

Chris O’Brien Treasurer, Penn Law Council of Student Representatives J.D. Candidate Class of 2018 Aaron Feinblatt President, Penn Law Jewish Law Students Association J.D. Candidate Class of 2017 that assumes the worst intentions prima facie, that invites alleged war criminals to places of higher learning, and at an institution whose dominant culture instructs us to sit down, behave, and ask polite questions. In a world like this, protest based on the humor of a critique so subjective that it, ideally, can’t be attacked on political grounds might be El-Qoulaq’s way of refusing to stand neutral, and of using whatever voice he has in his last few days at HLS to resist the grain, while still being true to himself.

• As the clamor of controversy subsides, and HLS students descend into the bowels of libraries, local cafés, and student centers in preparation for exams, we should ref lect on the original words of Dean Minow urging us, “to respect the dignity and feelings of all, even those with whom they disagree most strongly on any given issue,” but to apply them in a way that may not have been previously conceived after their initial reception. Further, as Dean Sells stated in a recent email, “[t]his needs to begin with each of us individually acknowledging each other’s humanity.”

In taking these morsels of advice, I’ve examined my initial reaction, paused, ref lected on the person I wish to be, and recognized that I want to live in a community that understands that protest is a legitimate form of intellectual expression, and that it can be expressed in a variety of forms, some silly and some serious. I wish to live in a community that seeks to converse with individuals and to understand their motivations before rushing to make statements that may cause irreparable harm. I will certainly expect this of myself from now on.

Further, what I hope is for those of us who thought “there’s got to be another explanation,” upon hearing what transpired, that we hang onto that little glimmer of hope a bit longer, and be brave enough to explore sides of the debate that may not win us a popularity award. If this self-practice can reach a point of critical mass, we just might be able to chip away at one form of injustice in some small way.

(Special thanks to friends and new acquaintances for all of the conversations that have taken place over the past few days which have served as a sounding board for this article. I am particularly grateful as we are all currently in the midst of exam preparation. It reaffirms my belief that we’ve got to do better in seeking a wide range of opinions when controversies like this emerge. We are expected to approach our work at HLS from multiple vantage points, and we owe such diligence to each other as future leaders in this profession.)

Tyra Walker is a 1L.

6

Harvard Law Record

May 9, 2016

OPINION

Anti-contraception rhetoric anthetical to notions of rights Letter continued from page 1 self-control in this context will result in fewer women losing their bodily autonomy, whether that be through street harassment, workplace harassment, campus sexual assault, domestic violence, rape, or any other form of gender violence.

If we allow women to regain some of the autonomy that they

have systematically been denied, I believe we can reduce the need for women to have to exert their right to bodily autonomy through abortions. A culture that continues to view women solely as sexualized objects, or solely through the lens of their reproductive capacity, will only enhance the problem that you purportedly seek to address.

No woman wants to be faced

with the decision of whether or not to have an abortion, and again, I envy that you will never be faced with such a decision. But that is precisely why you do not, and should not, get to have a say over when and how women can exert control over their own selves.

No matter how you view the morality of abortion, I hope you can understand how difficult it was

for myself and the other women in the room to have to be told by a man that we, in fact, should not have the right to control our own bodies, our lives, and our futures.

It is also difficult for me to believe that when you engage in this kind of anti-contraception rhetoric the issue you actually are championing is the right to life, and not a man’s right to deny a

An open response from a Law Student for Life

By Josiah Kollmeyer ’17

Sarah Gersten’s Open Letter raises several important points relevant to the conversation on abortion. A genuine pro-life perspective always includes a deep and abiding concern for every mother’s welfare as well as every child’s. Ryan Bomberger’s speech this past Tuesday sought to address the problem of disparate abortion rates within the black community, rather than the problem of sexual violence, but the Law Students for Life would agree that the latter merits serious discussion. We are glad to see the increase in discussion around abortion and related topics within the Law School over the course of this semester, and hope that these conversations continue into the coming academic year.

Pro-life advocates abhor sexual

violence, just as advocates for legal abortion do. No statement by Mr. Bomberger suggested otherwise. We can likely find substantial common ground between the two camps regarding what should be done to reduce rates of rape and sexual assault. Indeed, the pro-life movement wants to see men held to a high moral standard regarding sex. The relevant question within the abortion debate, however, is this: does abortion serve as a legitimate way to reduce the harm done to victims of sexual assault, or does it create an additional victim without remedying the first victim’s injury?

This is where pro-life and pro-legal abortion advocates will differ, based both on their different ideas concerning the rights of the conceived baby, and on their perception of how undergoing an abortion affects the mother. Pro-life

advocates maintain that participating voluntarily in abortion harms women as well as ending the lives of unborn children, and we therefore see the pro-life cause as, in fact, defending the dignity of women and unborn children alike.

The vast majority of abortions do not involve children conceived as a result of rape.

The vast majority of abortions, however, do not involve children conceived as a result of rape. According to the Guttmacher Institute, studies from both 1987 and

2004 showed that only 1% of abortions involve fetuses conceived as a result of rape. The “self-control” f lier made available by Mr. Bomberger at Tuesday’s event referred to the great bulk of abortion decisions where the fetus in question was conceived through consensual sex. In these cases, greater self-control on the part of both men and women could indeed have prevented an unplanned pregnancy. Again, the burden is two-sided; both men and women must exercise self-control. Abortion, however, makes it easy for men to do the opposite. In a world where men presume that women can access abortions if they so choose, men have greater leeway to pressure women for sex, knowing that any resulting pregnancy can be “covered up.” This is seen most graphically in human trafficking organizations, where

Where are all the men and women?

Millions of men and women have been killed by abortion.

By Anne Stark ’18, Kayla Ferguson ’17, and Chase Giacomo ’17

Over the past two months, four articles have appeared in the Record that discuss the morality, science, philosophy, and social implications of abortion (starting with Josh Craddock’s The Least Safe Space). Although this is a challenging issue, Law Students for Life is pleased that the initial article and the thoughtful responses have sparked a constructive dialogue.

In the spirit of continuing that dialogue, we would like to reply to Sarah Gitlin’s recent op-ed, which asserted that there was a “stark gender disparity” at HLS, with more women appearing to be prochoice and more men appearing to

be pro-life.

It would be easy to confine our response simply to refuting the factual basis of Gitlin’s claim. We could point out that our event last week, which had approximately 115 people in attendance, had more women in absolute numbers than did the Reproductive Justice event. Or that 48 percent of our Facebook fans are women, that our page’s largest audience in the past week has been women ages 18-24, and that 43 percent of those on our email list are women.

But we think Gitlin raised an important issue with which both pro-life and pro-choice advocates alike should wrestle. Gitlin is right to observe that becoming a parent can have a disparate impact on men and women. Women are often faced with an unfair share of the responsibility of child rearing. We applaud the Women’s Law Association’s “Shatter the Ceiling Committee,” and we agree with its findings. We think our society

Conquering cold calls

By Angel Everett ’16

“Ms. Everett.”

My heart thumped; my stomach jumped; and I felt my face heating up. I knew it. Just like 1L. I knew I’d get called on the first day again.

Here we go. I looked up at her, signaling I was ready for the inescapable interrogation.

“Ms. Everett. How is the Freedom of Religion Clause implicated in this case?”

“You mean like what does it say?”

She stepped forward. My voice had compromised my position in the auditorium, and she focused her gaze. “Yes. What is the Freedom of Religion Clause? What does it say?”

“Well, um, it says. It says that Congress can’t establish …” Wait.

Is it that Congress can’t make a law that establishes a certain religion?

Or that it can’t prohibit someone from practicing … “Um. The government can’t make one religion …”

Crap. Now my voice is getting all shaky. Just read, Angel.

I looked down at my scribbled notes in the margins of the casebook. “It says that the government can’t make laws that establish a certain religion.”

“Right.” The professor walked back to the center of the horseshoe-shaped room, and reiterated, “Congress cannot make a law that establishes a certain religion or prohibit an individual from practicing his religion.”

I breathed a sigh of relief, and she moved on to the next student.

But, as evidenced by the increased pace of my heartbeat, my adrenaline had not subsided to its resting level.

Thankfully, that was imperceptible to the fifty-nine other students in the

room, but secretly, I was ashamed that even in my final semester of law school, I was still getting nervous about these cold calls: I mean, the question wasn’t even hard. Who doesn’t know what freedom of religion is? Why do I get so worked up?

I gently packed my notes, highlighters, and spiral notebook, walked out of the auditorium, and dropped the class.

Although I knew I was doing what was best for me and my learning style, I could not help but feel ashamed, defeated, and like a failure for not rising to the occasion and conquering another cold-call class. After all, I am a 3L. I recalled how my 1L professors defended the Socratic Method by praising the development and growth they would witness: “I cannot tell you how great it feels to see a timid student evolve, or to see the glimmer in her eye when she thinks herself through to the correct answer.” As I walked out of that class the oppressive thoughts met me in the hallway and followed me to my apartment: What is wrong with me? Why have I not evolved?

Why have I not conquered the cold call?

I had not conquered the cold call because I had not yet sat down to reflect on my law school experience and generate a guide to cold calls.

But now, I’ve done just that. Too bad I’m about to graduate, so I no longer need a how-to guide, but to those who dare to be subjected to this ritualistic hazing component of the law school experience, the forthcoming posts will be dedicated to cold call tips.

One. Answer with an outline nearby.

During my first year I thought

can and must do a better job of supporting pregnant women and mothers through generous maternity/paternity leave policies, pregnancy-related medical care, and financial support for low-income families. We should think deeply as a society about what we can do to further gender equality and to help women achieve their full potential professionally.

However, we do not think abortion is the answer to this problem.

In fact, to say that it is begins with the wrong premise — that professional opportunity itself is a sufficient justification for abortion.

Yet no one is free to do as they please to succeed professionally, untethered from countervailing moral restraints. Which leads to the foundational question that Dr. George addressed at our event: is the human embryo a human person? The answer to that question must weigh in our thinking about proper means to advance professionally. If the answer is yes,

professional achievement cannot justify the taking of another’s life.

That an embryo is a human person unequivocally answers the question of whether abortion is a proper means for women to advance their careers, but this does not mean that women are barred from success.

There are numerous ways for women to advance professionally through less morally problematic alternatives to abortion, such as adoption. We are also encouraged by a growing number of employment-related support programs for parents, such as Caren Stacy’s OnRamp Fellowship. OnRamp is a platform that connects large law firms with women returning to the workforce after a hiatus. (Participants include many large law firms such as Covington, Cooley, and Sidley Austin.) There is also a growing trend of day care centers in law firms — supporting parents in the workforce.

There are also many examples of successful lawyers who are also

everyone in my section was a genius, or at least, benefited from some nebulous privilege that escaped me.

They were giving perfectly crafted, correct answers to the most specific, nuanced legal questions. I could not help but think: How did they know that? I mean, the professor would ask random, detailed questions about the context of the case, the justices, or some other obscure fact that may or may not have been mentioned in the reading, or if it was mentioned, it was a brief sentence amidst a haystack of sixty pages. Nevertheless, students would give perfect, cookie-cutter response, pleasing the professor’s ears. I would leave class and find the minute piece of information embedded in the reading. Oh. There it is. How do people remember all this stuff? How do they know? Well.

This is Harvard. They are geniuses.

Or not.

Maybe they were just equipped with a really good outline from a former student.

Now that I am able to reflect on my law school experience, I realize how staged many Harvard Law classrooms are. I felt so lost my first year because everyone (or at least many students) had a copy of the script, except me. The questioning, the back and forth. The perfectly-crafted answer to the complex hypothetical posed by the professor.

It was all a show, with the answers scripted into the outline, and we, professors and students alike, just continue to play along under the guise of learning. Whereas law professors uphold the Socratic Method as a valuable teaching method: “See! The student gets it. She reasoned her way to the right answer,” the reality is she got the “right” answer because she reviewed her lines.

Having an outline in class would have helped me realize that those

who miraculously knew where the professor was going in her questioning; telepathically knew how to follow her reasoning; and remarkably knew how to answer with calm perfection, were not geniuses whose intelligence was out of my grasp. They were students who had knowledge of the law school outline.

So, if you want to conquer the law school cold call, get an outline. Follow the script.

Two. If you are able to interject a question, don’t let it be a fundamental one.

It was the last week of October 2013, the fall of my 1L year. Now, late-October is a critical time during one’s first year in law school. It is far enough into the semester where 1Ls start thinking about their first-ever law school exams, but exams are still far enough away such that they have time to create a study game plan.

My section’s social committee had gathered to discuss plans for the upcoming Halloween Party, but a committee member voiced concern that folks probably weren’t going to show up, since it was getting later into the semester and people were getting stressed out. Another committee member used the same evidence to promote the party: “No guys. We have to go, and get everyone else to go, and like everyone’s gonna have a good time. I mean, yes people are stressed out and that’s exactly why we need to do this. Think about it — We don’t know if we’re supposed to be outlining. Nothing makes sense.

No one really knows what ‘consideration’ is …”

The huddle erupted into laughter.

I chuckled, but I also experienced a brief revelatory moment in the joke. In our contracts class, the professor kept reiterating that a contract is only a contract if there is “consideration.” He used to say it

woman self-determination over the life she has. At the end of the day, though, I most envy that you can walk out of that room, leave the conversation, and not be subjected to the very real ways in which I, and every other woman, do not have the ability to “self-control” our bodies.

Sarah Gersten is a 3L. forced abortions are essential to continued sex work. But coercion also rears its ugly head when a husband or boyfriend demands that his partner have an abortion, lest he leave the women altogether. A presumption on the part of men that abortion will not be an option actually encourages greater responsibility and decreases the risk of sexual exploitation of women.

As an organization, LSL takes no position on contraceptives in general. We affirm the dignity of human life at all stages of development and therefore oppose abortion and abortifacients. Respecting human dignity requires condemning sexual violence and coercion, whether it be rape or social pressure to have sex. LSL looks forward to further discussions about fostering this type of comprehensive pro-life approach.

Josiah Kollmeyer is a Co-Founder of Law Students for Life.

mothers. Amy Coney Barret, a law professor at Notre Dame, is a mother of 7 children. In fact, one of the authors of this article is pregnant; she is not only thriving at Harvard Law School, but will also be clerking with a federal appellate court post-graduation.

The pursuit of equality for women does not have to, and should not, come at the expense of the lives of the unborn. Abortion is not merely a women’s rights issue: it is a human rights issue.

Since Roe v. Wade, there have been over 58,000,000 abortions in the United States. The children who lost their lives were both male and female.

We conclude with one question: where are all the women and men?

Sadly, since 1980, it is estimated that over 1.4 billion female and male unborn persons have been killed worldwide by abortion.

Anne Stark is the Vice President of Communications of Law Students for Life. Kayla Ferguson is a member of Law Students for Life. Chase Giacomo is the President of Law Students for Life.

like it was so intuitive, like 2+2 can’t help but equal 4: “A promise must be exchanged for consideration.”

“A contract is only valid if there is some consideration offered.”

“Guys. Remember. There must be some offer and acceptance and some form of consideration for the promise.”

This is Harvard.

They are geniuses.

Or not.

I used to always think: What the heck is consideration? I dared not ask it though. I mean, in a sea of highly-theoretical, abstract, nuanced questions — “So say there is a subsidiary to the original offeror of the contract, is that subsidiary liable to the offeree for the initial contract terms?” “What about conditional consideration?” “That is valid even in a contract of adhesion, right?” — I did not have the guts to raise my hand, compromise my identity as an imposter, and audaciously belt a basic question: “What is consideration?”

Could it be that others didn’t know what consideration was, either, and asked these high-level questions to fit in? to feign comprehension? to conquer the cold call?

Welp, as it turned out, I wasn’t the only one who didn’t know what consideration was, and I wasn’t the only one who knew not to ask. Because we all know there is no room for fundamental questions at Harvard Law, especially if you want to conquer the cold call.

Angel Everett is a 3L.

May 9, 2016

Harvard Law Record

7

OPINION

A disturbing double standard

By Kristen Zornada LLM ’16

Earlier this week Harvard Law Students received an email from Dean Minow that denounced a comment made by a student at a panel event featuring Tzipi Livni, a former Israeli foreign minster.

Something accidentally left out of Ms. Livni’s bio at the event (probably) was that a British court issued a warrant for her arrest for war crimes committed during the 2008-2009 offensive on Gaza.

During that offensive, 1400 Palestinians died, mostly civilians; Israel says it was defending itself against Hamas rocket fire, 13 Israelis died.

We’ve all tried to get out of events we didn’t want to attend before but “soz I can’t come, I might get arrested for war crimes” is an excuse that can probably only be used by about two other people, like maybe Al-Bashir and Karadžić, tops.

There are many questions that one might have for Tzipi Livni. Why did you bomb UN schools? How can you deny the humanitarian crisis in Gaza? What moisturiser do you use to give you that youthful genocidal glow? But instead, a student asked about why the speaker was smelly.

This sounded oddly familiar.

Earlier this semester, I went to an event for the free tabouli and falafel, which was excellent by the way, and the same student protested a Palestinian speaker, by holding up a sign saying, “YOU ARE A SMELLY LIAR.” Harvard University Police Department officers ejected him from the event.

As a hapless foreigner here to learn about the ways of the World’s Greatest Democracy™, I was intrigued how the law school was literally policing free speech. I posted a Facebook status about it. It got 29 likes.

But otherwise, that was the end of

the matter — no editorials, statements of solidarity, or official email followed.

So I’m struggling to understand why, of all the incidents that have occurred this semester, the one during Tzipi Lipni’s visit was the one the Dean denounced. In her email, the Dean said that the remarks from the student were “offensive,” an “embarrassment to this institution” and an “assault upon the values we seek to uphold.” Further, that, “speech is and should be free does not mean that hateful remarks should go unacknowledged or unanswered.” Some may have perceived these remarks to be anti-Semitic, which rightfully should be taken seriously.

But girl. Where was this response two weeks ago?

Isn’t posting signs in Belinda Hall comparing anti-racism protestors to Donald Trump, “offensive”? Isn’t

filming women without their consent and posting it online an “embarrassment to this institution”?

Isn’t planting secret voice-recorders to surveil students an “assault upon the values we seek to uphold”?

Does Harvard Law only condemn insults when they are directed to prima facie war criminals and/or public figures? If so, y’all need to hear what’s being said about Sarah Jessica Parker on Twitter.

Nothing from the Dean denouncing her students being harangued, harassed, spied on; nor when her own students were shamelessly used for propaganda purposes without their consent by the current Israeli foreign minister; but when an immature comment is directed towards a public official, a statement denouncing the incident is sent to the entire community. Livni is probably sitting on a beach in Tel Aviv sipping a Bloody Mary, and here we all are, tearing ourselves apart, leaving vile comments online, and going another round of our

favourite game, Writing Strongly Worded Messages in All Caps Directed to Michael Shammas.

The Dean asks us to consider, “who am I?” and “what kind of person do I wish to be?” (did we not already answer those questions on our applications to come here? Do they not have this on file?). Also, “what kind of community can we make together?” I am sure this question was meant to be rhetorical, but I’ve never been much good at following instructions; I usually forget to write my name on forms.

So … what kind of community we can make together? Honestly, I don’t know. Post your answers on a Post-It note in Belinda Hall. But for my part, I at least hope for a community where the Dean doesn’t come to the defence of corporate interests and powerful politicians while hanging her own students out to dry.

Kristen Zornada is an LLM of the Class of 2016.

HBS Jewish Students Association Writes Letter in Support of JLSA

By Tom Dan, Gavin Ellman, and Maximiliano Grass

We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.

— Karl Popper Last week, the Program on Negotiation at Harvard Law School hosted Israeli politician Tzipi Livni for a panel on Israeli-Palestinian negotiations. During the Q+A session, a student at Harvard Law School asked Ms. Livni the following: “How is it that you are so smelly? … A question about the odor of Ms. Tzipi Livni, she’s very smelly, and I was just wondering.”

Calling Jews “smelly” or “dirty”

has a long history. The Nazis promoted the idea to label the Jews an inferior people. In France, the term sale juif (dirty jew) has been the go-to anti-Semitic slur for centuries and in the US, Jewish immigrant neighborhoods were often described by the press as smelly and dirty.

By using an old anti-Semitic stereotype to attack a foreign dignitary, the Law student willfully and publicly violated core values of the university. Hate speech is against everything we stand for. It hurts us all, shuts down conversations, silences those who wish to be heard, and betrays our core values as a diverse and open student body.

We stand with the Jewish Law

Students Association and the Middle East Law Students Association in denouncing the verbal attack.

We applaud Dean Minow for calling the remarks what they are: “an embarrassment to this institution.”

We agree with her that free speech “does not mean that hateful remarks should go unacknowledged or unanswered” in our community.

But we must go further: we must make clear that it is unacceptable in our community.

The student’s public, bigoted remarks violate our most important ethical standards. If we as a community fail to unite to condemn those remarks, then we condone them. We must reject hate directed against members of any race,

gender, sexual identity, disability group and religion, within the Harvard network or outside of it.

We add our voices to those who are calling upon the administration to unequivocally identify these remarks as anti-Semitism, to explicitly identify the academic policies the student violated, and to clearly articulate the formal process the school will use to appropriately respond to such conduct.

We must hold individuals accountable for their actions. We must do so in a way that makes it clear that bigotry has no place in the Harvard community nor in the hearts and minds of the world’s future leaders.

The Harvard Business School

Jew ish Students Association’s leadership has and will continue to work to defend the values of the Harvard community. We thank all our fellow student leaders, the members of the Student Association, friends, and classmates for your unwavering support in the pursuit of this goal.

Tom Dan, Co-President of the HBS Jewish Students Association ‘17 Gavin Ellman, Co-President of the HBS Jewish Students Association ‘17 Maximiliano Grass, Co-President of the HBS Jewish Students Association ‘17

Affinity groups to Minow: “Upstand” for your Muslim students By the Muslim Law Students Association

On Thursday, April 21st, one of our classmates woke up to defamatory allegations and a barrage of hate mail following the Tzipi Livni event. Some of these allegations linked to articles she had written in the past. Some found and posted her picture online. Some went so far as to demand that her recently awarded fellowship be revoked. All called her an anti-Semite.

In addition to the cyber harassment and threats, some of our classmates confronted her about her involvement in an event that she did not attend and knew nothing about. She was targeted for no reason other than her affiliation with the Muslim Law Students Association.

For almost two weeks now, a barrage of threats has poured in against Muslim students in our community. These students — including the uninvolved student described above — have watched their personal information get released on the Internet and have been targeted by a steady stream of character defamation and blatant racism.

They have been accused of terrorist associations and threatened with violence.

Two weeks ago, Dean Minow sent a strongly worded email about the Livni event. The same words apply now with equal if not greater force, but they have not been forthcoming. So we supply them again here.

It is “deeply disturbing” that the Harvard Law School administration kept silent for so many

days about these attacks on its Muslim students. The hateful comments directed at the Muslim students are “offensive.” The threats against them have “violated the trust and respect we expect in our community.”

Several days after being made aware of these threats, the administration repeatedly declined the uninvolved student’s requests that the school issue a public statement of support, even as it recommended to the targeted students that they get security. Only after a faculty member became involved did Dean Sells send an email. Unlike the email following the Livni incident, this email did not come from Dean Minow and went only to students, not the broader HLS community.

Dean Sells’ email was heartfelt and rightly noted that the uninvolved student was targeted based on nothing more than her affiliation with the Muslim Law Students Association. Still, the email did not adequately address the insidiousness and violence of anti-Muslim bigotry and instead chided students about “incivility” and shifted the blame to “every hater in the online universe.”

This is not just a question of whether our peers conduct themselves, as Dean Sells puts it, with “civility and respect.” Nor is it about whether the school has the ability to control Internet trolls.

It is about the administration’s reluctance to acknowledge a national and institutional climate of anti-Muslim bigotry in the face of violent threats to members of our community. It is about the characterization of student attempts

to highlight the disproportionate impact of post-9/11 detention policies on Arab and South Asian men as unnecessarily injecting ‘normative priors’ into the conversation about national security. It is about the international law classes that represent Muslim-majority countries as ‘enemy’ territories without challenging the conf lation of faith and national identity that plagues this discourse. It is about the administration’s pattern of prioritizing political expediency over the politically unpopular needs and concerns of Muslim students — even when their physical safety is at risk.

As Dean Minow reminded us in her email two weeks ago, “the fact that speech is and should be free does not mean that hateful remarks should go unacknowledged or unanswered in a community.” Yet the plainly hateful and racist assaults against Muslim students remain unanswered by Dean Minow and unacknowledged to any non-student member of this community.

This community cannot selectively enforce the “values we seek to uphold.” The administration’s belated and tepid denunciation of ad hominem attacks against its Muslim students is an “embarrassment to this institution and an assault upon” these shared values. Just as Dean Minow promptly, publicly, and unequivocally denounced anti-Semitism as a violation of these values, so too should she condemn hateful speech and threats of violence against Muslim students.

Sadly, the administration has frequently turned a blind eye to the needs of minority students on

campus. And it is in danger of doing it again.

In response, we, the undersigned Harvard Law student groups, call on the HLS community to join us in “upstanding” in solidarity against all threats and hate speech, including anti-Muslim hate speech, and in urging our administration to do more to address the needs of the Muslim student body.

“This is a moment for each of us” — including the administration — to ask, “What kind of community can we make together?”

And how can we make sure that all students feel safe, welcome, and valued as part of the Harvard Law School community?

Signed, Asian Pacific American Law Students Association (APALSA) Harassment/Assault Legal Team (HALT) Harvard Black Law Students Against Islamophobia* Journal on Racial and Ethnic Justice (JREJ) La Alianza Lambda Muslim Law Students Association (MLSA) Students for Inclusion (SFI) Queer Trans People of Color (QTPOC) Representing their respective student organizations are: The 2015-2016 MLSA Board: Mariam Boxwala, Zain Jinnah, Aya Saed, Osama Shabaik, Mohammad Sherine, Aida Vajzovic, Noor Zafar The 2016-2017 APALSA Co-Presidents: Amanda Chan and Kevin Jiang The 2016 HALT Co-Presidents:

Katherine Leung and Sarah Gutman; The JREJ Volume 32 Editor-in-Chief Catherine Howard The 2015-2016 La Alianza President: Nadia Arid The 2016-2017 Lambda Co-President: Mariel Hooper The 2015-2016 SFI Board: Keaton Allen-Gessesse, Antuan Johnson, Rena Karefa-Johnson, Faye Maison, Alex Santa Ana The 2016-2017 QTPOC Co-Presidents: Cameron Clark and Amanda Gomez *This group represents BLSA members who would like to stand in solidarity with MLSA and other affinity groups: Mmiri Mbah Michele Hall Titilayo Rasaki Kendra Mells Pamela Nwaoko Antuan Johnson Christina Joseph Rena Karefa-Johnson Derecka Purnell Isis Freeman Essete Workeneh Cameron Clark Lesedi Mbatha Akeeb Animashaun Jessica Lewis Wossen Ayele Aya Saed Aaron Francis Aaron Bray Lelend Shelton AJ Clayborne Taylor Allen Keaton Allen-Gessesse Stephanie Dorsey Esther Agbaje Kulani Jalata

Enough is enough: Harvard labs need to stop animal cruelty

By Alene Anello

Ever wondered what happens to animals in laboratories?

A whistleblower has just leaked photos and allegations of animal abuse at a Harvard lab. If you’re thinking, “Haven’t I heard this one before?” it’s because you pretty much have. The source, a Harvard Medical School (HMS) insider, reached out to People for the Ethical Treatment of Animals (PETA).

The whistleblower describes HMS experimenters injecting mice and rats with caustic materials, and killing and decapitating the animals.

Using the Freedom of Information Act, PETA then secured correspondence between HMS and

the National Institutes of Health (which funds a lot of HMS’s experiments on animals). The 224 pages of correspondence documents more than 74 incidents from December 2012 to October 2015, of HMS failing to meet animal welfare guidelines. The documents show that animals suffered pain, injury, and death as a result of neglect, incompetence, and deviations from approved protocol.

Mice died from thirst when no one noticed their water bottles had emptied. Mice died from radiation overdose; suffered temporary paralysis; and fell lame after experimental surgeries. Workers failed to monitor mice who grew tumors larger than what the study’s protocol permitted. A marmoset monkey

fractured her leg bone when someone tried to catch her incorrectly.

Hundreds of zebrafish died after their life support system got turned off by accident — twice. A mouse died in a cage left in a remote area of the laboratory. The lab had forgotten him.

I think Harvard can do better.

If you’re wondering whether this level of disregard for life happens in laboratories beyond our university, it does. The Animal Welfare Act (AWA) excludes most mice and rats from its definition of “animal.”

This means they lack protection from the only federal law with legally-enforceable standards for the treatment of animals in labs. AWA also excludes birds bred for use in experiments, fish, amphibians,

reptiles, and agricultural animals used in agricultural experiments.

So there’s no government agency standing at the ready to issue a citation, give a fine, or take any other action to protect mice, rats, and other excluded animals — regardless of what happens to them. This problem goes far beyond Harvard.

Take something simple, like giving animals pain relief after using them in painful experiments. A survey found that mice and rats who undergo painful, invasive procedures like abdominal surgeries, burn experiments, and spinal surgeries only receive post-procedural pain relief about 20 percent of the time.

Mice and rats are mammals, like us. They have nervous systems similar to ours. They feel

pain, fear, loneliness, and pleasure like we do. They experience consciousness. They get emotionally attached to each other. Male mice woo mates with love songs. Infant rats giggle when tickled. Rats show empathy when they see another rat in distress. And they exhibit altruism, putting themselves in harm’s way rather than allowing another to suffer.

It’s time we exhibited a little altruism ourselves. When it comes to animals suffering and dying at the world’s #1 university, enough is enough.

Alene Anello is a third-year Harvard Law student and outgoing president of HLS Student Animal Legal Defense Fund.

8

Harvard Law Record

May 9, 2016

OPINION & ANALYSIS

Queer at Harvard Law School, 2016

By Sean Cuddihy ’16

The LGBTQ community at Harvard Law School has been a tremendous resource for me as a gay law student. One of the most gratifying things about serving on the Executive Board of Lambda (one of HLS’s LGBTQ interest student organizations) has been getting to work closely with fellow students and school administrators on issues of campus policy. It has been a particularly exciting time to focus on these issues as movements like Reclaim HLS work to bring attention to the experiences of marginalized populations on our campus and in other legal contexts. As I prepare to graduate, I want to pause and reflect on some of the ways in which the administration has responded positively to the tireless advocacy efforts of my queer, trans, and allied classmates, as well as some of the particularly LGBTQ-related areas for improvement on which I hope campus leaders will continue to focus going forward.

The decentralized nature and sheer size of the HLS administration can sometimes make it difficult for well-meaning officials to understand the problems affecting LGBTQ students, let alone solve them. I’m collecting these seemingly unconnected pieces into a single manifesto with the hope that this will help students and administrators identify opportunities for comprehensive, collaborative initiatives and continue to make our school environment more hospitable and productive.

Admissions Starting with the class of 2018, applicants to Harvard Law School have been able to provide significantly more information about their gender identities than was allowed by the old M and F answer choices. The application includes more gender options, allows prospective students to check more than one, and even includes a short write-in section. Making the gender question more flexible serves an important signaling function, letting transgender and gender-non-conforming applicants know that HLS administrators have at least some familiarity with the idea of gender diversity.

Since the school began collecting data about gender identity so recently, it’s hard to say with any certainty, but I get the sense that trans people are underrepresented at HLS. To the extent I’m right, I suspect it has a lot to do with the applicant pool. Trans people face discrimination and life-altering hardships at wildly disproportionate rates well before they ever encounter an institution like HLS. These hardships undoubtedly keep the average trans person from amassing as many of the credentials that make applying to places like this feasible, and diminish their faith in the law as a tool of social transformation. But these disadvantages are exactly why we need to go out of our way to give new trans professionals the keys to success, and to equip a new generation of trans advocates with the tools to change law and society for the better.

To that end, I call on HLS, and on the Admissions Office in particular, to invest in innovative recruiting tools that would encourage trans and gender-non-conforming students to pursue careers in the law, while helping them overcome the disadvantages that currently steer a disproportionate number off of the elite law school track.

I know what you’re thinking:

identifying significant numbers of trans youth and making a meaningful difference in their educational prospects would take a good bit of money.

What you may not know is that Harvard currently gets hundreds of millions of dollars a year by discriminating against trans people! In 2005, HLS decided to comply with a federal funding requirement known as the Solomon Amendment and allow representatives of the U.S. Armed Forces to recruit on campus, even though they openly violated a University policy against discrimination on the basis of sexual orientation and gender identity. To this day, the Law School’s non-discrimination policy officially includes one “exception” for transgender people, who remain categorically excluded from military service.

Harvard takes in over $600 million in federal funding annually, meaning that its anomalous and degrading decision not to protect trans people from discrimination for the past decade has allowed it to receive literally billions and billions of government dollars. I feel quite comfortable asking HLS to set some of that money aside for trans people’s benefit.

Alumni Relations In some ways the legal profession is at an important turning point, in that prestigious institutions are actively competing for gay and lesbian lawyers. Elite law firms have caught onto the fact that presenting themselves as gay-friendly and working through our affinity groups can help them attract students from elite schools. At the same time, this remains a tradition-bound business in many ways.

Old fashioned, highly gender-specific professional dress norms can be difficult for queer students to navigate comfortably, for instance, and Lambda members report getting strange looks and inappropriate comments in interviews when they should be able to focus on their abilities and experiences like everyone else. The Office of Career Services is making efforts to improve its guidance on this issue, including by adding a footnote to its page on professional attire that encourages gender-non-conforming students to come in for extra advice, and by conducting internal trainings on gender and sexual diversity. But, understandably, career advisors’ instinct tends to be to treat nonconformity as a career liability (or at best something that should be taken into account in determining whether a potential employer is a good “fit”), instead of identifying opportunities to use our school’s unique market position and educate all employers about how to avoid unnecessary discrimination and make their recruits more comfortable.

In this climate, having access to a robust network of people who have already ventured out into the industry, can share their experiences, and are looking for ways to support each other would seem indispensable. Yet our GLBT Alumni Network organization faces unique constraints when it comes to facilitating student access to our graduates’ collective wisdom.

The Admissions Office has declined to include a sexual orientation question on the HLS application, preferring instead to note in applicants’ files when they go out of their way to mention either their sexual orientation or an interest in LGBT issues.

Since some people experience their orientations as entirely incidental to their legal interests, and will not think to mention them without prompting, this somewhat diminishes HLS’s

opportunities to build robust records regarding our population. But even if the school starts soliciting affirmative declarations regarding sexual orientation at the moment of application immediately, we will still be at a disadvantage. LGBTQ students don’t always come out, even to themselves, until after leaving law school. Even among those who have long been out to their friends and loved ones, many of our older graduates came through HLS at a time when social disfavor toward LGBTQ identities was so strong that it would never occur to them to disclose their affinity to a traditional institution like HLS. And of course an entire generation of our elders has been substantially reduced in number by the scourge of HIV/AIDS. All these factors are outside the control of the GLBT Alumni Network and HLS’s Alumni Office, but they do point to a need for distinctive responses.

I call on HLS, especially the Alumni Office, to engage in a two-year campaign of sustained outreach to identify as many LGBTQ graduates of Harvard Law School as are willing to be identified and to cultivate a greater sense of intergenerational community.

This would include relaxing their general policy against allowing student groups to put on programming at reunions or advertise our own events through official Alumni Office materials. The campaign should culminate in another Harvard-sponsored LGBTQ reunion in 2018, the 40th anniversary of the founding of Lambda’s predecessor club.

While the Alumni Office and OCS have been working on a mentorship program that will connect current students and graduates of various affinities who share similar interests, my proposed initiative should not just be for people who are willing to develop relationships with individual current students. Having access to a robust community of fellow senior practitioners, people who share at least some common concerns and can look out for each other, stands to benefit even the most experienced and busy LGBTQ lawyers.

Facilities When the JD class of 2016 arrived at HLS, every single toilet on campus was designated for either men or women. This was a problem. Today, thanks to sustained attention from the Dean of Students Office, the Facilities Office, and concerned students, our shared spaces are in much better shape. In most major classroom buildings and dorms, both single-gender and all-gender restrooms are a short trip away.

This is not to say the landscape of gendered spaces at HLS is perfect, though. In a few academic buildings, the only restrooms are single-gender multi-user facilities that might require some substantial physical alterations for greater ease of mind, rather than just new signs on the doors, if they are to become gender-neutral. In addition, Hemenway Gymnasium has only a men’s locker room and a women’s locker room. It probably will not be possible to address either of these issues without both investing considerable design work and lobbying the governments of Cambridge and Massachusetts to alter the gender-specific toilet quotas in their plumbing codes.

I call on HLS, in conjunction with Harvard’s Office of the General Counsel, to work with the relevant authorities to clear away any legal obstacles that stand between us and a truly welcoming campus. Students can be

involved in this work — this is a law school, after all, and students would benefit from learning about ways in which municipal laws can dramatically affect the lived realities of vulnerable populations — but ultimately the University has a moral responsibility to pursue this work of its own accord.

To spare everyone another years-long cleanup effort, HLS must also establish a policy that appropriately welcoming facilities will be designed into any new buildings or major renovations.

Gender in the Classroom As currently used in socratic classrooms, familiar honorifics like “Ms.” and “Mr.” have some serious shortcomings. For some people (including some intersex and genderqueer people), these binary markers are simply inaccurate; using neologistic terms like “Mx.” or avoiding honorifics entirely might be more appropriate for them.

Other students are open to binary gender terms, but frequently get called by the wrong title in ways that can be distracting or even distressing. These students include transgender men and women who get mistaken for women and men, respectively, as well as gender-non-conforming but non-transgender people (such as butch or dapper women) who get mistaken for a different sex. The existence of these people makes it clearly inappropriate for law professors to look out into the classroom, make a snap judgment about how someone identifies, and call on that person by saying “What do you think, Mr … . ?” Yet this is what happens all too often.

I personally tend to think that diminishing the prevalence of gender in professional settings is desirable and that all professors should switch to calling students by their first names, but different professors and students feel differently. As some colleagues and I plan to argue in a separate oped, there are a number of other ways to try and fix this dynamic, but all of them require professors to have ready access to clear information about how individual students actually identify, and to consult that information consistently instead of guessing. The HLS Registrar’s Office and Dean of Students Office have worked hard to collect the necessary information from hundreds of current students. But, thanks in part to constraints on available information systems, these offices lack the ability to then distribute this information to professors in a useful format.

I call on HLS and on Harvard University Information Technology to invest in repairs to their outmoded systems of gender data storage, in order to make University databases capable of reflecting how students actually identify (with fields for gender marker of record, pronouns, honorifics, and the like). Students have a role to play as well: we can make our classrooms and study groups more hospitable by familiarizing ourselves with gender diversity basics and by normalizing the practice of indicating preferred pronouns when we introduce ourselves. I am excited that Dean of Students Marcia Sells has committed to overhauling first-year orientation, and I believe that information on these topics must be part of the new programming.

Curriculum LGBTQ issues come up in passing in some foundational courses at HLS, which is appropriate. Everyone who goes through law school should have a chance to think about how law shapes experiences of gender and sexuality.

Professors whose classes I’ve taken,

Despite headwinds, ballot access improving in states

By Richard Winger

The United States has many laws and habits that make it difficult for voters to organize new parties, or to support independent candidates.

These include severe ballot access laws, discriminatory campaign finance laws, and candidate debates to which only the Republican and Democratic nominees are invited. An additional problem that only relates to presidential elections is found in Article II of the U.S. Constitution, which says that the Electoral College chooses the President. This means that someone who places second in the popular vote can still take the office. Worse, if no one gets a majority of the Electoral College vote, the U.S. House chooses the President, with each state’s delegation having one vote. The Constitutional provisions relating to presidential election are themselves a major barrier to independent presidential campaign activity.

Happily, there has been progress during the last 30 years to ease one of these problems, the ballot access laws.

Ever so slowly, the number of signatures for a newly-qualifying party, or

an independent candidate, to get on the ballot has been decreasing as a percentage of the electorate.

If one adds up the number of signatures for the presidential nominee of a new party, or an independent presidential candidate, to get on all ballots, one finds that the petition burden (as a percentage of the number of votes cast for President that year) is lower now than it has been since 1936. The table below covers the period 1892 through 2016. There were no government-printed ballots before 1889, so there were no ballot access laws for president elections 1888 and earlier.

Ballots were privately prepared. A voter could make his own ballot, or obtain a ballot printed by his favorite party.

The reason the number of signatures, as a share of the national electorate, has been declining is because minor party activists have been working for 40 years to persuade state legislatures to ease the requirements.

States that have significantly eased the number of signatures to get on the general election ballot for President in the last 40 years are Alaska, Arkansas, California, Colorado, Connecticut,

Delaware, Florida, Georgia, Hawaii, Idaho, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nevada, Oklahoma, Oregon, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wyoming. All of those states eased their requirements because state legislatures voluntarily eased them, except that in Alaska, Georgia, Idaho, and Tennessee, court rulings are responsible; and in Florida and Massachusetts, the voters voted in favor of ballot measures easing the requirements. The Georgia court decision is quite recent, and was issued on March 17, 2016. A U.S. District Court ruled that the Georgia petition requirement of 1% of the number of registered voters (approximately 50,000) was unconstitutionally high, given the evidence that states that require only 5,000 signatures never suffer from a crowded ballot (where “crowded ballot” was defined as one with more than eight candidates for a single office).

Not all the changes in the last 40 years have been beneficial. States that have made their ballot access procedures substantially worse for President and all other office are Alabama, New Hampshire, and North Carolina.

For office other than President, California and Washington have also made general election ballot access much more difficult than it was in the past.

Both states have switched to a system in which only two candidates can ever appear on the general election ballot.

Inevitably, those two candidates are Democrats and Republicans. California even abolished write-in space in the general election for Congress and state partisan office, when it switched to the top-two system in 2010.

Improvements in How a Party Remains on the Ballot Another aspect of ballot access laws that has improved very much during the last 40 years are the laws on how a party remains on the ballot.

Almost all states define a qualified political party to be a group that polled a certain percentage of the vote in the previous election. As of 1976, the median vote test to determine whether a party remains on the ballot was 5%.

Currently, it is 2%. This is important, because whereas new and minor parties are sometimes capable of submitting a hefty number of signatures once or twice, when the requirements for a

including Dean of the Law School Martha Minow, have largely done a nice job addressing these issues in sensitive and nuanced ways when they come up.

Unfortunately, opportunities to pursue sustained classroom exploration of LGBTQ legal issues in their own right are sorely lacking. Our permanent faculty includes influential thinkers whose work has touched on LGBTQ people in the past (including Glenn Cohen’s attention to intersex youth, Janet Halley’s elaborations on queer theory, and Bill Rubenstein’s founding of the Williams Institute), but none who currently devote consistent attention to LGBTQ rights work as such. We have no LGBTQ law clinic and only a smattering of periodic course offerings, mostly taught as one-off classes by short-term visiting instructors. We hear from time to time that LGBTQ concerns shouldn’t be presented as standalone offerings, out of a fear that other professors will cease to emphasize the role of these issues in other areas of law. Frankly, I find this unlikely. We don’t forbid teaching of Trusts & Estates just because we want to make sure it gets some attention in 1L Property; there’s no reason LGBTQ issues couldn’t be the subject of both focused academic inquiry and incidental attention in other areas.

I call on HLS, especially the faculty, to attract and hire professors with practical experience in LGBTQ legal topics, professors who are ready to help students sharpen themselves into experts and advance everyone’s understanding of the legal status of sexual and gender minorities. Current faculty must consistently involve students in this selection process, in order to maintain the appropriate level of attention to their academic needs as future practitioners and scholars.

I recognize the urgent need for our faculty to address other understudied important topics as well, and I know that finding professors takes time and money. So, while these efforts continue, it’s critically important that student programming, which ends up providing the bulk of our education on these issues, remains robust. The University must maintain or increase funding to groups like Lambda, HLS Queer and Trans People of Color, and the Harvard Journal of Law & Gender.

But in the long run even these groups can not serve everyone; the faculty has an obligation to facilitate the development of this crucially important area of law.

Conclusion I am heartened by what students and administrators have achieved together recently, and I am so excited to see what they can accomplish next.

Plenty of other important efforts are already underway, including student campaigns to extend additional LIPP funding to couples who require expensive assisted reproduction or adoption to expand their families, honor the victims of the 1920 Secret Court with a permanent commemorative marker on campus, and ensure that critical reflection on the gendered aspects of “professionalism” in oral argument is part of the first-year Legal Research and Writing curriculum, to name just a few. It will take humane vision, sustained energy, and an awareness of how the efforts of our school’s different administrative units support each other to see all these projects through to completion, but I am optimistic that our shared community can rise to the occasion.

Sean Cuddihy is an outgoing Co-President of Lambda.

party to remain on the ballot are steep, such parties usually go off the ballot after a general election and then must petition again, over and over, which is exhausting.

But two states have made their requirements for a party to remain on far more draconian. These are Alabama, which went from just requiring a group to be organized and have state officers and hold conventions, to a requirement that the group poll 20%; and Pennsylvania, which went from a vote test of slightly over 1%, to having registration membership of 15% of the state registration total. If Massachusetts, Rhode Island, and the District of Columbia had the same retention test that Pennsylvania has, even the Republicans wouldn’t be on the ballot and would need to petition for all their nominees every election. And Democrats wouldn’t be on in Idaho or Utah.

A longer version of this article with additional data is available on our website, hlrecord.org.

Richard Winger serves on the editorial board of the Election Law Journal and wrote the chapter on ballot access in the American Bar Association’s book on election laws.