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The Harvard Law Record hlrecord.org

Independent at Harvard Law School since 1946

Monday, October 24, 2016

Photos by Jim An

Clockwise from top: Striking dining hall workers and community supporters march through Harvard Yard on October 22; the workers ralllied at Cambridge Commons beforehand; employees have been picketing for nearly three weeks; assistant cook Scott Sillari and his son, Thomas Darcy-Sillari. “It’s really hard to pay your bills when you’re only working eight months out of the year,” Sillari said.

Striking HUDS Staff Optimistic for Win

By Jim An ’18

For the third week in a row, Harvard University Dining Workers were on strike, clamoring for higher pay, vacation work, and better health insurance benefits.

Negotiators for Local 26, the

An Exclusive Interview with Dean Minow

By Fenno You may have read about the HLS administration’s refusal to allow the Record to publish its recent interview with Dean Minow. Our editors-inchief, I regret to say, are staggeringly incompetent and weak-willed. Like all Harvard Law students, they are anatomical curiosities, who are at once both hidebound and spineless. You can depend upon them for nothing.

And so, for the good of the paper, I considered it my duty to salvage the whole operation and interview the Dean myself.

How did I secure an on-the-record interview with the Dean, you ask, after she denied the same to my editorial overlords? Well, I’ve been around this school a long time, you see, and I know things. I know who has their fingers in the door. I know who has their foot in the pie. And oh yes, I know where the bodies are buried. They say they can’t tear down the Gropius Complex because it’s a historical landmark, but who really believes that? Oh, the terrible secrets that lurk in the bowels of that concrete monstrosity! How many nights have I lain awake on the sofa in the Record basement, listening to the faint finger-scrabbling of Harvard’s hapless enemies, entombed within the walls!

But I digress.

MY EXCLUSIVE INTERVIEW WITH DEAN MINOW

A Complete And Accurate Transcript THE DEAN: You reek of gin.

FENNO: I resent that accusation very much, Dean Minow. For your information, I happen to be wearing a very chic pine-scented aftershave.

Many people have complimented me on it.

THE DEAN: Then why did you just vomit into my trash bin?

union that represents HUDS employees, have been meeting with Harvard negotiators and non-Harvard mediators. Representatives for Local 26 expressed optimism that they would see their demands met.

“We’re winning,” Local 26 negotiator Michael Kramer said to a crowd

Our editors-in-chief are staggeringly incompetent and weak-willed.

FENNO: Ah. Well, that would be the bourbon.

THE DEAN: Have you considered seeking some kind of professional help?

FENNO: I’ll ask the questions here, thank you, madam. Now, I want to talk about women! There are a lot of them here at the law school now, and from my observations, they seem to be just as tedious, conventional, and morally blinkered as their male counterparts.

Is this a victory for feminism?

THE DEAN: Undoubtedly. However, we can and must do more.

Women are still lagging by many metrics. For example, there are still very few women making partner at large law firms. Nine out of ten homicides in this country are still committed by men. Internationally, not a single woman this year successfully deposed an elected official in a military-backed coup. And how many women do you see masterminding shadowy media empires, using terror and misinformation as a tool of national control?

The glass ceiling is still very real. We have to change that.

FENNO: In the event that Donald Trump wins the November election and subsequently establishes some sort of totalitarian white supremacist state, how do you see Harvard Law School’s role?

THE DEAN: I don’t think my personal views on Donald Trump are relevant.

FENNO: My dear Dean, you misunderstand me. I am deeply and sincerely uninterested in your personal views. Nothing, in fact, could be of less interest to me. What I am interested in, and what I am attempting to get at by this line of questioning, is whether you imagine HLS engaging in some sort of brave, doomed, White Rose-style resistance, or whether you Fenno continued on page 3

of striking workers and supporters in a rally on October 6. “They have been knocked back on their heels.”

Supporters and striking workers cheered his words at the rally.

“What do we want? Justice!”

Kramer and the protestors shouted in a call-and-response.

“This is the richest university in the world. If anywhere the demands of a sustainable income and affordable healthcare makes sense, it’s here,” Kramer said in an interview.

Hundreds of Harvard students, Strike continued on page 2

“This is where we stand. We’re not gonna move.”

— Shawn Higgins, catering employee

Vote Early, Vote Often

Compulsory voting in Australia brings civic engagement and moderates dialogue. What’s not to like?

By Evelyn Douek, llm ’18 Australia is not immune from the global trend of political polarization and disaffection. Nevertheless, election days in the country are a rare display of national unity.

On a Saturday approximately once every three years, roughly 90% of voters make their way (down the left side of the road) to their local polling booth. At nearly a third of booths, they are met by the great Australian tradition of the Election Day Sausage Sizzle. Campaign volunteers and staffers will be making last minute pitches for people’s votes and reminding them of party policies, rather than door knocking or cold calling to remind people to turn out. There are no get out the vote campaigns. The vote is out and about and eating barbecue: in Australia voting is compulsory.

Since 1912, compulsory voting has made voting part of the national psyche — roughly 88% of Australians say they would vote even if voting were voluntary. Even if this represents naïve optimism on behalf of survey respondents and actual voluntary turnout would be lower, it nevertheless does not paint the picture of a resentful electorate, bullied into compliance.

In fact, it appears the fear of punishment plays little part in people’s decision to vote. Anecdotal evidence suggests few Australians can accurately say what fine they would pay if they did not vote. If they were to look it up, they may be surprised to discover that if they do not vote and do not have a reasonable excuse, a backbreaking fine of AU$20 (approximately US $15) would be imposed upon them. Given the national minimum wage is AU$17.70, if every voter in Australia were Homo Economicus, voter turnout might be frighteningly low. Or perhaps more people would use the already popular and

The vote is out and about and eating barbecue. easy-to-access early voter mail ballot system.

But there are compelling reasons for compulsory voting beyond the civic bonding of a nation brought together by communal barbecue.

And one does not need to resort to high-minded arguments of political philosophy, incorporating notions of civic duty or the desire for more legitimate political mandates, to find them. While there is much to be said for the virtue of a truly representative government elected “by [all of] the people, for [all] the people”, there are also sound practical reasons for compulsory voting.

The first and most compelling is that compulsory voting saves money: candidates do not need to “get out the vote”. While compulsory voting cannot cure all the ills of Citizens United, anything that helps mitigate the influence of funding in campaigns should be welcomed.

The second reason is closely related — when not spending time getting out the vote, the focus on campaigns must necessarily turn to the substantive issues. Political debate benefits from not merely being a struggle to capture people’s attention or needing to convince the electorate that their vote matters.

Third, parties have less incentive to go to the extremes on divisive social issues because policy making is not as bound up in securing the passions of voters for whom that is the singular issue. While not always true, this can help foster better dialogue about these issues.

Given the evidence that the public at large is much less polarized than those who currently vote, compulsory voting brings the political system back towards the centre.

For example, controversial issues like abortion are not used to drive turnout, and there are displays of bipartisanship in difficult moments like when a mandatory gun buyback was carried out following a massacre.

Finally, and crucially in an America plagued by voter-ID litigation, compulsory voting requires the government to make it easier for people to enrol to vote and then actually do so. When everyone must vote, obstacles to voting become much more apparent, more abhorrent, and there will be greater impetus for them to be removed.

These are large benefits compared with the minor infraction on citizens’ liberties from requiring them to vote. The effort required of people is low. In some ways, voting is somewhat like exercise: people dread it, but often find it really wasn’t so bad after all, perhaps they even quite enjoyed it, and indeed have an enduring sense of wholesome wellbeing afterwards.

Fear not for the conscientious objector either — the fact that ballots are anonymous means that people who want to protest (or just have an uncontainable sense of humour) will not be penalized if they do not complete a formal vote. These kinds of what are called “donkey” votes (which at the last Australian election included some “hilarious” votes for Donald Trump) are less than 1% of votes cast.

The strongest argument against compulsory voting is that the fines are regressive — people in lower socioeconomic groups are the most likely to find it difficult to rearrange Vote continued on page 3

Attica Prisoners to HLS Students: See Us, Hear Us, Help Us

By John J. Lennon The last great book I read made me cry and grind my teeth and pace my cell. It was written by a Harvard Law School graduate. It was Bryan Stevenson’s Just Mercy. With the best education in America, Mr. Stevenson chose to “get close to,” defend and ultimately save the lives of people on death row. People on these kind of

Collin Poirot ’18 says students should stand behind the striking workers, p. 2

missions — playing a bigger game in life — make murderers like me melt.

My name is John J. Lennon and I am a thirty-nine-year-old prisoner serving twenty-eight years to life at Attica Correctional Facility in western upstate New York. I was convicted of selling drugs and shooting a man to death on a Brooklyn street in 2001.

I’m sorry for killing him, I’m sorry for it all.

That said, I’m not just a murderer.

Today I’m also a journalist. Years ago, I fell into a couple of opportunities at Attica. In a privately-funded pilot college program, I learned how to think better. In a creative writing workshop, I learned how to write clearer. Since then, my words have appeared in publications that make them matter.

Recently, Pete Davis, a law student and online editor at The Harvard Law

Gordon Arkin ’70 shares the wisdom he learned with the next generation of lawyers, p. 5

Record, asked me to write a piece, offering a sort of open mic to talk to you all at Harvard Law. Since my lane is journalism and not the law, I figured I would interview a few of my seasoned prisonmates and get their takes.

Anthony “Jalil” Bottoms has been in prison for forty-five years. He was Attica continued on page 4

Marshalll Shapo ’74 calls on 1Ls to fulfill highest duty of lawyers: fighting injustice, p. 8

The exception clause in the Thirteenth Amendment sanctions slavery by the state and must be amended.

Nate Szyman ’18 and Pete Davis ’18 present the HLS200 project, p. 6

2

The Harvard Law Record

October 24, 2016

The Harvard Law Record

Independent at Harvard Law School since 1946 · October 24, 2016 · Volume 143, Issue 2 1585 Massachusetts Avenue · Cambridge, MA 02138 Winner of the 2016 American Bar Association Law School Newspaper Award Editors-in-Chief Jim An ’18 Brianna Rennix ’18 Online Editor Pete Davis ’18 Business Manager Teddy Grodek ’18

Opinion Editors Nic Mayne ’18 Namita Dhawan ’18

Contributors Jimmy Chalk ’18 Tyra Walker ’18 Evelyn Douek, LLM ’17

The Record always welcomes new writers, editors, and designers.

Contact us at editor@hlrecord.org

If you have a response to any piece in The Record, email us at editor@hlrecord.org.

Students Should Amplify the Struggle

The striking workers deserve justice, and students must stand with them against Harvard.

By Collin P. Poirot ’18 The first fifteen days of the Harvard University Dining Services strike have seen incredible and overwhelming student solidarity with the striking workers.

Student organizations have published numerous statements in support of the HUDS struggle. They have held a series of mealtime conversations and an outdoor dine-in at Harvard Yard, during which workers and students shared a meal and discussed the strike. They have also raised money to provide food to the striking workers, and directly reinforced the workers’ picket lines with their bodies.

At the time of publication, nearly 3,000 Harvard students have pledged their support for HUDS through the Student Labor Action Movement petition. Just last week, the Law School Student Council voted in favor of a resolution endorsing the HUDS strike and calling on the administration to meet the workers’ demands as soon as possible. This recent resolution follows in the wake of a similar resolution passed last week by the Undergraduate Council. At this point there is no significant, organized student opposition to the workers’ demands.

At the same time, the

Administration is actively discouraging student support for the workers. Not only have students at Harvard Law School received an email from high-level administrators suggesting that support for the HUDS strike would be “divisive” and goes against the objective of building “community,” but the Administration has now stooped to asking graduate student employees who are already exempt from overtime pay to voluntarily cross the HUDS picket line and perform the jobs HUDS workers are fighting to keep.

This is a direct appeal to all students tempted by the Administration’s invitation. If you care about HUDS workers, and you agree that they deserve a fair contract that allows them to keep working at this institution with dignity and financial security, respect the strike: Do not cross the picket line!

The labor movement in the United States has won vital gains for working class people in this country, but collective bargaining is only successful if workers have the ability to go on strike and stop the employer institution from carrying out business as usual by withholding their labor. The only way that HUDS workers stand a chance in their struggle against the corporate elites that run this university is if their strike puts

pressure on the Administration. By voluntarily doing HUDS workers’ jobs, students would be minimizing that pressure and neutralizing the only effective weapon that the workers on this campus have in their struggle for dignity and economic justice.

In an email to students, Harvard Campus Services indicated that volunteers who break the picket line are “lending HUDS a hand.” This characterization of strike-breaking as some form of support for the workers is not only cynically misleading, it also ignores the requests that the workers themselves have made of students: Reinforce the picket lines, raise your voices in support of the strike, and put pressure on the administration in any way that you can.

The recent email comes as no surprise. After all, this is not the first time that Harvard has actively turned students and workers against each other. One former president of the university, A. Lawrence Lowell, owned a steel mill in the city of Lawrence, 30 miles north of Boston. When the majority immigrant workforce at his steel mill went on strike to protest intolerable working conditions, Lowell offered Harvard students an exemption from midyear exams if they would agree to join the Massachusetts State Militia in harassing the striking workers and violently breaking their strike.

Two workers were killed during

the clashes. Unlike the students who took up Lowell’s offer, today’s strike-breakers aren’t even offered an exemption on their exams — they’re being asked to betray the workers’ struggle for free!

Business as usual cannot continue while the workers are exploited and bullied by the Administration.

The Administration is doing everything in its power to make sure the HUDS strike is unsuccessful, and their strategy is to “minimize disruption” on campus. As students in solidarity with the striking workers, our job is to maximize disruption, to amplify the disruptive effects of the HUDS strike, and to show that this community cannot function without the dedication and hard work of the HUDS employees. The Administration will never accept the basic demands of the HUDS workers unless we make it unmistakably clear that those dedicated individuals are an absolutely essential part of our community, and that we will continue to have their backs until their demands are met.

While it may be frustrating and

mildly inconvenient for the dining halls to shut down or run less efficiently, that burden is infinitesimal compared to what is at stake for the workers. If the Administration successfully neutralizes the disruptiveness of the HUDS strike, workers will be forced to accept a contract that jeopardizes their ability to provide for their families for the next five years.

As students, we cannot allow this to happen.

Business as usual cannot continue while the workers are exploited and bullied by the Administration.

It is imperative that we, as students, strengthen the HUDS strike by joining the workers’ picket lines.

If we want the dining halls running smoothly again, we should do everything we can to make sure the HUDS workers’ demands are met as soon as possible.

So yes, lend HUDS a hand. Have the backs of the wonderful, hardworking people who take care of us every single day. Join the strike.

Lift up the HUDS struggle until it becomes so powerful that this university grinds to a halt. We attend the wealthiest university in the country — an institution that can afford to grant HUDS’s demands at any moment. It is the Administration and, ultimately, the Harvard Corporation who decides how long this strike goes on.

HUDS workers deserve justice, and they deserve it now. Harvard is refusing to give it to them. It’s our job to shut it down.

Collin Poirot is a 2L.

The Ride Wit Me Stream-a-Thon

One student’s journey to pay off Nelly’s debts.

By Robert Gustafson ’18 Considering the strong commitment to public service at HLS, I’m certain that most of you are already doing your part to help Nelly pay the reported $2.6 million he owes to the IRS and the state of Missouri. After all, we are indebted to him.

His music gave us all something cool to play when our friends came over to play on our Dreamcast.

His music allowed us to jokingly ask others to take off their clothes in a way that was slightly less creepy than if his song never existed.

His music redeemed an entire city which unfortunately is home to the most obnoxious baseball team in history.

Because of the paltry sums artists receive from streaming services, we will need to stream his songs as many as 426,956,666 times on Spotify in order to pay off his debts.[2] Some of you — most of you — all of you — are much busier than I am and do productive and impressive things

with your time. I do none of that, so I decided to help Nelly the best way I can — playing “Ride Wit Me” repeatedly with every free minute I have.

It’s playing right now as I type this actually. If you’re one of the many who do not have millions of hours to spare, don’t worry. I’ve done my best to recount my experience so far.

1st Listen: This. Is. A. Great. Song.

I feel like my mom is driving me and my friends to laser tag. I feel like I’m awkwardly walking around the dance floor in 7 th grade, trying to avoid eye contact with every girl in the gym. It feels like just yesterday.

It feels like today. I feel immortal.

5th Listen: I like that part where Nelly says he likes the way you brush your hair. I wonder how he knows how she brushes her hair. I mean, I’m sure there’s a way to determine someone’s brushing method by looking at their hair. It’s just that I have no idea. But I like that Nelly really pays attention to the details.

15 th Listen: The shout-out to Vanna White has always been one of

the best parts of the song. I can just imagine Nelly sitting in his kitchen, eating dinner, and watching Wheel of Fortune, dreaming of the day he makes it big like those contestants who win the bonus round. This song, and album, celebrated his arrival as a pop culture star and financial success. The people on TV he grew up watching were now people he sat next to on airplanes. He had become a part of the world that he used to dream about, and we were all happy for him.

200th Listen: Pain. I just feel pain.

The worst part of the song is the last chorus that fades out because it means that the whole thing is about to start again. There’s a cutting pain that runs from the back of my head to just above my right eye. I’m starting to lose the ability to form coherent thoughts. It’s hard to focus. I can’t seem to string together words in any way that makes sense.

300th Listen: The beginning of the song taunts me. Where they at?

Where they at? I’m all alone, and Nelly knows it. I don’t remember the last time I saw another human

being. Logically, it can’t have been more than 24 hours ago, but I can’t remember who it was or where I saw them. That forgotten last encounter feels final. I don’t think I’ll see another person again. All I have is Nelly now. Nelly is, and that is all.

1000th Listen: Vanna White is a ghost. She appears suddenly and disappears just as quickly. She greets me at the midway point each time, waving at me, telling me that she’ll see me again soon. I endure those five painful minutes, just waiting to see her again. She’s all I have left.

She looks angry as she unsheathes a knife looped to her belt. It’s about four inches long and has a serrated edge and an intricately carved wooden handle. I lift my head and close my eyes. ???? th Listen: I know that this song is approximately five minutes long. But I also know that time is an illusion. How long have I been listening to it? How long have I been awake? Why did God create a world where we feel pain? Oh why do I live this way? Must be the meaninglessness of life. Oh why do I feel this

An Apology to the Dean and to Our Readers

By Brianna Rennix ’18 and Jim An ’18

On September 30, the editorsin-chief of The Record conducted a brief interview with Dean Minow to discuss topics of interest to the Harvard Law School community. We had hoped to make these Q&A’s a regular feature of The Record, with the intention of fostering frank, substantive dialogue between the HLS administration and the student body.

Ahead of the interview, we provided the administration with a general overview of the kinds of topics we hoped to cover. HLS’s public relations director, Michelle Deakin, agreed to the interview on the condition that the Dean would be allowed to review the article ahead of publication, and approve or reject the wording of individual quotations.

Upon receiving our initial draft, however, the administration indicated that they would not allow us to publish the interview at all. To quote from the e-mail Ms. Deakin sent us: When I spoke of the interview being “off the record” and that any quotes would need to be reviewed by Dean Minow in advance of publication, that was with the understanding that this

was an informational interview and that you might develop a story idea or two from the conversation. You have no permission to use any quotations. Neither the Dean nor I were aware that you were hoping to present these answers as a q and a, and the Dean will not be granting permission for her quotes to be condensed and presented in this manner.

To which we responded: I’m not sure what you see as the particular difference between review and permission, but to be clear, we do intend that the Dean has the ability to withhold her permission for us to use her words. Of course, we hope that the Dean will give us permission to use her words or send us edited copies of her answers as you mentioned she would when you and I spoke over the phone. It would seem unnecessary that the Dean review her quotes if there was never any intention to approve any quote.

Certainly, we think the HLS community would be very interested to hear what the Dean has to say about the variety of topics we asked about.

To which Ms. Deakin sent the following: It was our understanding that you were seeking off-therecord information on a variety of topics to develop stories.

It was never my understanding that you would present a sweeping list of questions on topics ranging from the presidential election to articles in other publications to admissions to the curriculum and combine them all into one piece. Clearly there was a misunderstanding. Let me be as clear as I can be: we will not be reviewing and approving the Q and A that you sent for publication.

We hasten to clarify that we do not blame the administration for taking this step. Though we, the editors-inchief, are youthful and impulsive, we have reflected on our actions, and we now recognize that asking the Dean questions, writing down her responses, and submitting the transcript for revisions was muckraking of the most appalling character. We deeply regret having compromised our journalistic integrity in this way.

However, we do feel that we owe a duty to our readers, who are constantly clamoring for words of

guidance from Dean Minow, and who will be devastated that we have failed to satisfy their hunger. Since we cannot publish the interview itself, here is a complete list of the questions we asked. We entrust this list to you, our readers, with full confidence in your rectitude and discretion. Under no circumstances should you speculate wildly about the Dean’s answers, wondering which of them were so controversial as to warrant the heavy hand of administrative censorship.

1. This is the first year in HLS’s history in which Harvard Law School’s entering JD class was more than 50% women.

How did that end up happening and what do you make of it?

2. Women still make up a minority of spots in the upper echelons of the legal profession.

What do you think has to change before we make more progress there?

3. HLS has changed the 1L orientation to focus more on issues of diversity, but one of the hardest things for people to do is to have those conversations with one another. How can students and HLS improve?

4. In the Fisher v. University

Universal Records

Nelly’s 2000 album Country Grammar, which included his single “Ride Wit Me,” was one of the decade’s best-selling albums.

Nevertheless, the rapper has found himself facing a large unpaid tax bill.

way? Must be the steady approach of death. The Grim Reaper is here, and he wears a Band-Aid. ????+1th Listen: This. Is. A. Great.

Song.

Robert Gustafson is a 2L. Editor’s note: Due to taxes, Nelly will need as many as 600 million streams to pay off his tax debts.

of Texas decision this summer, the Supreme Court upheld affirmative action in universities.

How do you see affirmative action’s role at HLS? 5. Many people are alarmed by the prospect of a Donald Trump presidency because many of his statements seem to indicate a willingness to flout domestic and international law, and because he has proposed policies that target specific demographic groups, such as immigrants and Muslims. How do you see the role of Harvard Law School in the event of a Donald Trump presidency?

6. Having been a Harvard Law professor for many years, what have you learned since becoming dean?

7. Have you read the Harvard Magazine article on “The Purpose of Harvard Law School” that was published this summer? What did you think?

8. The 1L international law classes have mixed reviews.

What’s HLS doing to improve those classes?

9. How do you feel about incorporating a history or legal history requirement into the 1L curriculum?

10. Are you following the Cubs this year?

October 24, 2016

3

The Harvard Law Record

Strike

Continued from page 1 faculty, and staff joined the striking workers, who appreciated the support of the community.

“The community is great,” said Shawn Higgins, a catering services employee who has worked at Harvard for 28 years. “They’re our backbone. We take care of them.

They take care of us. We’re extended families.”

The workers emphasized that the core issues of the strike were the availability of vacation work and affordable health care. Currently, most HUDS employees are laid off during the summer, and workers said that finding consistent but temporary summer work was difficult, leaving them with a paying job for only part of the year.

“It’s really hard to pay your bills when you’re only working eight months out of the year,” said Scott Sillari, an assistant cook at Annenberg Hall. “That affects whether I can buy my son school clothes and school supplies.”

Kramer said he didn’t understand why Harvard can’t find a way to put HUDS employees to work during the summer.

“This is a place that solves the world’s problems, right? People

“We are not going to compromise.”

— Michael Kramer, Local 26 negotiator come here to study big problems in the world and figure out solutions.

It seems unreasonable to me that at that same university, we can’t figure out how to give the food service workers a sustainable annual income,” he said.

Kramer likewise expressed bewilderment at Harvard’s proposed health plan, which raises deductibles, employee contributions, and co-pays.

“It doesn’t make sense in terms of how health care should be done,” he said. “So I have no idea why they are so dead-set on it. I just know that it doesn’t work for our members, and that they are saying, ‘no, it is unacceptable.’”

Striking workers agreed with Kramer’s assessment of Harvard’s proposed insurance plan.

“I’m about ready to retire and they want to take my medical benefits?” Higgins said. “After 28 years,

Photo by Jim An

Hundreds of striking workers and supporters marched down Massachusetts Ave. from Harvard Square to the Cambridge City on Saturday, October 22, blocking traffic along the way.

this is your thanks?”

Organized labor from across the Boston area also expressed support for the strike. Local 103 of the International Brotherhood of Electrical Workers, which represents telecommunications workers, has refused to work on Harvard properties. Likewise, Local 25 of the Teamsters Union is stopping deliveries to

Harvard.

Kramer said he wasn’t sure how long the strike will last, but both he and striking workers seemed prepared to strike for a long time if necessary.

“This is where we stand,” Higgins said. “We’re not gonna move. We’re gonna take it to any level we need to take it to.”

Last weekend, multiple protestors were arrested for blocking traffic and released on bail. The workers seem undeterred, however, and Local 26 has taken a hard line against compromise.

“Our demands are just, we are not going to compromise, and we just need to keep pushing until we knock them over,” Kramer said.

Record Statement of Support for Striking HUDS Workers The editorial board of the Harvard Law Record has voted to stand in support of Harvard’s dining service workers and their decision to strike. Local 26, the labor union representing the workers, and Harvard Corporation have been negotiating since May over details of the workers’ contracts, yet the administration remains unpersuaded by workers’ grievances, and provisions regarding health benefits and wages remain unchanged. As a result, on September 29, workers voted to

authorize a strike. When Harvard fulfilled none of their demands, workers began to strike this past Wednesday.

While HUDS workers’ hourly earnings are competitive, their yearly salary is far from it. Typically Harvard does not provide the workers with work during the summer and winter holidays. Local 26 claims workers’ salaries are around $31,000, while the University’s representatives state figures closer to $35,000. According to the

MIT Living Wage Calculator, even $34,000 is not enough to sustain a household consisting of more than one individual in the greater Boston area. Local 26 is asking that Harvard provide year-round work and guarantee a minimum salary of $35,000. The university has responded by offering a stipend of $150-$250 a week, depending on tenure of employment, for those available to work during the summer months.

The union is also requesting fairer

Support the Strike

By Daniel Espo ’18 and Joshua Komarovsky ’18 Editor’s Note: This op-ed was originally written and published on hlrecord.org prior to the beginning of the HUDS strike.

The strike is on! After more than three months of frustrating negotiations with the university, Harvard University Dining Services workers announced that they will be going on strike starting Wednesday, October 5, 2016.

Following a rally in Harvard Yard last Friday afternoon, HUDS workers and students marched into Belinda Hall, where three workers spoke to an audience of supporters about their experiences as Harvard employees. Better than any statistic, these workers’ stories highlight Harvard’s inability or unwillingness to live up to its progressive values. Harvard would rather cut corners on labor costs than ensure stable livelihoods for its lowest-paid workers, whose services are essential for students’ well-being. As Willie Moore, the Hark’s “buffalo chicken wrap guy” succinctly put it, “Harvard is just as it is in the streets.” While Harvard may appear classy to the rest of the world, those on the inside know the crass truth.

Cuts to medical insurance are the pivotal point of contention.

As Gene VanBuren, a Hark chef, explained: “Health care can’t be taken away until the next contract.

But when they raise wages, they cut hours. Addition by subtraction.”

While Harvard can insidiously offset all wage concessions by cutting hours, health care is less amenable to tactics of this sort.

Not only is Harvard’s proposed health plan less affordable than insurance available through the state health insurance exchange, but its array of vexing copays will exacerbate income insecurity and underlying medical conditions.

Gene warned of the unconscionable dilemmas many workers will be forced to confront: “Do I go to the doctor or do I go to the grocery store? Do I take my kids to the emergency room because of a fever or give them Tylenol because rent is due next week?”

The copays pose an especially dire threat to those with chronic conditions as they will be unable to afford the consistent access to doctors and medicine they need.

Every penny counts for low-income workers. An institution as prestigious and wealthy as Harvard should enable its employees to get

the care they need without having to sacrifice other essentials.

Health care is not the only issue on the table. Workers are also fighting for a livable income. In the summer and winter months when students are away, the university significantly curtails working hours. As such, many workers find themselves without any work. Harvard chooses to hire contractors for other campus jobs, knowing full-well the surrounding employers’ disinclination to hire HUDS workers for only a few months’ work. Thus, HUDS employees are often forced to live an entire year on eight months’ worth of income.

Harvard’s excuses for not conceding to the union’s demands come across as f limsy in light of its abundant resources and, on the other hand, the degree of the workers’ hardship. Yale has managed to offer its dining workers full-time work without breaking its piggy bank, so why can’t Harvard?

Underlying these disputes is the issue of gender and racial equality.

Women and people of color working for HUDS encounter injustice on a daily basis. Of the 10 percent most highly compensated dining hall workers, none are women. Of the lowest-paid jobs, 90 percent are women. Men of color under 40 make $7,000 less than the average HUDS worker, while women of color under 40 earn $11,000 less. Willie drove this point home when he said “I have never seen an African American supervisor and I’ve been here for eighteen years.” From last year’s black tape incident to ongoing and pervasive wage inequality, racism is alive and well at Harvard. Harvard’s claims of progressiveness are debunked at every turn. Here, we confront its true nature: Harvard. the world’s most prestigious hot air balloon. It is undeniable that those who earn the least are overwhelmingly women and people of color, and that these groups will be become most vulnerable under this contract. Enough is enough!

If negotiations remain at a standstill by the end of the day Tuesday, HUDS will go on strike.

It is imperative that students stand in solidarity with the workers in their struggle against the Harvard. First and foremost, we can speak with our wallets. As Ana Umana, Hark’s vegetable and fruit preparer, exclaimed during the panel, “Don’t buy food!”Economic pressure is the most powerful tool in demanding concessions from a penny-pinching, “non-profit” corporation. Boycott the Hark until

Vote

Continued from page 1

HUDS workers can return to their post with dignity and equitable healthcare!

Secondly, for the duration of the strike, Hark employees will be picketing for over twelve hours a day without pay or meals. Student organizations, 1L section committees, and individual students should take this opportunity to support the HUDS workers by reinforcing their picket lines with our bodies, and by bringing the striking workers snacks and drinks whenever possible. They take care of us every day of the week. Now it is our turn to take care of them.

It is imperative that students stand in solidarity with the workers.

Thirdly, the Hark employees cannot picket on campus – they will be picketing on Mass Ave and by the Everett Street loading dock – but students can go anywhere. We encourage students to stand by the Hark and Pub Grille with signs, f lyers, and posters to remind patrons of their complicity in Harvard’s duplicity. Tell your friends about the strike and the HUDS workers’ request for our support! Friends don’t let friends cross picket lines!

Students can also join the picket line and speak to the workers. We can learn their stories. Ask them why they’re striking and how the health cuts will affect their lives.

Ask them about their families, and about how they find work during the off-months. Building solidarity and understanding is essential if we are to pursue our common interests as members of the Harvard community.

Harvard administrators do not know precariousness, yet they propose to subject HUDS workers to it every day. The Crimson sides with HUDS against Harvard. Harvard Medical students side with HUDS. The Cambridge City Council sides with HUDS. Reclaim Harvard Law, Students for Inclusion, the National Lawyers Guild, Lambda, La Alianza, HBLSA, ACS, APALSA, the Food Law and Policy Clinic, and SALSA all side with HUDS. Whose side are you on?

Daniel Espo and Komarovsky are 2Ls.

healthcare coverage, as currently Harvard’s proposed health care plan for workers substantially increases co-pays. Such increases inevitably translate to sacrifices that these workers should not have to make: whether that means not taking their kids to the doctor’s office, or not being able to afford car insurance.

The fact that Harvard Corporation recently raised its capital campaign by more than $7 billion should evoke outcry when considering the workers’ current financial situation.

Joshua

their commitments to get to the ballot box. These concerns are mitigated by the fact that elections are on the weekend, the fines are low and will be waived on the showing of a reasonable excuse (fined were levied upon fewer than 0.5% of eligible voters), and by the fact that people who cannot leave their workplace on election day are able to register for mail ballots.

America’s voter turnout is one of the worst in the world’s established democracies, having not risen above 60% since the mid-20th century.

While an electrifying candidate who mobilizes the masses to the ballot box might be a more inspiring way of encouraging voter participation, compulsory voting is a sound alternative. President Obama has hinted at his support for the idea. Sadly,

Fenno

Continued from page 1 see the law school more in the role of a Vichyesque collaborator.

THE DEAN: Harvard Law School will never directly participate in any atrocities.

FENNO: That is certainly a relief.

Out of curiosity, are there any Trump supporters on the Harvard Law School faculty? Blink once for yes, twice for no.

THE DEAN: FENNO: Let the record show that the Dean did not blink at all, but stared at me for some long moments with a strange, beseeching look in her eyes, and glanced intermittently towards the corner of the room, where stood a large potted ficus, apparently recently delivered, with a bow tied around it, and an unsigned card printed with the words “THINKING OF YOU”—almost as though she was afraid the ficus might be listening to our conversation, although a ficus, of course, being a perfectly ordinary houseplant, couldn’t possibly do any such thing. Let’s move on, then.

Given that one institution’s possession of staggering amounts of wealth, while at the same moment many people suffer from want, is morally repugnant and everyone knows it, how do we justify Harvard’s continued existence?

THE DEAN: Look, you’re very young— FENNO: How dare you, madam! I am older than time itself.

THE DEAN: All right, however old you are. Look. Harvard could, in a bold gamble, sink its entire $37,600,000,000 endowment into one enormous lightning campaign of economic redistribution and legislative reform, after which we put a match to the whole campus and never look back. Or we could keep vaguely

As a newspaper comprised of students, the Harvard Law Record is indebted to HUDS employees. They support us every day. We are grateful for their services and believe that it is their deserved right to strike for a livable wage and a reasonable standard of living.

Editor’s note: The vote was among the editors-in-chief, opinion, and web editors. The result of the vote was three in favor, one opposed, and one abstention.

however, it is unlikely to be a reality in the US anytime soon, and certainly not in the next month and a half. So for now the focus comes back on reminding citizens that their vote counts and that it has never been easier to work out how to cast a mail ballot. Just typing “mail vote [insert State]” into Google returns step-bystep instructions.

“Vote early and often” is a slogan associated with Al Capone and election fraud in America in the early 20th century. But perhaps now it should be a battle cry — vote early with a mail ballot if you won’t be in your home state on election day. And vote as often as the democratic process allows. No President is not an option, and so no vote is a vote too — just a less effective one.

Evelyn Douek is a Record contributor.

She is an LL.M. of the Class of 2017.

Like all Harvard Law students, [our editorsin-chief] are at once both hidebound and spineless. encouraging our law school graduates to take a couple pro bono cases a year for the next thousand years. I think it’s clear which is the better option.

FENNO: What, then, in your opinion, is the public mission of Harvard Law School?

THE DEAN: To amass enough wealth to constitute itself as an autonomous city-state, when the time is right, and vie for continental dominance with the various western principalities established by the descendants of Silicon Valley billionaires.

FENNO: You see the fragmentation of the United States into a patchwork of warring dynastic territories as inevitable, then?

THE DEAN: Of course.

FENNO: Now, one of the Record editors wanted me to ask something about “The Cubs.” I gather this is some sort of sports thing. I confess I have never watched a single sports game in my life, as the sight of human bodies in a state of physical exertion causes me deep distress. Nevertheless, do you mind telling us how you feel about “The Cubs,” whomever they might be?

THE DEAN: Never. I will carry that dark and terrible secret with me to my grave.

Fenno has been a student at Harvard Law School since at least 1961. He has no current plans to graduate.

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The Harvard Law Record

October 24, 2016

Professor Emeritus Presents Photos as Addenda to Scholarship

By Jimmy Chalk ’18

Lining the halls of the Law School are portraits of tenured professors, former deans, donors, and Supreme Court justices. Their apparent purpose is equal parts inspirational and aspirational: study hard enough and you’ll climb to the top of the profession. Yet strewn among these portraits are some very different images: a gaggle of Vietnamese children laughing uproariously, a group of solemn Bhutanese śrāmaneras clad in crimson robes, a Greek woman peering from the door of her home while her dark clothing blends into the shadows of her doorway.

These photographs are the work of Professor Emeritus Henry Steiner, who presented Eyeing the World, a hardbound collection of his photographs, on Thursday, Sept. 29. Professor Steiner, who founded Harvard Law School’s Human Rights Program in 1984, is a pioneering author in the field of human rights. For the past forty years, his work carried him across the globe, and his camera was never far from his side.

“Photography is not my pastime.

It’s not a hobby. It is my deep passion,” Steiner, 83, told the standingroom-only audience gathered in the Milstein Conference Center. “I published this book because I wanted to leave a personal legacy. I very much doubt that any of my grandchildren will read that ‘brilliant’ article that I wrote some time back, but they are going to look at a photography book.”

Depicting scenes ranging from Kathmandu to Copacabana, Bhutan to Buenos Aires, Steiner’s photos are evocative and compositionally compelling. Blue lines dash across Antarctic landscapes, and a family of sugar cane workers in Brazil’s Northeast stands in contrast to the lush grove of sugar cane behind them. An elderly woman on the Greek island of Corfu struggles to climb a slope that likely leads to her home, and a South Indian man is dwarfed by an

Attica

Continued from page 1 a member of the Black Panther Party and one of the New York Three, convicted of killing two New York City cops — one white, one black — in 1971. Jalil rid himself of the militant Marxist mindset long ago and today, he sports a kufi and a white beard, speaks with a soothing tone, and listens with a set of sad and kind eyes.

He’s a Muslim.

I recently saw him at the lifers annual picnic. It’s a gorgeous day in Attica. A couple hundred mostly black and Hispanic prisoners in green mingle on a grass field at picnic tables.

Music is playing, a handful of old white ladies, who volunteer for therapeutic and anti-violence programs, are scattered among the lingering guards. In the distance, the thirty-foot gray wall looms. Jalil greets me with a hug. We’re in different cellblocks, so we don’t see each other too often.

He tells me he’s heard about some articles I’ve recently published and that he’s proud of me. That feels good.

I tell him about this piece. In a nutshell, Jalil says you all should know that the mass incarceration debate cannot begin without understanding that while the Thirteenth Amendment prohibited slavery in American society, it allowed for it in American prisons, and today that’s where one in three black men wind up at some point in their lives. While Jalil invokes abolitionism, Michelle Alexander, whom he often quotes, eerily parallels the Jim Crow South to The New Jim Crow — her 2010 book, and her label for America’s prison system. The exception clause in the Thirteenth Amendment, Jalil says, sanctions slavery by the state and must be amended.

Chris Hynes, who’s been in for thirty years for a 1988 robbery-turned-murder, is a small and bald-headed Irish fella with a big reputation for being the jailhouse lawyer in New York. Because he’s the Attica Lifers president, he is all over the place at the picnic handling gripes about food, attendance, etc. When I tell him about this piece, he says he’ll send me a kite (a written message). “Law students and lawyers need to get inside prisons and teach legal courses,” he writes in the kite I receive a few days later. “Guys need to learn how

impossibly large boulder in Tamil Nadu.

While visually striking, Steiner’s images don’t appear at first glance to require much of the viewer. Legendary street photographer Henri Cartier-Bresson’s images ended with an exclamation point (“Quelle moment décisif!”), and social documentarian Sebastião Salgado’s images ended with a question mark (“E agora, o que você fará?”). Steiner’s, on the other hand, seem to be connected by an ellipsis, each image evoking a sense of the quiet dignity of its subjects as well as the man behind the lens.

Steiner says his book’s viewers won’t see “a single Auschwitz, Cambodian genocide, emaciated children with swollen bellies, or other scenes that portray man’s cruelty to man.”

“I’m looking at what could we be like if the ideals of international human rights were realized,” Professor Steiner said. “What I’m drawn to in taking pictures are people and nature expressing the equal human dignity, the sheer humanity and the majesty captured in the ideals of human rights.”

This subtle message appears to comport with Professor Steiner’s academic work, which foresaw and guided the growth of global commerce, and with it, shaped the development of the field of international human rights.

Within the pages of Eyeing the World, Steiner’s photos are a reflection of the humanistic optimism that inspired his groundbreaking scholarship. Yet it’s likely that the force of his images will be felt most strongly in the halls of WCC, where his photographs remind us that the ultimate aspiration of a Harvard Law student is not just to climb up, but to venture out.

“I think you can’t be committed to a field like international human rights and not be something of an optimist to assume that there’s something transcendent in our lives that we’re working toward,” he said.

Ignorance is ugly, particularly in prison. It’s loud and obnoxious and violent. to interpret the law and write effectively to protect their rights.” He also says you should know that legislation like the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Prison Litigation Reform Act (PLRA) significantly restrict prisoners’ ability to get federal habeas corpus review and for them to be able to bring civil rights actions against prison officials.

After chatting with Jalil and Chris, I sit with other guys. Rothstein is an animated, light-skinned, fifty-threeyear-old inmate from Harlem. He asks me to use his jailhouse Jewish nickname. He sits across from me, wet with sweat because, moments before, wrapped in a white bed sheet, he’s captivated a wide-eyed Lifers audience as Shakespeare’s Mark Antony crying over Julius Caesar’s dead body. Also at the table is Dino Caroselli, a sixty-five-year-old, oliveskinned gangster who looks forty-five and sports a gold rope chain, thick as my pinky. He’s been in for twenty-five years. A corrections lieutenant once set him up with a false positive urine test. Dino bit off the officer’s nose. The report for the urine was dismissed. But he got another forty years for the lieutenant.

When I ask them what they want Harvard Law students to know, they explode, interrupting each other and calling for reforms to penal law, case law, legislative law. “Cases are settled on the golf course,” Rothstein says.

“They need to use their country-club associations to influence social justice — and then legal justice will be the byproduct.”

“You can’t tell them that!” Dino scoffs. “It’s insulting.”

“I’m in Attica for a stem and a lighter!” Rothstein shouts. “I’m a crackhead, not a criminal!”

There’s awkward silence. His eyes get watery. Then he laughs, “Too much?”

Dino and I laugh, shaking our

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Photos by Henry Steiner

heads.

Rothstein soon gets distracted and Dino leans in and says, “I love the guy, but he’s out of his mind.” I don’t miss the irony of his comment. Exasperated, Dino says, “You know, John, it all comes down to education.”

I agree.

Ignorance is ugly, particularly in prison. It’s loud and obnoxious and violent. It tumbles into my cell right now as I write this. But for some, education can quell that.

Here’s proof: My friend Carlos Polanco is a Dominican, thirty-twoyears old, in for manslaughter. In 2011, he and I started college at Attica. Back then, Carlos grappled with changing his life and his association with gang life. Once, I had to remind him of our opportunity and persuade him to holster his scalpel — else he would have carved up a mouthy Blood member on the tier. Soon after, he transferred to Eastern Correctional Facility, a cushier joint closer to New York City, and landed a spot in the prestigious Bard College program to provide college education to qualifying prisoners.

Last year, he led its debate team to defeat Harvard’s.

“We have been graced with opportunity,” he told the Wall Street Journal.

Sadly, few get those opportunities.

Here’s what Harvard Law students should know. College in the can is scarce. The programs that do exist are mostly privately funded.

The 1994 crime bill made prisoners ineligible for Pell grants. Since then, the US prison population has doubled. Last year, the Obama administration started a three-to-five-year pilot program called “Second Chance Pell,” which will allow some prisoners to access Pell grants. If a President Trump comes in, he’ll likely scrap it. The Restoring Education and Learning (REAL) Act., H.R. 2521, will restore Pell for prisoners permanently. It needs a lot of support: Hillary Clinton’s support, your support.

I encourage you all to get even closer to the problem. Many of you will go on to practice corporate law.

But that doesn’t mean you can’t come into the slammer, as Chris Hynes suggests, and train prisoners how to structure legal arguments, how to keep their elbows tucked in and

Photo by Jayu

Attica Correctional Facility, Attica, New York.

learn how to write, how to punch out declarative sentences with nouns and verbs. Get this: John Whiteford of Goldman Sachs used to come into a New York prison and teach financial literacy. Point is: You can still kick ass and take names and help prisoners be less helpless.

And for those of you who may go work for the prominent Manhattan District Attorney’s Office, perhaps charting a path to public office like Robert F. Kennedy, remember this: As a prosecutor, you’ll have profound discretion with charging defendants, which, in turn, will profoundly shape their lives. Also, try to realize that you’re seeing people come before you who’ve had few opportunities.

(Admittedly, I had plenty but squandered them, which is why I have a lot of shame.) These people are at the worst point of their lives, having just done terrible things. As disgusted as you are with them, know that they are just as disgusted with themselves. You may not see it. But they are. Trust me.

Take Rothstein, who initially came to prison with a three-to-six-year sentence for a desperate robbery.

From a medium-security prison, he filed a post-conviction motion on a technicality and won. Then the prosecutor refiled the charges and upped the ante on the plea. In another act of desperation, he squeezed out a courthouse bullpen window, jumped two stories to the street, and ran.

He barely got a city block before two officers tackled him. Now he’s doing

twelve years to life. In Attica.

For years I’ve been attending twelve-step meetings with Rothstein.

He’s a performer who owns the stage — lots of emotion, lots of tears, lots of pain. One on one, he’s a manic close talker who sometimes uses words I don’t understand. He hits you with out-of-the-blue factual info. “You know, Harvard was originally called New College, in 1636,” Rothstein says. “This guy John Harvard died on his voyage to America and his library was discovered and went to the college. In 1638, it was named Harvard after him.” I don’t even know if this is true, but I think he shoves this kind of detail into conversations to seem smart. He is.

But I happen to know he’s overcompensating for what lies beneath.

Shame. Shame about being poor and having no formal education, shame about being too light-skinned and growing up in Harlem, shame about his mom leaving him alone to fend for himself and his siblings — he stole supper from supermarkets, snatched pocketbooks from pedestrians — while she was off doing drugs and turning tricks. This is his backdrop.

This is why a serious talk with Rothstein can suddenly turn to tears. He wants powerful people — like you all at Harvard — to want to help instead of hurt people like him with punishment. It’s just mercy he wants.

It’s what we all want.

John J. Lennon is a journalist and inmate at Attica Correctional Facility.

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October 24, 2016

Some Unsolicited Advice Retired HLS attorney Gordon Arkin shares wisdom from his four decades of practice.

By Gordon Arkin ’70 I retired from the practice of law in 2013. I spent 43 years as a transactional attorney, mostly as a partner with Foley & Lardner LLP. Neither of my children decided to become lawyers, so I never thought to share much with them the lessons I learned during my years of practice that helped me succeed as a partner in a large law firm. Since I believe there is some wisdom to be gained from my experiences, I decided to share some of them with you in this multi-part series.

Find a Mentor

In my early years of practice, I was fortunate to have two mentors who took the time to teach me much of what I needed to know. It is impossible for me to overstate the impact they had on my entire legal career.

In fact, I learned from them much of what I am going to share with you.

Their mentoring was not part of a formal mentoring program. Rather, they were talented lawyers whom I respected, and who were willing to spend some of their valuable time teaching me how to practice transactional law. I latched on to them and never let go. I strongly recommend that you do the same. How will you recognize them? To paraphrase what Justice Potter Stewart said about obscenity, you will know them when you meet them.

After graduating from Harvard Law School, I started my career at a large law firm on Park Avenue in New York City in 1970. I thought I wanted to be a litigator.

For the first year of my practice, I spent a considerable amount of my time writing legal briefs in labor arbitrations. I would give my draft to the more senior attorney on the matter, and it would come back significantly revised.

I would read the revision, note the mostly stylistic changes, and say to myself, “different, but not much better.” I started to become frustrated because I was learning little from this process.

Then one day, a young corporate partner came into my office and asked if I would like to help him on a corporate transaction. I said yes, and the next day he took me to a meeting with our client and a potential joint venture partner to discuss the financing and construction of a plant to make stretch yarn for leisure suits that were all the rage at that time.

At the end of the meeting, the partner asked me to draft a contract setting forth the terms of the transaction that we had just discussed. I spent the next several days happily drafting, and on Friday of that week, handed him the draft that he had requested.

The next Monday, he handed me

back my draft with his handwritten comments. Needless to say, they were significant, including many long additions that he had drafted from scratch. However, on my review of his comments it was clear to me that my draft was deficient in many important respects.

I learned so much about good drafting from that review that I immediately asked that partner to allow me to transfer to the corporate department. He welcomed me, and I found my first mentor. We worked closely together for the next four years until I moved to Orlando with my wife in 1975. Over that time, my transactional skills improved considerably in large part because of what I learned from him.

You Are In a Service Business

The private practice of law is a service business. If you are the brightest star in the sky, you may be able to continue to shine despite a reputation for being non-responsive to your clients. For the rest of us, responding promptly to your clients is essential for success.

Technology has made it easier to return your clients’ calls and respond to their e-mails the same day. If you are unable to do so, have your assistant call and explain why you are unavailable and when you will respond, which should be as soon as possible.

I had many clients tell me that while they knew I was very busy (they had seen the mess in my office), I made them feel like they were my only client. To keep your existing clients, and to build a reputation that will help you develop your practice, your professional goal should be to be as responsive to your clients as possible.

The Cover-up Is Always Worse Than the Crime

If you make a mistake in the practice of law, quickly bring it to the attention of a partner who is also working on that matter. That will give the firm time to assess the seriousness of your mistake and to develop a corrective plan of action.

Unless you do this, the consequences of your cover-up are very likely to be far worse than your “crime.”

In my first year as a lawyer, I worked on a proxy statement for a publicly traded company. I had satisfied the SEC and authorized the printer to print many thousands of copies of the final proxy statement.

The next day, I received the printed proxy statement that had just been mailed to all of the shareholders. I was proud of what I had done until I saw that on the top of the second page I had misspelled the name of the chairman of the board of the client.

I was sure that my legal career had just ended.

Nonetheless, I quickly confessed

to the partner who had supervised my work. He thanked me, told me that the chairman was legally blind and would never see it, and suggested that I learn from the experience and go back to work. I learned later that he called the president of the company to tell him about the typo in case he heard about it from a shareholder.

The next year, as I was working on the company’s new proxy statement, I got a lovely letter from the president of the company thanking me for all of the good work I had done during the past 12 months. In a postscript to that letter, he said that he knew that I would start the new proxy statement by marking up the prior year’s version, and referenced an attachment, which was the page of the prior year’s proxy statement on which he had circled the typo.

Even today, I continue to be grateful

If you are given a really bad job to do, accept it graciously, do it great, and try hard never to have to do it again. for the graceful way the partner and the client handled my distress.

Manage Your Legal Career

You need to manage your own legal career. At the New York City firm where I started practicing law, there was a senior associate who I thought was a terrific lawyer. He was single, so he was willing to work even longer hours than the long hours worked by the rest of us. This allowed him to retain a significant amount of work that he had started doing as a younger associate, even though he was also doing lots of much more sophisticated partner level work. He was passed over for partnership because the partners felt that his total mix of work wasn’t sophisticated enough, even though no one had suggested that he give up the less sophisticated work, and he was the hardest working associate in the department. To me this proved the truth of the old adage that “no good deed goes unpunished”.

At the time this was happening, I was assigned a repetitive task that today would be done by a paralegal.

It involved liquidating and dissolving hundreds of subsidiary corporations that had been created by the parent for tax reasons, and that were now going out of business. This had to be done correctly or the parent corporation could suffer significant adverse tax consequences. I was told that this work was for a very important firm client, and that in the two prior years, the associates assigned this work had been offended by the nature of the assignment, had handled it badly, and had been fired as a result. I decided that the only way I could survive this assignment was to view it as a challenge rather than a burden. I designed a system of coded

Thoughts and Musings for 1Ls

By Marshall S. Shapo ’74 Ralph Nader has asked me to share some thoughts about law study, derived from fifty-one years of law teaching. For most of those vyears I have opened my torts class with the case of Nader v. General Motors, which I believe to be a very good example of the kind of societally useful work lawyers can do. Aware that Ralph has said that “the Socratic method is a game only one can play,” I will remark that you will be fortunate if you have some teachers who will give you room to play the game.

My observations begin with a lesson about the importance of questions. When I was a new law teacher, it was my good luck to have down the hall one of the all-time greats of the profession, Leon Green. I had the honor of being assigned to teach a course he had invented in the 1930s called “Injuries to Relations.”

He generously gave me a copy of his teaching notes. I was too proud to look at them at first, but after a couple of weeks I sneaked a peek. I found that for every case — in a class he had invented and had taught for more than thirty years — there were two or three pages of single spaced notes that he had pecked out under a green eyeshade with his 1910 Olivetti typewriter. And almost every line in these detailed notes ended with a question mark.

After all these years, Green was still asking himself questions about the cases. It may not be apparent to you this early, but I can tell you that this is what lawyers do — with their partners and associates, and even with themselves. Of course, this is also what their adversaries and

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The Harvard Law Record

judges will do all the time.

Lawyers must always be asking questions, and formulating the questions is often more important than the answers. Indeed, perhaps the most important single skill you will take from law school is how to state an issue — how to craft an interrogative sentence that frames the problem before the court. If you can state an issue, you are an appreciable way to the answer.

On education in general, I have in mind Lincoln Steffens’ remark, “It is possible to get an education at a university. It has not been done often.”

Sir Edward Bridges, described as one of the most formidable of the permanent civil servants in the British government, asked a man who served in the British foreign ministry during World War II what he had learned. He replied, “I have learned, Sir Edward, to distinguish between the various shades of gray.”

A related point concerns language — the plasticity of words and the opportunities that presents for lawyers. A few summers ago we spent a few days in a little village in Maine called Southwest Harbor. We found a little cafe not far from our hotel. The first evening we enjoyed a dish called “pasta primavera.” I liked it enough that I was disappointed to find that it was not on the menu the next evening. However, there was a dish labeled “fettucini vegimi.” I asked the waitress — who was the same waitress — what that was. “It’s what you had last night,” she said. “Last night they called it pasta primavera.”

She shrugged. I do not shrug. For my purposes, the point is an important one. “It’s what you had last night,” except that it has a different name.

In the process of legal education, that is the sort of thing you will learn to discern. You will also learn that one cook’s pasta primavera may have a very different sauce from a dish that another cook also calls by that same name.

Thus, you will learn to discern both similarities of concept in different words, and differences of concept in the same word. For example, there are at least thirteen or fourteen different words or phrases to describe one of the most important concepts in tort law.

Law students, especially those raised by a generation of helicopter parents, often whine. For those who may need a bracing antidote to the tendency to whine, I offer a letter to a Harvard alumni magazine from a lawyer who became a law student just after service in Vietnam as a company commander. Responding to a contemporary’s criticism of legal education, he conceded that he shared “to a very limited extent” the judgment that the process was “difficult and demanding.” However, he observed that he was “profoundly grateful during every day of my three years at law school that (a) it was conducted indoors (b) I had the luxury of devoting my time wholly to reading, writing, discussion, and other purely intellectual activities; and (c) no one was trying to kill me.”

This leads me, inevitably, to a brief commentary on the fact that in some sense, law school involves competition. Any activity that includes a ranking system such as grades is inherently competitive. And it is a fact that everyone in law school receives grades. I can tell you a little about what grades really mean: They

master forms and lists that matched (today’s computers would have made this a piece of cake), so that a secretary only had to fill in a few blanks on several of these master forms for each corporation, which made the proof reading very easy.

In a few days, all the work was done, and using form letters, the documents were mailed to Secretaries of State across the country. In about a month, all of the corporations had been liquidated and dissolved, and appropriate evidence of this was in the files.

I reported to the partner I was working for that the work was completed. He expressed disbelief and asked to see what I had done. When I showed him the system I had created, he told me that I had done such a good job that he would ask me to do it again next year. I told him that he could give my system to someone else, but that if he asked me to do it again I would quit. He knew I was serious, gave me credit for turning lemons into lemonade, and I was never asked to do anything like that again. So if you are given a really bad job to do, accept it graciously, do it great, and try hard never to have to do it again. However, in today’s much tougher legal market, you might decide not to actually threaten to quit unless you are quite confident about your next career move.

Be A Little Paranoid About Typos

There is an old saying that if you give the client bad legal advice, the client may never know, but if you misspell the client’s name, the client will always know. While it is virtually impossible to eliminate all typos during a long legal career, even with spell check, I have certainly tried. I proof read everything twice before I sent it to be sure the content was correct, the tone was right, and that there were no typos. In addition, if the document that I was working on had gone through multiple drafts to reflect the terms of ongoing negotiations, then I always read the near final draft from front to back as if I had never seen it before.

While it takes lots of discipline to do this, it is one of the most important things that I learned from my first mentor. Why important? To cite a few examples, by following this practice I found options in leases that were exercisable by the wrong party, conflicting contractual provisions in long documents that had been revised in one place but not conformed in other places, incorrect cross-references, and important issues that had not been addressed but that needed to be because of what I had learned during the negotiations. I am sure that this practice helped me avoid malpractice claims and litigation over the meaning of documents that I helped negotiate and draft.

Learning Where to Hit

My mentors taught me that there is a difference between motion and forward motion in the practice of law. Every day that you come to work there are probably lots of things you could do for your clients. Prioritize them so that the things you

are a basic test of analytical skills in a highly pressured context. They give many people a leg up on jobs. What I wish to emphasize is that the rankings that grades represent — which are rather crude anyway — are in no way your measure as an individual; they tell those who learn about them nothing regarding your personal worth. They do not necessarily measure diligence, industry, attitude, judgment, or character.

Michael Boudin, now a senior judge on the federal court of appeals in Boston, once essayed a checklist of the elusive qualities that make up the prized element of judgment: “An ability to gauge in advance the reactions of others to events and arguments; a sense of calm or self‑discipline, enabling one to separate and prefer the reasoned response to one based on emotion; a willingness to make decisions and to do so based on incomplete data; a certain seriousness of mind, and perhaps an instinct for order or pattern.”

It is perhaps relevant at this point, and in the context of the flowering of the notion of “political correctness,” to add some thoughts I give my torts students: “Torts deals with particularly controversial subject matter. It is literally a blood-and-guts course. In the first few weeks, you will encounter, at points of high tension, issues of gender, race, politics, police behavior and corporate power.

With these controversial things on the menu, let us be clear about this: there are no politically correct, or incorrect, ideas. There are only ideas that more, or less, withstand the test of argument.”

In a year in which my wife and I pursued master’s degrees at Harvard, we lived on Trowbridge Street.

We had no laundry machine, so every few days I would gather up laundry and take it to the graduate dorms

do first are the ones that are likely to advance the ball rather than just move it from side to side.

I am a terrible chess player because I can’t see more than one or two moves ahead. However, in my practice I developed the ability to see how all of the pieces of a transaction fit together. That allowed me to develop a plan, identify the necessary documents, and prioritize my actions so that I could help push a transaction to closing.

There is an old joke about the driver who brought his car into a gas station because the engine was knocking. The attendant got a hammer and hit the engine, which immediately stopped knocking. The driver asked how much the repair cost. The attendant said $100. The driver thought that was a lot and asked for an itemized bill. The attendant gave him one. It said “Hitting car with hammer-$1. Knowing where to hit$99”. It is important that you learn where to hit.

No Problem Without a Solution As a young lawyer you lack the experience that older lawyers can draw on to help them solve their client’s problems. Every matter you work on is brand new, and many of the problems you encounter will have no clear answer. I learned to ask myself what I would recommend to the client if I were the only lawyer working on the matter. I would develop proposed solutions and then present them to the partner at the same time that I described the problems, with the caveat that I might be wrong because of my limited experience. I found this proactive approach to be well received by most partners.

I would revise this approach for individual partners who preferred a less proactive approach.

Public Speaking Is an Art

Learn how to do public speaking.

This is a real skill, and you should get some training to do it right. I thought I was pretty good at it until as a 40 year old partner I took a public speaking training course with some young associates. I went first and made a short presentation, and was then critiqued by the group. One of the young associates who did a lot of work with me said that my presentation was “too scripted and technical, and that my personality and sense of humor had vanished”. I found her comments to be extremely helpful, and they have stayed with me through many years of public speaking. I also was quite proud of her for being willing to speak the truth to me. However, she knew and trusted me. If you choose to speak truth to power, be careful to pick the right time, place and person to do it with.

If you take any of this advice, and it helps you become a partner, please “pay it forward”, and become a mentor to one or more young associates who will benefit from your wisdom.

Thanks for reading this.

Gordon Arkin is 1970 graduate of the Law School. He is a retired partner of Foley and Lardner LLP. The remainder of this piece will be published in the next issue of The Record. at Harkness Commons where there were machines. While I waited for the machine cycles to finish, I would stop in at dorm rooms to chat with people I had known from National Student Association congresses. I was then in a graduate year of history, but it struck me that the law students I talked to — although they were working very hard —seemed to

I enjoin you to remember the greatest mission of those who call themselves lawyers: To fight injustice. find law school quite stimulating.

My father had gone to law school — the hard way, at night, in the midst of the Great Depression — and I wrote him, asking, “what is being a lawyer?” In a remarkable, concise response that among other things described many things lawyers do — a letter I have treasured — this rare man wrote this memorable sentence: “When I studied law, it was my ambition to fight injustice.” You will wind up in many different kinds of jobs, some practicing law and some in other occupations. But you will all be lawyers, and I enjoin you to remember, now and then, the greatest mission of those who call themselves lawyers: To fight injustice. To do justice. Rare words, indeed.

Marshall S. Shapo, S.J.D. ’74, is the Frederic P. Vose Professor of Law at the Northwestern University Pritzker School of Law.

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The Harvard Law Record

October 24, 2016

HLS200.org: A First Step Towards Re-Orienting Our Culture

By Nate Szyman ’18 and Pete Davis ’18 You can tell a lot about the culture of a community by asking three questions: 1. As the community looks to the past, whom does the community admire?

2. As the community looks toward the future, what challenges are deemed important?

3. As the community looks at the present, which activities are worthwhile to the community?

What can we learn about ourselves, then, by asking these questions about Harvard Law School?

1. We admire the powerful and prestigious, while those working to meet legal needs in more ordinary ways are given secondtier status.

At Harvard Law School, we adorn our library walls with large paintings of famous alumni who became powerful jurists. We line the hallways of the campus center with photos of tenured professors. We name our new buildings and rooms after deans and wealthy donors.

In our classrooms, we swoon over clever writing, analytical prowess, and complicated ideas. We hold up sharp-witted geniuses as the heroes of our new profession.

Meanwhile, we overlook the heroic efforts of many public servants. No prominent painting depicts Reginald Heber Smith, the HLS alumnus who popularized legal aid for the poor with his groundbreaking 1919 book, Justice and the Poor, or Mary Howell, the HLS alumnus who fought to open up medical schools to women. No photos in the WCC hall celebrate our daily clinical instructors or staff. There is no building named after Bryan Stevenson, the HLS alumnus whose Equal Justice Initiative is carrying on the legacy of the Civil Rights Movement, or after Gary Bellow or Jeanne Charn, the HLS dynamic duo who set the standard for clinical instruction at American law schools. And importantly, we rarely discuss the efforts of lawyers who make riskier and less prestigious career choices in order to

meet the legal needs of underserved and undervalued populations.

2. We prioritize our individual, personal challenges over our generational, public challenges.

At Harvard Law School, discussion about our future challenges often revolves around our own personal employment goals. At orientation, we learn about all the different career paths we could take and how each one bodesfor our lifestyle and reputation. During our 1L year, we endlessly discuss how different activities will lead to different opportunities. These choices are framed as individual ones, with even family, friendships, and community involvement treated as things to be “balanced” with one’s career (or leveraged to facilitate it).

Meanwhile, we often fail to discuss our generation’s challenges — the challenges facing the legal system that we, together, are called to help address. Although Canon 8 of the ABA Model Code of Professional Ethics requires lawyers to “participate in proposing and supporting legislation and programs to improve the legal system, without regard to the general interests or desires of clients or former clients,” we rarely think about how we can help to identify and meet the legal system’s pressing needs. It is telling that our school’s 47-point law firm assessment grid — which includes criteria such as “Notable Perks,” “Library,” “Mentoring,” and “Revenue per lawyer” — contains only one point (“commitment to pro bono/community service”) about “advancing justice and societal well-being,” which is what our mission statement calls our school to be about.

3. We deem activities that expand our career options worthwhile, but make no time to ask what we’d like the effect of our careers to be.

It’s a law school trope: we’re busy.

And if you believe the hype, Harvard Law School students might be the busiest people in the country. Still, we all find time to fit another SPO, affinity group, RA position, and so on into our schedule as we seek to craft the best resume possible to

preserve the maximum number of career options. In subtle and overt ways, we are instructed to always consider how our current steps are queueing up our next opportunities.

The message is reiterated in campus organizations pitches or calls to get to know your professors, and in career office recommendations that instruct students interested in the D.C. legal market to work for federal agencies that govern “the types of clients that have government problems and deep pockets” so as to develop “context and skills to re-apply to the private sector.”

We often fail to discuss the challenges facing the legal system that we are called to help address.

Meanwhile, we find little space to explore the idea of developing a vocation: of assessing what is important and what is not, of making commitments to things bigger than ourselves, of foregoing options for the sake of doing what it takes to advance the law. When asked by Humans of New York about the time he felt the most broken, HLS alumnus Barack Obama explained that any time he was worried about himself — anytime he was asking “Am I succeeding? Am I in the right position? Am I being appreciated?” — he snapped out of it by reminding himself that “it’s about the work”: “if you can keep it about the work, you’ll always have a path… there’s always something to be done.” Vocation-building is about discovering what “The Work” is for ourselves. It is about practicing the virtue of snapping out of self-focused questions, so that we can return, over and over again, to the work that needs to be done. But here, when we ask each other if we are succeeding, if we are in the right position, or if we are being appreciated, we too often answer with a resounding “Yes.”

Perhaps we are asking and answering the wrong questions.

An Alternative Direction: www.HLS200.org

Yes, an indiv idualist, career-building ethos that values prestige and power has come to grip our campus culture. But it does not have to be this way. We can come together to take a first step towards a different culture: a more solidaristic, vocation-building culture that values civic-mindedness and public problem-solving.

It is with this belief that we, in advance of Harvard Law School’s bicentennial next year, have come together to launch The Third Century Project, an initiative aimed at imagining how Harvard Law can better live out its stated mission of “educating leaders who contribute to the advancement of justice and well-being of society.” We envision a third century for Harvard Law School centered on legal vocation-building in the public interest, in which the nation’s oldest law school prioritizes training students to improve the legal system for the common good.

To kick off The Third Century Project, we are starting with these same three questions that orient campus culture: 1. Whom should we admire?

2. What challenges are important? and 3. What activities are worthwhile?

To do this, we are are launching The HLS 200, a project of compiling and promoting three “200s” submitted by students, alumni, professors and staff: 1. The PAST 200: 200 Harvard Law alumni and affiliates, living and historic, who advanced the public interest through their legal career.

2. The PRESENT 200: 200 public challenges, broad and specific, in need of our generation’s attention Examples could include “how can we roll back mass incarceration?” to “how can we regulate developments in biotechnology?”

3. The FUTURE 200: 200 vocational goals of present Harvard Law students, professors and staff. We will be gathering recordings — in text and video form — of these vocational

goals over the coming months.

Once we have finished the project’s participatory compilation phase, we will promote the submitted materials throughout the school via the web, video, events, pamphlets and art.

If you have an alumnus worthy of recognition, a challenge that needs our legal generation’s attention, and/ or a vocation you wish to share with our community, we hope you can submit at www.HLS200.org.

We have only been working on this project for a few weeks and we have already received dozens of wonderful submissions from around the school. Students and staff have submitted hundreds of HLS alumni and affiliates: from David Grossman, who spent decades fighting for tenant rights, to Alana Greer, who founded a community lawyering organization in southern Florida. They have spotlighted dozens of generational challenges, from “how can we responsibly manage health data?” to “how can we protect those whose homes will be lost by climate change?” They have signed up in droves to share their vocation with our community. If you have not submitted already, we hope you will at www.HLS200.org.

To close, we would like to note one common response to our project.

Many of us like the idea of celebrating alumni of this kind, of collaborating to list legal challenges, and of making vocational commitments, but we struggle to think of an alumnus, an issue, or a goal to share. In response, we say: “that’s exactly why we need a project like this!” Regardless of any end product that comes out of HLS200.org, we are most excited about the opportunity it can provide for our community to take time to reflect on these important questions.

As we prepare to celebrate the bicentennial of Harvard Law School next year, we hope this little project can be a first step towards re-orienting our culture in preparation for a civic third century.

Nate Szyman and Pete Davis are 2Ls. Pete is also the online editor of The Record.

The ABA’s Control Over What Lawyers Say Around the Water Cooler

By Ronald Rotunda ’70 The elites in America are falling all over themselves to become politically correct. Universities are banning “trigger warnings” that might offend someone. College administrators at schools like Cornell and Yale agreed to rip up copies of the U.S. Constitution after a person posing as a student described the document as “triggering” and “oppressive.” Go to YouTube and you can see and hear Carol Lasser, Professor of History and Director of Gender, Sexuality and Feminist Studies at Oberlin College, tell us, “The Constitution is an oppressive document.” The Chair of Comparative Studies at Oberlin adds, “The Constitution in everyday life causes people pain.” The pain it causes also protects her right to attack the Constitution, which she forgot to mention.

The State University of New York (SUNY) at Binghamton is offering a course called “#StopWhitePeople2K16.” In August, a university administrator defended this course as designed for students to “learn from one another” in “a manner that doesn’t cause unnecessary harm.” Shortly after that, it became national news when the University of Chicago announced to its students, “we do not support so-called ‘trigger warnings,’” and “we do not condone the creation of ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with own.” What a strange world we live in, when it is major news that a university supports free speech.

And what a strange world it is when the American Bar Association decides to discipline lawyers who engage in politically incorrect speech. With political correctness all the rage, it should not be a surprise that the ABA has joined the party, even if belatedly.

The ABA is not an ordinary private trade association because it has some governmental power, which the ABA uses to impose political correctness. That is exactly what the ABA did at its annual convention, held this August, in San Francisco.

It decided what lawyers may say and whether men could use the ladies’ room at law firm.

First, some background. States give the ABA power to accredit law schools: you cannot take the Bar Exam in almost every state unless you graduate from an ABA-accredited law school. That law school must teach the ABA Model Rules of Professional

Conduct and its students must pass a special exam, the Multistate Professional Responsibility Exam, that tests those ABA Rules. The ABA also successfully lobbies state courts to adopt these Rules, which become real law governing how and whether lawyers can practice law — just like the Rules of Evidence or Civil Procedure govern trials.

When the ABA changes its Model Rules, the MPRE changes its test. In August, the ABA House of Delegates approved a significant and controversial change to Rule 8.4. You can find the exact wording of new Rule 8.4(g) on the internet, along with the “Comments” to that Rule, which provide guidance to interpret the Rule. The official legislative history for this Rule is also available online.

Before this new Rule, there was a rather vague Comment in Rule 8.4 that advised that a lawyer, “in the course of representing a client,” should not knowingly manifest bias based on various categories “when such actions are prejudicial to the administration of justice.” The new Rule and Comment go well beyond this former Comment, which was not even a black-letter rule.

This new Rule 8.4(g) provides that it is “professional misconduct” to engage in discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The ABA Report (explaining the reasons for this controversial change) starts with quoting thenABA President Paulette Brown, who immodestly tells us that lawyers are “responsible for making our society better,” and because of our “power,” we “are the standard by which all should aspire.”

Once a Court adopts these changes, a violation can subject a lawyer to discipline, such as disbarment, suspension, or public censure.

In addition, Courts also enforce the Rules in the course of litigation (e.g., sanctions, disqualification). Courts also routinely imply private rights of action from violation of the Rules — malpractice and tort suits by third parties (non-clients). Violation of the Rules matter. They are more than Law Day rhetoric.

Let us look at the language of Rule 8.4(g). One would think that lawyers should be expert at drafting rules.

They should be particularly expert at drafting rules about the practice of law.

Discrimination includes “verbal or physical conduct that manifests bias.” The First Amendment applies to speech, but the ABA tries to get around that by labeling speech as “verbal conduct.” However, “verbal conduct” is an oxymoron. Rule 8.4(g) prohibits mere speech, divorced from discriminatory action. If I say, “your money or your life,” I’m engaging in conduct (robbery) accompanied by words. If I say, “I wish I had Bill Gates’ money,” I’m just engaging in speech.

Consider this example. One lawyer tells another, at the water cooler or a bar association meeting on tax reform, “I abhor the idle rich. We should raise capital gains taxes.”

Rule 8.4, Comment 4 makes clear that it covers any “bar association, business or social activities in connection with the practice of law.”

The lawyer has just violated the ABA Rule by manifesting bias based on socioeconomic status. If the other lawyer responds, “You’re just saying that because you’re a short, fat, hillbilly, neo-Nazi,” he’s in the clear, because those epithets are not in the sacred litany. That can’t be what the ABA means, because it is always in good taste to attack the rich. Yet, that is what the Rule says.

During a CLE panel discussion on welfare laws, one lawyer says that too many people receive welfare not because they need it but because they are “lazy.” The lawyer is subject to discipline because the lawyer’s comments may “manifest bias.”

The EEOC has already said that it can be racist and a “hostile work environment” if the U.S. Postal Service allows a coworker to wear a cap that says, “Don’t tread on me,” along with a drawing of a coiled snake. The EEOC acknowledged that the “don’t tread on me” flag “originated in the Revolutionary War in a non-racial context.” Still, because some people might think it racist, that is enough to launch a full-scale investigation.

The fellow just wore a cap; there was no finding that the person who wore the cap even said anything offensive to the person complaining.

The ABA goes well beyond this EEOC case because its Rule covers gender identity, marital status, and socioeconomic status. It also includes social activities where no co-workers are present. Even “a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.”

Assume, at another bar meeting dealing with proposals to curb police excessiveness, one lawyer says, “Black lives matter.” Another responds, “Blue lives [i.e., police] matter, and, we should be more concerned about black on black crime.” A third says, “All lives matter.” Finally, another lawyer says, perhaps for comic relief, “To make a proper martini, olives matter.” The first lawyer may be subject to discipline, because some people argue that “black lives matter” is racist.

All the others also risk discipline for analogous reasons. And thus the First Amendment gets nibbled away, bit by bit..

Even when a Court does not enforce the Rules, they will affect lawyers’ speech, because good lawyers do not want to face any non-frivolous accusation that they are violating the Rules. The ABA as well as State and local bar associations routinely issue Ethics Opinions advising lawyers what to do or avoid.

Most lawyers follow the advice. Consider this example. The St. Thomas More Society is an organization of “Catholic lawyers and judges” who strengthen their “faith through education, fellowship, and prayer.” At a St. Thomas More-sponsored CLE, some lawyers on a panel (perhaps all the lawyers) object to the Court’s gay marriage rulings. The state bar may draft an ethics opinion advising that lawyers risk violating Rule 8.4(g) if they belong to a law-related organization that is not “inclusive” and does opposes gay marriage.

Many lawyers may decide it is better to be safe and leave the St. Thomas More Society than to ignore the Ethics Opinion and risk a battle. In contrast, if they belong to an organization that favors gay marriage, they are home free.

Let’s turn to “gender identity.”

Assume a law firm does not hire a job applicant who seeks a position as a messenger. The firm’s decision to hire or terminate messengers is conduct related to “operation and management of a law firm or law practice.” The disgruntled messenger may complain to the disciplinary authorities that he is transgender and the firm did not hire him because of that. He can point to the fact that the law firm’s restrooms discriminate based on “gender identity” as evidence of gender-related bias.

The law firm may claim that it did not know the disgruntled applicant is transgender. That is an issue on

the merits, which the judge and jury decide after full discovery and trial.

Rule 8.4(g) does say the lawyer must know “or reasonably should know” that his “verbal conduct” is harassment or discrimination, but that requirement is easily met. Lawyers “reasonably should know” that the federal government now contends that preventing someone from using the restroom they prefer is discrimination based on gender identity.

The lawyer hauled before the Discipline Board will find that its proceedings, unlike courts, are typically not open to the public, there is no jury, and the rules of evidence are relaxed. It’s safer to remove the restroom signs that protect privacy of men and women.

Problems go well beyond the weak procedural protections of state disciplinary authorities. The risk includes also civil liability, because the disgruntled employee may sue.

Expect that to happen here. The law firm will face expensive discovery, a gauntlet of motions, and possibly years of litigation — particularly if the disgruntled applicant files a class action.

Many states have no law on gender identification discrimination.

Some states require that individuals use public restrooms that correspond to their sex on their birth certificates. Congress has not enacted a statute banning discrimination based on “gender identification,” and the EEOC did not announce until recently that it regards workplace transgender discrimination as illegal. The ABA Rule still applies, because it makes clear that the “substantive law of antidiscrimination and anti-harassment statutes” is not “dispositive.” The ABA Rule applies even if no state or federal law bans “verbal conduct” dealing with gender identification and even if no court has found any violation.

Is it the best use of scarce Bar resources to discipline lawyers who may violate a vague rule that prohibits some speech because the speech relates to conduct that does not violate state or federal law but does violate the new Rule 8.4(g)? It’s not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, commingle trust funds, or cheat third parties.

Ronald Rotunda is a 1970 graduate of the Law School. He is a professor of law at the Chapman University School of Law.