The Harvard Law Record 4.4

Record The Harvard Law

THURSDAY, OCTOBER 29, 2015 | INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946 IN THIS ISSUE:

Alene Anello ’16 explains how food labeling can fight antibiotic abuse (p. 2) Brianna Rennix ‘18 reports on the conflict between rights and social justice from a Catholic viewpoint (p. 2)

Kristen Zornada LLM ’16 challenges just war theory (p. 3) Jonathan Hiles ‘16 and Ted Hamilton ‘16 push for fossil fuel divestment at Harvard (p. 3) Allen Walsh talks about concussions in the NHL (p. 5)

The Invisible Chains of Corporate Prosecutors

By Jesse Eisinger

Students of Harvard Law School, I am loath to be the bearer of bad news since you have so little experience with bad news. But somebody should tell you.

Those of you who aspire to become prosecutors need to know that you cannot hope to ever become good prosecutors without overcoming great obstacles. These obstacles will be unfamiliar to you. You have had too many advantages in your life.

And let me emphasize up front, that I’m not blaming you, for these circumstances are beyond your control. Rather, I blame rather the social milieu in which you were raised.

Most of you, at any rate.

The majority of you grew up in upper-middle class or wealthy enclaves, in comfortable homes surrounded by successful professionals. But even if you didn’t grow up in a favorable environment, you have proven to be someone who could succeed enough to get into Harvard Law. Such an accomplishment required prodigious amounts of work from an early age, a goal-oriented youth, and a drive to succeed. You grasped what society demanded of you — your parents, your teachers, the institutions you belonged to and the institutions you aspire to. In other words, you’ve figured out how to please the powerful and influential.

Pleasers can become good — even

great — lawyers at big, snazzy firms.

They are welcomed as partners and colleagues. They are diligent and conscientious. They are great on the law and wily negotiators. Clients, unsurprisingly, love such tireless servants.

They don’t make good prosecutors. A good prosecutor must relish doling out displeasure.

Reading this now, you probably think this is all wrong. A top-notch student like you will gladly go after drug dealers, organized criminals and terrorists.

But of course, you want prestige as well. You went to Harvard, after all.

And so, your aim is the Southern District of New York. And there, catching drug lords and mafia bosses will not be enough. Prosecutors in the SDNY want do the really prestigious stuff: white-collar criminal work, particularly securities fraud. You’ll want to work your way up into the Securities and Commodities Fraud Task Force.

Then someday, you will want to have a family and some kids. I don’t have to tell a bright young thing like you that it’s expensive to live in New York City (or Washington D.C.). You’ll need to shoulder nanny costs, a personal trainer, and Christmas tips.

The occasional anniversary dinner at Marea or Per Se. Tuition for two at Ethical Culture or Horace Mann. A modest four-bedroom summer cottage in the Hamptons.

How do you ensure the proper

OPINION

Fannie Mae, Failed Bailouts, and Whistleblowing

By Lynne Bernabei ‘72

When I graduated from Harvard Law School in 1977, there were only a dozen or so of us who went on to public interest or government work.

Some did pursue law school teaching after clerkships. But the vast majority of HLS graduates in my year went to corporate law firms where they stayed for the rest of their lives, unless they moved to another law firm, or spent

The NHL Needs to Take Action Now on Concussions

By Nic Mayne ’18

I suffered my first concussion when I was 11 years old.

I remember it well, a kid twice my size barreling down along the boards, teaching me a lesson I wouldn’t soon forget: keep your head up. Still, you can’t dodge every hit in a game as fast as hockey.

A few years later, looking for a pass across the middle, I took a shoulder to the head. Though visibly confused, I attempted to finish the shift. The coach called me to the bench, gave me a couple of tablets of Advil, and told me to sit a few shifts before going back out.

The last memorable concussion I had came in the second-to-last game I ever played.

I collided with a defenseman who had at least a hundred pounds on me, made it back to the bench, and fell into a rack of sticks. As usual, once my vision cleared, I tried to get back out, but the nausea was overwhelming. I took off my gear and watched the rest of the game from the stands.

Still, I played again the next day.

Unfortunately, my story is a common narrative. Hockey, like football, has a concussion problem reaching epidemic levels, and I’m confused by the lack of urgency expressed by leagues as they look for solutions.

As fans, we have a responsibility to be more than passive observers.

As lawyers and law students, we should demand legal action and policy change to protect athletes and the kids who idolize them from the devastating effects of concussions, including chronic traumatic encephalopathy (CTE).

In recent years, professional leagues have bolstered concussion

After I’d hung up the skates and moved on to college, I struggled with headaches and vertigo. evaluation protocol, while some youth leagues have upped the age at which contact is introduced. However, I’m not sure it is enough. With countless former players battling CTE , I wonder how many more we will lose before real change is made.

Thinking back through my shortlived hockey career, it is hard to justify my decision to continue playing as long as I did. I was just a kid who loved the game – the NHL wasn’t exactly on my radar. Yet, the bruises, breaks, sprains, and maybe even the lacerated spleen wouldn’t stop me from doing it all over again.

The concussions, however, are concerning.

After I’d hung up the skates and moved on to college, I struggled with headaches and vertigo, and still wonder what damage may have been done in the short decade I dedicated to the game I loved. I can only imagine how much more concerning it is to face these problems night after night as a professional player, especially at the age of 35 or 40 when life without hockey is on the horizon.

To stay silent while your employees are consistently endangered would be considered intolerable in

OPINION

Continued on page 3

HLS Brings Photos of Syrian War to Campus

You cannot hope to ever become good prosecutors without overcoming great obstacles.

By Brianna Rennix ‘ 18

This week, the Lewis International Law Center is hosting a collection of thirty images taken in a military hospital in Damascus.

Hung on the walls and mounted on easels, the images show corpses of Syrians with black bars superimposed across their eyes. They are men and women of all ages, including the very old and the very young: some naked, some emaciated, some horrifically mutilated, all bearing on their bodies, limbs, and faces unmistakable marks of torture.

These thirty images are but a small fraction of a staggering 55,000 photographs that were smuggled out of Syria last year by an anonymous informant, codenamed “Caesar,” who worked as a forensic photographer for the Assad regime’s police force.

According to Stephen J. Rapp, former Ambassador-at-Large for War Crimes Issues, they represent “the most impressive and strongest evidence” for systematic torture committed by the Assad regime between 2011 and 2013. “[The Assad regime] are even better than the Nazis,” Rapp said.

“The Nazis produced a lot of documentation, but even they didn’t take pictures of every body, with a card to identify the date and the facility it came from.”

Rapp was one of four guests who

career for that kind of future?

Because you’ll have to leave the DOJ to afford that future, there are two things you want to avoid as a young prosecutor while you’re there: working a case that comes up blank and — much, much worse in the eyes of your superiors — losing a trial.

You will ache to go to trial. But how many trials are you going to do, anyway? Back in the old days, Assistant U.S. Attorneys might have four or five high profile white collar trials a year. Now you will be lucky to have that many in your entire career at the Justice Department, so pick wisely.

Your superiors will say they don’t mind if you lose, if the case was righteous to begin with. But superiors say a lot of things, as do hiring committees at Paul Weiss, Covington, Cleary and Debevoise. They aren’t, however, looking for losers, and you know it.

What this means is that your incentives are to take cases that are high-profile one-offs. Find the discrete cases. Let’s say you have to choose between investigating possible manipulation of derivatives contracts at all major investment banks and an insider trading case against Continued on page 3

a stint in a high-level government or corporate job.

Except for a few professors and programs, HLS gave students no alternative path except the road to corporate law.

Going into public interest law required us to find our own path, and after clerking for a district court judge, and working at another small firm and a non-profit organization, I founded my own law firm. It is small

Michael Shammas ’16 argues against solitary confinment (p. 4) Bruce Fein ‘72 says that Harvard Law School has a moral obligation to fight tyranny (p. 6)

enough so that everyone can pitch in on any case, and effective enough to achieve favorable results for most of our clients.

Many of our cases involve working with my clients to “connect the dots” in order to figure out why an employer has retaliated against an employee who protested illegal activities in the workplace, such as discrimination or a waste of

FEATURE

Don’t Look Away: Images of Systematic Torture in the Syrian Regime Lewis 202 On exhibit through Nov. 4. spoke at a panel on October 23 to discuss the origins and potential impact of the images. All panelists expressed frustration at a perceived lack of political will, both in the U.S. and in the international community at large, to condemn and combat human rights abuses in Syria.

“I really wish I could transport all of you to Syria right now, at least to the border,” said Mouaz Moustafa, a panelist and executive director of the Syrian Emergency Task Force. “Thirty minutes in Syria is worth more than hours of researching and reporting.”

According to Moustafa, he situation on the ground in Syria, which often appears “too complicated” to outsiders, is very simple to Syrians,: In 2011, Syrians demonstrated against a dictator, asking for political reforms, and were met with ruthless violence. What bothers the average Syrian refugee most of all, even more than the hardship Continued on page 2

government funds.

One of the cases that we are handling in active litigation has led to unexpected but beneficial reforms in the mortgage finance industry, which is dominated by Fannie Mae and Freddie Mac, which are sponsored by the federal government and provide most of the financing for the mortgage industry in the United States.

Continued on page 5

Statement in Support of Student Movement Against Academic Disenfranchisement in South Africa On Friday, October 23, HLS students organized an event in solidarity with the students in South Africa who are protesting increased university fees. Their statement is included below.

Today, we stand together with and pledge our solidarity to our fellow students in South Africa.

We recognize, endorse, and adopt their resolute struggle against social injustice, inequity in access to education, and the vestiges of a discredited racial project. Rhodes Must Fall! Fees Must Fall! And justice must prevail!

We stand in solidarity with our fellow students in South Africa who are drawing attention to the inequities that exist in access to higher education and to the continued colonization of campuses.

We condemn the failure of government and university authorities to respond to student demands for dialogue and accountability.

We also strongly condemn the violent abuse of police force and the instrumentalisation of the law to stifle dissent and to repress the student protests.

We reiterate the concern of the students that for the majority of South Africa’s youth, the exorbitant tuition fees act not only to rob them of an opportunity to get an education, but also to perpetuate South Africa’s long history of institutionalised social and economic disenfranchisement.

The right of, and equal access to education is the most basic engine in society’s drive to self-empowerment and authentic freedom from oppression. As the

Supreme Court stated in Brown v.

Board of Education, “[Education] is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.” This is a right that must not be hindered nor encumbered by sterile arguments nor by excuses which do not advance us but rather move us farther from the social ideal of emancipation.

The legacies of colonialism and of the racist apartheid regime cannot and must not leave any one indifferent.

However, what is going on in South Africa today is not an insular debate. This is a clarion call for introspection and self-assessment for us here at Harvard Law School, an epicenter of privilege and racist legacy.

Inspired thus by the sense of urgency and bravery of our fellow students in South Africa, we have decided today to officially announce the formation of the #ROYALLMUSTFALL movement here at Harvard Law School. The legacy of Isaac Royall Jr. that continues to desecrate the walls of this institution and stains this

school’s contribution to humanity must be exorcised. The official seal of Harvard Law School is a Crest of Shame. This school cannot continue to endorse an insignia that invalidates the humanity of an entire race. ROYALL MUST FALL! A house divided against itself cannot stand. And this institution cannot endure, permanently half slave and half free. If this was true for America, the same is true for Harvard. As Abraham Lincoln exhorts us “The result is not doubtful. We shall not fail — if we stand firm, we shall not fail.”

We call on our fellow students to join the movement. We invite them to complete the project of a truly free and egalitarian society that our mothers fought to uphold.

We must take up the struggle that our ancestors made for our people and we will not falter in following their weighty footsteps.

History has asked much of us in our time. Much we've already given; much more we must be prepared to give. This is not a charge we shrink from; it's a challenge we look forward to.

Yours in Solidarity, #ROYALLMUSTFALL

2

Harvard Law Record

October 29, 2015

NEWS & OPINION

Syrian photos at HLS paint war, violence Continued from page 1 and indignity of living in camps, is the knowledge that “the world has deserted us.”

The man who smuggled the photos out of Syria, “Caesar,” does not profess alignment with any political faction. Before the civil war, he worked as a forensic photographer for the police, documenting crime scenes and accidents. In 2011, he was summoned to a military hospital to photograph a group of fifteen bodies of men, women, and children. All fifteen individuals had been tortured to death.

Over the next two years, as the bodies of thousands of similar victims continued to be produced for documentation, Caesar began sneaking photographs onto flash drives. His primary motive, according to panelists who know him personally, was to bring closure to the families of the missing.

What effect, if any, this cache of photos will produce in Washington remains to be seen.

Caesar himself recently testified before Congress concerning the images, but a personal letter he wrote to President Obama went unanswered until a follow-up inquiry by a New York Times reporter. Ben Rhodes, Deputy National Security Adviser, then wrote a response affirming the president’s support for monitors to be instated at Syrian prisons.

“I’ll just let you imagine Caesar’s reaction,” Mouaz said. “He expected the U.S. to be outraged.

But nothing will happen.”

“These photos are an attempt to do something that was not done for the Jews.”

The photographs have, however, made it more difficult for “realists” in Washington, who see the Assad regime as a potential ally against the Islamic State, to support a rehabilitation of Assad’s reputation, said Tyler Jess Thompson, policy director of United for a Free Syria. The photos have also been invaluable in establishing that civilians, including women, children, and the elderly, were targeted by the Assad regime from the very earliest days of the civil war.

According to Naomi Kikoler, deputy director of the Center for Prevention of Genocide at the U.S. Holocaust Memorial Museum, a pervasive assumption amongst ambassadors and counterterrorism advisers in 2011 was that only “young men out protesting” were being killed.

“These photos are an attempt to do something that was not done for the Jews and others during World War II,” Kikoler said, stressing that the international community has a duty to hold the perpetrators of atrocities accountable.

“We don’t lack the institutions — the legal and judicial institutions. We lack the political will,” Kikoler said.

Rapp discussed the possibility of using the photographs and other documentary evidence to initiate criminal proceedings against perpetrators of Syrian war crimes. France has recently opened an investigation based on the Caesar files. Rapp believes that Germany, which has committed to taking more Syrians refugees than any other EU country, may determine that it has a significant public policy interest in trying cases against perpetrators of human rights violations in Syria. Opposition by China and Russia, however, has so far made it impossible for the U.N. Security Council to refer Syria’s case to the International Criminal Court.

All the panelists agreed that, after years of catastrophic violence, and the Assad regime’s violation of nearly every law of war, there can be no peace in Syria without justice.

“Caesar’s photos put the viewer in extremely close proximity to the victims,” said Thompson. “They killed these civilians to kill the dream of an entire people. They killed them to show Syrians that the only option was submission.” n

Fighting antibiotic abuse with food labels

By Alene Anello ‘16

Would you buy chicken meat labeled, “from poultry fed antibiotics”?

Today’s factory farms feed animals sub-therapeutic doses of antibiotics as part of a daily diet to make the animals fat. For unknown reasons, small daily doses of antibiotics makes animals grow bigger with the same amount of food.

However, feeding farm animals sub-therapeutic doses is hazardous to human health. According to some experts, when we eat antibiotic-fed meat, we get fat, too.

And aside from possibly making us fat, antibiotic abuse in the meat industry also creates dangerous drug-resistant bacteria. When Alexander Fleming accepted his Nobel

Prize for the antibiotic penicillin, he said, “the time may come when penicillin can be bought by anyone in the shops. Then there is the danger that the ignorant man may easily underdose himself and by exposing his microbes to nonlethal quantities of the drug make them resistant.”

Yet by using subtherapeutic doses of antibiotics to fatten livestock, factory farms deliberately underdose millions of animals each day.

Factory farms thus expose microbes to nonlethal quantities of the drugs and make the microbes resistant to antibiotics. By the time these microbes reach humans, we no longer have a treatment.

In the United States, more antibiotics go to animals than to people.

As a result, factory farms have bred

One out of five retail chicken breasts contains salmonella, and half of that salmonella is resistant to antibiotics. antibiotic-resistant salmonella, campylobacter, and E. coli. One out of five retail chicken breasts contains salmonella, and half of that salmonella is resistant to antibiotics.

The Animal Legal Defense Fund (ALDF), where I interned last summer, thinks consumers deserve to know what’s going into their food.

They are petitioning the FDA to to require labels on meat produced

When we eat antibiotic-fed meat, we get fat.

Why I Oppose the Death Penalty Redemption is always possible, so killing Is always wrong

By Michael Shammas ‘16

Imagine the worst thing you've ever done. Hold onto that thought for a moment. Now ask yourself: Does that moment define you? Should that moment define you? If you're like me, you'll find that even though we all make mistakes in life, even though we all fall short of our greatest ideals and hopes, our worst decisions don't necessarily reflect our true character.

How many of us did stupid things when we were younger? How many have committed acts we regret? As we age, we make mistakes. As we make mistakes, we learn and grow.

How does it make sense, then, to brand convicted felons as permanently "unworthy" of life? If we were truly rational and consistent in our moral outrage, this possibility would be wholly untenable — for they, like us, possess the capacity to change — yet we persist in our delusional thinking about retributive punishment, character, and ethics. We forget why we condemn murder in the first place — its incredible and horrible finality, its absolute denial of any and all ability to learn and grow. This rebuff of human potentiality confuses justice for vengeance.

Don't get me wrong: The death penalty is about many things — retribution, punishment, anger, a

misguided desire for some illusory "cosmic balancing" of the scales of justice. Yet it is most about imagination. Because even though society takes solace in a belief that the people we legally murder deserve death because they once caused it, this rationale lies in the realm of fiction, not reality. Because people change.

The men and women who were sentenced to death decades ago are not the same men and women alive today. After languishing for perhaps fifteen years in solitary confinement, one finds a lot of time to think and to read and to reminisce and to regret and to immerse oneself in redemptive activity and thought. While of course not all death row inmates avail themselves of these opportunities, many do. Many go through a crucible of pain and suffering and emerge as better people, as people who are shed of past wrongdoings in character if not in deed, as people who are immersed in religion or philosophy or wisdom drawn from a well of mistakes made and sufferings suffered.

As a result of the mere existence of this natural process of change, we are (in a sense) executing innocent people: That is to say, we are killing men and women so far changed from who they were when they committed their horrendous crimes that to say we are doling out truly retributive justice — much less just justice — is nonsensical. We aren't executing the same person. We are killing, instead, a much-improved "version" of the criminal we sentenced, a person

who bears little to no resemblance to the dumb, inexperienced kid who committed a heinous crime perhaps fifteen or twenty years ago.

Anecdotes are plentiful. There is William Happ, who committed a brutal murder in 1986 only to recant decades later. There is Robert Waterhouse, who may well have been innocent in the legal manner rather than the manner I use the term in this essay, and who maintained his innocence until the end. The list is tragically long.

For every death row inmate who didn't change for the better after his sentencing, there is another who recanted in sincere and moving ways.

What good does it do to kill these people? What good, when they have made so much moral progress?

The death penalty is dying; it's only a matter of time. How many people will it need to take with it?

Society rightly condemns murder because death is the very definition of finality. It can't be undone. So of course I understand why the impulse to kill those who kill exists. Faced with the death of a loved one, I sometimes wonder whether I myself would be able to uphold my ideals and forgo the impulse for retribution. I don't have the temerity to judge anyone who supports the death penalty.

But killing people who kill is

On October 16, members of the Catholic Law Students Association and Advocates for Human Rights came together for a talk about Pope Francis and human rights. The discussion was led by law and history professor Samuel Moyn, the author of a recent Washington Post article with the eye-catching title “Pope Francis has given up on human rights. That’s a good thing.”

“I did write the article, but I didn’t write that title!” Professor Moyn protested at the start of the talk. “I would have called it ‘Pope Francis is deprioritizing talking about human rights, and that might be a good thing — maybe.’”

Moyn outlined a brief history of the papacy’s changing relationship with the concept of “human rights.”

The Vatican treated the assertion of individual “rights” with considerable hostility during the centuries following the American and French revolutions, which it associated with a breakdown of moral order and the establishment of secular states.

Papal encyclicals at the beginning of the twentieth century followed this long-established tradition, but the Vatican began to change its script in the 1930s, when the rise of totalitarian European states seemed to imperil both liberal democracy and the Church alike.

“Some right-wing Catholics advocated ‘state capture’ as one method of preserving Church authority,” Moyn explained, but the success of right-wing parties in Italy and Germany whose interests aligned little with those of the Church demonstrated the inherent risks of this method.

Popes beginning with Pius XI in 1937 began to favor the vocabulary of “rights” to defend the free exercise of religion within oppressive

states, as well as the property protections that the Church viewed as essential to the preservation of a Christian social order.

The Vatican has since played a large role in popularizing the rhetoric of individual human rights, with Pope John Paul II frequently deploying it in an anti-totalitarian context throughout his papacy.

Pope Francis, however, has been less likely to frame moral imperatives in terms of “rights” than his immediate predecessors, Moyn claimed, drawing a comparison between the frequency of Pope Benedict XVI’s use of the term “human rights” and Francis’s more modest tally.

Moyn hypothesized that Francis’s emphasis on global problems such as poverty and the environment has necessitated a shift away from the language of individual rights, since these problems require collective, structural solutions.

Francis is not, however, a “completely consistent philosopher,” Moyn emphasized, pointing to examples such as Francis’s promotion of the “basic and universal human right” to water in his environmental encyclical Laudato Si, as well a statement about the “right to conscientious objection” — interpreted by some as an expression of support for Kim Davis or for the Little Sisters of the Poor — at the end of his recent U.S. tour.

Audience questions focused discussion on the complex relationships between human rights NGOs

and the Catholic Church in Latin America, as well as the extent to which the Church’s changing usage of “human rights” language reflected a shift in terminology rather than a shift in principle.

“It’s true that charting word usage isn’t the same as charting meaning,” Moyn said, but argued that the papacy’s t went ie t h- c ent u r y adoption of human rights language was more than a mere “reformatting” of previously-held beliefs.

“Before the 1930s many Catholics chose social strategies that strengthened the state and thus limited individual rights. Taking over the state seemed like an appealing option, but led to frightening results.

So while there may have been continuity of ideas on a basic moral level, there was a real change in the way the Church thought about state capture, and that went on to have implications for certain moral values.”

Today, in the face of 21st-century problems, it seems that Pope Francis wants to emphasize that the assertion of individual rights over the collective good is a policy that creates its own set of evils.

“Francis is correct to be suspicious of rights,” Moyn said. “For most of history, when we’ve talked about rights we’ve been talking about the protection of property rights and freedom of contract. If your goal is to tackle poverty and redistribute resources, you may have to move away from the idea of rights.” n

“If your goal is to tackle poverty and redistribute resources, you may have to move away from the idea of rights.” ­— Professor Samuel Moyn

Alene Anello is a 3rd year student at the Law School. She is the president of the Harvard Law School Student Animal Legal Defense Fund.

HLS’s Food Law Lab, Food Law and Policy Clinic, Animal Law & Policy Program, and Petrie-Flom Center worked with UCLA’s Program for Food Law and Policy to hold the conference. wrong for the same reasons killing others is wrong: Death's finality denies all possibility of change. By killing people who kill, we either (1) kill men and women who have changed for the better or (2) deny murderers the possibility of reforming their characters and lives. This is repugnant to all moral systems, but especially Christianity. In the immor tal words of Justice William Douglas, the "principle of forgiveness and the doctrine of redemption are too deep in our philosophy to admit that there is no return for those who have once erred."

Murder is the most heinous crime there is. But it is a better society where murderers, already justly suffering through a life in prison, can at least meditate on their crimes and redeem themselves by changing — mentally — for the better. Killing killers denies the possibility of redemptive change while perpetuating the very crime that put these people in prison in the first place.

If we are really consistent in our condemnation of murder, if we truly acknowledge the power of change and the possibility for redemption, we should not ourselves — through our votes and through our politics — become collective murderers.

Stop killing people. n

Imagine the worst thing you’ve ever done. Now ask yourself: Does that moment define you?

Pope Francis and the Rhetoric of Rights

By Brianna Rennix ‘18

with antibiotics.

Last Friday, HLS held an all-day conference on antibiotics in the food system. At the conference, ALDF litigation fellow Kelsey Eberly described ALDF’s antibiotic labeling petition. She suspects fewer people would eat, say, antibiotic-fed chicken if the package bore a “from poultry fed antibiotics” label.

Let’s hope the USDA agrees to require antibiotic labels on meat. In the meantime: Falafel, anyone? n

This piece was originally published at the Huffington Post.

The Harvard Law Record Independent at Harvard Law School since 1946 Harvard Law School Record Corporation 1585 Massachusetts Avenue Cambridge, MA 02138 Editor-in-Chief Michael Shammas ‘16 Co-Editor-in-Chief Lindsay Church ‘16 Deputy Editor-in-Chief Jim An ‘18 Online Editor Pete Davis ‘18 Opinion Editor Alene Anello ‘16 Deputy Opinion Editor Nic Mayne ‘18 News Editors Alejandro Leone ‘16 Brianna Rennix ‘18 Deputy News Editor Teddy Grodek ‘18 Special thanks to Ralph Nader ‘56

October 29, 2015

Harvard Law Record

3

OPINION

Just War Theory or Justify War Theory: What Are We Really Learning?

By Kristen Zornada LLM ‘16

There is a bomb somewhere in the city center. You do not know where, but you have the person who planted the bomb in your custody.

He refuses to reveal where the bomb is located. The bomb is going to explode in one hour, threatening to kill innocent civilians. Do you torture him to get the information?

“Ticking time bomb” hypotheticals like this one illustrate how sometimes something which we may denounce as otherwise unacceptable and unethical (torture) might seem necessary to prevent a greater evil (the death of innocent civilians). In international law, the prohibition on torture is a peremptory norm from which no derogation is permitted. Why? Because as an international community, we recognize that some things – such as torture, genocide, slavery – are so perverse that we cannot engage in their practice without eroding the foundation of a society governed by the rule of law. Nothing can justify their use. Not even terrorism.

Terrorism is a threat that both the United States and Israel know well. Earlier this week, Captain Ben Wahlhaus, a member of the Israel Defense Forces’ international law department, spoke at Harvard Law School about the struggle Israel faces in fighting terror organizations within the laws of armed conflict.

Captain Wahlhaus emphasized that Israel is a democracy that adheres to the rule of law in all that it does.

Military legal advisers like Captain Wahlhaus assert that the advice they give is lawful and therefore that state action that follows that advice is legitimate. But we as law students need to go beyond accepting prima facie legitimacy and assess the legal and policy implications of questions avoided or left unanswered.

We could ask, as a matter of law, does Israel’s relationship with Gaza and the West Bank render it a belligerent occupier? If so, what is the scope of an occupied population’s right to lawfully resist? Has the IDF targeted civilians and civilian infrastructure in violation of the principle of distinction? Do its warnings

of impending attack satisfy its obligation to take all feasible precautions in circumstances where any fleeing civilians are restricted by the blockade of the Gaza Strip? Does the practice of targeted killings offend due process norms?

More broadly, as a matter of policy, how can we ensure adherence to international law and accountability for state action in the modern world?

The answers are far from settled. But rather than meaningfully grapple with these difficult questions, we are invited to trust a state view that assures us that if we knew the facts on the ground, we would understand.

A challenge often claimed is that non-state actors do not see themselves as bound by international law, and purposefully and systematically violate the law for strategic gain.

Undoubtedly, the framework within which states can lawfully fight against non-state actors is complex.

But this should not permit the standards of democracy to dip. The fog of war must not become a fog of law.

As former President of the Israeli Supreme Court Aharon Barak said in Public Committee against Torture in Israel v. Government of Israel, “Preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy’s] understanding of security.” Adhering to the rule of law ensures respect for democratic values and safeguards our freedom from tyranny – the very tyranny against which we claim to fight.

As a student educated in law in another democratic country, sometimes I am baffled by the views expressed by my fellow students in international law classes. Students have suggested, hypothetically, that the legality of force is inconsequential because “no one is going to put the U.S. in jail,” killing of civilians in retaliation is acceptable because, by way of analogy, “If you kill one of my family members, I’ll kill your whole family, I don’t even care,” and that while civilian casualties are unfortunate, it is the bad luck of the civilians for being born in the enemy state. Even if these remarks are made in jest, they have broader

The international community should be the authority on what is lawful, not any one state.

implications if they are seen as the prevailing views. These views are entirely at odds with internationally accepted views of accountability, the illegitimacy of reprisals, and proportionality. Indeed, there seems to be little opportunity within the broader Harvard Law School environment to explore international perspectives on international law. The international community should be the authority on what is lawful, not any one state.

Given that our fellow students will likely go on to hold influential roles in the military, the legislature, and in shaping state policy, it is important we engage meaningfully with international law now. Otherwise, in our future careers we risk creating an environment in which the state’s interpretation becomes authority and independent legal minds are asked to do nothing but accept the status quo. This is not a hypothetical concern: before coming to Harvard Law School, Professor Goldsmith resigned from the Department of Justice after becoming “fed up and exhausted” with the whole process of fighting to change the now-infamous Torture Memos that he consid-

Ask questions.

Challenge the premise. Distinguish between propaganda and law. Demand accountability.

Actively seek out different opinions. ered to be legally flawed. Professor Goldsmith was, of course, vindicated by history, but imagine what might have been avoided had his views been taken seriously at the time?

So how, then, do we meaningfully engage? Ask questions. Challenge the premise. Distinguish between propaganda and law. Demand accountability. Actively seek out different opinions. Yes, this will be challenging, but it is absolutely necessary. We must resist the temptation to label our fellow students as pro-or-anti Israel/Palestine and justify dismissing their views because we are not on their “side.” We need to interrupt this pro-or-anti narrative if we are ever to realize the underlying goal of frameworks like international humanitarian law: respect for humanity. If we must be pro-anything, as Harvard Law students, we should be pro-rule of law, applying equal scrutiny to the acts and omissions of both our friends and enemies. n

Prosecution is no picnic for HLS grads Continued from page 1 the manager of a big hedge fund.

Your chief will say: Both are vital!

But the former will ensnare you in a years-long investigation. You don’t know if there was a crime committed. And even if there was, the evidence will be dry and old. Explaining it to a jury will be impossible.

The insider trading case, by contrast, is easy to understand. You might have damning records made by the perps. You can probably get a jury to see things your way. You’ll garner kudos from your boss. The Wall Street Journal will do one of those stipple-dot drawings of you.

Business Insider will put you on one of those lists of the most important people in American business.

To summarize: Don’t toil away like an obsessive hermit on some infernally complex obsession and come up empty. Don’t lose at trial.

Secure your future.

As much as you will try to avoid it, there will come a time when you will be tasked with investigating white-collar crime at the most respected institutions in the country, perhaps Goldman Sachs, JPMorgan, General Motors, Pfizer or Wal-Mart.

Criminally investigating top executives or partners at Fortune 500 corporations and their enablers at the most prestigious law firms, accounting firms and consultancies means something different than going after al-Qaida or Raj Rajaratnum.

For investigating corporations means you will have to investigate your peers, your classmates, and their parents. Their defense attorneys will be your idols and your mentors, seasoned lawyers from the best law firms who were legends in the government office where you’ll be working. You will have heard stories about these lawyers in the hallways. Now you will get to sit across the table from them in a negotiation.

In these discussions, you will hear their reasonable explanations. Nobody will seem corrupt or sleazy to you. They will tell you that the company is cooperating fully. You may have heard of the new “Yates Memo,” named after Deputy Attorney General Sally Yates, which explains that prosecutors should prioritize going after individual wrongdoers first and foremost in white-collar corporate cases. You may figure it’s a new era at the Department of Justice. But when the white-shoe law firm gives you the fruits of its investigation, it will have been conducted with manhours and resources you could only dream of. Even with the new DOJ policies, you won’t be exactly coordinating teams of FBI agents. There will be no forensic investigators poring over documents, no 5 a.m. witness interviews, no grand jury showdowns with chief executive officers.

As you flip through the internal investigation’s findings, defense attorneys will ruefully explain to you that no one executive — especially one at the very top of the organization with thousands under his or her purview — knew the full picture of the wrongdoing. They will remind you that it will be quite difficult to prove in court, beyond a reasonable doubt, that any individual knowingly and intentionally broke the law. And they will assure you that the company is sorry. Very sorry. So sorry that it is willing to offer lots and lots of money as an apology.

Unfortunately, you won’t be able to help it; you will want to please these formidable personages. Again, it’s not your genes. Blame your environment. You’ll want to dazzle the defense lawyers on the other side of the table with your knowledge of legal precedent and mastery of details. You’ll need them to come to see you as a worthy adversary. But you

Don’t toil away like an obsessive hermit on some infernally complex obsession and come up empty.

Don’t lose at trial.

Secure your future. will also want them to imagine you as a future partner. You cannot have them thinking you are unreasonable. You will need to prove yourself a person of proportion.

To overcome all of this and become a prosecutor who has the skills and will to prosecute chief executives of the biggest corporations in America is probably too much to ask of anyone, much less a Harvard Law graduate.

So what can you do to become a good prosecutor? Here’s some advice: After your Article III clerkship or two, go to the firm now. Make the money. Work your way up the firm’s hierarchy so that you no longer feel the great need to impress. Earn the feeling of accomplishment, confidence and career satisfaction (or, more likely, utter boredom). After many years, after you have had your fill of big corporate law, only then put in your application to the Department of Justice.

And then maybe, just maybe, you’ll be ready to become a halfway decent prosecutor. n Jesse Eisinger is a senior reporter at ProPublica and columnist for The New York Times. He won a Pulitzer Prize in 2011 for his reporting on the financial crisis.

Fossil Fuel Divestment and Action at Harvard

By Jonathan Hiles ‘16 and Ted Hamilton ‘16

It’s a problem we all recognize but fail to grasp: global emissions of CO2 are pushing humanity toward disaster, and we’re not doing enough to avoid catastrophe.

Even the most ambitious international proposals permit warming that would, among other things, wipe out many of the world’s great cities and even some countries. Plus, the Supreme Court could dismantle the EPA climate plan – and the international agreements that depend on it.

Of course, Congress remains unwilling to act on the issue.

So the question is: What are we going to do about it? And what can Harvard students do? At this late hour, how can we can wake people up to the climate crisis, put the pressure on politicians, and finally get policies that accord with reality?

One proven method for raising climate change awareness is fossil fuel divestment.

Around the world, and right here at Harvard, activists are calling on their institutions to pull all investments from oil, gas, and coal companies, adapting a stratevgy that enjoyed tremendous success in the anti-Apartheid and anti-tobacco movements. Divestment takes aim at the root cause of climate change: our economic commitment to ever-increasing extraction and burning of fossil fuels.

Divestment sends signals through the system, making investors wary of hitching their fortunes to a dangerous product.

Divestment works, especially when places as influential as Harvard jump on board. By conveying the moral stakes of the climate crisis, divestment stigmatizes Big Energy and impels lawmakers to act in spite of the industry’s vast lobbying prowess.

Divestment is consistent with our values and vision for global action. If we are to stabilize atmospheric concentrations of CO2 at below 500 ppm, annual investment in fossil fuels will have to decrease by roughly $400 billion over the next fifteen years.

Investments in fossil fuel companies are bets on the planet’s destruction.

Those investments are simply incompatible with a livable planet.

This crisis has impelled 400 institutions, including nearly thirty universities, to divest from fossil fuels, according to gofossilfree.org. They include Stanford, Georgetown and the University of Oxford. MIT may add to their number this fall. Municipalities are also getting on board. The Cambridge City Council unanimously endorsed divestment, and fourteen Massachusetts towns and cities have passed resolutions supporting it.

Those of us moving to New York City or California will also soon be in localities that have divested from coal.

We can tell the strategy is working: energy companies see divestment as a threat to continued extraction and are already dropping fossil fuels in response to movement pressure.

So what about Harvard? The University’s position is dispiriting, with the governing Harvard Corporation refusing to even consider divesting its endowment. In fact, Harvard’s publicly-disclosed investments in fossil fuel companies increased sevenfold between 2012 and 2014. The Corporation has relied on three main arguments to defend this reactionary position. First, Harvard claims that it doesn’t want to “politicize” itself by changing its investment strategy based on social concerns. This is odd: does Harvard think that an investment strategy consistent with the warming targets of the entire global community is too “political”? And it’s hard to see how the University’s current position — stubborn allegiance to the fossil fuel industry — could be apolitical, especially given Harvard’s track history of divesting from undesirable sectors such as Apartheidlinked firms and tobacco companies.

Harvard’s second argument against divestment is that the strategy is ineffective, a claim belied by the amount of time and money that fossil fuel industry spends to block the divestment movement. Moreover, a thorough study by the University of Oxford finds that divestment movements have in the past achieved definite results, often playing an invaluable role in rallying support for a cause, and predicts similar results in the fossil fuel case.

Harvard’s last line of defense is

that divestment would reduce investment returns. This is an equally weak rationale given that stocks in oil and coal companies have plummeted.

Moreover, Harvard’s selfish arguments miss the point: Since climate change is a global commons problem, solving it will require collective sacrifice for the common good. The wealthy Harvards of the world can certainly afford a minor hit to the bottom line if the trade-off is a healthy planet. Instead, Harvard embraces the very mentality — relentless pursuit of profit at all costs — that has put us in this situation.

Harvard is behind the times. It’s also not listening to its students: 67 percent of law students and 72 percent of undergraduates have voiced their support for divestment. They understand that the fight at Harvard is a proxy of the international struggle between a majority demanding climate action and an elite minority that controls access to power and the flow of capital. They understand that, with so little time and so much at stake, we have to choose sides.

Harvard’s leadership has chosen to side with the fossil fuel industry: its opposition to divestment is proudly touted by the Independent Petroleum Association of America.

Luckily, Divest Harvard is one of the most active and relentless university campaigns around. From garnering significant faculty support to committing mass civil disobedience, students have made Harvard a center of the climate fight. And there’s a big need for law students to get involved.

HLS students enjoy a prominent reputation in the legal world. Our voices can help show establishment support for a position too often dismissed as radical. If inspired by its younger members, more in the legal community would use the law as a sword for conservation rather than a shield for the dirtiest polluters. Just as many law firms refused to join the case against gay marriage because of young lawyers, more might begin to think twice about supporting fossil fuel companies. And like other social movements, divestment can help to awaken the moral sensibilities of the Supreme Court, discouraging it from striking down regulatory actions.

Lawyers, and even law students, can affect litigation more directly. The Netherlands provides one model. A Dutch court ordered the government to cut greenhouse gas emissions by 25 percent compared to 1990 levels by 2020 in order to preserve the low-lying Netherlands and protect its people from the dangers of global warming.

Some of our classmates are taking a similar tack. Last week, the student plaintiffs in the Harvard Climate Justice Coalition v. Harvard case — the first fossil fuel divestment lawsuit in the country — filed briefs at the Massachusetts Appeals Court, seeking to reverse their lower court dismissal. The students, who represent themselves, argue that Harvard is violating its charitable duties and committing a tort against future generations by continuing to fund fossil fuel extraction. Their court documents, which you can read online, take special aim at the oil industry’s dissemination of scientific falsehoods and Harvard’s own knowledge of climate change harms. As a sign of how we, as law students, can make a difference, the case has already garnered national attention, laying the groundwork for similar efforts elsewhere.

So get involved. You’ll be surprised by how much influence you can wield, if only you stand up and refuse to accept the status quo. This semester, divestment campaigners on campus will be ramping up the pressure through protests, a fossil-free alumni fund, and research projects. If you want Harvard to be part of the solution rather than the problem, connect with Divest Harvard and the law student group Students for Sustainable Investment.

In a 2013 speech on climate change President Obama said, “Convince those in power to reduce our carbon pollution. Push your own communities to adopt smarter practices. Invest.

Divest.”

The time to act is now. n

Harvard’s publicly-disclosed investments in fossil fuel companies increased sevenfold between 2012 and 2014.

Jonathan Hiles and Ted Hamilton are third-year J.D. students at Harvard.

They can be reached at jhiles@jd15. law.harvard.edu and johamilton@ jd16.law.harvard.edu.

4

Harvard Law Record

October 29, 2015

OPINION & ANALYSIS

Against Solitary Confinement

By Michael Shammas ‘16

We are not a brutal nation. This is a historical truth: that we are a people defined by “humanity.” Yet the great irony of the term “humanity” is that, rather than kindness and peace and forgiveness, humans too often produce the opposite. Our criminal justice system is human — all too human.

Ask any public defense lawyer.

Our criminal justice scheme, far from being a Lockean contract preserving life, liberty and property, too often stifles life, narrows liberty, destroys the property necessary for both life and liberty.

Its consequences hurt, especially, the poor and the black, wreaking havoc on the intersection — the poor and the black.

But we don’t care; in a sense, we don’t have the opportunity to care, since prisoners are invisible.

In ancient times we used exile to finesse this invisibility. Now we use penitentiaries. Though lawbreakers are extricated from our society, they still trudge along in a crueler sort of society amongst fellow inmates. They still taste social interaction, a necessary part of any meaningful human existence.

But not the 80,000 Americans l a ng u i sh i ng in s ol it a r y confinement.

These men, women, and (yes) children are held in square, sterile pens with barely any social interaction at all. In addition to the ignominy of being labeled felons and thus monsters, these people — fellow Americans deserving full constitutional protection — are

treated as monsters.

Humans after all need social interaction; our minds depend on it as much as our bodies do water. To deny anyone social contact is to withhold the ability to be human. So in order to stuff prisoners into small square spaces for years at a time, to nonetheless persevere through the cognitive dissonance created by simultaneously affirming a Constitution banning inhumane punishments, we must deny inmates’ humanity — extricating them from the realm of Eighth Amendment protection. We must conceive sub-humans at best, monsters at worst.

Yet even the vilest criminals are thoroughly human. Their horrendous crimes — killing, raping, assaulting — as well as their minor ones — drug use, petty larceny, trespass — have proved unfortunate markers of humankind since our inception. Don’t get me wrong: The most immoral prisoner has earned his government-sponsored home. Quite thoroughly. But by treating him in an inhumane manner that extends beyond confinement, we too become all too human. We too commit a moral wrong.

A criminal who hurts others degrades himself; a society that hurts others degrades itself. Let’s avoid degrading either. For we — and even criminals — are worthy

of more. For we — and even criminals — are fellow humans. To err is human, yes; but to forgive is human, too. After all, one praised for “showing some humanity” doles out forgiveness — not condemnation.

When crafting a proper criminal justice scheme, we must heed Niet zsche’s counsel: “Beware that, when fighting monsters, you yourself do not become a monster ... for when you gaze long into the abyss, the abyss gazes also into you.” Solitary confinement, like physical torture, brandings, forced manual labor, belongs to history’s deepest abyss.

Because we are not a brutal nation: Confine solitary confinement to a solitary past. n

To deny anyone social contact is to withhold the ability to be human.

Events.

Jobs.

Groups.

Advertise in The Record. editor@hlrecord.org

Have something to say?

Write for The Record. editor@hlrecord.org

Have comments about an article in this issue? Send a letter to the editor at editor@hlrecord.org

The Record is devoted to free speech. If you have a

or head over to our

response to an opinion piece in The Record,

website at hlrecord.org

contact Editor-in-Chief Michael Shammas at

to comment directly

mshammas@jd16.law.harvard.edu

on a piece.

or editor@hlrecord.org.

Laughing at Losers: The Trumpification of the Democratic Party

By Pete Davis ‘18

Everybody loves a winner. That’s the Donald Trump theory of politics: vote for the winner; everyone else is a loser (or, more specifically, a “true loser,” “total loser,” “stone-cold loser,” “real loser,” or “major loser”).

I. The Party of Winners There’s always been a Party of Winners in American politics. Their pitch: only the winners are capable of wielding power; if we empower the winners, they will ensure order and progress for the rest of us during uncertain times; the winners are the only ones we can trust to lead the battle against the enemies we have been taught to fear; the winners will turn our frightful foes into losers and we may share in the glow of their victory.

The Party of Winners helped create the winner-take-all social structures plaguing our country today.

They cored out an inclusive, productive middle class, entrenching in its place a winner-take-all economy, where the credentialed and connected few live the American dream while the rest of the country suffers under economic insecurity.

They traded the ideal of participatory democracy for a winner-takeall government, where the wealthy and powerful few set policy while the public sentiment is ignored or centrally managed.

They embrace our w inner-take-all culture, where the fascinating and celebrity few hold our attention while the common, accessible forums of community, union, church, region, and neighborhood are devalued, left to decay.

In America today, it sure is great to be a winner. But what should the rest of us–major losers, by Trump’s moral accounting–do in a winnertake-all nation? According to the Party of Winners, we should try to become like them by working to earn our place among the winning few.

We should train our kids to fight for finite slots at the top of the economy.

We should channel our civic energies into supporting teams of political insiders in the hopes that we may, one day, be welcomed inside. We should move to the coasts and pray for our own 15-minute chance at the other side of the Big Megaphone.

The Party of Winners knows most of us will lose this game. But they don’t seem to mind, for when we doubt ourselves more and we trust each other less, when our insecurity makes us susceptible to outsized fear, then the Party’s siren song begins to lure us in: “Only a winner can

solve this. Only a winner can save us.

Only a winner can beat them.”

II. The democratic alternative It doesn’t have to be this way. We can move beyond this winner-takeall era.

A good time to start is during election season, which should be a time for us to imagine new visions for the future of our country and identify leaders with the integrity, courage and creativity to take practical first steps towards those visions.

This election season, we desperately need an alternative vision in contrast to the one put forth by the Party of Winners. This alternative vision should be inspired by our democratic faith in the constructive genius of ordinary citizens: a vision which affirms that if you wish to find the best ideas, you should visit the outskirts of town, not the shiny towers in the city center; a vision which aims to hold our democracy and economy open so that the present arrangement, including the winners at the top of it, do not get locked into their position; a vision which calls on us to not just rise from the ranks, but to rise with them.

Unlike the one put forth by the Party of Winners, this alternative vision is not of a nation judged by the heroics of its few phenomenal heroes. It is a vision of a durable republic continually co-created of, by, and for its extraordinary ordinary citizenry.

Such a democratic vision could fit comfortably within the heritage of the Democratic Party. We were the party founded by Jefferson and formed by Jackson as the democratic alternative to political elitism.

We took the populist route out of the Great Depression. We redeemed our originally-narrow view of who constitutes “the people” to become the eventual home of Civil Rights and feminist movement veterans. We best understood the role that the ambitions of immigrants and young people play in enlivening the nation.

And, most proudly, we took as our party mantra the complete rejection of the greatest threat to our democratic faith: fear, itself.

been the party that gives people who otherwise have no voice in the corridors of power a voice.” It echoes what he said in his response to the State of the Union nine years ago: “In the early days of our republic, President Andrew Jackson established an important principle of American-style democracy: that we should measure the health of our society not at its apex, but at its base.” It’s a sample of what he talks about daily in his campaign, which is not aimed at the “hard-working, middle class families” of poll-tested pablum, but rather at everyone who has been forgotten by mainstream politicians: “If you’re a kid living in West Baltimore today, 10-year-old kid, and you’re in a building where the plumbing doesn’t work and the people that you see making money are the ones selling drugs on the street, or if you’re a kid in Clay County, Kentucky, which is 94 percent white and the poorest county in America, and you see crystal meth problems and unemployment, you’re not seeing the same American dream. And the Democratic Party, for the good of the country, I think, can really embrace people in these situations in a much more affirmative way.”

But this new invocation of the Party’s old democratic faith was ignored at the first debate. It was ignored because, in the eyes of the political media and Democratic Party elites, Jim Webb and the citizens with whom his message resonates are not winners. The insiders–those who most needed to hear Webb’s clarion call for the party to give voice to the voiceless again–have bought into the Trump theory of politics: everybody loves a winner; everyone else is a loser. Instead of helping Democrats answer the significant questions of “Where should we go from here?” and “Who is best fit to get us there?”, they ask instead: “Who is our winner?” Webb–a Vietnam veteran, Navy Secretary and United States Senator–is not the answer to their question, so he, like all those ordinary citizens across the country who have been deemed losers by the Party of Winners–the uncredentialed, the politically disconnected, the non-rich and non-famous–should be ignored, kicked off the stage, and, if time permits, laughed at.

III. Memory, ignored There was a candidate on stage at the first Democratic Presidential debate who remembered this heritage and gestured to this alternative vision. He had the best line of the night: “The Democratic Party… has

IV. Laughing at losers It is no surprise that Trump spent the first Democratic debate belittling candidates (@realDonaldTRump: “Sorry, there is no STAR on the stage tonight!”) and recommending that they be silenced. What is saddening,

In America today, it sure is great to be a winner. But what should the rest of us do in a winnertake-all nation?

The insiders have bought into the Trump theory of politics: everybody loves a winner; everyone else is a loser.

though, is that most political journalists and Democratic elites did the same thing. They could not resist joining in on Trump’s game, hoping to feel for themselves the same pleasure he must feel while he bullies “total losers.”

They laughed at Webb for being out of touch with the modern Democratic party. But what is out of touch about being the first Democratic Senator to push for modern criminal justice reform, years before it was popular to do so?

Compare that to the debate’s winner calling, in 1994, for more prisons, tougher sentences, and a three strikes law–the exact policies that led to the mass incarceration crisis we face today.

They laughed at Lincoln Chafee for “looking silly” on stage.But what is silly about being the only Republican in Congress brave enough to oppose the Iraq War, a war which killed hundreds of thousands of human beings?

Compare that to the debate’s winner, in 2002, failing to muster the courage to do the same, despite having the solidarity of 22 other Senators, including Chafee, voting “no.” What is silly about Chafee being the only candidate to mention the Obama administration’s horrific bombing of a Doctors Without Borders hospital in Afghanistan, let alone the administration’s terrorist-producing drone program in general? Compare that to the silliness of the debate’s winner saying that some of her greatest enemies are “The Iranians” and falling silent when asked whether she had anything worth criticizing about Obama era foreign policy. What is silly about Chafee being the only candidate to strongly defend Edward Snowden for showing the American people that their government was acting illegally?

Compare that to the debate’s winner saying he should “face the music,” while, earlier in the debate, refusing to answer Chafee’s brave question about the ethics of her own mishandling of classified information.

They laughed at Lawrence Lessig for having a strange plan to use his presidential candidacy as a referendum on campaign finance reform.

They even did him one worse than Webb and Chafee: they did not even let him on the debate stage and Democratic National Committee chair Debbie Wasserman Schultz will not even pick up his calls.

But what is so strange about correctly identifying that nothing–no policy initiative that requires legislation–can get done in American national politics until we fix democracy first by freeing Congress from the grip of monied interests? Compare that to the debate’s winner, who–despite knowing that she had to hobnob with the wealthy at dozens of fundraisers before holding her first campaign rally for the rest of us–failed to mention the campaign finance crisis in her debate remarks at all.

They used to laugh at Bernie Sanders, too. But in recent weeks, they have had a hard time doing so, because Sanders has masterfully shown how we “stone-cold losers” can come together and opt out of the Winners’ game. By telling it like it is, by reaching out to people across cultural divides, and by slowly and steadily building up a coalition of citizens who are ready to work to build a constructive alternative, Sanders has revived the most important message of the 2008 Obama campaign: what we need in American politics is not to play the game better, but to change the way the game is played. And unlike Obama, who unplugged his campaign and its participatory call the day he was elected, Sanders at least says that he hopes to spur his civic revival beyond Inauguration Day. V. The champion Compare Sanders’ theory of change to that of the debate’s winner, who has presented no theory of where the American people can participate in her plan for change aside from donating money and showing up to vote. In fact, she is not hiding this–the premise of her whole campaign is “the game will not be changed, but I can win the game for you.” She’s made this clear from her very first campaign tweet: “I’m running for president. Everyday Americans need a champion, and I want to be that champion.”

But this contrast, and all the other inconvenient contrasts above, were not raised after the first debate, because all that mattered to the political journalists and Democratic elite was that Hillary Clinton showed how much of a winner she was. And everybody loves a winner. And when we doubt our capability to build and wield citizen power against the great public problems of our time, when we live in an era when the continuity of order and progress is uncertain, and when we have been taught to fear our frightful enemy (“the Republicans,” according to Hillary’s debate answer), then the siren song of the Party of Winners lures us in, too: “Only a winner can solve this.

Only a winner can save us. Only a winner can beat them.”

Meanwhile, whispering beneath the battle anthem are everyday Americans, still waiting for a party that welcomes them into the corridors of power. Clinton is right, they do need a champion. But she cannot be that champion. Neither can any other politician. For if we are to continue calling our party Democratic, then we must never forget that the champions we everyday Americans need are, were, and always will be ourselves. n This piece was originally published at ProgressiveAlternative.org, an online magazine devoted to restoring the integrity and broadening the vision of the Democratic Party.

October 29, 2015

Harvard Law Record

5

OPINION & ANALYSIS

Hockey needs to make CTE a priority Continued from page 1 nearly every other profession, yet a ‘wait and see’ attitude persists in the sports world. I’ve waited and I’ve seen players I admired growing up, such as Paul Kariya, forced out of the game by head injuries. We’ve waited and seen enforcers of the past like Derek Boogard and Steve Montador tragically lost after battles with CTE. If the league keeps waiting, I don’t want to think about what we will see a few decades down the line.

I’ve heard one of the first steps to recovery is admitting you have a problem. The NHL should take note. Instead than waiting to see how the NFL deals with concussion prevention, the NHL should use its opportunity to be a leader in the field, setting an example for the rest of the professional sports world by making player safety a priority.

The jury is in on CTE. There is a clear and convincing verdict suggesting more needs to be done to prevent concussions and the aftermath of repeated head trauma. For the sake of the game and those who play it, concussion prevention needs to become a priority. I’m done waiting. I’ve seen enough. Let’s hope the league has too. n

I’m done waiting.

I’ve seen enough.

Dazed and Confused: The New Wave of NHL Concussions Allan Walsh

NHL Commissioner Gary Bettman sauntered over to a group of journalists in Chicago’s United Center during last spring’s Stanley Cup playoffs for what has become an annual ritual. There was significance to the location of this informal pregame scrum.

Former Chicago Blackhawk enforcer Steve Montador had died in his sleep a few months earlier.

He was 35. Montador, a popular figure among his teammates and fans, had been forced into retirement after suffering a severe concussion in 2012. In the years following his premature exit from the game, Montador reportedly suffered from mood swings, depression, anxiety, anger management issues and memory loss, among other physical ailments.

Unfortunately, this long list of symptoms has become an all too common refrain among retired NHL players.

Upon his death, Montador’s family agreed to donate his brain for testing and analysis. The results uncovered extensive chronic traumatic encephalopathy, or CTE, a disease associated with repeated blows, sub-concussive hits to the head and concussions.

Bettman must have known the inf lammatory nature of his response when he was asked about the CTE findings in relation to Montador, as well as the player’s extensive and well-documented concussion history. According to various reports, Bettman told the media, “The fact of the matter is, from a medical and science standpoint, there is no evidence yet

that one [concussions] necessarily leads to the other [CTE]. I know there are a lot of theories, but if you ask the people who study it, they tell you there is no statistical correlation where they can definitively make that conclusion.”

There’s a dirty little secret swirling around the NHL these days — the legacy of a darker, more barbaric era. In the 1970s and 80s, players sustaining debilitating head injuries were often left with a “choice” that was really no choice at all. Continue playing no matter the severity of the injury or be sent to the minors and ultimately released. While players understood that broken bones healed and torn ligaments could be repaired, there was no information provided to players on the possible long-term ramifications of repetitive head trauma.

With hundreds, if not thousands struggling through serious health issues including neurological decline, former players sought redress through the courts in 2013, filing lawsuits across the U.S. and Canada. Retired players claimed the NHL failed to adequately warn of the long-term effects of repeated blows to the head, failed to properly diagnose concussions, failed to provide adequate medical care after they received concussions and glorified violence in a manner that promoted additional head trauma.

With multiple concussion lawsuits in the discovery and pretrial motion phases, and amid an effort to certify the claims as class actions, the NHL has denied all allegations, and stated it will “vigorously defend” against the

claims and refuse to enter into any settlement negotiations.

Yet, while former players mount a legal challenge highlighting sins of past, the NHL currently sits in the throes of crisis.

A concussion epidemic thrust upon the League threatens the very fabric of the game as we know it. In 201314, by my count, at least 110 players suffered concussions (of the roughly 700 players in the NHL).

This does not take into account the thousands of cumulative blows to the head that occur on any typical evening of hockey. The NHL refuses to divulge any official concussion statistics, other than claiming that concussions are on the decline over the last two seasons.

How did we get here? Reeling from a lockout that cost the entire 2004-05 season, Bettman and NHL owners were determined to make the game faster, increase goal scoring, and make the game more appealing to fans. The NHL was re-launched in 2005 without a center-ice red line. Players were now able to break out of the defensive zone at close to full speed, unimpeded by the two-line offside pass. Players have gotten bigger, stronger and faster each year since 2005. As was soon discovered, increased speed necessarily led to increased collisions and the current era’s concussion cycle began.

The NHL is well aware of the urgency of the crisis — anywhere from 10 to 15 percent of its players sustain concussions each season.

The NHL instituted new rules banning hits to the head, and created a Department of Player Safety that imposed suspensions for head shots, singling out repeat offenders.

This season, the league disclosed it has placed spotters at each game to help identify players w it h visible signs of concussions, with directions to remove them from games for further evaluation if the players meet certain criteria. But is it enough?

As concussion lawsuits wind their way through the courts and the NHL continues to deny any link between concussions and CTE, ignoring all medical evidence to contrary, will our greatest fears on the issue be realized?

Within the next 10 years, will the current generation of NHL players and their families be left suffering through the debilitating effects of CTE and dramatically compromised quality of life? n

A concussion epidemic thrust upon the League threatens the very fabric of the game as we know it.

Allan Walsh is the co-managing director of Octagon Hockey. He represents NHL players including Marc-Andre Fleury, Jonathan Drouin, and Derick Brassard.

Mr. Walsh is a graduate of the Southwestern University School of Law.

The Record accepts donations and, since 1946, has relied on donations to continue publishing. Why should you donate?

Because The Record fills a critical space in our campus’s dialogue that nothing else can replace.

First, The Record provides an opportunity for law students and professors to write investigative news stories that are not sanctioned by the administration.

Second, The Record supplies a space for students to debate opinions spanning the entire political spectrum, and thus to engage in a true Socratic dialogue that goes beyond abstract law, while fostering a sense of civic community at the law school.

Help The Record, founded in 1946, continue past 2046 by heading to our website, hlrecord.org, and clicking on the “Donate” tab.

Thank you for your support.

Fighting Corporate Corruption in GSEs Difficult But ‘Deeply Satisfying’ Anti-foreclosure program was used to line executives’ pockets, not help borrowers Continued from page 1 In January 2010, Caroline Herron, a high-level contractor in Fannie Mae, came to our office. She told us about how after working for Fannie Mae for eight years in-house as a vice president and as a contractor, Fannie Mae had fired her and blackballed her for disclosing to the Treasury Department serious failings in the Obama Administration’s signature anti-foreclosure program.

From late 2008 through 2009, this country was in the depth of a housing crisis that threatened the collapse of the U.S. economy. Many of those who suffered the most were borrowers whose houses were “underwater,” i.e. mortgages where the remaining balance was higher than the value of the house.

In order to help t hese bor rowers avoid foreclosure, the administration enacted a program called Making Homes Affordable. The idea behind MHA was to give borrowers a grace period on their loans for three months to see whether they would qualify for a permanent modification of their loans that would allow them to remain in their homes.

The Treasury Department entrusted the running of the program to Fannie Mae. Fannie Mae was and is in a government conservatorship because it had engaged in risky practice of buying worthless mortgages that left it undercapitalized.

Fannie Mae had no prior experience in running a program such as MHA, and as government investigators later found, lacked the core competencies to run the program.

Treasury announced the MHA program amid great fanfare and claimed that it would help 7 million borrowers. It soon reduced its claims about the program to say it would help 3 to 4 million borrowers.

Today, the U.S. government is forced to admit that MHA has helped no more than 1 million borrowers.

Instead, the program was often helping the executives of Fannie Mae, who drew huge bonuses because of the misleading statistics about the program that they presented in the company’s annual filings. These statistics were so infirm that they could not use those statistics for an accurate report to investors and shareholders in those same public filings. But they did use these statistics about the MHA program to justify big bonuses for themselves.

This is how it worked, and this is why Fannie Mae fired Ms. Herron for her reports to Treasury about the problems with the program.

Fannie Mae administered the program, and urged the holders of the troubled loans to give “trial modifications” based on stated income to homeowners in trouble. Stated income modifications were made simply on a borrower’s unverified, oral statements about his income

Those of us who went into public interest law followed our own paths, and ended up in fascinating and rewarding jobs.

or resources. After a three month or longer time period, a trial or stated income modification could be converted to a permanent modification, but at that time the homeowner needed verify the household income, such as tax returns or paycheck stubs.

After the first three months, most homeowners could not verify sufficient income and were unable to obtain permanent modifications.

These homeowners were worse off than before, because they had not been making their mortgage payments under the trial program, and were no longer eligible for any other permanent modification program.

Despite early evidence that about 90% of the trial modifications were not converting to permanent modifications, Fannie Mae executives forged full steam ahead with the stated income modifications.

In Fannie Mae’s 2009 10K filings with the Securities and Exchange Commission, it gave two different figures for loan modifications. The first figure was supposed to give an accurate picture of the company to investors and shareholders. That figure stated that Fannie Mae had completed 2 million modifications of troubled mortgages. It did not include the trial modifications that Fannie Mae knew would never convert to permanent modifications and help homeowners.

However, in the part of the 2009 10K that described the basis for executive bonuses, Fannie Mae claimed 6 million loan modifications, justifying huge executive bonuses.

So, when Ms. Herron started telling Treasury from her birds’ eye perch within Fannie Mae that the trial modifications are not converting, Fannie Mae refused to allow her to work with the Treasury Department, and then they then fired her and prevented her from

ever working anywhere else in Fannie Mae. In one executive’s words, he didn’t want her to go to Treasury because he thought she would be “mean” to Fannie Mae. We sent a demand letter to Fannie Mae on her behalf in March 2010, and then filed suit in June 2010. The press accompanying her suit and allegations led Fannie Mae’s conservator to stop payment of any incentive payments to Fannie Mae under its contract with Treasury to administer the MHA program. And, more importantly, it stopped Fannie Mae from using trial modifications to meet its housing goals.

However, that did not stop Fannie Mae executives’ relentless pursuit of bonuses. In Fannie Mae’s 2010 10K, Fannie Mae now claimed that their bonuses should be substantial because the number of modifications for which they were responsible increased from 2 million to 4 million.

Gone entirely is the 6 million modification figure from the 2009 10K. Instead, Fannie Mae relied on the 2 million modification figure and now counted the trial modifications from 2009 in another way.

Because most of these trial modifications could not be converted under the MHA program, Fannie Mae created its own program to convert these trial modifications to permanent modifications by setting its own lower eligibility requirements.

So now the trial modifications that could not be converted under the government program for Fannie Mae loans could be double-counted to justify large bonuses for executives for 2010.

Today, it is clear that MHA only helped about 1 million homeowners while preventing many others from ever obtaining permanent modifications. The public reports

Fannie Mae’s retaliation against one high-level whistleblower...[hurt] potentially millions of borrowers. on the MHA program have uniformly said it failed. Fannie Mae’s retaliation against one high-level whistleblower prevented a quicker turnaround of a major government program, hurting potentially millions of borrowers.

Mr. Herron’s suit helped bring about changes in the program.

Whether she will get any relief for disclosing these problems to Treasury is yet to be determined.

However, her story is a cautionary tale to Congress and Treasury about not setting incentives that encourage GSE executives to maximize their bonuses at the expense of the public.

Those of us who went into public interest law followed our own paths, and ended up in fascinating and rewarding jobs. Contrary to the common wisdom taught at the Law School at that time, I have found my career to be filled with intellectually and politically fulfilling cases and projects. It is deeply satisfying when we are able to figure out the real story, and even more so when we can effect a positive change. n Lynne Bernabei is a founding partner of Bernabei & Wachtel, PLLC. She has been litigating civil rights and whistleblower protection cases for over thirty years. Ms. Bernabei is a 1972 graduate of the Law School.

6

Harvard Law Record

October 29, 2015

NEWS & OPINION

Speaking Truth to Power: Fighting for Liberty at HLS Harvard Law School students have a moral obligation to fight imperial presidencies

By Bruce Fein ‘72

“For unto whomever much is given, of him shall be much required.”

– Luke 12:48 Harvard Law School is the nation’s legal royalty to whom much has been given. So as the United States confronts today executive branch lawlessness and abuses on a scale indistinguishable from the tyranny of King George III and Parliament before the American Revolution, an equally bold and courageous response is required of the members of Harvard Law school.

Harvard’s administration, faculty, and students must act as Paul Reveres, warning the American people of limitless executive power and secret, one-branch government.

They are morally required to defend the rule of law by speaking truth to power.

The Law School’s North Star should be Federalist 51: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

The Law School’s ambition should not be wealth or currying favor with the power elite, for instance, publishing an uncritical encomium to Chief Justice John Roberts, or providing John Brennan, Director of the CIA and mastermind of secret and unaccountable drone killings, a megaphone to dissemble about our warfare state.

The Law School should instead promote the words of Sam Adams — the Nestor of the Revolutionary War: “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest for freedom, go home from us in peace...Let your chains set lightly upon you, and may posterity forget ye were our countryman.”

As the Declaration of Independence put it, let facts be submitted to a candid world.

Since World War II, Republican and Democratic presidents alike have usurped the war powers of Congress conferred by Article I. These usurpations began with President Harry Truman’s unconstitutional war in Korea without congressional authorization.

Presidents Lyndon Johnson and Richard Nixon fought the Vietnam War without congressional declarations. (The Gulf of Tonkin Resolution — premised on presidential lies about North Vietnamese torpedo attacks — unconstitutionally delegated to the White House the decision to commence war).

President Bill Clinton fought wars in Bosnia and Kosovo after Congress rejected his pleas for authorization.

The 2001 Authorization for Use of Military Force authorized

President George W. Bush to use military force against international terrorists complicit in the 9/11 mass murders. However, President Bush and his successor President Barack Obama have continued warfare in Afghanistan and elsewhere despite the killings or capture of all persons implicated in the al-Qaida crimes.

President Bush also invaded Iraq to overthrow Saddam Hussein under a 2002 AUMF in which Congress, duped by the President’s lies about weapons of mass destruction, unconstitutionally delegated the invasion decision.

President Obama initiated war against Libya in 2011 without congressional authorization. He is conducting endless wars against Syria, Iraq, Yemen, Somalia, Afghanistan, al-Qaida, and the Islamic State of Iraq and the Levant (ISIL) without congressional declarations or their equivalent.

President Obama has articulated an extraconstitutional theory of unbounded executive authority over national security matters. Among other things, the theory empowers the President to play prosecutor, judge, jury, and executioner to kill any American citizen suspected of endangering the national security based on secret, uncorroborated conjectures. It contradicts the unanimous and unambiguous views of the Constitution’s architects.

James Madison foresaw that the American Republic would degenerate into tyranny if the Executive were entrusted with the war power.

He explained to Thomas Jefferson in 1798: “The Constitution supposes what history demonstrates, that the Executive is the branch most prone to war and most interested in it, therefore the Constitution has with studied care vested that power in the Legislature."

Alexander Hamilton added in Federalist 69 that the commander-in-chief power of Article II conferred no more than the supreme command of the military and naval forces when called into service, in sharp contrast to the British King crowned with the twin powers of declaring war and of raising and regulating fleets and armies.

The war power dwarfs all others.

War makes legal what is ordinarily first-degree murder.

Its financial and human costs are staggering. Since 9/11, the United States has expended trillions of dollars and suffered thousands of military casualties fighting wars not in self-defense.

We have exchanged the enlightened policy of John Quincy Adams — do not go abroad in search of monsters to destroy — for the

The choice is between living for the ages and dying as ingrates.

Justice Kennedy Visits HLS, Talks Ethics, Morality

By Brianna Rennix ‘ 18

On October 23, Justice Anthony Kennedy sat down with Dean Martha Minow for a discussion on his experiences as a Supreme Court Justice, law professor, and practicing attorney. The conversation touched on topics ranging from corrections to campaign finance to his Supreme Court legacy.

Kennedy thanked the dean for not using the term “swing vote” in her introduction.

“It conjures a mental image of these — spatial gyrations,” said Kennedy. “Cases swing — I don’t!”

Asked by Dean Minow about his views on the U.S. prison system, Kennedy emphasized the public costs and profound human suffering engendered by overlong sentences,

might-makes-right brutishness chronicled by Thucydides two millennia ago in the History of the Peloponnesian War — “The strong do to what they can and the weak suffer what they must.”

The misery that the United States has inflicted on innocent civilians through these illegal conflicts is shameful. Recall the recent American bombings of a hospital operated by Doctors Without Borders in Kunduz, Afghanistan. It killed doctors, nurses, and patients who burned to death in their beds.

Previously, a drone killed a 68-year-old Pakistani grandmother while she was picking vegetables with her 9-yearold granddaughter.

Another drone killed Anwar al-Awlaki’s teenage son — a United States citizen — while he was sharing a meal with friends.

These few apparent war crimes are illustrative only, not exhaustive.

According to a recent report by The Intercept based on documents provided by Edward Snowden, approximately 85 percent of the victims of drone strikes ordered by President Obama in Somalia, Yemen, and Afghanistan are civilians. The corpses are demonized as enemies killed in action unless postmortem evidence surfaces to prove otherwise, a morally obscene version of Alice in Wonderland’s Queens of Hearts: “Sentence first — verdict afterwards.”

Madison presciently enumerated the evils associated with our warfare state: “Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.

“War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.

“In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people….No nation can preserve its freedom in the midst of continual warfare.”

The lawless warfare state has spawned a sister lawless surveillance state. The National Security Agency, created by a secret decree of President Harry Truman in 1952 unshared with Congress, conducts suspicionless surveillance of the entire United States population. It collects or possesses instant access to telephony metadata (and content collected under the PRISM program) on every domestic or international

mandatory minimums, overcrowding, and solitary confinement. He described the political influence of prison guard lobbies in his home state of California as “sick.”

Kennedy recalled that his own generation of law students and professors at Harvard Law School was fascinated by the process of uncovering guilt or innocence, but largely uninterested in corrections. He called for society, and lawyers in particular, to become more engaged with criminal justice issues.

“It’s everyone’s job to look into it,” he said.

To a student who asked about the extent to which a public official could refuse to implement a “new understanding” of the Constitution that conflicted with his or her own moral views, Kennedy replied that public

officials were bound to enforce the law if they wished to retain their office. He acknowledged that deciding whether a law transgressed one’s fundamental moral principles required “considerable introspection.”

Another student questioned Kennedy about the state of campaign finance in a post-Citizens United world. Kennedy stated that “what happens with money and politics is not good,” but emphasized that an “Internet world” allowed for disclosure of financial contributions within 24 hours.

When Dean Minow pointed out that agencies with the power to compel disclosure, such as the FEC, have failed to do so as a result of political deadlock, Kennedy responded with an acknowledgment that political discourse in the United States was currently “fractious.”

Kennedy discussed the philosophical relationship between law and morality. For Americans, said Kennedy, a commitment to the rule of law is part of how we define ourselves: in democratic society, the law

Donate to the Harvard Law Record

By Michael Shammas ‘16

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

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

been relegated to an online existence.

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

In addition to regularly publishing quality pieces, we’ve garnered thousands of followers on Facebook and Twitter and earned mentions in

numerous other media outlets.

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

Thank you for your support, Michael Shammas Editor-in-chief

email or call in which at least one of Barack Obama have flouted their the communicants is in the United Article II obligations to see that laws States. We are clueless as to the full be faithfully executed, by refusing to Orwellian dimensions of the NSA prosecute obvious cases of torture because much of its surveillance is such as waterboarding, or illegal conducted under Executive Order surveillance such as the warrant-less 12333 and remains hermetically Terrorist Surveillance Program, which is in violation of the Foreign sealed.

The NSA mocks the Fourth Intelligence Surveillance Act. Presidents Bush and Obama have A mend ment.

The Four t h Amendment protects the right to be imprisoned alleged enemy combatlet alone from government snooping ants indefinitely at Guantanamo Bay absent probable cause — the most without accusation or trial in violacherished right among civilized tion of due process.

In sum, presidential lawlessness people according to Justice Louis D. Brandeis. Compare the NSA’s has reached industrial scale.

Justice Brandeis once said: panopticon-like spying with the ro“In a government of laws, exbust spirit of the Amendment conistence of the government veyed by William Pitt the Elder to will be imperiled if it fails to the British Parliament on the same observe the law scrupulously. matter: Our Government is the po“The poorest man may in his tent, the omnipresent teacher. cottage bid defiance to all the For good or for ill, it teaches forces of the Crown. It may be the whole people by its examfrail; its roof may shake; the ple. Crime is contagious. If the wind may blow through it; the Government becomes a lawstorm may enter; the rain may breaker, it breeds contempt enter; but the King of England for law; it invites every man cannot enter — all his force to become a law unto himself; dares not cross the threshold it invites anarchy.” of the ruined tenement!”

What is a Harvard Law School edThe NSA’s dragnet surveillance for 14 post-9/11 years has not thwarted a ucation worth if it means selling the single terrorist attack in the United pursuit of justice and resistance to States. It is spying for the sake of spy- tyranny for a mess of pottage?

Harvard Law School — the admining to induce citizen docility.

Congressional oversight by the istration, faculty, and students — inHouse and Senate Intelligence herited liberty of Committees is a cruel hoax. Classified because information is routinely withheld or the sacrifices at Lexington selectively shared to mislead.

The President conceals the proto- and Concord, cols he employs to determine which Valley Forge, citizens or non-citizens to extermi- and Cemetery Ridge comnate with predator drones.

James Clapper, the Director bined with the the Office of National Intelligence, genius of 1776 lies with impunity under oath to and 1787.

The Law Congress about collecting data on School must millions of Americans.

The Central intelligence Agency act with similar enlightened courage hacks into Senate Intelligence to ensure posterity inherits justice.

Committee computers in violation of The choice is between living for the the Speech or Debate Clause without ages and dying as ingrates.

To paraphrase from the Bible, if consequences.

The Senate Intelligence the Harvard Law School trumpet Committee declines to release its gives an uncertain sound, who shall own 6,000-page Torture Report prepare himself for the battle?

The Law School should collecwith evidence of criminal violations by the executive branch in the inter- tively overhaul its curriculum and rogations and detentions of al-Qa- extracurricular activities towards ida suspects because the President holding the most powerful Empire in history to account for its conwould not give permission.

International agreements under stitutional or moral transgresthe Treaty Clause generally require sions. Other law schools will follow ratification by a two-thirds Senate Harvard’s lead.

A majestic arch should be conmajority. But modern presidents regularly circumvent the Clause with structed at the Harvard Law School executive agreements, for instance, entrance that exhorts: SPEAK the 1993 World Trade Organization TRUTH TO POWER. It would mark the Law School’s or the 2015 Joint Comprehensive Plan of Action addressing Iran’s nu- finest hour. n clear ambitions. As regards the latter, Secretary of State John Kerry cyni- Bruce Fein was an associate deputy cally testified to the House Foreign attorney general and general counAffairs Committee that the interna- sel to the Federal Communications tional accord was not submitted to Commission under President the Senate as a treaty because rati- Reagan and research director for fication would be difficult: “Because the Joint Congressional Committee on Covert Arms Sales to Iran. He is you can’t pass treaties anymore.”

Presidents George W. Bush and a 1972 graduate of the Law School.

Presidential lawlessness has reached industrial scale.

is not merely a mandate but a promise that an ethical course of conduct will lead to freedom.

“We are bound by the Constitution, with both a large C and a small c,” said Kennedy, explaining that the “Constitution” was the governing document of our country, while the “constitution” — in the sense used

by Aristotle, Locke, Hobbes, and others — was the mores, customs, behaviors, and values that define a people.

Our “duty,” he said, is “to make the big C mirror the small c.”

Kennedy stressed that being a member of the Supreme Court did not entail embracing “moral relativism,” which Kennedy described as “not only disagreeable, but antithetical to my personal values,” leading to “skepticism, which leads to cynicism, which is corrosive of human values.”

The point of living in a democratic society, said Kennedy, was that the government does not decide questions of morality, but “you still have to.”

Describing how to write a good

“I hope time will be a gracious judge.” ­— Justice Anthony Kennedy Supreme Court opinion, Kennedy stated that while different cases require different genres of opinion, the most important question was, “can the opinion produce and garner allegiance to what the law does?”

He told an anecdote about a WWII former POW, incensed by the Supreme Court’s ruling on the Texas v. Johnson flag-burning case, who came to respect the court’s decision after reading Kennedy’s opinion. “So that was one person!”

Asked which case he would most like to be remembered for, Kennedy replied that he was not sure. “I hope time will be a gracious judge,” he said. n

For decades, The Record has helped foster a sense of community at Harvard Law School while providing an independent outlet for students and professors to express opinions. Everyone from Barack Obama to William Rehnquist has appeared in its pages. News stories and analysis pieces have been followed by open debate that is too rare at too many law schools.

Help support The Record by donating today. http://hlrecord.org/donate/