The Harvard Law Record: 2015-2016, Issue 5

Record The Harvard Law

MONDAY, NOVEMBER 16, 2015

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 5

IN THIS ISSUE:

Brianna Rennix ’18 talks to professors about their love of Hamilton musical, p. 1 Annaleigh Curtis ’16 responds to Bill Barlow’s controversial “Fascism at Yale”, p. 3

Nic Mayne ’18 chastises DoD and professional sports teams for allowing paid patriotic salutes, p. 3 Ben Jones argues against the death penalty from a conservative viewpoint, p. 4

Swastika Drawn on Harvard Law Classroom Desk Graffito found in WCC removed quickly by staff; some students disappointed by reaction.

By Lindsay Church ’16

Last Thursday, November 5, a first-year Harvard Law student noticed a swastika penned in a desk in Wasserstein room 2004 during class. After another student submitted a picture of the swastika to the Dean of Students Office, cleaning staff was sent to remove the mark from the desk.

The person who drew the mark has not yet been identified. Rooms in Wasserstein are generally open during business hours, and it is quite possible that a non-HLS affiliated person made the mark. Several HLS classes were scheduled to meet in WCC 2004 during the days leading up to the discovery, along with a few events hosted by student organizations. HLS events are open to the public and frequently attended by people who do not work at or attend the Law School.

This incident occurred on the heels of other major debates happening at higher-education institutions like Yale and the University of Missouri. An email from Dean of Students Marcia Sells asked students to report symbols of hatred,

stating, “As a community of people seeking knowledge and raising ideas, we can engage in challenging and difficult discussion, but we should never lose sight that this is meant to gain insight and not to inflict pain. There is never a time when it is appropriate to deface school property with images or symbols meant to degrade or demean any member or group of people in our community or beyond.”

Jonathan Gartner ’16, president of the Jewish Law Students Association, was deeply disturbed that someone would draw a swastika on a desk.

“The symbol is understandably distressful to Jewish students, especially since many come from families of Holocaust survivors or individuals who fled Nazi persecution.

We appreciate the Administration’s prompt condemnation of this unacceptable act,” he said.

According to the Harvard Law School Handbook of Academic Policies, “The Law School’s commitments to fairness, respect for the rule of law, and free inquiry require an environment of trust and mutual respect, free expression and

inquiry, and a commitment to truth, excellence, and lifelong learning.

Students, program participants, faculty, staff, and alumni accept these principles when they join the HLS community and thereby agree to respect the rights, dignity, and differences of others, pursue honesty and integrity in dealing with all members of the community in person and on-line, and accept personal responsibility in these efforts.” How to create such an environment where students can speak respectfully and freely is still the topic of much debate. Dean Marcia Sells referred to the academic policies in the HLS handbook, along with the e-mail statement, as how the Law School weighs free speech and discrimination.

“We — Harvard Law School — aspire to have a community where people speak openly and respectfully — in the classroom, in social settings, and at events,” Dean Sells told The Record. “The Dean of Students Office has a mission, to help foster those conversations. We welcome the opportunity to discuss these issues.”

Some students believe, however, that this was a missed opportunity to discuss an issue often overlooked at Harvard Law School: that anti-Semitism is real. One Jewish student told The Record that many people were taken aback by the DOS email not naming the hateful symbol as a swastika, and were disappointed by the mute reaction of the student body. While many students

Students and 19 HLS professors respond to The Hunting Ground, a documentary on sexual assault on university campuses, p. 5 Nic Mayne ’18 argues against bans on fracking, p. 8

at the Law School have taken positions on the allegations of racism at other schools — both supporting student-led efforts and condemning them — conversations about other minority groups, religious, political, and otherwise, have been less evident.

The Alliance for Israel has hosted events this semester on contentious issues affecting the Jewish State.

“In a time when higher education unequivocally denounces anti-Semitism, this swastika demonstrates that hatred of the Jewish people can unfortunately still exist even at a place like Harvard Law School,” a statement from the group read.

“Alliance for Israel hopes the presence of such a symbol at HLS will generate reflection on the many manifestations modern anti-Semitism can have, both explicit and implicit.”

“The truth is that anti-Semitism is not a thing of the past,” said a first-year student. “This is especially apparent in the Israel context.

There are legitimate differences of opinion that should be discussed.

However, today, many under the guise of being critical of Israel are spewing pure anti-Semitism.”

The tension between free speech and protecting marginalized groups certainly will continue to be the subject of much debate. How to balance two very important values remains a question that will pervade campuses across the country, including

You won’t go far at Harvard Law School without running into the Royalls.

In the Treasure Room of Langdell Library hangs a large portrait of the family of Isaac Royall, Jr. Each year, first-year Harvard Law School students sit together beneath this painting as they enjoy a welcome meal with the Dean. Isaac Royall is a figure intimately associated with the origins of Harvard Law School: in 1779, he donated lands to Harvard College whose sale endowed its first professorship of law.

The Royall Professorship of Law is still held by a HLS faculty member, and the Royall family crest, bearing three sheaves of wheat, is currently part of the Harvard Law School crest. But the wealth that created Harvard Law School has a disturbing origin. The Royall family fortune was acquired through slavery:

Their sugar plantation was worked by slave labor, and they augmented their profits by shipping and selling human beings between Boston and Antigua.

Each year, Dean Martha Minow recites this history to illustrate how stark the contrast can be between what is morally good and what is authorized by the law.

“If you do only what is lawful,” says Dean Minow, “you may still do great evil.”

Now, a student movement known as “Royall Must Fall” is calling on Harvard Law School to remove the insignia of Isaac Royall, Jr. and his family. Drawing inspiration from the South African student movement “Rhodes Must Fall,” which campaigned to remove a statue of British imperialist Cecil Rhodes from the University of Cape Town, the students are asking Harvard Law School to remove the Royall insignia from its official crest.

Clayborne and Vormawor draw attention to a recently-published work by Professor Daniel Coquillette on the early history of Harvard, On the Battlefield of Merit: Harvard Law School, The First Century, which contains an account of the Royalls’ relation to the suppression of a slave uprising on their Antigua plantation in the wake of a series of Royall continued on page 2

Barlow continued on page 3

Swastika continued on page 2

Open letter to Dean Minow: Change HLS’ default option to civic-minded career building

By Pete Davis ’18

Dear Dean Minow, When Professor Cass Sunstein returned to campus after his tenure in the Obama administration, you called him one of the top legal minds at work today, explaining to The Crimson that our Law School community was fortunate to welcome back a scholar with a “passion for figuring out what works, what doesn’t, and why.” If you believe what you said then, it is time to apply Sunstein’s theories of choice architecture and default options to our own institution and its project of launching civic-minded careers.

As you know, Sunstein has been arguing for years that institutions can help achieve policy goals by exercising libertarian paternalism: allowing people to make their own choices, but empowering ‘choice architects’ to influence our decision-making process by thoughtfully designing how our choices are presented. For example, we can nudge citizens to vote by showing them their own voting records or nudge students towards healthy cafeteria choices by placing nutritious foods at eye level.

To Sunstein, perhaps the most

powerful tools in a choice architects’ toolkit is the ability to set a choice’s default option. As Sunstein demonstrates, we are significantly more likely to choose options that are presented as the default and thus less likely to choose options that require active steps to be selected. Why? A few explanations have been put forth: (1) we interpret defaults as expert recommendations (deference); (2) we feel that switching options is ‘losing’ the default option and thus are subconsciously averse to ‘losing’ something we ‘own’ (loss aversion); and (3) we simply do not want to exert the effort to switch options (inertia). This bias towards the default option enables choice architects to help achieve policy goals without increasing costs or limiting choice: if you simply switch default options, then our subconscious deference, loss aversion, and inertia will conspire to increase our likelihood of making the preferred choice.

Harvard Law School’s stated mission is “to educate leaders who contribute to the advancement of justice and the well being of society.” Implicit in this mission is the policy objective

“We believe that the Harvard Crest is inextricably bound up in a history of racial subjugation and deadly deeds, the effects of which continue today.”

— Alexander Clayborne ’16, Mawuse Hor Vormawor ’16 “The students [at the University of Cape Town] felt that Rhodes did not deserve to be glorified, considering his oppressive policies and racist views,” said Royall Must Fall student representatives Alexander Clayborne ’16 and Mawuse Hor Vormawor ’16. “We believe that the Harvard Crest is inextricably bound up in a history of racial subjugation and deadly deeds, the effects of which continue today.” of increasing the number of Harvard Law School students who choose to pursue civic-minded careers serving the public interest. We, as a community, are seriously failing to meet this objective. For every Class of 2014 graduate who immediately pursued public interest work in organizations designed to contribute to “the advancement of justice and the well being of society,” five graduates pursued monied interest work with a corporation or law firm.

Sunstein’s ideas about choice architecture and default options can help explain this failure.

At Harvard Law School, the default career option is corporate interest law. 1Ls witness a vast majority of their 2L and 3L mentors and leaders enter corporate interest law after graduation. Interactive hypotheticals in 1L courses tend to involve students being asked to advise their firm’s “senior partner,” as opposed to, say, their Department of Justice or ACLU supervisor. The office tasked with public interest career advising is given a special name, while the office primarily tasked with corporate interest career advising is given the generic name of “Office of Career Services.”

Similarly, the interview program for corporate interest employers is given the generic name “Early Interview Program,” while the same program for public interest employers is given the special name “Public Interest Interview Program.” (One could

By Bill Barlow ’16

Usually, we at Harvard are more than happy to see Yale students make fools of themselves on camera. The video that emerged this week of Yale students screaming down one of their professors might make for a good laugh, if its implications were not quite so serious.

It’s a scene we’ve seen played out far too often at college campuses in recent years, and it deserves to be called by what it is: a nascent form of fascism.

In case you haven’t heard, Yale has recently endured a firestorm of protest after a lecturer that presides over one of the undergraduate colleges questioned whether concerns about the offensiveness of Halloween costumes had gone too far in impinging on free speech.

In response, hundreds of protesters gathered on the quad, calling for Nicholas and Erika Christakis to be removed from their roles. Nicholas voluntarily came to discuss the matter with them, and soon, a crowd of students enveloped him.

The video is chilling.

One student is heard saying, “Walk away. He doesn’t deserve to be listened to.” When Nicholas started to explain himself, a student yells, “Be quiet!” and then proceeds to lecture him. When Nicholas calmly and politely says “I disagree,” the protestor explodes, screaming, “Why the fuck did you accept the position?! Who the fuck hired you?! You should step down!”

Then, finally, “You’re disgusting!”

The problem here isn’t that people disagree with what Nicholas said. The problem is that they are calling for reprisals against Nicholas and Erika simply for saying it. This recent movement of university students to use administrative procedures to punish speech with which they disagree should be called by its rightful name: proto-fascism.

Several days later, students disrupted an event held by the William F. Buckley, Jr. program that was designed to highlight the importance of free speech. According to reports by the Yale Daily News, several attendees were spat on as they left.

“Slave-Trading Murderers”: Students Demand HLS Change Crest

By Brianna Rennix ’18

Fascism at Yale

OPINION

OPINION

Davis continued on page 6

Photo credit: Atlantic Records

Hamilton Takes Harvard

By Brianna Rennix ’18

Ever wonder what Harvard professors sing in the shower? These days, there’s a good chance it’s a song from the musical Hamilton.

“I’m a huge fan of the music,” said Glenn Cohen, law professor and director of the Petrie-Flom Center for Health Law Policy. “I often sing it in the shower. As a Canadian, much of the American history I’ve learned is what’s directly relevant to constitutional law, so I really appreciate learning more about the personalities involved.”

Hamilton: An American Musical — which debuted on Broadway this summer to widespread critical acclaim — is based on the life of Alexander Hamilton.

It traces the story of his impoverished childhood in the West Indies, his rise to power as the first Treasury Secretary of the newly-minted United States government, and his death in a duel with sitting Vice President Aaron Burr.

Composer Lin-Manuel Miranda imagines Hamilton as the archetypical American Dreamer, “young, Hamilton continued on page 7

2

Harvard Law Record

November 16, 2015

NEWS & OPINION

Unlike Clinton, Bernie Lacks the “Politician’s Personality” Graffito Voting for Clinton prompts rewards craven dean’s political behavior email

By Michael Shammas ’16

Nothing could be faker — or duller — than a general election competition bet ween Hillar y Clinton and Jeb Bush. These establishment sweethearts, Clinton especially, are perfect typecasts of the “Politician’s Personality” — a robotic, craven, vacillating personality type that, here in law school, I’m way too familiar with.

To those with the Politician’s Personality, truth counts for zilch.

Like Clinton’s “evolved” position on gay marriage, like Bush’s slightly less hawkish outlook on the Iraq War blunder, political opinions are always in f lux, because principles come second to a baser motive — ambition. The raw, Nietzschean will to power. A combination of desires — including some vague yearning for social change — might

smolder within such a person’s soul, but ambition is the hottest coal, and it burns through all the rest.

No matter how much I dislike the ideas of men like Ben Carson, I can’t deny an appeal in their willingness to, as Ralph Nader puts it, “shake things up.” To ostensibly say what they think — without excessive qualification or ersatz equivocation. To cast off the politician’s mask and to reveal the imperfect human hiding beneath. To take risks.

Voting for Clinton, like voting for Marco Rubio, is like trying to grasp a shadow. We can’t know who Clinton really is, we can’t have confidence in the data used to cast our vote, because we can’t know that she means what she says. How could we? Her opinions “evolve” more rapidly than the most tenacious bacterium adapts to antibiotics. Like Martin O’Malley, like others cowering beneath the Politician’s Personality, Clinton comes off as excessively tailored.

Made-for-TV. She will make a great

expediency comes second to moral integrity. Like Carson and perhaps Trump, albeit more intelligently, Bernie mostly says what he thinks.

Period.

Perhaps, in a two-party system like ours, a Politician’s Personality is a necessary precondition for success. Perhaps Bernie is thus too idealistic to win. We elect Bill Clintons and Ronald Reagans — not Michael Dukakises and Barry Goldwaters. And opinionated politicians tend to grow stale as the Politician’s Personality infects and then parasitizes them; compare the Barack Obama of 2006-2008 to the Barack Obama of today.

But by rewarding establishment politicians such as Clinton with elected office, we reward reticence over candor, the wearing of political masks over the brave courage that masks nothing. Our public debate grows less real, stymies.

And — tragically — so does our political discourse. n

president, an extremely competent one actually, but she won’t inspire.

That same fact explains the dearth of enthusiasm surrounding Bush’s candidacy, and would probably be hurting Clinton more if there were more Democrats aside from Bernie, outspoken people possessing real conviction such as Elizabeth Warren, posing a real challenge. If Hillary Clinton wins the Democratic Primary, I’ll be voting for her. But I won’t be excited.

Talking about Bernie, it’s easy to see his appeal. Compared to Clinton, Bernie is stubborn.

His leftist beliefs have, to borrow Chafee’s phrasing, remained locked in granite. While Clinton’s political evolution — on everything from gay marriage to the Iraq War — appropriates the rapid pace of microbes, his evolution is more long-term, more natural, more like the changes normal Americans — those not marred by a Politician’s Personality — undergo. The reason is simple: Bernie is a real person, both inside and outside of the political arena. For Bernie, political

This piece was originally published at the Huffington Post.

Royall movement desires traction, dialogue Royall from page 1

Have something to say?

Write for The Record. editor@ hlrecord.org

natural disasters. In quashing the rebellion, which began after the Royall family chose to provide water to their livestock instead of their slaves, the slaveholding aristocratic government executed seventy-seven individuals, and burned the plantation’s head slave, Hector, at the stake. “We of the Royall Must Fall movement seek to elevate such courageous personages as Hector, rather than the Royall Family,” Clayborne and Vormawor state.

Coquillette, a legal historian and visiting Harvard professor, has said that he understands the impetus behind Royall Must Fall, but does not think that the crest should be changed. “If we started renaming things and taking down monuments of people linked to slavery, you would start with Washington. A great institution can tell the truth about itself.”

Clayborne and Vormawor object to the idea that changing the crest is a repudiation of Harvard’s history, pointing out that the crest was chosen in 1936 specifically to commemorate Isaac Royall, Jr. “Insofar as the school adopted the crest for that reason, the school has expressly implicated itself in the construction of a symbol meant to show lineage and heritage in the

Royall family,” they said They also do not think that keeping the crest in public view has led to any increased consciousness about Harvard’s historical connection to the slave trade. “Why does it take a student movement for anyone to recall the history behind [the crest]?

By allowing the law school crest to remain unquestioned and unchallenged for so long, the law school has been complicit in making the students, faculty, and administration unaware.”

Professor Sven Beckert, Laird Bell Professor of History at Harvard University, believes that there has been a “deafening silence” concerning Harvard’s historical ties to slavery. His website Harvard and Slavery, the end-product of a research project conducted with the help of undergraduates, contains an interactive map of sites around Harvard and Cambridge that are associated with the stories of slaveowners and enslaved people.

“These histories have remained hidden, but they need to be brought into the open. Once we do so, we will see traces of these histories all around us — in the names of buildings, in the names of professorships, and, as the Law School students now have discovered, in some of our symbols,” said Beckert. “We want to

confront these histories, and make them known. We want to very publicly identify them. And in some cases, such as this one, it seems to me that we want to change our naming and symbols, because we should take no pride in being associated with people who participated in a crime against humanity.”

For this kind of awareness to become reality, says Beckert, a “more substantial effort to research all parts of this history” is needed. “The Law School, just like the university at large, was in many different ways connected to slavery; Harvard profited from the labor of slaves in the Caribbean and in the American South, Harvard benefitted from the unpaid labor of enslaved workers on its own campus in Cambridge, and Harvard played a role in politically supporting the institution of slavery and ideologically buttressing both slavery and ‘scientific’ racism.”

In a statement to The Record, Dean Minow said that her choice to highlight Royall’s connection to slavery during the 1L orientation was consistent with the school’s mission to “train lawyers to do better.”

The law school community, she said, should not shy away from asking hard questions about the Royall legacy and the school crest. “ Some of our students have made

Students should look beyond BigLaw for fulfillment

By Ray Brescia

Over this past year, many have learned of the workplace experiences of white collar workers at Amazon. How they cry at their desks. How they are given little time off even when sick, or to recover from a health issue. That workers are expected to respond to e-mails they receive late into the night. Add to that the conditions of blue collar workers at Amazon warehouses, and one gets the distinct impression that Amazon may be a pretty bad place to work.

For many, this was surprising news. The startup culture, which Amazon tries to replicate even though it is now a behemoth, is supposed to be about joyful toil, energy-drink-fueled binge sessions that reflect inspired and hard work, and hard play afterwards. All by choice.

The New York Times exposé about the working conditions at Amazon for white collar workers probably made some say “well, at least I don’t work at Amazon” the next time they received an after-hours email or had to go into the office on a weekend.

For lawyers, however, this wasn’t news. For some, the stories of white collar work at Amazon just described their professional life for the last 30 years or so.

The rise of BigLaw, where today’s mega-firms welcome young law school graduates to assess whether they are “partner material,” coincides with a period of diminished job satisfaction for many lawyers, as well as high rates of depression and substance abuse among the members of the legal profession.

For some, the experience of working as a lawyer in a big firm is debilitating and demoralizing. In pursuit of larger and larger profits for firm partners, lower-tier lawyers can be

[The legal profession] should attract those who wish to make a difference in the world through their law degree. pressed to work longer and longer hours, take on demanding work, and are expected to be available at a moment’s notice to handle their supervisor’s assignments any time, day or night, weekend or holiday.

Ask a lawyer who has gone through the wringer of working at a high-stress law firm whether he or she still flinches if the phone rings at 4:45 p.m. on a Friday afternoon, evoking memories of the dreaded partner’s call telling the young associate to cancel plans for the weekend because a client insists that the big merger must be finalized by Monday.

So the stories of white collar work at Amazon probably evoked similar memories for many lawyers who worked in these sorts of law firm boiler rooms for the last few decades. Now, many of these firms have begun to cut back on the hiring of associates and have done what many employers have done in the past: outsource their work and look for cheaper alternatives to paying their own employees. As these jobs have dried up, fewer and fewer students are headed to law schools.

The job prospects of law school graduates have diminished, causing many to question the law as a viable career choice.

But these types of working conditions, and the soulless, high-stakes

and high-pressure drudgery that comes with them, are not necessary in the law. Moreover, there is a pressing need for lawyers, as 80 percent of low-income Americans and 50 percent of those of moderate income, face their legal problems without a lawyer because they cannot afford one.

What’s more, working for a cause such as combating homelessness, helping people fight racial discrimination, or pursuing better police-community relations can be rewarding, and a recent study of lawyer satisfaction shows that those who do what is known as public interest work report being far happier at their jobs than those who work in other legal settings.

The legal profession is a calling. It should attract those who wish to make a difference in the world through their law degree, like the next Thurgood Marshall, Ruth Bader Ginsburg, or Evan Wolfson, leader of the victorious marriage equality campaign before the Supreme Court this past year.

The law can be a richly rewarding career–if not a lucrative one–for those who wish to pursue meaning in their work, and help change lives for the better.

Will the work be hard and do lawyers work long hours regardless of their career path within the law?

Yes. Legal work is demanding, especially when the stakes are high. But it can also be intellectually stimulating and exciting. As a young legal aid lawyer working in Harlem on housing matters, I routinely arrived at the office at 7 a.m. and didn’t arrive home until 10 in the evening.

My day would often involve court, night meetings at my client’s home, intake, time in the office research and writing, and perhaps a stop at a government office or even the office of a big law firm that was working

with me on a case pro bono (giving their young associates a chance to do more rewarding work!). Knowing that I was helping my clients save their homes kept me going.

Thinking creatively about their legal claims and putting my brain and my legal training to work to make their lives a little better as I felt I did every day: this was why I went to law school.

Careers in the law can be rewarding. Working in a big law firm can be rewarding, as can working in a prosecutor’s office, for a public defender, or work as a solo practitioner (but there the boss can be a total jerk sometimes). Lawyers, as a profession, need what author and recovering lawyer Daniel Pink describes as the essential components of fulfilling work: mastery, autonomy, and purpose. Amazon-style working conditions (as they are portrayed in the media at least) are anathema to those components, and they have no place in any work setting, let alone those of white collar knowledge workers and professionals.

Should today’s law students, and tomorrow’s, want to find fulfilling careers in the law, they should look for those settings in which they can put their skills and will to the test on behalf of a larger purpose. That is the essence of work as a professional, and to the extent lawyers have lost that, they should seek to regain it. For those who say there are too many lawyers, I respectfully disagree. We just haven’t deployed them to work where they are most needed, or always allowed them to have rewarding and fulfilling opportunities to put their training and skills to the test. n Ray Brescia is an associate professor of law at Albany Law School.

This piece was originally published on the professor’s blog.

Swastika from page 1 Harvard Law School.

“I think the proper way to address tough issues is to speak to one another,” said the source.

“Silencing people you disagree with — like handing out flyers with false ad-hominem attacks about people you disagree with or bullying people to resign — should be replaced with open-mindedness and dialogue.” n Editor’s Note: The Record is in possession of a photo of the swastika but has decided not to publish that photo. Students with questions about that decision can email Editor-in-Chief Michael Shammas at mshammas@jd16. law.harvard.edu.

passionate arguments for changing [the crest]. Others have made thoughtful arguments for keeping some symbols as reminders of where we come from and how far we have come. We should welcome such discussions across our community.”

According to the students behind Royall Must Fall, the best way for Harvard Law School to address its historical association with the Royall family is by deliberately choosing to remove the Royall coat of arms from its current place of honor.

“Our mission to change the Harvard Law School Crest seeks to actually address the fact that the crest was the family symbol of slave owning, slave trading murderers,” said Clayborne and Vormawor. “In confronting this history, we have concluded that such a symbol cannot, should not, and must not represent the law school that has nurtured us.”

They have also expressed hope that “students, faculty, and the administration” will unite behind their cause.

“We would like for this act to be the beginning of a new attitude on campus that learns and accepts the racist history of the school,” said Clayborne and Vormawor, “so that further abuses that continue into the present day, such as a lack of student and faculty diversity and an outdated and oppressive legal pedagogy, might be addressed as well.” n

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

November 16, 2015

Harvard Law Record

3

OPINION

Barlow: Reprisals for speech are facist Barlow from page 1 Once again, the problem isn’t that you disagree with what the event said (though, if you disagree with an event about the importance of free speech, that might be a cause for concern itself), but that you are using a tactic — spitting — that constitutes

battery, and should never be used against someone for expressing beliefs that you disagree with.

I understand that it can sometimes be difficult for college students today to tell the difference between fascist methods and non-fascist methods of advancing their beliefs and agendas. Luckily,

I spent my senior thesis studying the rise of fascism in Europe, and am happy to give a few, easy tips about whether the activity you are engaged in adopts fascist tactics or not. To make it even easier, I’ve put it in table form below.

Of course, this isn’t an exhaustive list, but it’s a good starting point. Ask yourself the question: Am I calling for people to be officially sanctioned because of what they believe, or am I committing a crime against someone because of what they believe? If the answer is yes, you are probably engaging in fascist tactics.

Given the public outcry, it seems that the majority of people, including the majority of progressive liberals, believe that Yale students calling for the resignation of those professors have gone too far in punishing free speech. The problem is that no one is willing to stand up to them. If we are going to begin anywhere, we are going to begin by calling them by their rightful name.

They are fascists.

They are fascists.

They are fascists. n Bill Barlow is a 3L at Harvard Law School.

Screencap credit: The Foundation for Individual Rights in Education

Tactic

Fascist or Not Fascist?

Explanation

Blocking people you disagree with on Facebook

Not Fascist

Maybe a bad idea, but you’re not actively transgressing on another person’s right to speech.

Calling for people to be fired for expressing their beliefs

Fascist

You are (1) calling for reprisals (2) for people expressing what they believe.

Organizing a protest against an editorial you disagree with

Not Fascist

You are condemning a belief you disagree with, but not trying to punish the speaker for saying it.

Calling to defund a newspaper for publishing an editorial you disagree with

Fascist

You are (1) calling for reprisals (2) for people expressing themselves.

Putting up fliers demeaning people that disagree with you

Not Fascist

Using an ad hominem attack is silly and hurtful, but does not use positions of authority to punish free speech.

Spitting on people attending a meeting you disagree with

Fascist

You are (1) committing a crime against someone (2) because they exercised their free speech.

Calling for a University to change its seal

Not Fascist

You are not punishing anyone for their beliefs. Not fascist in the slightest!

Tearing down fliers that you disagree with

Fascist

You are (1) committing a crime against someone’s property (2) because they exercised their free speech.

Condemning people for wearing offensive Halloween costumes on Facebook

Not Fascist

You are expressing indignation at someone else’s choices, but not calling for them to be punished because of their expression.

Calling for students to be expelled for wearing offensive Halloween costumes

Fascist

You are (1) calling for reprisals (2) for people expressing themselves (even if in a hurtful, offensive way).

Who’s being coddled here?

This piece was submitted by the author as a response to Bill Barlow’s “Fascism at Yale.”

By Annaleigh Curtis ’16

“What does it require for a subperson to assert himself or herself politically? To begin with, it means simply, or not so simply, claiming the moral status of personhood. So it means challenging the white-constructed ontology that has deemed one a ‘body-impolitic,’ an entity not entitled to assert personhood in the first place. . . . One has to learn the basic self-respect that can casually be assumed by Kantian persons, those privileged by the Racial Contract, but which is denied subpersons. . . . One has to learn to trust one’s own cognitive powers, to develop one’s own concepts, insights, modes of explanation, overarching theories, and to oppose the epistemic hegemony of conceptual frameworks designed in part to thwart and suppress the exploration of such matters; one has to think against the grain.”

– Charles Mills, The Racial Contract 118 – 19 (1997)

It is in Mills’ tradition of political assertion that we should read unrest on campuses today. Students are demanding recognition of their claims to knowledge about their own social experiences and broader structures of oppression, but beyond that they are demanding justice (which is not to suggest the two are distinct).

Across the country and world, students are agitating for change. Whether it’s Mizzou, Yale, or Capetown. And somewhere in the bowels of the White Dude Thinkpiece Establishment, Jonathan Haidt, Greg Lukianoff, Conor Friedersdorf, and others sit and wonder where it all went wrong.

Kids these days can’t take the heat of intellectual challenge, asking to be coddled on campus, and it’s hurting them psychologically.

This is part of Haidt and Lukianoff’s conclusion in the “Coddling of the American Mind,” approvingly cited by Friedersdorf in his latest dismissive commentary on student activism at Yale. This view seems to be getting a lot of uptake in the media and among a wide swathe of diverse sorts of (mostly) white people — young, Ivy-League white people; old puffy white

people; white people who would be happy to explain why you’re wrong and they’re right.

But who’s really being coddled here?

Is it students who are concerned about social justice, about making their schools safe for the expression and exploration of ideas without facing a constant stream of nonsense?

These students are repeatedly, and in myriad ways, calling out serious problems on their campus, from the diversity of their faculties, to the way their endowments aredestroying the earth, to the racist symbols that permeate the very history of their institutions, to the serious problem of sexual assaultand harassment, and beyond. They are developing their own languages to talk about these problems. They’re banding together to make their voices heard, and they are making demands of people in positions of power. In some cases, the most successful cases, their demands are backed by the only kinds of threats that seem to work — threats of united strike and disruption.

They are not doing this in a vacuum, but rather against the backdrop of one of the most successful activist movements of the last 50 years, Black Lives Matter, which has been successful largely because

of, not in spite of, its willingness to be unapologetically disruptive.

The media pick up single incidents here and there that represent the culmination of frustrations on campus while sustained complaints about systemic injustice are largely ignored.

Meanwhile, defenders of the status quo – who largely do not see themselves as such, but rather as well-intentioned ‘liberals’ or ‘progressives’ – view these incidents acontextually and assert that kids these days are losing their edge.

They demand that such tactics be denounced. They clamor for assurances that they will never be treated this way, so unreasonably, so dismissively, simply for suggesting something so normal or for failing to say just the right thing. They complain that they are unable to maintain an untarnished grip on reality in which things are, really, not so bad. They express concern over the state of the youth, about their lack of coping skills or rational faculties, instead of recognizing that the best coping strategy for injustice is resistance. They want certain speech not to exist because it makes them uncomfortable. It makes them feel like they’re losing something to which they are utterly entitled, which is the right to say or do anything that’s

always been said and done and not have to pay social consequences for having done so. Most of all, they are worried that they will lose the right to be ignorant and that their own distinct, situated worldview will no longer be accepted uncritically as objective and neutral.

So who’s being coddled? Who’s asking for unreasonable concessions to their worldview? Who’s refusing to grapple with reality?

Who’s unable to cope with a changing world? “[A]s a general rule . . . white misunderstanding, misrepresentation, evasion, and self-deception on matters related to race are among the most pervasive mental phenomena of the past few hundred years . . . . And these phenomena are in no way accidental, but prescribed by the terms of Racial Contract, which requires a certain schedule of structured blindness and opacities in order to establish and maintain the white polity.”

– Charles Mills, The Racial Contract 19 (1997) n Annaleigh Curtis is a 3L at Harvard Law School. This article was originally published on The Second Shift and is republished here with the permission of the author.

In addition to accepting original opinions, The Record — in the spirit of fostering a law school community that engages in critical thinking and values free speech — publishes responses to opinion pieces published in previous issues. These submissions should be sent to editor@hlrecord.org or to editor-in-chief Michael Shammas ’16 at mshammas@jd16.law.harvard.edu.

Pentagon payments to sports leagues appalling Both DoD and teams deserve oppobrium for paid salutes.

By Nic Mayne ’18

Over the past four years, the Pentagon doled out over $9 million to professional sports teams in the NFL, MLB, NHL, NBA, and MLS. $6.8 million of this was used to induce teams to stage patriotic displays, as revealed in a report

by Senators Jeff Flake and John McCain, with the goal of promoting the armed forces and encouraging enlistment.

Reading the report immediately sent my mind back to recent events I’ve attended – dramatic on-field

Series finalist NY Mets. 8 NBA teams, 6 NHL teams, and 8 MLS clubs also received benefits.

The Department of Defense has since rightly banned paid patriotism, and at least one league (the NFL) has told clubs not to accept payment for homecomings at major league base- patriotic displays. Others, the NHL ball games, members of the armed included, have yet to address the forces waving to a standing ova- issue. tion from hockey fans, and the like.

I sympathize with the teams’ jus- would not only cheapen those disI’ll admit I’m not much of a patriot tification for accepting money; of- plays but cast doubt on real, genu(forgive me, I’m Canadian), yet tentimes, these salutes are already ine displays at professional sporting something about the strategy just practiced, why not benefit from it? events across the nation. I realize doesn’t sit right with me. I find it Still, though the business logic is that at some level, propaganda is inappalling that the Department of sound, professional sports clubs evitable, but paid patriotism clearly Defense would be willing to play on have to understand how accepting crosses a line. the patriotism of fans while using cash for a patriotic act cheapens the Worse still is the realization that unknowing national heroes as walk- salute. behind the Department of Defense’s ing advertisements, and equally The fact that the money was ever embarrassing marketing ploy were disgusted that professional sports offered I find even more disturb- American taxpayers. Americans teams would accept compensation ing, however. I can only imagine were essentially paying to be subfor the displays. how it must feel to learn that an jected to feigned displays of ap18 NFL teams are named in the American football team was paid to preciation, and while the fans’ rereport, including the hometown allow you to present the flag before sponses may be genuine, there was Patriots and my personally-favored a game with fellow National Guard no need for money to be offered or Seattle Seahawks. 10 MLB teams members. Certainly someone at the accepted in order for such displays are named, again the Boston squad Department of Defense had to fore- to happen. among them, along with the World see that paying for patriotic acts I understand that the Department

Propaganda is inevitable, but paid patriotism clearly crosses a line.

of Defense is tasked with marketing national service to Americans, but paying teams to use America’s wounded warriors in live mass advertisements is wrong on a number of levels. All who were involved in these exchanges should be ashamed, and I applaud the work of McCain and Flake in bringing the issue to light. While I’d love to see the funds returned to taxpayers, the Senators’ recommendation that teams donate the funds to organizations that help veterans is a realistic alternative.

The Department of Defense didn’t just waste taxpayer funds, they abused taxpayer funds for a truly reprehensible purpose. The damage is done, however, and those who profited should seek to make things right. The Department of Defense, meanwhile, needs to rethink military service marketing and refuse to deceive the public with spurious propaganda. I’d like to think that the Pentagon is above dishonest recruiting tactics, here’s hoping this is the last time they prove me wrong. n

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Harvard Law Record

November 16, 2015

OPINION

End the death penalty for conservative principles Limited government, fiscal responsibility, and pro-life morality demand death penalty abolition.

By Ben Jones

A few years ago, any state ending the death penalty struck most political observers as an extraordinary event. Following Gregg v.

Georgia, which ended a four-year hiatus on capital punishment nationally, state after state reinstated the death penalty. This trend continued into the 1990s, as even deep blue states like New York brought it back. In this environment dominated by tough-on-crime rhetoric, a state ending the death penalty seemed impossible.

That changed in 2007, when New Jersey became the first state since Gregg to repeal the death penalty legislatively.

After New Jersey, other states – New Mexico, Illinois, Connecticut, Maryland – followed suit. With each state that repealed the death penalty, it became less of a surprise. But one development this year caught people off guard: a legislature in a red state, Nebraska, voted to scrap its death penalty.

This move piqued the interest of commentators as diverse as George Will and Rachel Maddow. The news prompted The Daily Show to send a reporter to Nebraska to “investigate.” When interviewed by The Daily Show, the lead Republican sponsor of repealing Nebraska’s death penalty, Senator Colby Coash, explained to a skeptical reporter that it was because of, not in spite of, his conservative principles that he led the effort. In particular, this aspect of the Nebraska campaign – legislators ending capital

punishment for conservative reasons – has fascinated and perplexed observers.

Specifically, the conservative case against the death penalty consists of three principal arguments: the death penalty’s incompatibility with (1) limited government, (2) fiscal responsibility, and (3) promoting a culture of life.

First, at its most basic level, the death penalty represents an expansion of government power. Capital punishment involves not just removing violent individuals from society, but taking the additional step of killing them after they have been incarcerated.

With modern prisons, the government has available non-lethal means to keep society secure without resorting to executions.

Furthermore, giving government the power to execute leads to abuse of this power in the form of executing likely innocent individuals and botched executions.

After such mistakes, states have turned to keeping secret the details of executions, which only leads to more errors and abuse.

Second, the death penalty costs states millions of dollars more than incarcerating someone for life.

Studies in over a dozen states have reached this conclusion. Because of wrongful death sentences and other errors, the courts require extra due process in capital cases.

Therefore whenever prosecutors

seek a death sentence, they set in motion a longer, more complex, and costlier legal process. Justifying this expense proves difficult when there is no credible evidence that the death penalty has any impact on murder rates. Moreover, most death sentences are overturned, which means that states often spend extra resources on what ends up being a life without parole sentence.

Third, the Catholic Church and others have questioned the death penalty’s place in a society that values life. The over 155 wrongful death sentences and subsequent exonerations nationwide make clear that the death penalty threatens innocent life.

Even for those guilty of grave crimes, their lives have value and there remains the possibility of redemption, which an execution unnecessarily cuts short.

These reasons, of course, do not persuade all conservatives. One objection raised is that, by definition, conservatives support the death penalty.

Even if someone is Republican, pro-life, and fiscally conservative, they lose their conservative credentials by opposing the death penalty.

But making capital punishment a litmus-test issue proves difficult to defend because it disqualifies as conservative no small number of figures – Robert George, Abby Johnson, Ron Paul, Ramesh Ponnuru, Jay Sekulow, and others – well respected by various conservative constituencies. This view also puts a movement committed to religious liberty in the uncomfortable

[M]ost death sentences are overturned.

First, at its most basic level, the death penalty represents an expansion of government power.

with another four implementing a moratorium on executions. Massive crime waves have not resulted.

In fact, states without the death penalty have lower murder rates on average than states with it. People in states without the death penalty appear content with the status quo, as they support life without parole over the death penalty by a wide margin.

There is a cogent conservative case, then, for ending the death penalty. It will be interesting to see if its impact in Nebraska was an anomaly or part of something larger. Developments elsewhere suggest the latter. Last month the National Association of Evangelicals changed its pro-death penalty position of over 40 years, and now recognizes that Christians have legitimate reasons to oppose capital punishment.

In Kansas, the state Republican Party dropped its pro-death penalty plank from its platform, while the College Republicans called for the death penalty’s repeal.

Legislatures in other red states like Montana have come close to ending the death penalty.

As evidence of the death penalty’s brokenness has become harder to ignore, support for its repeal has grown across the political spectrum.

If that trend continues and ending the death penalty increasingly becomes a bipartisan cause, its days almost certainly are numbered. n

position of expelling from its ranks those deeply opposed to the death penalty on religious grounds.

Another objection appeals to tradition: capital punishment has existed in America since its founding, and thus the conservative position is to support it.

This argument, however, takes a selective view of history. Yes, executions have occurred in America since the 1600s, but at the same time the Founding Fathers expressed reservations about capital punishment and were inf luenced by the criminologist Cesare Beccaria, who condemned the practice in his treatise On Crimes and Punishments.

In this environment, some states dramatically restricted the crimes eligible for the death penalty in sharp contrast to England’s Bloody Code, which designated a long list of property crimes as capital offenses.

Later in 1846, it was an American state, Michigan, that became the first English-speaking territory to Ben Jones is a campaign strategist abolish the death penalty.

Experimentation by the states for Equal Justice USA. Mr. Jones has demonstrated that – contrary was the Executive Director of the to some doomsday rhetoric – re- Connecticut Network to Abolish pealing the death penalty does not the Death Penalty, which successlead to disaster. Currently, 19 states fully worked to repeal capital punhave abandoned the death penalty, ishment there in 2012.

Have comments about an article in this issue? Send a letter to the editor at editor@hlrecord.org or head over to our website at hlrecord.org to comment directly on a piece.

LETTERS TO THE EDITOR Former Harvard Crimson Hockey Defenseman Defends Contact Sports To the editor: Prior to and during my time at Harvard, I have been concussed multiple times in my hockey career and have suffered severely as a result. Despite double digit brain injuries, I made the decision to continue playing and understood the risk that I was taking. For me, the negatives of repeated injury are outweighed by the countless positive experiences that sport provided. After my last concussion on January 9th, 2015, I was left reeling from symptoms and was forced to retire; yet, if I could go back in time to when I first laced up my skates, I would not change a single thing.

When I was concussed, as miserable as my symptoms were, ranging from the cognitive to the physical, nothing could cheer me up more than the rink, my sport, and my teammates. This value of athletics is intrinsic and serves as an outlet and an identity for athletes around the globe.

No one is going to argue that getting hit in the head is good for you or that there aren’t any long term issues stemming from traumatic brain injury. However, the cases that have been spotlighted by the media are exceptional. This is not to ignore the tragedies nor is it intended to shift the spotlight away from concussions, but these unfortunate dangers of sport, and ultimately life, serve as a starting point for communication, education and prevention of further injury. This effort to establish a dialogue is a far more rational and empathetic solution than calling for an end to football, and consequentially all sports that pose a risk of concussions.

To say that “Harvard is not simply risking the health of its players on a weekly basis, but threatening players’ mental and physical well being for the rest of their lives” displays a fundamental misunderstanding of athletics and inability to empathize with the psyche of athletes. While football and contact sports are dangerous and injuries do occur, it is not Harvard that is putting these athletes at risk. As a 20-year-old Harvard student, I believe that I have the capabilities to evaluate the risk and reward of contact sports. Additionally, as a fully consenting individual, I do not

think that it is anyone’s right to dictate my participation. My mother, a nurse practitioner in trauma, who has participated in panels with Hockey Canada regarding concussions and given multiple talks on traumatic brain injury, and my father, a dentist, were very clear about the risks of concussions. In hockey, I played a role that left me prone to injuries from a young age. I was not your star player but rather a shut down defenseman known for hits, blocked shots, and the occasional fight – a role that is not without risk.

I loved it, and I continued to play despite knowing that injuries were inevitable.

University of Texas Athletic Director Christine Plonksy maintains that for student athletes, “the opportunity to receive an advanced education always has been the traditional and primary motivation behind their athletic participation.”

While this may be true at a scholarship institution, Harvard does not award any athletic scholarships, and thus, there is no economic incentive for players to continue playing football past the moment they are accepted. Raised by two parents in medicine, I was aware of the impact of concussions and the importance of education. I was aware that hockey could be leveraged for a great education, but by no means was I economically coerced into continuing my career. While I would not be the same person without hockey in my upbringing, from an academic standpoint I would have been able to succeed.

The value of athletics far exceeds the benefits of physical conditioning; it tremendously impacts life in general. Through sport, individuals learn how to push for success and cope with failure, how to work within a team of equally devoted individuals, the value of hard work, discipline, sacrifice, and ultimately how to be an active and valuable member of society. Football at Harvard, an institution known for its transformative education, certainly adds value. Furthermore, football and athletics should be welcomed as an integral part of any educational institution that seeks to maintain a diverse student body.

This is why Title IX was applied to athletics: educators and legislators alike see value in competition at the collegiate level.

Harvard strives to break down class barriers. Arenas of athletic

competition are one of the most effective ways to eliminate social segregation. Through sport, class distinctions are temporarily suspended, individuals across the spectrum compete together with one common goal: winning. It is this idea of spontaneous communitas, as coined by anthropologist Victor Turner, that allows sport to represent the population as a whole.

While athletes across Harvard’s campus are involved in a multitude of activities outside their sport, much of their identity stems from their athletics. To take away this identity, family, and support system would be an abuse of power and the cause of more harm than good. In a high stress environment such as Harvard, mental illness is a reality.

A healthy outlet through athletics is essential to the well being of its student athletes and beneficial to student fans as well. Professionals and those who have experienced stress and depression first-hand defend the merit of athletics in coping with mental illness. To deprive students of these opportunities would be to deprive them of the opportunity to belong.

Ultimately, as Crimson contributor Jim Davis pointed out, it must be noted that there is in fact an issue with concussions in contact sport.

When deaths were occurring in early football, President Theodore Roosevelt considered banning the game. Fortunately, this did not happen, and vast improvements in the sport were made. However, with new technology and research capabilities, it is indeed time for advancements; we currently have an opportunity to change the rules, and through dialogue on education and safety, ensure that the benefits of sport continue. While the balance between physical advancement and practices adjusted for safety is a difficult challenge to tackle, it is not impossible. As such, there is no need to ban collegiate football, but rather a need for greater research, education and preventative measures. While progress has been made, the question of whether major changes will first emerge from the collegiate or professional ranks remains unanswered. However, the merit of sport in education is, in my opinion, irrefutable.

Kevin Guiltinan is a junior in Harvard College and a former Harvard hockey defenseman.

Royall Must Be Recognized, Not Revered

compelling reason to keep his family crest on the Law School’s seal.

Those reasons to honor Royall would be unrelated to his slaveholding, or loosely related if his legal education was financed by his slaveholding family’s wealth. It would be appropriate, then, to acknowledge and discuss the fact that the Royalls were one of the biggest slaveholding families in the region and to simultaneously continue using the crest. In reality, there is no compelling argument that Isaac Royall, Jr.’s story is worth honoring at Harvard.

Isaac Royall, Jr. was an important man chiefly because of his immense wealth. His father made a fortune in sugar plantations in Antigua before retiring to Medford.

The younger Royall inherited this fortune and a network of business contacts at age twenty. Both father nor son often served as the broker for a friend in New England looking to buy an enslaved person, or one in the Caribbean looking to sell.

More than sixty enslaved Africans were held at their Medford estate over the Royall family’s years there. I don’t know how many enslaved Africans labored on Isaac senior’s sugar plantations, but I do know that such plantations had high mortality rates, and replacing the enslaved workers by forcibly importing more Africans was commonplace.

The Royall family is recognized by the Harvard Law School because of their money, which was made on the backs of enslaved laborers.

Recognizing major donors whose primary connection to an institution is monetary is a time-honored tradition, and I don’t intend to say that it should be ended or reversed.

However, whenever someone is honored in a medium that lasts for generations, it is appropriate to examine their legacy closely. The workers who have made the school possible, past and present, should be acknowledged as well as the capitalists who moved the wealth around. By all means, HLS should display a plaque acknowledging the founding donation, but the Royall family’s place of honor on the school’s seal is undeserved.

Dear editor, Students at Harvard Law School are calling for a change to the school’s seal, which incorporates the family crest of HLS benefactor Isaac Royall, one of the biggest slaveholders in colonial greater Boston. I’ve often heard people react protectively towards the historic names on buildings, street signs, and other institutions, saying that you can’t try to erase a piece of history just because you don’t like it. I agree on the surface, but as a historian and museum professional who studies how we create and perpetuate public memory, I cannot ignore the fact that we as a society erase or paint over pieces of history all the time. Just as photographs can never be fully objective because something is always left out of the frame, public memory is a process of constant choices.

There’s simply too much history to commemorate all of it all of the time, and what we commemorate changes. What’s important is that we as a society choose wisely when we honor people from the past.

There are many reasons to honor the legacies of people who have done morally questionable or reprehensible things. There are more and less sensitive ways to honor these people and their legacies. I am not suggesting that every slaveholder’s family crest be erased from doors and every slaveholder’s name be erased from street signs.

The impulse to remove these names and symbols is a part of a greater movement towards fuller understandings of our own past and cultural narratives that remember all Americans, rather than just the Americans who were at the top of society in their day. We can decide whether to act on that impulse or to make some other change to the way a person’s complicated legacy is memorialized. The issue is too complex to have one answer. These decisions must be made on a caseby-case basis. One way to approach these decisions is to consider why a historical figure is being honored and ask whether they are honored for a reason that is deeply interTegan Kehoe is a historian and twined with their wrongdoing.

If Royall had been a prominent writer. She has volunteered at the lawyer or legal scholar, or a long- Royall House and Slave Quarters time champion of legal education historic site in Medford. This letter in the colonies, that would be a reflects solely her own views.

November 16, 2015

Harvard Law Record

5

OPINION & ANALYSIS

19 HLS professors defend law student depicted in documentary Re: The Hunting Ground From: Elizabeth Bartholet, Scott Brewer, Charles Donahue, Jr., Nancy Gertner, Janet Halley, Bruce L. Hay, Philip B. Heymann, David W. Kennedy, Duncan M. Kennedy, Randall L. Kennedy, Charles J. Ogletree, Jr., Richard D. Parker, J. Mark Ramseyer, David Rosenberg, Lewis D. Sargentich, David L. Shapiro, Henry J. Steiner, Jeannie C. Suk, Laurence H. Tribe November 11, 2015 This purported documentary provides a seriously false picture both of the general sexual assault phenomenon at universities and of our student Brandon Winston.

For an investigative journalist’s

in-depth story demonstrating the biased, one-sided nature of the film and its unfair portrayal of Mr. Winston, see Emily Yoffe, “How The Hunting Ground Blurs the Truth.”

With respect to Mr. Winston, the film gives the impression that he, like others accused in the stories featured in the film, is guilty of sexual assault by force and the use of drugs on his alleged victims, and that he, like the others accused, is a repeat sexual predator.

There have been extensive factual investigations and proceedings examining the facts of Mr. Winston’s case, at Harvard Law School, before the grand jury in connection with criminal charges brought against him, and before the jury in his criminal trial. There was never any evidence that Mr. Winston used force,

nor were there even any charges that he used force.

No evidence whatsoever was introduced at trial that he was the one responsible for the inebriated state of the women who are portrayed in the film as his victims. Nor was any body vested with final decision-making authority persuaded that Mr. Winston was guilty of any sexual assault offense at all. The Harvard Law School Faculty concluded after extensive review of the facts that there was insufficient evidence to support the charges made against him, and that he should therefore be reinstated as a student at the Law School. The grand jury refused to indict him on the most serious sexual charges against him, and refused to indict him on any charges involving Ms. Willingham. It is of

course highly unusual for a grand jury to reject a prosecutor’s request to indict. The trial jury found Mr. Winston not guilty of the remaining sexual charges against him (charges involving Ms. Willingham’s friend).

And the trial judge concluded at sentencing on the basis of Mr. Winston’s character and the limited nonsexual misdemeanor charge on which he had been convicted, that he should be given no more than a sentence of brief probation.

Nor did the Department of Education Office for Civil Rights, in finding Harvard Law School responsible for certain Title IX violations, vindicate Ms. Willingham’s claims against Mr. Winston or fault the Faculty’s conclusion that the Law School’s charges against him should be dismissed and he should

be readmitted to the School.

We believe that Brandon Winston was subjected to a long, harmful ordeal for no good reason. Justice has been served in the end, but at enormous costs to this young man. We denounce this film as prolonging his ordeal with its unfair and misleading portrayal of the facts of his case. Mr. Winston was finally vindicated by the Law School and by the judicial proceedings, and allowed to continue his career at the Law School and beyond. Propaganda should not be allowed to erase this just outcome.

Editor’s note: Emily Yoffe’s “How The Hunting Ground Blurs the Truth” was published by Slate magazine and can be found at http://slate.me/1EOo3T

A defense of “The Hunting Ground” and other non-legal advocacy The Hunting Ground is a documentary. Documentaries, like other mediums of advocacy journalism, give those who have been silenced in other forums a chance to speak. The creators of The Hunting Ground gave survivors a chance to tell their story, which is a different task from courtroom advocacy, though no less noble. Documentary filmmakers must tell their subjects’ stories in a way that honors their trust, as it takes bravery and trust to share one’s story on camera.

And, unlike courts, documentaries are free to explore evidence in more depth and detail. They do not include presumptions of guilt or innocence, and both filmmakers and audiences are free to make credibility determinations.

To some of our professors, it seems, sharing one’s story in a documentary, speaking outside of the legal arena, causes discomfort. But they don’t want her to tell her story publicly; at least not without all the facts they think need to be included, and certainly not after they’ve decided she was lying. Targeting the forum in which a survivor speaks is another way of silencing the survivor.

Yesterday, 19 professors published a press release attacking The Hunting Ground and defending one of the students described in the HLS-related segment beginning at minute 14. The respondent’s name was in their press release but not the film. The 19 argue that The Hunting Ground gives a “seriously

false picture” of the sexual assault “phenomenon” at universities. Yet, they rest their assertion on the fact that “There was never any evidence that [the respondent] used force, nor were there even any charges that he used force.” Not only are the professors misrepresenting the outcome of this case — HLS faculty did first expel the respondent (the expulsion was later overturned), and the respondent was indeed convicted of the crime of misdemeanor nonsexual touching — but their fixation on a force requirement for rape betrays their misunderstanding of the problem of sexual assaults on campuses. Force is not involved in many sexual assaults, especially on campuses where alcohol allows perpetrators easy access to victims and

a way to excuse their own behavior. With their press release, those 19 told victims that — unless you have the bruises and broken bones to prove otherwise — we would not believe you.

As students, we know too well the truth behind the numbers — the faces and stories of our friends and classmates. And as law professors, they should know the difficulties that exist in prosecuting sexual violence in the criminal justice system, where only a fraction of perpetrators will ever be prosecuted. It is the inadequacy of the criminal justice system that makes the campus adjudication process so crucial. The 19 professors seem to demand that the standards of the criminal justice system infiltrate not only campus adjudicatory

procedures but also other forms of advocacy like documentary filmmaking. Ultimately, they are vying to bar the many remedies for survivors that exist outside of the criminal justice system, which, given the realities of that system, would mean no recourse at all.

HALT stands with survivors. We respect their right to tell their stories, which are too often discounted.

– The Harassment/Assault Legal Team (HALT) The Harassment/Assault Legal Team (HALT) is a law student-run organization that advocates for victims of campus sexual harassment and assault. This piece was anonymously submitted.

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It’s time for a public option in banking Post offices can provide ordinary citizens with banking services without greed and overcharges.

By Mehrsa Baradaran

The Federal Reserve decided last month that it will not be raising interest rates the quarter of a point they were contemplating.

To be clear, for the last decade, banks have been borrowing money from the Fed at zero percent interest.

This is not even to mention the trillions of dollars the Federal Reserve spent in Quatitative Easing 1 through 3 buying up bank assets and the billions in TARP bailout funds. The Federal Reserve has been pushing so much money at the banking industry that when it does decide to slow down the money supply, they will not be able to just turn off the spigot. They will actually have to start to paying banks billions of dollars to not lend the trillions it has been giving them since the financial crisis!

Why throw all this money at banks? The point of all of this lending is that the banks are the “engines of the economy.” All this credit pumped into the banks is to be for the benefit of the public. The premise of the bailouts was, according to President Bush, not to save the banks, but “to help American consumers and businesses get credit to meet their daily needs.” Obama reiterated by saying “we’re all in this together.” Ken Lewis, CEO of Bank of America said during the bailout “We are so intertwined with the U.S. that it’s hard to separate what’s good for the United States and what’s good for Bank of America…they’re almost one and the same.”

But as it turned out, we were not in it together.

While Bank of America made an impressive $10 Billion in profits

last year, a growing portion of the American population is left completely out of the banking industry because the industry has stopped serving those who are too poor to bank. Banks, like Bank of America, use high fees and penalties to repel customers with too little money to save. These people who have little to begin with end up having to pay 10% of their income just to use their money and pay their bills. Indeed, it is very expensive to be poor.

And the tragedy of money being siphoned from the paychecks of ordinary Americans is the least egregious part of a much larger problem.

Somewhere between 20 to 40 percent of the U.S. population have to rely on modernday loan sharks for their credit needs.

Sometimes those who live paycheck to paycheck face an unexpected emergency. Over half the people in the United States are so cash-strapped that they would not be able to access $400 without selling something or borrowing money.

The need to borrow to deal with emergencies — often at rates over 300% APR and from the least regulated and most unscrupulous lenders — adds another layer of financial strain on those least able to bear it and the crushing cycle of debt makes it that much harder for them to escape poverty.

There are millions of individuals

whose otherwise stable financial lives can be upended by one wrong turn and a large and growing percentage of the population whose bills are much more constant and predictable than are their paychecks. For these people, paying several thousands of dollars in accrued interest can turn a temporary cash flow problem into a full blown financial disaster. Contrast that to Vikram Pandit’s expression when he saw the terms of CitiBank’s bailout: “This is very cheap credit!”

So while this cheap credit saved the banking industry from insolvency, very costly credit is crushing “the other half.”

Of course the function of the central bank or Federal Reserve is to provide this credit to banks. When the financial sector experiences financial stress, the Federal Reserve infuses liquidity into the troubled banks so that they could withstand temporar y credit crunch and get back on their feet. This is where the contrast between the credit markets for the average people-as-borrowers and the credit markets for the banks-as-borrowers becomes stark.

The government provides banks low-cost loans when they are illiquid (short on cash) and also when they are insolvent (bankrupt). The reverse is true in the credit market for the poor. Fringe lenders lend at oppressively high interest rates to the illiquid as well as the insolvent, with the result that often, those who were merely illiquid become insolvent.

Whereas the government, through the central bank, is in the business of resurrecting dead banks through

20 to 40 percent of the U.S. population have to rely on modern-day loan sharks for their credit needs.

credit, the fringe lenders are in the market of suffocating the illiquid until they are insolvent.

The banking system is supported, protected, and even saved from its own malfeasance because the state needs it — both to carry out the State’s own monetary policy as well as to lend to the people. If banks fail, it is reasoned, so will the American people.

But many people are failing. They are failing even as the banks are succeeding, and they are failing because the banks are no longer involved in providing them credit.

The government has outsourced the provision of credit to the banking system, which it is supplying with “very cheap credit” — cheap credit that is not flowing out to reach those who need it most. When the banks categorically exclude almost half the population from the credit they are entrusted to provide, leaving that group to the wolves, it creates a glaring disparity and a grotesque irony.

If the intended result is to help the public with credit, why continue to use banks as a medium when they are clearly leaving out a significant portion of the population? Why not provide credit directly to those who need it, in order to be certain they get it?

It is time for a public option in banking — a central bank for the poor.

The post office would be the perfect institution to provide the poor with savings accounts and other transactional services. The public option could even provide short-term credit to individuals so that they can withstand a personal credit crunch and get back on their feet. Only the Federal Government is able to provide credit to the biggest banks and only the federal government can do so directly to the people — without having to wait for the banks to do it.

The post office would be the perfect institution to provide the poor with savings accounts and other transactional services.

When President Wilson created the Federal Reserve, he wanted it to be an institution that minimized the power of the likes of J.P. Morgan and private financiers — to provide credit to the public without having to rely on the biggest lenders. Wilson announced that “the great monopoly in this country is the monopoly of big credits. So long as that exists, our old variety and freedom and individual energy of development are out of the question. Our system of credit is privately concentrated.”

The Federal Reserve was thus created as a public institution, instead of a private cooperative as was initially suggested by Wall Street magnates, to check this power. It is important to ask whether it is still working for the broader American public. The fear of concentrated bank power is even more acute today. There are now a handful of behemoth banks, including Bank of America, that control the vast majority of the country’s banking assets. And while the government continues to provide banks with 0% interest credit, it has allowed interest rates to the poor to skyrocket to triple digits. There’s something wrong with this picture. n Mehrsa Baradaran is an associate professor at Georgia Law School.

She is the author of How the Other Half Banks, which is being published by the Harvard University Press.

6

Harvard Law Record

November 16, 2015

OPINION

HLS alums’ Appleseed network foster lawyering, grow communities

By Betsy Cavendish

Among the many public service endeavors of Harvard Law School graduates, one lasting institution stands out: Appleseed. Recent Harvard Law School students may have seen the Appleseed conference room, on the fourth floor of Wasserstein Hall and wondered, what’s the Appleseed Foundation?

Appleseed is a network of 17 public interest justice centers in the United States and Mexico, with a national headquarters in Washington, DC. At the 35th reunion for the Class of 1958, Ralph Nader, Ed Levin, Ralph Petersberger, Bert Pogrebin and other distinguished lawyers asked how they could make a lasting difference. They didn’t do a day of service or make a huge reunion donation to the law school; rather, they decided to create a foundation whose mission would be to create other local institutions that would address systematic injustices…in short, to spread the seeds of justice, much as Johnny Appleseed planted apple orchards throughout the Ohio River Valley, Midwest and Canada.

Did they spend their first year in meetings agreeing on an agenda? No. They agreed not to have an agenda.

Priorities would be set by local leaders, who were best positioned to determine what the structural problems were, problems that they could fix.

The vision was to complement traditional legal services for the poor, with its case-by-case approach, and address issues upstream, systematically. They imagined harnessing the pro bono talents of professionals in the area, and calling upon them to use all their skills to analyze root causes of injustices and carry out plans to fix them. Just as top-flight lawyers handle major transactions and occasionally secure legislation for clients, the pro bono attorneys on Appleseed projects devote their analytic, deal-making, policy, litigation and governance skills to solve problems.

Members of the Class of ’58 called their friends and classmates in various cities, hired an Executive Director, Linda Singer, HLS ‘91, and began the hard work of institution-building.

They established Centers or welcomed existing public interest organizations into the network, often in places where public interest lawyers were few, such as South Carolina, Texas, Nebraska, Louisiana, Alabama. Members of the Class of ‘58 worked with and inspired the members of the Class of ’68 to establish D.C. Appleseed, one of the biggest and strongest Centers in the network. They built institutions and led particular projects.

What began at a reunion became a lasting commitment to build and strengthen the Appleseed institution, with dollars, with personal connections, with time, with brainpower and organizational skills. Appleseed today advocates in four main areas.

Education and Vulnerable Youth Working with the Department of Education, Agent 16 (an advertising firm), and the Ad Council, New York Appleseed addressed what was identified as a core problem in education: teacher recruitment. At the time, New York City education officials had to hire just about every applicant. The successful campaign not only allowed New York to be choosy about the teachers it hired, it lifted the status of the teaching profession.

Now, New York Appleseed is tackling another core problem in education: segregation and re-segregation of schools, and the fair allocation of resources within and among schools.

Georgia Appleseed, also working collaboratively with partners to form JUSTGeorgia, secured the first rewrite of the state’s juvenile code in 40 years. Through interviews, research, drafting and persuading legislators, they reformed discipline and the social service systems to serve children better and promote safer communities.

Washington Appleseed, New

Mexico Appleseed and others are tackling hunger in schools, successfully advocating for ‘breakfast after the bell” so kids aren’t trying to learn while they’re hungry.

Mexico, Massachusetts, Nebraska and others have addressed numerous issues relating to particularly vulnerable children – immigrant children fleeing violence abroad, homeless children, children in the foster care system, and young adults leaving the system.

Connecticut Appleseed has been a leader in stopping and remedying bullying in schools.

D.C. Appleseed created lasting reforms in the city’s special education programs, to reduce over-reliance on litigation and ensure that vulnerable children obtain the services to which they’re entitled, without having to hire lawyers.

Combating Poverty and Building Assets Following Hurricane Katrina, southern tier Appleseed Centers began work in earnest on heir property issues – the largest cause of black land loss in the South. When property passes without going through probate, ownership is fractionated among the heirs, causing myriad problems, from blight, lack of access to capital, exploitation and dispossession. Through legislative and policy changes, education, and trainings, Alabama, Louisiana and Georgia Appleseed are enabling people living on heir property to obtain clear title, unlocking new opportunities to generate income and fix blighted homes.

Appleseed Centers in Texas, Nebraska, South Carolina and Alabama are leaders on stopping or reforming predatory payday and auto title lending – loans that lock in poverty for those who are gulled into taking out these high-interest loans.

Building on the work of Texas Appleseed, national Appleseed played a leading role in securing transparency in international remittance

transactions. Millions of vulnerable immigrants work hard to save money to send to relatives in their countries of origin, and they were at the mercy of remittance companies to give them a fair deal and deliver the money as promised. With the new reforms, consumers can shop for the best deal and they have remedies when transactions go awry.

Through research, litigation, policy work, communications and advocacy, Hawaii Appleseed is leading the charge for affordable housing on islands where the cost of housing is prohibitive.

Securing Justice, Good Government and Democracy New Jersey Appleseed has led the charge against “pay to play;” has waged successful campaigns to ensure that statutes providing for public involvement in important decisions like hospital mergers and closures are upheld; and has advanced the implementation of the Help America Vote Act. D.C. Appleseed, through a range of initiatives, has elevated the issue of an egregious blot on our nation’s democracy: the lack of representation in Congress for the District of Columbia, and it has taken practical steps to advance self-determination for the District’s 660,000 residents.

Alabama Appleseed is taking on a central problem of governance in its state: the 1901 state constitution, adopted in an era of backlash against the new rights won by African Americans following the Civil War. Promoting Health and Safety The great challenge in recent years has been securing the passage of comprehensive health care reform and making sure that the Affordable Care Act fulfills its promise of providing affordable health care for millions of uninsured persons at an affordable cost. Numerous Appleseed Centers, including Alabama, Nebraska, South Carolina and New Jersey, have played

critical roles in their states in this endeavor, to improve the health of millions of Americans.

Appleseed founder Ralph Nader and the other Appleseed founders challenge those privileged with a firstclass education or resources to move beyond simply giving away 3% or 10% of income for charity, though that’s of course important. Appleseed asks those with intellectual and financial resources to secure justice in a lasting, systematic manner and to create an infrastructure for justice.

The vision of the Appleseed founders continues. Vibrant centers have joined the Appleseed network in recent years, from Mexico, to New Mexico, to Hawaii. Harvard grads from the Class of 1958 and continuing to today can take on the issues of the day, the root cause problems, and forge lasting solutions. Whether at reunions or through local connections, leaders who graduate from Harvard law school can pool their funds, their contacts, and their skills to create more Appleseed Centers and to strengthen existing Appleseed Centers in the U.S., Mexico, and around the world.

As an added benefit: most Appleseed volunteers and board members find that the satisfaction that comes from securing an enduring victory for justice exceeds the pleasure of finding a key document, or winning a motion, or negotiating a good deal on behalf of a corporate client.

Since Appleseed’s founding in the early 1990s, Harvard Law School itself has built a strong infrastructure to support public interest lawyering, by providing funding for summer and post-graduate fellowships. Seed money propels start-up nonprofit ventures, too. May the Appleseed network be a magnet for new generations of lawyers who are inspired by the Appleseed vision and record of accomplishments. n Betsy Cavendish is a former president of Appleseed. She is a 1988 graduate of Yale Law School.

When poor politics trumped good policy: the story of Keystone XL

By Nicolas Loris

The administration’s rejection of the Keystone XL pipeline stands as a triumph of politics over sound policy — and a prime example of why the country needs less government intervention in the energy sector.

Any pipeline that would cross the U.S.-Canadian border requires a review by the State Department and a presidential permit. The law states that the decision regarding the permit application is to reflect the national interest. Instead, the administration chose to cater to a special interest: its environmental activist base. In so doing, it consciously ignored robust scientific evidence that the pipeline posed minimal environmental risk.

TransCanada first applied for the permit to build Keystone XL in 2008.

At the time, it was not considered especially controversial. After all, America already had more than half a million miles of crude oil, petroleum, and natural gas pipelines — including a Keystone Pipeline that runs from Alberta to Illinois. Energy infrastructure may face local NIMBY fights, but rarely does a single pipeline attract consistent national attention.

The environmental review of

Keystone XL consisted of public meetings with communities and consultation with state environmental agencies and outside experts. The State Department studied threats to water resources, soil, wetlands, vegetation and wildlife. Multiple environmental impact statements concluded that the pipeline would pose no significant environmental risk. In October 2010 when someone pressed then Secretary of State Hillary Clinton on a Keystone XL decision, she remarked, “We are inclined to do so.”

But the environmental activist movement changed that inclination.

Using scare tactics, they found ways to drive negative attention to the project.

Their first gambit was to raise alarms over the fact that the pipeline would cross over the Ogallala Aquifer in Nebraska — an important source of water for the Midwest. They didn’t mention that thousands of miles of pipeline already cross the aquifer — without incident. Further, the State Department’s review and external geologists concluded that the slope of the aquifer and the geologic makeup of the soil would make it extremely difficult for any leaked oil to reach such depths. In sum, the contamination risk was extremely minimal.

Even Mr. Obama’s former Secretary of Energy Steven Chu said the decision was political, not scientific.

But sound reasoning was no match for activists with megaphones.

The biggest purported concern however, and what started the crusade to block Keystone XL, was climate change. Opponents of the pipeline said that if you’re serious about combatting climate change, you can’t be serious about building Keystone XL, because extracting and producing oil from Canada’s oil sands would increase carbon dioxide emissions.

No matter how you feel about the severity of CO2 emissions’ impact on warming, the climate effects of the pipeline would be negligible, if any.

The State Department’s environmental analysis noted that companies will extract Canadian oil whether Keystone

XL is built or not. Even as President Obama dithered over the permitting decision, Alberta’s oil sands production rose from 1.5 million barrels per day to 2 million barrels per day from 2011 to 2014. Companies simply shipped the crude via rail and other pipelines.

Obstructionists argued that killing Keystone XL is imperative to permanently halting tar sands production.

And other potential Canadian pipeline projects have, indeed, come under fire. But companies will find a way to ship the crude. Those alternatives may be more costly and less efficient, but the value of the oil is too large to have a few rejected infrastructure projects stand in the way. Low oil prices may hamper tar sands extraction, but the availability of transportation will not.

Overall, it took President Obama 86 months to reject the permit.

Throughout, the administration offered one weak excuse after another for why the project had not yet received the green light. Even Mr. Obama’s former Secretary of Energy Steven Chu said the decision was political, not scientific.

What may be most unsettling is that, in rejecting the permit, President Obama determined, “The pipeline

Davis: Changing defaults can change HLS outcomes Davis from page 1 imagine the advising office and interview program for public interest, government and academic careers being called the “Office of Career Services” and the “Legal Interview Program” while the office and interview program for big firm careers being called, say, the “Office of Corporate Interest Advising” and the “Corporate Interest Interview Program.”)

Names are one thing, but the most significant way that corporate interest law is enshrined as the default career option at Harvard Law School is via the choice architecture of student debt and loan repayment support.

Currently, we take on significant debt during our three years at Harvard Law School. If we go into civic-minded work, we can opt into financial support towards repaying our loans by pro-actively filing applications each year to the Low Income Protection Plan. Meanwhile, those who pursue corporate interest work after graduating need not apply to any program nor file any paperwork with the university about their employment in order to have their debts paid. Regardless of

whether this is a proper system or not, it is assuredly a tuition system that does not set its default career option to civic-minded work: you must “opt in” to receive support for a civic-minded career, while you will, by default, flow into corporate-minded employment.

As one would predict after reading Sunstein’s work, the setting of corporate interest careerism as the default option for Harvard Law students allows subtle deference, loss aversion and inertia biases to nudge us into corporate-minded careers: we subconsciously interpret corporate interest employment as the institutionally endorsed option; we feel that opting out of corporate interest work is a loss of a loan repayment option (high starting salaries) that we have been endowed; and the extra effort needed to opt into the special, public interest path dissuades us from doing so.

Dean Minow, we should take a page out of Sunstein’s book and switch Harvard Law Schools’ default option to civic-minded career building. This could be done by exactly mirroring the outcome of the Low Income Protection Plan, but changing the timeline and choice architecture of entering and

opting out of it.

Here’s how such a system could work: (1) Upon admission to Harvard Law School, students should be able to commit to a civic-minded career path (as defined presently by the Low Income Protection Plan) in exchange for attending Harvard Law School tuition free, made possible by the School, rather than the student, holding their potential tuition debt; (2) If a tuition-free student follows through on their commitment to civic-minded career-building after graduation (as defined, pro-rated and verified presently by LIPP), then the student never holds any tuition debt; (3) At any time, during their time at HLS or afterwards, a student or recent graduate can file to opt out of their commitment, at which point the School will transfer their tuition debt back to them, pro-rated to the number of years they worked in civic-minded employment (again, as determined presently by LIPP).

To put it simply: under the present system, a student takes on debt and can later opt into loan repayment support for pursuing a civic-minded career; under this proposed system, you

choose to pursue a civic-minded career upfront in exchange for free tuition, but can later opt out and pursue a corporate-minded career in exchange for taking back your tuition debt.

The final financial result would be the same as today — the Low Income Protection Plan would help those pursuing low-income, civic-minded employment pay less for tuition than those pursuing high-income, corporate-minded employment — but Harvard Law School’s default career option would be switched to civic-minded career-building.

And, as predicted by Sunstein’s theories about default options, the deference, loss aversion, and inertia biases currently benefiting corporate-minded careerism would then benefit the project of increasing the number of Harvard Law Students pursuing civic-minded careers: students would begin to see civic-minded careers as our institutionally-endorsed option; we would treat opting out of our free tuition agreement as a subconscious loss to which we are averse; and we would see pursuing a civic-minded career path as a simpler short-term option than the rigamarole

would not make a meaningful longterm contribution to our economy.”

Whether that’s true or not, that’s no reason for the federal government to say no. Just as the president shouldn’t have a say about the economic value of a new restaurant, he shouldn’t have a say about a pipeline. If the project does not pose a public health or safety threat, it’s not Washington’s job to approve a project based on its economic worth.

If a preponderance of evidence didn’t convince the Obama administration to approve Keystone XL, all of the evidence in the world wouldn’t have helped. But reducing the government’s role in controlling decisions would. Anointing bureaucrats to determine whether Keystone XL is in the national interest allows the federal government and their connected special interest groups to ignore sound science and reasoning.

That makes for great political theater but poor public policy. n Nicolas Loris is a fellow at the Heritage Foundation. He specializes in in energy and environmental policy. He was previously an associate at the Charles G. Koch Charitable Foundation.

of filing to opt out of our commitment and take on debt we had never held before. And again, as Sunstein praises about all paternalistic libertarian changes such as this one, we achieve this all without limiting choice or increasing costs: students can, upon admission, still choose to not take the tuition free option (and, even more, opt out of their commitment at any time) and the final cost structure is no different than that of the current Low Income Protection Plan.

If we want to increase the number of students pursuing civic-minded career paths, we must, as you remarked about Sunstein, have a “passion for figuring out what works, what doesn’t, and why.” In an era when five Harvard Law students pursue corporate-minded legal employment for every one student who pursues civic-minded legal employment, it is past time for us to muster that passion ourselves in the service of stemming this mission-threatening career choice crisis. A powerful first step would be to change our default career option.

With sincere devotion to our shared community and educational mission, Pete Davis Harvard Law School Class of 2018

November 16, 2015

Harvard Law Record

7

OPINION & NEWS

Phase-out of Shamu Show at SeaWorld only baby step

By David Kirby

SeaWorld made global headlines on November 9 when company officials announced they will phase out the “Shamu Show” at their San Diego park in 2016 and replace it the following year with “an all-new orca experience focused on natural environment,” as Joel Manby, CEO of SeaWorld Entertainment, said during a company presentation to investors.

“We are listening to our guests, evolving as a company. We are always changing,” Manby added.

Opponents to killer whale captivity were roundly unimpressed.

Why? Because, as they rightly point out, a small tank is still a small tank — no matter what the whales are doing in it. Likewise, SeaWorld will not end its controversial orca breeding program, mostly because every new whale brings greater assets to the company: Its orcas are valued at about $10 million to $15 million each.

It is not clear what, exactly, the new “orca experience” in San Diego will look like, but at least the animals will no longer be forced to perform unnatural tricks (SeaWorld prefers to call them “behaviors”) in exchange for a fistful of dead fish.

Clearly, SeaWorld is deeply worried about its once shiny reputation, and its bottom line. Ever since the 2010 death of orca trainer Dawn Brancheau, who was brutally killed

by the six-ton whale Tilikum at SeaWorld Orlando, the company has found itself on the defensive — in the media, in the court of public opinion, among American lawmakers and in the financial markets.

This new move — which many critics have labeled a sleight-ofhand, bait-and-switch tactic — is part of SeaWorld’s ongoing efforts to resuscitate its f lagging reputation by focusing more on killer whale education and conservation than entertainment.

Since the release of the 2013 documentary Blackfish, which criticized SeaWorld’s treatment of its orcas, the company has lost half its market value. Meanwhile, attendance at SeaWorld’s 11 parks fell by 4.2 percent during 2014, though it only declined by 0.4 percent in the latest quarter.

SeaWorld is also facing a battery of legal and legislative challenges, including class-action lawsuits by former visitors who claim that the park misrepresented how they treat their killer whales and what life is truly like for them in captivity.

There is also a bill about to be reintroduced in the California Assembly that would ban orca captivity in that state. Last year, the bill was blocked by the Assembly Speaker, who represents San Diego.

But it will soon be introduced again by chief sponsor Richard Bloom (D-Santa Monica) and my sources tell me the new Assembly Speaker is

sympathetic toward the legislation.

That could be a key reason why SeaWorld is ending the “theatrical” performances in San Diego but not, apparently, at its other parks in Orlando and San Antonio.

And, on November 6, U.S. Rep. Adam Schiff, D-Calif., introduced federal legislation to phase out orca shows in the United States. That bill may not make much progress in the bitterly divided Congress, but it does bring more national attention to the fight against killer whale captivity.

“The decision by SeaWorld to phase out killer whale shows in San Diego is a welcome step along the path toward ending the captivity of these magnificent creatures,” Schiff said in a statement. “Much more needs to be done, however, and I would urge the company to curtail the breeding of their orcas and partner in the creation of ocean sanctuaries. The fact still remains that as long as SeaWorld holds orcas in captivity, the physical and psychological problems associated with their captivity will persist.”

Meanwhile, in October the California Coastal Commission approved SeaWorld’s proposal for a $100 million new orca habitat, but with a major caveat: that the company stop breeding killer whales and not add any more orcas caught in captivity.

SeaWorld has vowed to challenge that decision in court.

It’s important to remember that forcing orcas to perform tricks for tourists is only one of a laundry list of critiques launched by opponents. Killer whales at SeaWorld tend to die a far younger ages than those in the wild, and it takes a battery of medications (including antibiotics and even, at times antidepressants) to keep them alive.

Captive whales are removed from their natural born families and often moved around the country, and even overseas, like so many chess pieces. Calves are often removed from their mothers at very young ages, even though wild killer whales stay with their families for life: Male orcas spend 75 percent of their time within one body length of their mothers.

Captive whales also act out aggressively against each other, and against humans (four people have died in orca tanks and many others have been injured, some of them quite seriously), they break their teeth on concrete walls and metal gates, requiring the pulp to be removed with a hand-held power drill without anesthetic, and 100 percent of captive adult males have collapsed dorsal fins, compared with just one percent of wild killer whales.

None of that will change with this new baby step announced by SeaWorld.

The way I see it, ending the orca shows as they currently exist in San

Male orcas spend 75 percent of their time within one body length of their mothers.

Diego may actually contribute to SeaWorld’s steady decline in attendance. Obviously, those opposed to orca captivity will not be lured to the park because of this announcement, and those who do like the shows may stay away, spending their limited entertainment dollars at other venues.

So what should happen next? I agree with animal-rights activists that these magnificent, intelligent, highly social animals should be retired to seaside sanctuaries, where they could live out their lives in the natural ocean while still receiving human care when needed. SeaWorld could even charge admission for people to see its killer whales in a far more suitable habitat.

SeaWorld is in big trouble, and this latest Band-Aid on its gaping wounds will do little to stop the hemorrhaging. n David Kirby, who spoke at HLS last semester, is author of the book Death at SeaWorld.

SeaWorld can’t paper over animal rights problems with PR

By Chris Green ’04

I always will remember my exact location when I received the news of Ringling Brothers’ announcement that it would phase out the use of elephants in its circus acts.

On a layover in an Italian airport that March morning, I was forwarded the first report from a relatively obscure source. Skeptical, my associate and I both scoured for secondary verification when suddenly the deluge came and my phone buzzed for the rest of the day with excited calls from colleagues and journalists. That was an historic announcement, the likes of which many animal advocates thought they never would witness in their lifetimes.

Earlier this week, multiple media sources swallowed SeaWorld’s bait and reported the company’s latest announcement about modifying its orca displays as if SeaWorld’s announcement were a similarly significant development.

Such episodes are an unfortunate byproduct of the digital age, where journalists (and even some animal organizations that should know better) quickly race to post breaking news online without independently looking beyond the headline of a corporate press release. This is exactly what SeaWorld hoped would happen with its latest PR stunt, and here’s why you shouldn’t fall for it.

In the face of dwindling

profits and stock valuation due to the Blackfish backlash, SeaWorld recently doubled down and applied to the California Coastal Commission for a permit to allow an over $100 million expansion of its San Diego facility.

Immediately, most major animal protection groups publicly opposed the expansion permit.

Submitting the application actually was a shrewd move by SeaWorld. If the permit ultimately got approved, SeaWorld would spend so much money on the expansion that it might quash any resurrection of the tabled AB 2140, a bill to ban keeping orcas captive in California. However if the application failed, SeaWorld could claim the animal protection groups in opposition didn’t really care about the orcas’ welfare, as they would be the parties responsible for preventing the animals from enjoying larger enclosures. SeaWorld essentially would win either way.

In July, as I was driving my packed U-Haul truck from Marin, CA here to Cambridge, I received a worried phone call from a colleague at an animal advocacy group. She just had been apprised that the commission likely would not deny SeaWorld’s permit. So in my final project initiated as Director of Legislative Affairs for the Animal Legal Defense Fund (ALDF), we then hatched a strategy to turn the Commission’s decision from

being a simple yes or no, “Up or Down” vote, into a "Yes, but only if SeaWorld halts all further captive breeding and doesn’t acquire any additional orcas.” Putting together a coalition of other organizations, ALDF then took the lead on proposing this “middle way” which would achieve most of what AB 2140 tried to accomplish.

The Commission agreed with our proposal and on October 8th, unanimously voted to approve the permit contingent upon the amended conditions. This means that if SeaWorld moves forward with the project, the 11 orcas currently in San Diego will be the last ones ever to endure captivity in California. Our strategy very deliberately boxed SeaWorld into a “lose-lose” corner that left it only two options: 1. Build the new tanks and agree to end the captive breeding and further import of orcas at SeaWorld San Diego; or 2. Renege on the expansion plans altogether after making so many public pronouncements about how vital the larger tanks are for the orcas’ wellbeing.

This week’s declaration that SeaWorld is modifying its San Diego orca “presentation” is its first attempt at Option 2––trying to find a face-saving way to back out of building the larger orca tanks by framing the move as somehow beneficial for the animals.

One indicator that this subterfuge might be a motivation behind the announcement is that SeaWorld only mentions modifying the orca performances at its San Diego theme park (apparently having no concern with forcing orcas to continue performing tricks in Orlando and San Antonio).

And even regarding San Diego, nowhere does SeaWorld’s official statement say it will discontinue exhibition of the orcas. In fact, the document even refers to the planned “new orca presentation” as a “show,” just one that reportedly will “evolv[e] the guest experience to align with consumer preferences for experiences that matter — to learn more about the natural world, the plight of animals in the wild, along with family entertainment and attractions” (emphasis added).

After the announcement to investors, SeaWorld CEO Joel Manby further described the more "natural" show as a "very marketable attraction that gets a return on investment."

Importantly, Manby said that developing this new show would use up to half of the $100 million SeaWorld previously allocated for the tank expansion, saying, “[w]e can achieve those objectives with a lot less money.” This clearly signals that SeaWorld does not intend on expanding the tanks, and is merely hoping the public will buy

It is the fundamental captivity of these animals that is the issue, regardless of the size of their concrete tanks. the headlines and believe the hype that this business move in any way improves the lives of SeaWorld’s captive orcas.

As my colleague Carney Anne Nasser at ALDF summarized the announcement of the new presentation, “there’s no escaping the fact that it is an entertainment show based on the use of orcas who are deprived of adequate space, enrichment, social and family bonds, and the ability to live lives that bear any resemblance to those of their wild counterparts.”

It is the fundamental captivity of these animals that is the issue, regardless of the size of their concrete tanks, and irrespective of how much information on “conservation” accompanies their public exhibition. n Chris Green is the Executive Director of the HLS Animal Law & Policy Program.

Hamilton Musical Scores Raving Fans Among Harvard Faculty Hamilton from page 1 scrappy, and hungry,” an orphaned immigrant who came to the U.S. at age 17 and got a lot farther by working a lot harder by being a lot smarter by being a self-starter.

In Hamilton, the Founding Fathers are all played by people of color, and hip-hop is the musical language of the Revolution. It is, in Miranda’s words, “the story of America then, told by America now.”

One person who was listening to Hamilton before it was popular was constitutional law professor Laurence Tribe.

In 2012, Tribe taught a General Education course on constitutional law to undergraduates at Harvard University. While preparing a lecture on McCulloch v. Maryland — the case that affirmed the constitutionality of the Second Bank of the United States under the necessary and proper clause — Tribe was looking for a way to “challenge students’ expectations about a course on a legal topic.” He had recently stumbled across Lin-Manuel Miranda’s Hamilton Mixtape, a sample of the musical Miranda was still in the process of completing, and was struck by the song’s opening lines: How does a bastard boy, son of a whore

and a Scotsman, dropped in the middle of a forgotten spot in the middle of the Caribbean, by providence impoverished, in squalor, grow up to be a hero and a scholar?

“I couldn’t imagine a better way to begin the course than with LinManuel’s marvelous lyrics, asking how someone with Hamilton’s humble beginnings could rise to become among the greatest of the Nation’s founders and its greatest Treasury Secretary,” recalled Tribe. “From Hamilton’s rise to power and influence to his absurd death at the hands of Aaron Burr, the saga was a terrific introduction to the controversies over the Bank of the United States.”

Rather than simply play the YouTube video, Tribe handed out the lyrics to his students and performed the song himself. McCulloch v. Maryland, he says, is “otherwise hard to bring to life for undergraduates.”

On the other side of the Yard, history professors at Harvard College also have Hamilton on their playlists. Joyce Chaplin, James Duncan Phillips Professor of Early American History, attended the show earlier this year with a group of early Americanists. “ The show was researched as rigorously as any Harvard dissertation.

History and law geeks appreciate its

“The show was researched as rigorously as any Harvard dissertation.”

- Professor Joyce Chaplin accuracy; everyone loves its more than slightly transgressive playfulness,” said Chaplin. “What if we thought of Thomas Jefferson, notorious slaveholder, as a black man?

Lin-Manuel Miranda is asking serious questions about race, immigration, rights, and human self-worth.”

Chaplin views Hamilton both as an exploration of the past and a potential vision for the future.

“Our America — our history — is right there and yet it isn’t. It’s a relief to see it differently, and Hamilton is therefore a challenge to us to make it different,” he said.

Annette Gordon-Reed, Charles Warren Professor of American Legal History, is more skeptical of the musical’s portrayal of Alexander Hamilton as an American underdog.

Hamilton’s life story, she points out, is far from the typical immigrant experience.

“Hamilton marries into one of the first families of New York as a young man,” Gordon-Reed said. “He was coming from one part of the British Empire to another, [unlike] immigrants who come to the U.S.

speaking a different language and without real prospects.”

Hamilton also makes much of Hamilton’s abolitionist stance, in one scene showing him cut Thomas Jefferson down to size with the lines ‘We plant seeds in the South. We create.’

Yeah, keep ranting we know who’s really doing the planting.

“The musical exaggerates Hamilton’s abolitionist fervor,” says Gordon-Reed. “He and his wife may have owned an enslaved person, and he did help others buy and sell enslaved people. Hamilton the fervent abolitionist exists to burnish his image as a good guy and to heighten the contrast with Thomas Jefferson.”

It’s also unsettlingly incongruous, she feels — at a time when public skepticism about Wall Street is widespread — that Hamilton, the “patron saint of banking and speculation,” should suddenly emerge as a popular hero. Nonetheless, says GordonReed, “Hamilton is a work of genius, just enormously entertaining. I have the cast album on my iPhone.”

Dr. Alexander More, who teaches a Harvard University course on the history of welfare and healthcare policy, recently used lines from Hamilton’s “Cabinet Battle #1” — a debate between DemocraticRepublicans and Federalists reimagined as a rap battle — to introduce students to primary sources on Hamilton’s and Jefferson’s interpretations of the welfare clause and the role of the federal government.

“As we study government responsibilities and responses to issues of health and disease, we come to see how people, historically, came to define and understand the role of government in their daily lives,” said More. “That is one of the central themes of the musical and it's a central theme of our class. But really, it’s just fun to drop a hilarious line from the musical, from time to time, and lighten up seminar discussion.”

Reflecting on the current cultural resonance of Hamilton, More said that it raised questions about the American experience that have been around since colonial times.

“Lin-Manuel Miranda reimagines early debates about the nature and responsibilities of a new nation.

His lyrics embody the notion that everyone, rich or poor, immigrant or not, in the theater or in the classroom, in the past and in the present, has a personal stake in the story of American citizenship.” n

8

Harvard Law Record

November 16, 2015

NEWS & OPINION

Divergent Paths Lead to Careers in Animal Law Animal law attorneys bring variety of animal and non-animal ligitation and non-profit experience.

By Daniel Sondike ’17

Ten years in the private sector. Following Metallica across the country. A dog named Barky. What do these job histories, life moments, and beloved pets have in common?

They have all led to careers in the field of animal law.

On October 28, Harvard’s Student Animal Legal Defense Fund hosted a Careers in Animal Law panel, during which five successful animal lawyers discussed their jobs and how they got them. Although their paths varied, their message to talk attendees was the same: whether graduation day or fifteen years down the road, it is never too early or too late to devote one’s legal career to protecting animals.

Daina Bray performs litigation and corporate work as General Counsel for the International Fund for Animal Welfare (IFAW), an organization devoted to protecting animals across the world. She began her legal career doing litigation and international arbitration at three large law firms over the course of ten years.

During that time she spent her pro bono hours on animal legal issues and served as vice president of the

American Bar Association Animal Law Committee. Today, she applies her experience from the private sector to the cause of animal protection full time. One day on the job might see her analyze an indemnity provision in a contract with another organization to share supplies to help animals in a state of emergency.

Nathan Herschler, Bray’s coworker at IFAW, took a more direct route to a career in animal law. Inspired by an undergraduate philosophy class, after arriving at law school Herschler interned with the animal protection firm Meyer Glitzenstein, the Humane Society of the United States, and Compassion Over Killing, and had a stint as chair of the Maryland State Bar Association’s Animal Law Section.

Herschler then came to IFAW, where he is now Program Operations Director. In this job, he plans and coordinates animal protection programs across offices around the world and allocates resources to those programs.

Delcianna Winders, now a fellow at Harvard’s Animal Law & Policy Program, went to law school specifically to help animals. She organized animal protection events

while a law student, clerked on the 6th Circuit Court of Appeals, and then worked for Meyer Glitzenstein and the animal protection organization Farm Sanctuary, before becoming Deputy General Counsel for People for the Ethical Treatment of Animals (PETA) for five years. At PETA, Winders headed a team of lawyers, veterinarians, and biologists to advocate on behalf of wild animals used in entertainment. Her job involved litigation, regulatory work, communicating with law enforcement, lobbying, media work, and consulting on campaigns. She has also taught animal law at Tulane University Law School.

Chris Green, Executive Director of Harvard’s Animal Law and Policy Program, took the most indirect route of all. Green initially enrolled at HLS to study environmental law.

He grew disenchanted with the field after his first year, and spent a sixyear leave of absence in the entertainment industry. He ultimately decided forgo law school altogether to pursue his first love of being a veterinarian, until a phone call from the HLS Dean of Students inspired him to return to learn animal law under renowned animal lawyer Steven Wise. Green returned to HLS, but before graduating, he traveled with Metallica to save up money to take two additional years off to think and

write about animal issues. His work during this period culminated in an article, The Future of Veterinary Malpractice Liability in the Care of Companion Animals. He began finding himself invited to animal conferences to discuss his findings.

Still, Green continued to do entertainment work as his primary source of income until 2012, when he took a job as Director of Legislative Affairs position at the Animal Legal Defense Fund. Green then transitioned to Harvard’s Animal Law & Policy program in 2015.

Lee Greenwood attributes his love of animals and his resulting foray into animal law to his dog, Barky.

Now a lobbyist for Best Friends Animal Society, Greenwood seeks to get bills passed that help shelter animals. He uses his familiarity with the intricacies of the legislative process to ensure shelter animals’ interests are represented.

The career paths of the five speakers were divergent and hardly linear, and in finding their current jobs, luck often played a role. But through all the speakers’ paths run common themes. The speakers each stressed a love of animals and a hefty amount of networking, and each praised the recent growth of the field.

Winders then added some words of both caution and encouragement. The odds are stacked against

The career paths of the five speakers were divergent and hardly linear, and in finding their current jobs, luck often played a role. animals, she said, and as such animal lawyers should expect setbacks.

But it is these disappointments that make the victories so gratifying.

Winders is to thank for bans on painful bullhooks for circus elephants, relocating bears to sanctuaries from cruel roadside zoos, and challenging the Fish and Wildlife Service’s policy of secretly giving out permits to deal endangered animals. If not for her determination as an animal lawyer, and the path she travelled to become one, these animals may still suffer today. n Daniel Sondike is a 2L at Harvlard Law School and a vice president of the HLS Student Animal Legal Defense Fund.

Dumb-lawyer narrative pernicious to justice, legal sector

By Kyle McEntee

require passing the bar.

Queenan’s column isn’t troubling Joe Queenan writes a weekly because he makes a wrong conclucolumn for the Wall Street Journal sion, though. It’s that his conclusion where he tackles serious issues is really easy for casual observers through cheeky humor. This week, (and headline writers) to make when he picked up our report on law you accept the true premise that a school admissions. His main con- significant number of law schools clusion: dumb lawyers are a threat are setting a significant number of to society. students up to fail. When the attiGenerally speaking, he’s right. tude proliferates, it chips away at The legal profession and the clients society’s trust in the legal profesand general public that depend on sion, which makes curing society’s it needs a pipeline of smart, capable ills even more challenging. This people. Bad lawyers screw up lives week, it’s the Wall Street Journal. and entire businesses.

In August, dumb lawyers donned But our report provides no evi- the cover of Businessweek. dence that the slide in admissions The solution to reputational numbers has created a pathway for bleeding isn’t to change the converdumb lawyers. It is true that, even sation, as some in legal academia at top law schools, admissions now call for, but to address the subnumbers are sliding because of an stantive, structural issues plaguing exodus of high-LSAT scorers from legal education. the applicant pool. There’s just no So what are some of the conempirical evidence that the slide at sequences to the dumb-lawyer the top has any meaningful conse- narrative? quence on the quality of legal counsel provided by those who eventu- Reduced access to justice ally pass the bar. The bar exam is Put mildly, the United States has not easier to pass. Legal jobs still an access to justice problem. It’s

One ineffective way to fight the not a lack of lawyers, it’s a lack of Reduced flexibility to improve newest media narrative is to peddle resources. Those who need civil legal education legal services cannot afford them There are really cool initiatives positive stories. For a public deor prefer to spend their money on underway that can change how we fender office, it may be about how healthcare or education. Those who educate lawyers, and a relatively you changed bad law. For a large receive help from public defenders narrow window in which to push firm, it may be about how you train rely on understaffed offices with them through. Many schools are new associates. For law schools, it monumental caseloads. Increasing pouring resources into remediation may be about students and faculty funding for civil or criminal jus- to ensure their bar passage rates community efforts, or minor curtice initiatives already poses an don’t dip too far. If schools must ricular or price changes.

The better way is to create a disuphill battle, and these initiatives teach to the bar exam, there’s less certainly don’t need to be weighed time and money to invest in mean- tance between the minority of law schools engaged in unethical addown by a dumb-lawyer narrative. ingful pedagogical reform. missions and retention practices Reduced bottom lines Reduced interest in law and everyone else. Those practices Law firms face extraordinary schools that try to do the right affect more than the students some schools set up to fail. n pressure from clients to deliver more thing value for less money. These demands From deceptive employment stadrive mergers, alternative fee mod- tistics to outrageous costs to un- Kyle McEntree is the executive diels, new assessment metrics, lateral ethical admissions and retention rector of Law School Transparency. hiring, and more. Over the past 10 policies, law schools have become years, clients have been ever-less punching bags because so many This piece was originally published at willing to pay for junior associates to law schools keep doing the wrong Above the Law and is reprinted here learn on the job. It’s not difficult to things. Across the board these sto- with the permission of the author. imagine a company’s board or gen- ries affect who takes the LSAT, who eral counsel reading Bloomberg or applies to school, and who enrolls. The Law School Transparency the Wall Street Journal and conclud- It may not be fair to the school that State of Legal Education report is ing that their bills should be even substantially reduced class size to available at www.lawschooltransless. In fact, clients don’t even need ensure firm moral standing, but it’s p are nc y.c om/re for m/proje c t s/ investigations/2015/ to believe it to use it against firms. perfectly predictable.

Regulation can appease both sides of fracking debate Offset frack monitoring can protect residents, enable risk-free hydraulic fracturing.

By Nic Mayne ’18

Hydraulic fracturing, better known as “fracking” is an understandably divisive issue. On one side of the debate, environmental advocates express concern over groundwater contamination, frack hits, and earthquakes. On the other side of the debate, the energy sector and free market proponents contend that fracking increases domestic oil production, drives down gas prices, and generates energy with significantly lower CO2 emissions.

In the most recent undercard debate, Republican presidential candidate and former New York Governor George Pataki went as far as to champion fracking as a significant factor in the fight against climate change, pointing out that the United States is the only nation to have lowered carbon-dioxide emissions since 1995.

Unfortunately, as with many politicized issues, the only position that doesn’t seem to garner consideration is the moderate one. Both sides make valid points; on one hand, fracking

can be dangerous, especially when groundwater contamination threatens Americans’ health and safety. Yet Pataki’s comments hit on an interesting point as well – fracking has both economic and environmental benefits, when compared to reasonable alternatives. While a complete transition to renewable energy sources may be ideal, we just aren’t there yet, and fracking utilizes hard to reach resources, contributing to North American energy independence while comparatively cutting environmental impact in relation to traditional methods of extraction.

Still, the dangers that accompany the practice are concerning. While earthquakes are rare and small, groundwater contamination and frack hits (where the high-pressure mixture leaks through to and blows out of a nearby well) threaten both the environment and the health and safety of nearby residents.

A little over a month ago, the United States District Court for Wyoming blocked an attempt by the Interior Department to push through

fracking safety regulations. These regulations required companies to disclose chemicals used in the fracking process, and allowed for federal inspection of the concrete barriers that line fracking wells on public lands.

These regulations were intended to combat a dangerous alternative – completely unregulated fracking in states with nothing yet in place.

Other states, including Maryland, New York, and Pennsylvania, as well as specific areas in California, Texas, and D.C. have swayed to the other side, banning fracking completely.

A better solution exists, though rarely if ever mentioned in the extremist debate between recklessness and restriction. And the Obama administration’s regulations, even if held to be valid, completely miss the point. Well integrity is important, true; cracks in the concrete lining a well can lead to groundwater contamination and blowouts. That said, we have the technology needed to monitor well pressure in real-time and prevent fracking issues before they happen. With offset frack monitoring, when pressure strays from the threshold, risking a “hit” or contamination, the oil & gas producer

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can immediately stop the job. The U.S. not only lags behind Canada and other fossil-fuel reliant countries in mandating effective regulations such as pressure monitoring, but few even realize such technologies exist.

Mandating real-time monitoring could effectively cut the risks fracking poses on nearby residents to zero. Additionally, reliable monitoring would meet needs on both sides of the fracking debate. Producers would have a relatively inexpensive way to guard against costly cleanup, plus defend against litigation both by decreasing fracking issues and by providing a way to assess responsibility for issues in areas where multiple producers are working (i.e. when fracking fluid from an unsafe job blows out another producer’s well).

Environmental advocates too, could (and should) be content with effective regulation of the industry.

Waging a war against fracking actually works against the battle on CO2 emissions. America isn’t ready to stop using fossil fuels, and banning fracking forces consumers to rely on oil & gas extracted by less environmentally-friendly methods. The chemicals used to extract oil & gas from shale

Mandating real-time monitoring could effectively cut the risks fracking poses on nearby residents to zero. aren’t dangerous if contained within the cement walls of a well, which is reasonably possible if we use the available technology. Furthermore, the environmentally-conscious left would be fighting a battle that can actually be won, advocating an equally economically-conscious solution that has appeal for shale extraction companies.

Americans can either seek moderate regulation or increase reliance on Saudi oil, but it is time both sides of the debate acknowledge the other’s strengths. Fracking encourages North American energy independence and decreases emissions, and unregulated extraction is a dangerous, and potentially costly, endeavor.

For once, let’s abandon our extremist positions and work towards a mutually agreeable, sustainable solution. 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.

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