Harvard Law Record, 2015-2016, Issue 6

Record The Harvard Law

MONDAY, DECEMBER 7, 2015

O

ver the last few weeks, Harvard Law School has been grappling with difficult issues concerning race on campus. Protestors from the #RoyallMustFall movement have brought up important questions surrounding everything from the meaning of racialized symbols to the format of the 1L curriculum. Meanwhile, the HLS administration has been

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 6

Welcome to #HLSUntaped

alternately critiqued or praised for how it’s handled discussion of these issues.

In order to further such discussions, The Record’s staff has put together a special feature that we are calling #HLSUntaped. Within these pages, you will find stories written by professors and students holding a diverse range of perspectives. While not all the writers have

the same opinions about how to fix our law school’s problems, or even how to frame the problems at hand, all of these pieces are great jumping-off points for open discussion.

Whether you share an opinion closer to Professor Randall Kennedy or to Professor Ronald Sullivan, to Bill Barlow ’16 or to AJ Clayborne ’16, we hope you will read all of these pieces with an open mind, and that you will

contribute your own piece to editor@ hlrecord.org in order to further these important discussions.

Thank you for being such a great community of readers this semester, Michael Shammas ’16 Editor-in-chief Pete Davis ’18 Online Editor

IN THIS ISSUE: Brian Klosterboer ’16 says allies must actively fight racism, p. 3 Gabriela Follett says staff must fight racism at HLS, p. 3

Brianna Rennix ’18 discusses the Syrian refugee crisis, p. 3 Mawuse Vormawor responds to Professor Randall Kennedy, p. 4

Ralph Nader ’56 asks journalists to question our politicians more, p. 5 Lindsay Church ’16 and Brianna Rennix ’18 recap Lessig's presidential campaign, p. 6

The fierce urgency of now

By Ronald S. Sullivan Jr. ’94 and Stephanie Robinson ’94

The status quo is a powerful force.

It aligns with institutions to such a degree that it becomes normative.

Things are the way they are because they are. Full stop.

Young adults are particularly adept change agents. They view the status quo with suspicion and, often, well-earned contempt. The status quo has no self-generating authority; rather, it often assumes a set of priors that are antagonistic to many young people’s lived experience.

As students of history, it is not lost on us that young people catalyze nearly all significant change. They make change happen, even when predecessor generations level critiques usually along two primary registers.

First, older generations routinely

The psychopathy of American symbolism

By AJ Clayborne ’16

On October 20th, 2014 Laquan McDonald, a 17-year-old black Chicago citizen was killed by Police Officer Jason Van Dyke. By now many of us have seen the disturbing video. This homicide has sparked a great deal of controversy in Chicago, but here I focus on what Van Dyke’s actions reveal about his mindset and its relationship to the racialized culture of American psychopathy. What could cause a police officer to value a life so little that he would murder a teenager who was simply walking past him? The answer lies closer to home than many of us realize.

No one disputes that advertisements can be a powerful tool to mobilize a populace. Car companies know that their advertisements are not going to convince you to go out and buy a car every single time they run an ad. The point of that ad is to induce you to remember their product when you need a car. In other words car companies rely on planting stories or images in your mind which cause you to modify your behavior in the future. Racism in this country works in a similar manner. Mythology justifying the subjugation of Blacks is a national advertising tradition in this country. Every symbol carries with it a story of how black Americans are worth less than white Americans.

A few examples of these myths are that black men are more impulsive and violent. Black women are sexually promiscuous and angry – et cetera. A recent example of this includes the CNN gaffe where Freddy Grey was characterized as “the son of an illiterate heroin addict.” This information, while true, was entirely irrelevant to the rest of the article and served only to degrade Grey by implication of his father’s drug addiction. Thus racial “advertisements” that devalue black lives reside in our mass media coverage, our books, our movies, our television, and even our symbol- #HLSUntaped ogy.

Clayborne continued on page 3

critique younger generations’ meth- criticized for exaggerating the conods as too radical. Thurgood Marshall ditions they protest. It’s not that bad, criticized Martin Luther King Jr.’s the argument runs. Progress, indeed, methods as incongruous with the le- is undeniable. Harvard Law School gal strategy. Even as King preached (HLS) is far better now than it was about the “fierce urgency of now,” he 20 years ago when we were students. criticized the Student Non Violent Likewise, those black graduates 20 Coordinating Committee’s brand years our senior believed our expeof direct action as too provocative. rience to have been much improved But, we are reminded that student as compared to theirs. So what. Jim protesters in the 1950s Crow was better than and 1960s changed #HLSUntaped slavery. Should those America, even as their brave souls not have elders told them their protested de jure segmethods were unhelpful. Indeed, regation because their condition was without those students causing dis- better than the prior era? ruption, discomfort, and breaking We view the current protests at the law, we would not have been able HLS in this broader context. To say to attend this law school, or teach that an institution is better is not to here, or enjoy the very many free- say that it is beyond reproach. Current doms and privileges in America that minority students have a right to exwe do. perience HLS in the way that majority Second, young people are communities do. It rings hollow to ask

them to be satisfied because things are better, or to diminish the degree of pain they experience presently.

Significantly, the form of racial intolerance current students experience, to our thinking, is far more sinister than in generations past. Modern students are challenging the way the law school dispenses privilege. They challenge the way race, class, and gender norms are embedded into the very fabric of the law school and disproportionately burden minority students.

They are doing the hard work of rooting out racism that exists in structure, the form of racism that exists notwithstanding the good intentions of the stewards of any given institution.

Just like generations past, we hope that the disruption and discomfort we have experienced will force us to critically engage the students’ complaints.

Ronald Sullivan ‘94 is Director of the Harvard Criminal Justice Institute.

Stephanie Robinson ‘94 is a Lecturer on Law at Harvard Law School.

The sound of silence

By Bill Barlow ’16

silence on campus recently. In the aftermath of the tape incident with People talking without speaking the portraits, one part of the camPeople hearing without listening pus seethes in outrage whereas anPeople writing songs other part is afraid to say, “I think That voices never share that the protesters are being a bit And no one dared unreasonable.” They’re afraid of beDisturb the sound of silence ing called racist, insensitive, or bigoted. Because they are afraid, they Written in the aftermath of the do not say anything at all. assassination of President John F. Take, for example, the response to Kennedy, Simon and Garfunkel’s my article, “Fascism at Yale,” which famous song, “The Sound of criticized some of the more extreme Silence” was rumored to describe tactics of protesters. Instead of enAmericans’ collective inability to gaging on the substance of my argucommunicate in the aftermath of ments, several students took issue that tragedy. Garfunkel later gave with the color of my skin. “I can’t the song’s meaning with the white privias, “the inability of lege here,” was one of #HLSUntaped the first responses. people to communicate with each other, The student response not particularly internationally but article added, “This view seems to especially emotionally, so what you be getting a lot of uptake in the mesee around you are people unable to dia and among a wide swathe of dilove each other.” verse sorts of (mostly) white people We’ve heard a lot of the sound of – young, Ivy-League white people;

Systemic racism still here On November 27, Professor Randall Kennedy published a piece in The New York Times about the tape incident at HLS. Below is Professor Jon Hanson and Jacob Lipton’s response.

By Jon Hanson and Jacob Lipton

In the spirit of fostering a community-wide conversation, we wanted to respond to Randall Kennedy’s provocative op-ed.

#HLSUntaped

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

Things only got worse when a fellow classmate posted a video of my appearance on Fox News. “He’s the kinda creepy white male/serial killer sort” one comment read.

Another said that I was “dressed and groomed as white privilege” and that I represented a “caricaturish image of white privilege.” I was accused multiple times of supporting white supremacy.

Do you understand why students are so afraid to speak their minds? It is not that we mind discussing race.

It’s not that we mind introspecting

Although Randy is unperturbed by the black tape recently placed over his photograph, he is quite concerned about something else: the potentially destructive effects of taking the outrage and demands of some students at Harvard Law School – and at universities around the country – too seriously.

These students perceive racism not only on the walls of Harvard Law School but also in its history, culture, curriculum, and personnel.

Having asked some of those students to explain “with as much particularity as possible” the sources of their discontent, Randy is largely unconvinced. Some of their “complaints” may have “a ring of validity,” but others “are dubious.” True, their “accusations warrant close examination and may

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Hanson continued on page 2

We are afraid of being called racists simply because we disagree.

This type of racism can be hard to see and is often easy to dismiss.

LETTER FROM THE EDITOR

Why I don’t censor conservative articles

By Michael Shammas ’16

This note represents a letter to the community as well as my own attempt to sort through how to be a good ally against on-campus racism while still exhibiting proper journalistic ethics – ethics that demand free and open discourse.

In an article I wrote earlier this year, “We Owe Each Other a Moral Community,” I said that to create a moral community “we need to talk to one another, to stop judging our fellow classmates – way too many of us are already judges – and to start empathizing with them instead.” I

wrote that the value added of an independent paper like The Harvard Law Record, in addition to publishing investigative pieces the law school won’t touch, is that it provides a forum for law students to speak with each other, to learn from each other, to take advantage of all the diversity (not enough) that this place has to offer, including our ideological diversity.

We can’t treat one another with empathy, I wrote, unless we value each others’ opinions. No one likes to feel like they aren’t being listened to; no one likes to feel essentialized, pigeonholed, told that they are wrong and that they have nothing of value

Though I know with certainty that systemic racism pervades this campus — I’m also a student journalist. I won’t censor unpopular opinions. Period.

to say simply because they belong to X gender, X race, X political party.

Such a feeling of marginalization is the forceful complaint of AfricanAmerican student protesters.

But despite my leftist political beliefs, as the editor-in-chief of a newspaper that exists for the entire student community, I’m cognizant of journalistic ethics requiring free discourse and fairness. That’s why it felt so disheartening to receive a few immensely critical text messages after accepting Bill Barlow’s conservative “Fascism at Yale” piece for publication, all accusing me of committing a bigoted wrong, of a brazen assault against the progressive cause, simply because I didn’t censor his op-ed.

(I’ve borne similar criticisms after publishing other right-wing pieces.)

My response to each message was the same: I’m the editor-in-chief of a newspaper. If you dislike an article, take it up with that article’s author and submit a response for consideration – it will likely be published.

But my role is editor-in-chief – not thought-policeman-in-chief.

My role is editor-inchief[,] not thoughtpoliceman-in-chief.

As the law school’s newspaper, present since 1946, The Record simply will not censor articles by ideology unless they constitute invidious hate speech. We can’t – or we would be abdicating our role. While I might be wary of publishing conservative articles due to some students calling me (as one did) a “bigot,” arguing that if it were not for my white male privilege I would recognize that censoring articles is the legitimate way to go, that’s my problem. I can deal with that, especially because I grew up in a Lebanese family where heated arguments are the norm. Anyone who wants to dissect my political beliefs for “ideological purity” (a scary concept) can simply Google my name.

Anyone who thinks The Record is a conservative-leaning publication is living in an alternate universe. And Shammas continued on page 3

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Hanson: Addressing systemic racism demands openness to others’ perceptions Hanson continued from page 1 well justify further reforms,” but his primary concern is with the intensity and unintended consequences of their grievances. On the pages of The New York Times, he cautions those youngsters to avoid “exaggerat[ing] the scope of the racism” or “minimizing their own strength and the victories that they and their forebears have already achieved.”

Randy suggests that the students are being childishly hyperbolic – losing sight of the big picture on which he and other seasoned observers are focused.

But couldn’t the gap between Randy’s reaction and the protesters’ complaints at Harvard Law School and around the country have another source? Is the problem one of oversensitivity or insensitivity? Exaggerated racism or understated racism?

Like many others in the HLS community, we have been engaging with students on these topics extensively for some years. In those discussions, we have noted two very different, but often overlapping and confused, definitions of “racism” in play. We suspect that these profoundly different definitions are at the core of the disagreement between student protesters and the administrations and faculties they are protesting.

The version that is most common and that seems to animate Randy’s op-ed assumes a force that is conspicuous and malevolent: Bull Connor, George Wallace, the KKK, and so on.

Racism of that sort is no longer of us or from us. It is foreign – an alien from another time. It is pathology, sickness, and a deviation from the norm. And it is ugly and despised. Like a bloodthirsty dragon emerging from its lair, we would eagerly join forces to chase it down and slay it. In fact, that has been the project of previous generations, to which this group of students should be grateful and deferential. That is why such explicit racism is relatively rare these days and why we need to be painstaking not to mislabel some behavior “racist,” lest some innocent be hurt or some values be compromised.

The student protesters understand that version of racism, but they (and, to be clear, we) are focused on a second, very different version. This type of racism can be hard to see and is often easy to dismiss.

It is malleable and insidious.

It’s in the architecture of expectations, the ranking of authorities, the sway of circumstance, the nudge of defaults, and the grammar of culture.

It hides behind flowery truisms and elaborate self-deceptions.

It’s in the norms, customs, precedents, and incentive structures of institutions, jobs, and roles.

It’s in the decorative euphemisms for revenue sources, the devilish details of doctrine, the artful camouflaging of motives, the clever rationalization of outcomes, and the river of neural synapses that link some concepts more definitively than others.

It’s in the hard-to-see privileging of certain ideas – buffered by unexamined baselines, illusions of neutrality, and elastic categorical boundaries. It’s in the body language of dominance and submission, the harness of manners and professionalism, the limits of suitable conversation topics, and the hierarchy of acceptable emotional reactions.

It’s in the traditions that make us “us” (and them “them”) and the selective memory and beneficence those traditions memorialize.

It resides in the familiar.

It is of us, around us, and within us.

This version of racism is in the epistemic, existential, and relational systems that constitute us.

That systems-based understanding of “racism” is therefore deeply unsettling. It sees threads of a translucent web moving within the interstices of structures, rituals, and ideologies to maintain racial oppression and advantage – much of it bolstered, girded, and legitimated by law and legal theory. It connects Laquan MacDonald’s horrible killing to criminal law and housing policies. It connects Freddie Gray’s grisly death to environmental law and local government law. And it connects Laquan MacDonald to Freddie Gray and both to many other victims of police violence who have not become household names. It connects anger at Mizzou and Yale with anger on our campus. It connects the Royall crest to the Confederate flag. It connects Derrick Bell to Kim Crenshaw and Derek Bok to Martha Minow. It connects Harvard Law School and our legal system to the broken world that some students observe in their lives and others read about on the very pages in which Harvard Law faculty admonish students to count their blessings and tread cautiously.

For the same reasons, it is possible to “see” connections that do not exist or to overstate the significance of some factor that is connected. But the difficulty in identifying the precise causes of systemic racism does not necessarily undermine the conclusion that systemic racism is at work. In the context of our country’s history of racism and of ongoing racial disparities in everything from wealth and education to health and incarceration, our presumption should be to listen carefully to students (and scholars) claiming to identify the sources of systemic racism and to join the effort to understand and alter the confluence of causes.

More than black tape

By Bianca Tylek ’16

On Friday, only two days after the Boston Globe released my op-ed to share one student’s perspective on racism at Harvard Law School, Professor Randall Kennedy used the power of his professorial platform to excuse it.

Despite admitting that he was so removed from campus that he was unaware of what minority students were facing (as further demonstrated by his need to poll students on their grievances), he nevertheless released his opinion to the New York Times.

And, in doing so, he gave the country what it wanted to hear: today’s racism shouldn’t faze us.

Professor Kennedy began by slyly referring to the almost two-inch wide black tape used to deface black faculty portraits as mere “slivers,” immediately looking to diminish their much more important implication. He then continued by questioning the motives behind the action, feeding into the palms of all those who want to doubt racism exists at Harvard Law School.

And I begin my analysis of his opinion here.

If Professor Kennedy considered the circumstances under which the black tape was applied to the portraits, he might not find the motives so “puzzling.” The tape found its way onto those portraits through the repurposing of the tape used in the protest against our shield’s homage to the institution of slavery. The act required an understanding of these specific affairs and, importantly, substituted rather than complimented their effects. Pairing together the effort to disrupt that protest with the connected defacement of our black faculty portraits, the most rational conclusion is that it was meant to advance hate against the black race.

But perhaps Professor Kennedy’s focus on this motive and the

There are, then, two very different understandings of what “racism” is. The first focuses on racial animus, and the second, on racial systems. The first type of racism leaps out, while the second fades into the background. The first places blame on the racist individual. The second places responsibility on everyone, and particularly on those who benefit from or control the systems themselves. The law has grown responsive to the first, but ignores and obscures the second.

Randy is not alarmed by the defacement of his photograph, because “the identity and motives of the person or people behind the taping have not been determined.” Absent clear evidence of racial animus, there is no racism, by his definition.

When Randy argues that “[r]acism and its kindred pathologies are already big foes,” he again misses the point. Yes, animus-based racism may be strongly opposed, but systemic racism is formidable precisely because it is interwoven in who we are and defended even by those who are sometimes its victims.

When Randy highlights the “brightly colored stickers expressing respect and appreciation, and rejecting bigotry” on those same photos, he reveals the gulf between his definition and theirs. Post-it notes, according to Randy, constitute proof that ours is not a racist space, at least not any more racist than other “major institutions in America.”

Yes, those “brightly colored stickers” were certainly soothing and reassuring. It was heartwarming to be reminded of the many people in our community who were upset and willing to help slay the dragon of racial animus. Many felt, as we did, that the stickers were a beautiful moment of solidarity in an otherwise ugly day.

Those stickers do not, however, suggest an absence of systemic racism and do not constitute a systemic response.

They were a fleeting effort that could represent the height of collective attention given to the issue of racism in an institution that has, with some important exceptions, been acquiescent in the face of racial inequalities for most of its two hundred years.

From the students’ perspective, Randy is not offering sage counsel to like-minded youth on how to challenge systemic racism more effectively. He is redefining racism and trivializing the experience, insights, and courage of the students who perceive something that he doesn’t. They are saying “this is real, and it matters,” and he and many others are saying “um, perhaps so, but you may be making it up.” These students are struggling to teach their teachers and their classmates, who require more proof but are not moved to search for it themselves.

do. Folding now would only disappoint the men and women who gave their lives fighting for equality. perpetrator is misguided. In the end, In providing ammunition in the the act was interpreted by many as form of contra arguments to those another slight or, worse yet, a threat who seek to maintain the status quo, against our black community and Professor Kennedy further underthat’s what needs to be addressed. cuts the strength of his own stuIn explaining that one should not dents. Would his time not be better be surprised by acts of racism in our spent actually engaging with them institutions of higher education, he to understand their perspectives and nearly asks his readers to instruct them on accept it and move on. what he considers I appreciate the praise #HLSUntaped to be better reform he throws students in statapproaches? ing that activism efforts have led to With that said, the opposing argunecessary conversations. And that he ments he presents are hardly novel. acknowledges that university admin- We aren’t oblivious to them. For existrators should take a deeper look at ample, we know that professors must race relations on their campuses. But make individual decisions about their he then undermines his own compli- pedagogical strategies, but is it not ments, stating that “[s]uccesses, how- pertinent to address why those deciever, can generate or exacerbate de- sions on the whole continue to steer structive tendencies.” He explains that in favor of the majority? We’ve heard these efforts may exaggerate the scope it all before and there are answers to of racism and minimize the strength each argument that nevertheless supthat minorities have in fixing it. port the reform students are calling We need only to watch the daily for. news to see the pervasive racism in But all that aside, I struggle with our society. And when you wonder a more ideological question: Why do what that has to do with Harvard we continue to burden minorities with Law School, ask yourself this – who fixing the injustices created by the drafted the legislation, regulations, majority? and policies in America that have and Nonetheless, after encouraging micontinue to entrench the racial dis- nority students to embrace their own parities in incarceration, educational strength, Professor Kennedy refers achievement, and economic oppor- to those who contest administration’s tunity? Among others, many of our failures in addressing institutional graduates. So, as long as racism per- racism as “dissidents” and describes sists in our nation, it’s our ethical duty their grievances as “complaints,” some as one of its leading academic institu- of which have only a “ring of validity” tions to not be dismissive, but rather and others that are just outright “duvigilant in addressing its reality. bious.” Who did Professor Kennedy On the other hand, Professor survey? Was his default to trust or Kennedy is right to say that we have question them? And, what research strength, but overestimating that tools did he use to prove or invalidate strength may be his next mistake. their accounts? As a revered scholar, We are not denouncing the incredible surely he can share his methodology. work of those who came before us and Professor Kennedy then closes got us to where we are today, but we are with his most insidious argument also not going to sit back and assume – that his students are merely abusthe fight is over. We do not have the ing the “rhetoric of trauma” and power that our majority counterparts portraying an “inflated sense of

Why is that their task? Why are not the profound and obvious racial disparities, connected to systemically racist laws and policies and linked to historical oppression and cultural stereotypes, not enough to shift the burden?

Randy, like many in our community, demands particulars – but those particulars are subject to the defense of individualized exceptions and the motivated exploitation of inevitable ambiguities. Unless students can decisively establish that the photograph defacer was a white member of our community motivated “to convey anti-black contempt or hatred for the AfricanAmerican professors,” and that those actions were “characteristic,” then we need to “calibrate carefully” and not become too agitated about race and racism at Harvard Law School or elsewhere.

Ambiguity, in this way, is deployed to maintain the status quo and insulate our institutions from any sense of responsibility. “Beyond a reasonable doubt” makes sense for the courtroom, but why shouldn’t our own default be to interrogate our institution and the norms and conventional practices within it?

Students point out that the topic of race and racial inequalities (among other topics) are largely omitted from the basic curriculum. Why is that the norm? It is true, as Randy emphasizes, that an individual professor’s “decision … to focus on a seemingly dry, technical issue rather than … race might well reflect a justifiable pedagogical strategy,” but it is also true that the racism baked into law has long been obscured by the sweet frosting of convention and technicalities.

What have those “justifiable pedagogical strategies” done to stem the tide of mass incarceration, to name just one salient manifestation of our broken legal system? Is there no connection? Do we have no responsibility to consider the consequences of our legal system?

Does it matter who is teaching the law, and what counts as a “justifiable pedagogical strategy?” Why is there no critical race theorist on our faculty? Why not several?

Students concerned about systemic racism face a quandary. In the absence of explicit animus their claims about racism go unheard because systemic racism is unseen by those in power, but when they point to examples of explicit racism, such as defacement of photos, hoping to use them as a foothold to discuss the broader problem of racism, they are cautioned to be careful and not to become “unglued” by an episode that may just be an “outlier.” When they respond that it reflects broader systemic forms of racism, they find themselves back where they started, dismissed for failing particularize their allegations and provide evidence of explicit racism. If their understandable frustration manifests in anger, they are further discredited.

victimization.” I invite Professor Kennedy to read this article in which second-year student Derecka Purnell explains that it is not us, the affected community crying, instead it’s white guilt that saturates the sound waves.

Our stories are not meant to make the majority uncomfortable for the sake of “hooking into [their] consciences,” they’re simply indicative of the fact that we are tired of going out of our way to make them comfortable.

However, the real irony comes in the fact that we are condemned for not having valid and concrete examples of racism and, yet, when we attempt to present any, we are accused of overplaying the victim card. Which is it – do you want to hear about our strife or want us to ignore it?

Now, I know there’s the argument that our struggles are minor and rooted in the privilege of attending a prestigious institution like Harvard.

And I agree. Being asked everyday by faculty, staff, and other students whether I’m a student causes me little harm and is in no way comparable to the pain inflicted on the families of unarmed black men gunned down in our nation’s streets. But if this leading institution cannot embrace enough humility to address even mundane demonstrations of racism, how can it expect the rest of the nation to address greater ones?

In closing, I’ll agree with Professor Kennedy on one thing: I’m not hurt.

I’ve received a number of calls, emails, and text messages from administration, faculty, staff, alumni, and students in the past few days.

Most expressing support, but many also opening their arms with good intentions because they sensed that behind my words there was a “great deal of pain” or “deep hurt.” No, I’m fine. This is my norm. It’s your hearts pounding and blood rushing.

Bianca Tylek is a 3L at Harvard Law School. This piece was previous published in the Huffington Post.

Randy encourages “[a]ctivists who are demanding that universities do more to advance racial justice … to be encouraged by what has transpired in recent weeks.” His point is not exactly clear to us, but he seems to be suggesting that student activists should be more or less satisfied with those gains, as if a couple difficult, truncated conversations and the promise of modest reforms have somehow dismantled the profound structural problems that some students have been devoted to exposing and repairing.

Randy’s assertion that students are actually engaged in “self-diminishment by displaying an excessive vulnerability to perceived and actual slights and insults,” is similarly skewed. In fact, he may unwittingly be a source of their disempowerment. After all, students are not cowering in response to the racism they perceive. They are not asking for sympathy. They are standing up and insisting that they be heard; they are pointing out what others have denied; they are mobilizing even when their elders tell them not to. They are pushing against powerful institutional forces – including the amplified voices of our faculty and administration.

To recognize subtle forms of power and those who are harmed by it is hardly disempowering. Even identifying as a “victim” of unjust power is not inconsistent with asserting one’s autonomy. In fact, locating the sources and causes of subordination can be a necessary step toward self-determination. We would never advise that Randy embrace “victim status,” but neither would we characterize the students’ complaints as self-diminishing.

The question is not whether these students risk undermining their own power; it is whether institutions like Harvard Law School will dare to take seriously systemic racism (and other forms of injustice), to scrutinize our practices and their effects, and to imagine and implement reforms that go beyond redecorated surfaces. Given this country’s history, this institution’s record, and the current state of our society, why haven’t racism and other sources of profound injustice been at the core of our mission and the center of our curriculum?

Whether or not defaced photographs are the product of racial animus, there is so much more that Harvard Law School could do to acknowledge, understand, and resist the deep racism that shapes our institutions and our society. We could start that process by giving students the benefit of the doubt and by devoting ourselves to meaningful self-examination and, if necessary, reinvention, led by those who perceive a problem, not by those who still need convincing.

Jon Hanson and Jacob Lipton are the directors of The Systemic Justice Project at Harvard Law School. This piece was originally published on the blog of The Systemic Justice Project.

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

December 7, 2015

Harvard Law Record

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Barlow: Openness to, acceptance of disagreement necessary to cure racism Barlow continued from page 1 on how “white privilege” may have influenced our perspective. We are afraid of being called racists simply because we disagree.

Let us take a less insidious example. On November 23, the HLS Student Government sent out an email on behalf of the Affinity Group Coalition in response to the recent tape incident.

In it, the Affinity Group Coalition addressed white students specifically: To white allies, we recognize that this can be a time of questioning and confusion as to your roles and voices.

There are many ways to be a good ally, but there is one thing that they all have in common: continue acknowledging your privilege. Ask how you can help, and listen to the answers you receive, even if they are just to be at a certain space to show support or to do nothing at all.

I do not think that the authors of this email intended any ill will towards white students, but in the process they have made it more difficult to have a frank discussion of race on

campus. What if a white student disagrees with some of the protesters’ demands? Are they not being a “good ally” by not acknowledging their privilege? What if they disagree with the protesters’ tactics? Are they not being a “good ally” by not listening to directions to “be at a certain space” or “to do nothing at all?”

In some sense, I want to be a good ally. I want to end racism and suppression. I disagree with some of the demands of protesters across the country: racial quotas, mandatory classes, and revising speech codes. I also think that much of the anger directed against the school administrations have been misguided. That does not make me a racist. It makes me someone who also opposes racism, but who disagrees about the means.

So long as students are afraid of being branded as racists for expressing honest, dissenting viewpoints, we will not have the frank discussions about race that we need on campus. Our halls will remain silent with the beliefs people dare not express. This toxic atmosphere does not defeat racism.

It represses dissenting views and ferments them in the bile of resentment.

“Darkness cannot drive out darkness, only light can do that. Hate cannot drive out hate, only love can do that.”

Any meaningful dialogue must start with an invitation, so here it is.

I disagree with the protests. I think that the protesters express strong anger but offer very few solutions. I think that changing the seal is a cosmetic solution, and is unlikely to bring about substantive change. I think that we have a campus environment that rewards students for expressing how offended they are. I think that that is an unhealthy environment.

I invite and encourage anyone to talk to me. If you disagree with what I’ve said, then let’s talk about why. Feel free to reach out to the editors of the Record for my contact information.

But please, don’t call me a racist simply because I disagree with you.

Bill Barlow is a 3L. Screenshots of Facebook posts referred to in this column are available on our website, hlrecord.org.

Shammas: The Record will not censor Shammas continued from page 1 organizations like Royall Must Fall would be the first to tell you that I’m more than happy – delighted – to publish leftist opinions.

But while I’m a progressive – though I maintain that #RoyallMustFall, though I felt utter nausea at seeing tape slapped over the faces of four professors whose courses I’ve taken, though I know with iron certainty that systemic racism pervades this campus – I’m also

a student journalist. I won’t censor unpopular opinions. Period.

A humble recognition of how much we don’t know is a prerequisite to respectful discourse that stands a fighting chance of changing the other side’s mind. In a world where Donald Trump is (God help us) the leading Republican, digesting the sorts of conservative arguments that are made every single minute off this campus can only be prudent for even the most progressive, intractable students – after all, it’s a truth as old as Sun Tzu that

to effectively fight one’s foes, one must know them, inside and out.

So to my progressive friends who maintain that I should have censored Bill’s op-ed: Such openness doesn’t make me illiberal. Publishing articles I disagree with makes me as liberal as they come.

More importantly, it’s my duty as a student journalist.

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

Staff are organizing to fight racism at HLS

By Gabriela Gonzalez Follett

color get even less. The law school has an opportunity to embrace the When I first started working movement and empower its comat Harvard Law School, I had 13 munity. Establish an office of diverstops. That’s how long it took to get sity and inclusion, as well as other from Ashmont Station, near my institutional changes aimed at curchildhood home in Dorchester, to tailing organizational hierarchy and Harvard Square, where I had just injustice against students, staff and accepted a job as a program assis- faculty. Make a sustained committant. Thirteen stops I had to con- ment to the recruitment, retention, vince myself that I belonged at the promotion, and professional devellaw school and that I had a place opment of staff of color at all levels, among the elite. Even today, a year particularly in senior management. later, I stop outside Wasserstein ev- Implement measures to ensure staff ery morning, take a couple of deep of color are respected and supported breaths, and prepare to leave a part in their work, including required of myself on Massachusetts Avenue. cultural competency training for all.

It’s my job as a The privilege I staff member to serve have as an administhe HLS community. #HLSUntaped trator in the Human I serve students their Rights Program alfood, I process affidavit letters lows me to speak out and not fear for alums, and I book professors’ reprisal. I can organize and attend rooms for meetings. But just be- meetings because my community cause I serve does not make me a not only supports and encourages servant. Many people at HLS un- this work, but trusts that I will get derstand this. But in an institution my work done. Other staff do not that has a strong caste system, with have that kind of freedom. very few people of color at the top, it It has been an honor to take a is inevitable that some individuals place in this growing movement treat staff as the “other.” at HLS. Relationships are building I’ve been described as an affir- in all corners of the school. Staff of mative action hire before – that color are meeting for “family dincomes with the territory of being ner,” a place to find fellowship and Latina in America. But I never work towards empowering each thought I’d hear this comment at an other. Staff and students are comelite institution like Harvard Law ing together, energized, collaboSchool, let alone on my second week rative, and committed to creating of work. I never thought I’d hear a a better climate. Allies across the student tell me I speak well, com- law school offer support and valuing from Dorchester with a Latina able skills in times where it can feel background. This rhetoric of racism overwhelming for people of color. is not unique. The narratives I hear I invite you – staff, students, adfrom staff of color at the law school ministrators, senior management, about these kinds of micro aggres- Dean Minow – to join us. sions are paralyzing, and need to be addressed.

Gabriela Gonzalez Follett is a proAs little support as the students gram assistant with Harvard Law of color get at this school, staff of School’s Human Rights Program.

Despite call to be silent, I’ve decided to scream

By Danielle Pingue ’16

A week ago, someone put black tape over the portraits of AfricanAmerican professors at Harvard Law School. The incident, which is being investigated as a hate crime, did not surprise or anger me. But the reaction of some professors and members of the administration to the student activism that followed the act has.

The message embedded in their opeds and community meetings have been clear: students of color, keep silent. Your voice is not valued and your activism is not warranted.

Ironically, a black professor whose portrait was defaced has responded by using his words as a tool to silence students protesting racial apathy at HLS. In his recent op-ed, Professor

Clayborne: Symbols help devalue lives Clayborne continued from page 1 Many of you are aware of my involvement in the Royall Must Fall movement. One question I often receive about the movement is “Aren’t there more important things you could be focusing on? Why this crest?” The answer is that symbols like the crest that mask their racist legacies in plain sight, serve to perpetuate the age old myths about Black people upon which this country bases its terrible violence. The message the crest sends is that we, as a Law School, are proud of our morally bankrupt benefactor. We do not care if he enslaved people, tortured them, murdered them, or sold them. We do not care that this subjugation was justified by skin color. This is activity of which we are proud. We are proud enough of this activity that we believe it can represent our entire school.

Therein lies the psychopathy. My argument is not that the Harvard Law crest directly causes police violence in America. My argument is that the crest and symbols like it enshrine violence against black bodies and contribute to a mindset that inherently devalues black life. There can be little doubt that as Laquan McDonald’s body fell to the ground on that October night in a grotesque pirouette, Officer James Van Dyke was making a decision based on the advertisements that our society had for years pumped into his brain. His life matters less. His life matters less. His life matters not at all.

AJ Clayborne is a 3L and a co-organizer of #RoyallMustFall.

Randall Kennedy asked dissidents the visual embodiment of this insti(code word students of color) to tell tution’s legacy of slavery, Professor him “with as much particularity as Kennedy proclaims our view of racpossible” why we feel “burdened, ism invalid and our proposals for alienated, disrespected, oppressed.” change inadequate for the long-term.

Professor Kennedy categorized sev- He re-categorizes our advocacy as eral concerns students raised as hav- an attempt to get attention instead of ing a “ring of validity” a call to have a real but disregarded most as stake in identifying “dubious” and “exagger- #HLSUntaped and addressing the ating the scope of the problems around race racism that the activists oppose and that exist at HLS. fear.” By concluding that students are Professor Kennedy has not been displaying “excessive vulnerability” the only one to relegate our voices and “nurturing an inflated sense of to the background. At a recent comvictimization” when we say we per- munity meeting, students had five ceive racism in the way our classes fail minutes to comment on the administo contextualize our legal education or tration’s efforts to make HLS more inwhen we use permanent marker to “x” clusive, all of which called for little or out the Royall family crest on our HLS no student involvement in the design gear in a small act of rebellion against or implementation. This treatment of

student input as a mere afterthought and the dismissal of students who highlighted that their voices were being shut out sent a clear message: be silent, speak only when and how we deem appropriate.

I am hopeful that Professor Kennedy and the administration actually want an inclusive law school but the problem is student voice has no place in their vision. The current reliance on pedagogical strategy to avoid engaging students in conversations on race and administrative processes that marginalize student input runs counter to the law school’s mission to “educate leaders who contribute to the advancement of justice” and to the basic tenant that true change requires including the entire community in the decision-making

process and giving them equal voice. So if improving this community is really what we all seek, I call on all who ask students why we protest to take a moment to listen. Not the selective kind of listening that is currently going on, but the kind of listening that empathizes with the angst students are experiencing and recognizes that the version of racism our generation is trying to combat is very real. Listen to our ideas for change, and once you’ve listened, allow us to have voice and be co-equal leaders, not just silent followers in this movement.

“I decided it is better to scream.

Silence is the real crime against humanity.” – Nadezhda Mandelstam Danielle Pingue is a 3L.

White allies: Acknowledging racism is not enough

By Brian Klosterboer ’16

Last week, I found out that anonymous law students created a website criticizing me, Mawuse Hor Vormawor, and AJ Clayborne because we are members of Royall Must Fall.

This website is a reminder that overt racism and homophobia continue to exist at Harvard Law School.

Our classmates claim that Mawuse, AJ, and I do not know how to read or write and that we were only admitted into Harvard because we are minorities who care about minority issues (the website “calls me out” for being gay and for being from Kentucky and Texas).

The website speaks for itself in urging us to do exactly the opposite of what its creators want: to confront and dismantle systemic racism that pervades our school and society.

Tellingly, the website’s creators also ignore an important criticism against me: that I am a lifelong beneficiary of white supremacy.

My ancestors were coal miners in the mountains of Eastern Kentucky, the kind of people for whom the term “white supremacy” initially seems inapt. But systemic racism is invisible, silent, and easily obscured. It is difficult to distinguish between the benefits that come from white supremacy and individual achievements that come from hard work. This is the power of systemic racism. The advantages of whiteness are ever-present complicit in a white supremacist but readily ignored. system that was built by slavers like White supremacy is not respon- Isaac Royall, Jr. By attending universible for all of my achievements, but sity, I am complicit in a system where it is responsible for some. White su- white voices have always been acpremacy paved the way for my par- cepted and black voices have mostly ents to get college scholarships and to been suppressed. By joining the pracsecure credit to buy a tice of law, I am comhouse. White supremin a system that #HLSUntaped plicit acy allowed me to feel was created by white comfortable in every men to maintain their academic environment I have been power and privilege and a system that in and to get a scholarship to go to continues to justify police shootings Uganda, where I continued to accrue and locking black men in cages. benefits because of my skin color, naBy living in this world and absorbtionality, and relative wealth. ing its racist messages, I am racist.

By simply being born, I am We are racist. Racism is systemic.

By simply being born, I am complicit in a white supremacist system.

Letting in refugees is a moral imperative

By Brianna Rennix ’18

It currently takes anywhere from 18 months to three years for a Syrian refugee to be processed for admission to the United States. Eleven state governors, several presidential hopefuls, and around 56% of the American public believe that Syrian refugees should not be allowed into the U.S. at all. The Obama administration has insisted that the current processing time is plenty long enough for government agencies to conduct background checks and screen out any likely

security risks.

Well, here’s the other argument to be made: isn’t the current processing time, in fact, much too long? This is the largest refugee crisis since World War II. Given the sheer number of people displaced, the kind of violence they’re fleeing, the chaotic conditions on state borders throughout Europe and the Mediterranean, shouldn’t the U.S. be doing everything it can to admit more people, and faster?

In the aftermath of the Paris attacks, many people claim to be concerned about the risk of terrorist

infiltration. (There’s no conclusive evidence linking any refugees to the Paris attacks, by the way.) We know that no Syrian refugee we’ve admitted since the civil war began has been arrested or removed on terrorism charges, but it’s not at all clear that this is because our system is optimally calibrated to screen out threats. How much of that long wait time is actually due to our unwillingness to commit enough resources and personnel to the task, as is the problem in other areas of the immigration system? To what extent do separate background checks by the

So what can be done?

Acknowledging white privilege is important but not enough. We must actively undo the legacy of people like Isaac Royall, Jr. and be anti-racist. We must listen to students and staff of color and affirm their lived experiences. We must examine structures of power and privilege, even when doing so makes us deeply uncomfortable.

For myself and others, this often means taking a step back. Systemic racism privileges white male voices above all others, and we are not taught in law school to step back and let others be heard. The same applies to tenured faculty. Though brilliant and revered, they hold too much power at this school. If our professors have a genuine commitment to ending systemic racism, then they sometimes need to step back, listen to staff and students, and share some of their power and privilege.

Brian Klosterboer is a 3L and a co-organizer of #RoyallMustFall.

FBI’s Terrorist Screening Center, the State Department, the Department of Homeland Security, the National Counterterrorism Center, and the Department of Defense actually yield usefully complementary results, rather than redundant ones? Could a more centralized system accomplish the same results in a more efficient way? These are all questions worth asking.

Some people, however, will argue that no background check could possibly be thorough and reliable enough.

They will say that it is impossible to Rennix continued on page 6

4

Harvard Law Record

December 7, 2015

OPINION

Royall must fall Racism persists despite reduction in palpable acts

By Lindiwe Sibande

The response by administration to the recent defacement of the portraits of black professors and calls to remove racist symbols at the law school has frankly been nothing short of disappointing and inadequate. Students of color have been warned not to

fall down the unbecoming path of and glorified without question. self-victimization by blowing such Racism exists within the walls individualized and obscure racist which continue to silence the voices incidences out of proportion. Such of black and brown students yet statements truly exemplify why the assure us that we were searched self-congratulatory nafor in the world. My ture of this generation #HLSUntaped question is why then is more racially toxic were we searched for? than those that came Simply to be brought before. to a space that is indifferent to our Allow me to explain. At least in experiences? Are we simply suppast generations racism was palpa- posed to express gratitude for beble; it was in the streets, embodied ing “chosen” yet not question the within the segregation laws enforced academic content that construct the in schools and in public spaces. Now, space in which we come to learn? students of color must fight a more This op-ed will be short because sinister and furtive evil, one that is by now, it should be self-evident entangled within the very institu- why the Royall crest must be retions that shout diversity and wel- moved. The time for philosophical come you with open arms, flattering discussions on the matter has run you with shiny red folders on which its course. Discourse is undoubtedly an undignified symbol of torture important in understanding the naand aggression is routinely printed ture and implications of objections

and the repercussions of responding to objections, however when this is understood such discourse must be followed by tangible acts. Harvard law school commercializes yet fails to cater to its so-called diverse community and this can no longer be tolerated.

Administration can no longer fall back on the argument of shared responsibility. Certain grievances cannot simply be appeased by “turning and shaking the hand of your neighbor” or “making sure to talk to someone you have never spoken to before” especially in an environment that fosters and glorifies symbols that undermine social solidarity in the first place.

The crest falling will be the match the lights the bridge between discourse and action and will serve a first step, a promise for a more

Now, students of color must fight a more sinister and furtive evil. inclusive environment at the law school. Yes, symbols are important, and the removal of the crest will be symbolic in itself denoting that the school commits to change. The crest will fall. I am hopeful, because I do not want to imagine what it means for the future of students of color at this school should it remain.

Lindiwe Sibande is an LL.M. candidate at Harvard Law School.

Professor Kennedy reads history wrong and in reverse

By Mawuse Vormawor

to disrespect and bludgeon our lived experiences into naught. Rather, In a recent piece published by The I was troubled because Professor New York Times, Professor Randall Kennedy’s piece fit seamlessly into Kennedy described the voices of stu- a historic institutionalized commitdents of color, who have been invit- ment that discredits the voices of ing Harvard Law School to have an black people and casts their self-exopen and honest conversation about pressions as “victim playing.” systemic racism and the racist legToday, Professor Kennedy chides acy of the School, as brandishing us for enlisting in a mission that “several dubious complaints” and purportedly “minimizes the vic“nurturing an inflated sense of vic- tories of our forebears.” Professor timization.” Professor Kennedy reads hisKennedy further sugwrong and in re#HLSUntaped tory gests that these stuverse. Narratives like dents are engaged in his, which casts the an enterprise that involved “min- voices of persons of color as playing imizing the victories that they the victim and their lived experiand their forebears have already ences of racisms as inflated reaches achieved.” far long in this country’s history. In As one of the students who have Plessy v. Ferguson, when our forebeen at the forefront of the initia- bears, whose victories Professor tive and invitation for dialogue, Kennedy now celebrates, elected I was deeply troubled not only by to speak up, they too were accused these statements but also by how of inflating their victimization and Professor Kennedy chose to slight a that if they perceived injustice in genuine overture for discourse and segregation, it was all in their heads. for institutional introspection. I was Speaking for the Court, Justice troubled, not least because Professor Brown wrote in Plessy that “we conKennedy did not take the time to lis- sider the underlying fallacy of the ten and reflect, nor because he chose plaintiff’s argument to consist in to exercise his professorial privilege the assumption that the enforced

Today our society must set itself to dismantling the systems that it built to sustain that discredited racist ideology. separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Today, Professor Kennedy channels Justice Brown and invites me, as did Justice Brown in Plessy, to disappear into oblivion and to agree that racism is all in my head. I decline that invitation!

True, over the past decades much has changed. Malevolent racial animus of the kind that glorified the lynching of blacks has moved from the mainstream of our society to its margins. But the systems that

they built endure. This is after all a country that not only reduced black human beings into slavery for over two hundred years but also, even after slavery ended, set itself, through the laws it drafted and the systems it built, to finding creative and ingenious ways to further entrench black disenfranchisement and to legitimize perpetual violence to the black body. Our forebears triumphed over one form of racism. Today our society must set itself to dismantling the systems that it built to sustain that discredited racist ideology.

Professor Kennedy’s piece casts black voices in an ‘us’ against ‘them’ logic. By so doing he places students of color out of this community. He sees demands for institutional renewal and improvement as irresponsible complaints of an over indulged outsider. We disagree. To the extent that students of color are considered part and parcel of this community; these voices should be seen as voices within the community and not without.

Dear Governor McCrory, Let the Syrian refugees in

By Michael Shammas ’16

What a precious human life we all have. The thin container wrapping this life – its color, its gender, its religious claims and political delusions … it’s all nothing next to the inexplicable miracle that is a human consciousness. To stifle such an irreplaceable possession, as hate-crazed men did in Paris last week, is a crime without equal.

Within its delicate container, a consciousness – a human life – thrives or shrivels to the extent that its environment is rich or decrepit, peaceful or violent. Too many places on this earth are trash heaps of wrenching poverty, or of violence that sizzles over pools of hatred too deep for many Americans to comprehend.

Coming from a place torn by a civil war fought by “religious” maniacs, my parents understood the dark depths of those pools too well.

More than two decades ago they, like many others, did something very brave: They left their home country, Lebanon, in search of opportunity in the United States. Because America had what Lebanon did not: Rule of law, peace, opportunity for career advancement, immunity from sporadic terrorist attacks or regular invasions.

Being peaceful and rather secular Eastern Orthodox Christians in a country where being peaceful and minding your own religious business had fallen out of fashion long ago, they gave up all they’d known – Lebanon’s beautiful Mediterranean climate, its food, its warm and ancient culture – in order to discover a place where life grows rather than shrivels.

Like most of the immigrants coming into the United States, legally or illegally, my parents have repaid the chance to live in an environment where life is relatively sheltered from cycles of hunger and hatred

and violence. The compound effect of their contributions, of the contributions made by hundreds of thousands of other immigrants, are readily discernible to anyone living in the United States.

Without the ability to grow up in North Carolina, away from the material scarcity and conflicts of Lebanon, I would not be who I am today. This is true – exponentially more-so – for the Syrian refugees fleeing their battered country. Every Syrian refugee is leaving not to do violence, but to escape violence. Those who mingle with the refugees to kill, like one of the Paris terrorists did, are not refugees. They are murderers, and the federal government has effective measures in place to screen them out.

To put a stop to welcoming legitimate refugees is to paint with much too broad a brush, to abdicate our moral duty as Americans to fellow humans. It’s to ignore the stories

An open letter to the U.S. Senate re: HR 4038 – American SAFE Act of 2015 Harvard Immigration Project asks Senators to allow refugees in Dear Senators: We urge you to vote “No” on H.R. 4038, the American Security Against Foreign Enemies (SAFE) Act of 2015. We also condemn the xenophobic rhetoric that has marked this debate from the start.

Refugees to the United States, particularly those of Syrian origin, are already subject to some of the most stringent security screening procedures in the world.

They must first be cleared by the Office of the United Nations High Commissioner for Refugees (UNHCR), and are then required to go through an extensive vetting process, which includes independent background checks by U.S. federal agencies, biometric screening, terrorism database searches, and investigations into personal ties, places of employment and sites of worship. This process takes

12 to 18 months for non-Syrian refugees, and Syrian refugees can wait three years or longer due to added background checks required by the Syria Enhanced Review process.

Many refugees are forced to live in dangerous conditions in overcrowded and underfunded refugee camps as they wait. Instead of fixing the inefficiencies that lead to this unacceptable delay, this bill imposes additional hurdles such as unanimous approval by the Director of the Federal Bureau of Investigation (FBI), the Secretary of the Department of Homeland Security (DHS) and the Director of National Intelligence (DNI) on a Syrian refugee’s application.

These will not make us safer, but will deny protection to vulnerable refugees who will continue to be exposed to harm. Imposing such prohibitive bureaucratic red tape on already overburdened procedures could effectively halt Syrian refugee admission into the United States, in violation of U.S. international treaty obligations and our

moral obligations as a nation.

The shocking and tragic events that took place in Paris, Beirut, and elsewhere are a sobering reminder that how we choose to respond to these atrocities is the ultimate test of our character as a nation.

As a country that prides itself in being a nation of immigrants, we cannot succumb to hatred in the name of security. We cannot sacrifice our most fundamental values by adopting a rhetoric of fear and closing our doors to the victims of the same terrorist acts we condemn. We should be doing more, not less, to help those in need of a safe haven.

We stand with refugees from all over the world. We ask that you do the same by voting “No” on the SAFE Act of 2015.

Respectfully, Harvard Immigration Project Interested individuals are invited to add their signature to the letter at http://goo.gl/forms/VZ54kQmDBG

of countless Middle Eastern immigrants like my parents.

The Republican governors who smugly paint the Syrian refugees as terrorists would flee in a heartbeat if they lived in a war-torn country.

Although terrorism is a legitimate concern, Governor Pat McCrory’s attempt to bar Syrians from my home state of North Carolina is founded on ignorance – ignorance of the federal government’s screening processes and ignorance of Syrian culture. It’s a manifestation of the sort of narrow-minded in-groupism that groups like ISIL hope to trigger through terrorist attacks in order to alienate Western Muslims.

Western openness exemplifies our best values. Unlike tyrannical regimes like Assad’s or roving bands of murderers like ISIL, such openness is inclusive. Tolerant. And by being tolerant at home, we promote tolerance abroad. We lead by example.

To Governor Pat McCrory and

The exercise of institutional renewal starts with a conversation of the sort we are inviting this institution to undertake. The call is no more dubious because it is black voices leading the charge. The stake of black voices in advancing our society and pushing this institution to live up to its self declared commitments of fairness and justice must not be brushed away as “negro talk.” That is disingenuous and demeaning.

As today’s generation, whether white, black or brown, we must sustain the dreams of justice our ancestors dreamed for our people and fought to preserve.

We must not falter in following their weighty footsteps. History has asked much of us in our time. Much we’ve already given. Much more we must be prepared to give. This is not a charge we shrink from. It’s a challenge we look forward to.

The “victory is not already achieved.” It is being achieved.

Mawuse Vormawor is an LL.M. candidate at Harvard Law School.

Without the ability to grow up in North Carolina, away from the material scarcity and conflicts of Lebanon, I would not be who I am today. the other Republican governors trying to stifle refugees: There is room for everyone in America – especially Syrian refugees.

Let them in.

Michael Shammas ’16 grew up in Eastern North Carolina and is the son of Lebanese immigrants who arrived in the United States during the Lebanese Civil War. He is now a third-year law student at Harvard Law and is the editor-in-chief of The Harvard Law Record.

LETTERS TO THE EDITOR SeaWorld has opportunity to make meaningful change Editor: Thank you for running Chris Green’s thoughtful piece calling out SeaWorld’s PR spin. SeaWorld’s business model – like so many of the orcas it has exploited – is dead.

Orcas are enormous in both size and brain power. In the oceans where they belong, orcas swim vast distances every day and lead rich, complex lives. Keeping them in worlds that can be measured in gallons is ethically indefensible.

They know they aren’t supposed to be in SeaWorld’s barren tanks, performing silly tricks for dead fish. It’s little wonder so many die far short of their natural lifespans.

SeaWorld can develop protected coastal pens where the orcas can be transitioned. There, the animals could have greater freedom of movement; the ability to see, sense, and communicate with their wild cousins; the ability to feel the tides and waves; and opportunities to engage in the behaviors that they’ve long been denied. Viewing platforms would

allow the public to see and appreciate these animals for who they are, not interchangeable “Shamus.”

By moving forward into a future that doesn’t include keeping ocean dwellers in swimming pools, SeaWorld wouldn’t have to paint concrete blue to make its business more palatable to the public.

Jennifer O’Connor is a senior writer for People for the Ethical Treatment of Animals.

Holocaust should instruct thoughts on Syrian refugees Dear Editor, I owe my existence to England letting in Holocaust refugees. I feel so sad that our state wants to keep refugees out now.

I had thought that everyone learned a lesson from the Holocaust. The U.S. turned away Jewish refugees, leaving many of my people to die in concentration camps. How can states wish to do that again?

Alene Anello is a 3L and the opinion editor for the Record.

December 7, 2015

Harvard Law Record

5

ANALYSIS

Governors Lack Legal Authority to Block Refugees

HLS professors say

that refusing refugees unlawful, unethical

By Michael Shammas ’16

In the wake of the Paris terrorist attacks, more than half the nation’s states are vowing to bar Syrian refugees. But do they have the legal authority to do so? Harvard Law professors say the answer is clear: No. “States do not have the legal authority to deny refugees entry,” said Phil Torrey, a Lecturer on Law with the Harvard Immigration and Refugee Clinical Program and the Supervising Attorney for the Harvard Immigration Project. “Immigration laws are the sole purview of the federal government.”

Professor Laurence Tribe, a constitutional law scholar, agreed. “A state governor has absolutely no authority to tell the federal government

where refugees may settle,” he said.

“Any effort by Governor Baker [of Massachusetts] or any other state governor to interfere with the decisions made by the President in that regard would be null and void, reminiscent of Southern Governors standing in the schoolhouse door to block racial integration after Brown v. Board of Education.”

Although the Constitution and federal statutes like the Refugee Act of 1980 do not delegate legal authority to state governors to bar refugees, Torrey stressed that “states can certainly make life for refugees within their borders incredibly difficult and ultimately prohibitive.”

“States do play a role in the resettlement of refugees once they are admitted into the United States,” he said. “Resettlement organizations throughout the country rely on federal funding to provide much needed services to refugees. Those services are critical for helping refugees adjust and thrive within U.S. society.

Those funds are administered by state agencies and paid to local organizations to provide housing, education, and healthcare services.”

Thus, if a state decided to withhold such funding, that could mark the beginning of an extended legal battle – one that, according to Torrey, a state would probably lose.

“I do not think that a state policy that refuses to administer those funds for the resettlement of Syrian refugees would survive an Equal Protection challenge. Such a discriminatory practice would likely have no rational basis,” Torrey said.

Harvard Law Professor and co-director of the Human Rights Program Gerald Neuman noted that though a state has “no authority to prevent refugees admitted by the federal government from entering the state or from settling in the state,” state governors “could put pressure on the federal government to modify its policy.” Such a modification would raise questions concerning U.S. obligations

under international law.

The issue of refugee resettlement is especially salient to Harvard Law professors because Republican Massachusetts Governor Charles Baker recently announced that he would resist accepting Syrian refugees.

But such a decision, many insist, is at odds with Massachusetts’ history and values.

“I am surprised to see a governor of Massachusetts associated with this series of statements,” Neuman said. “They damage the image of the United States in the world.”

Torrey echoed Neuman’s view. “I would implore the Governor to not only consider the economic benefits of welcoming Syrian refugees, but the moral obligation to help individuals who have already experienced horrific persecution and are simply trying to provide for themselves and their families,” he said.

What about Governor Baker’s extralegal concerns that refugees could

be dangerous? Torrey pointed out that according to Mark Toner, Deputy State Department Spokesman, refugees undergo “the most stringent security process for anyone entering the United States.”

“No other immigrant group is more carefully screened than refugees,” Torrey said. “The average refugee processing time takes an average of 12 to 18 months, during which no fewer than four separate government agencies – including the Department of Homeland Security, the Department of State, the Department of Defense, and the Federal Bureau of Investigation – review biometric and background information on the refugee applicant.”

It remains to be seen whether Republican governors opposing refugee resettlement will follow their words with action. The views of legal scholars interviewed by The Record suggest that, if state governors do actively oppose refugees, they will face an uphill legal battle.

The one question reporters never ask candidates Politicians should work for citizens, not corporations

By Ralph Nader ’56

Candidates for public office, especially at the state and national levels, are never asked this central question of politics: “Since the people are sovereign under our Constitution, how do you specifically propose to restore power to the people in their various roles as voters, taxpayers, workers and consumers?”

Imagine that inquiry starting the so-called presidential debates of both the Republican and Democratic presidential candidates. I’m not sure any of the candidates – so used to saying “I will do this” and “I propose that” would even know how to respond.

Regardless of their affiliation with either of the two dominant parties, politicians are so used to people being spectators rather than participants in the run-up to Election Day that they have not thought much about participatory or initiatory democracy. Too many of them, backed by the concentrated wealth of plutocrats, have perfected the silver-tongued skills of flattery, obfuscation and deception.

Many voters oblige candidates by not doing their homework about the candidates, their records and the issues they want addressed. Such passivity lowers expectations of what

voters should demand from the elected officials who, after all, are supposed to hold their delegated power in trust and not sell it to big-money donors.

Let’s begin with voters. How could elected officials empower the people they represent?

Power to the voters would mean eliminating the private money financing public elections. Big commercial interests nullify votes, and turn most elections into low-grade ditto days of tedious repetition. Well-promoted voluntary checkoffs up to, say $300, can make public financing of elections into a more politically acceptable reform.

But to strengthen the power of voters there must also be more voices and choices on the ballot lines, the Electoral College should be abolished and state legislators must stop gerrymandering districts that ensure seriatim one-party domination. Same-day voter registration and a binding noneof-the-above choice can give more voters significant leverage as well. Voters themselves must demand that legislative votes by their representatives be immediately put on their public website with their justification.

Taxpayers lack the tools and resources to challenge the many hundreds of billions of federal tax dollars that each year are used illegally, corruptly or are shockingly wasted.

Taxpayers have no standing, under our laws, to sue to stop such abuses.

They are rendered weak and meek by this exclusion. When will voters hear a candidate pledge to give them their

day in court?

Another way to increase taxpayer power is to provide for a voluntary checkoff on the 1040 tax return that makes it easy for taxpayers to voluntarily contribute funds and band together with a full-time staff of watchdogs focused on the government’s waste, fraud and abuse. Big-time leverage is likely with this taxpayer searchlight.

Workers are empowered when they demand that candidates stand for the repeal of the notorious Taft-Hartley act of 1947 – the most handcuffing law obstructing union organizing and union rights in the western world.

Enforcing fairer labor standards that are already on the books, protecting pensions from looting by corporate management (see http://www.pensionrights.org), establishing full improved Medicare for all (see http:// www.singlepayeraction.org) and lifting the minimum wage (see http:// www.timeforaraise.org) – all of these initiatives increase the power of workers.

Finally, how can it be that the “customer is always right” when the consumer has no might? Consumers are becoming serfs in many ways – deceived and tied up by fine print contracts that exclude them from the courts, even if wrongfully injured, and allow vendors, using the same

fine print, to unilaterally change contract terms whenever they want.

Consumers have no way to easily band together either for collective bargaining or collective justice, such as negotiating away those fine-print contracts and restoring the exercise of trial by jury.

Corporate power, led by the cruel U.S. Chamber of Commerce in Washington, D.C., is stripping consumers of class action remedies, imposing severe penalties and fines in the marketplace and intimidating them from complaining for fear of lowering their credit ratings and credit scores. Add to this the gouging prices for drugs and health care, malpractice, nearzero interest rates on their savings, high rates on credit cards, and vulnerability to unregulated foreign imports of food, medicines and other products, and you have a compelling case for a power shift from vendors to consumers.

Inserts in billing envelopes or online required by vendors – such as electric, gas and water utilities, banks and insurance companies – inviting consumers to band together in nonprofit advocacy organizations, with full time champions, can be a great step forward in getting consumers seats at the tables of power (see http:// www.citizensutilityboard.org).

Consider how much of your money and assets the government spends

to facilitate business organizations – with subsidies, handouts, bailouts and giveaways, with tax credits and deductions and with privileged bankruptcy laws to give mismanaged or reckless companies second and third chances.

Consumers and taxpayers pay for all these goodies. Where is the reciprocity, where is the modest payback for all these exactions? Let consumers have easy ways to organize, with full time advocates, as bank customers, insurance policyholders, car owners, , energy and credit users, and those simply wanting food that is safe to eat.

When enough consumers can organize, through easy checkoffs, they can defend themselves and make for an efficient and equitable economy.

The appeal of these power shifts is that they come at little or no cost to citizens. No more than the equivalent of one week of the Pentagon’s budget would comprise the aggregate costs of all of these resets for a functioning democratic society. By their own accomplishments, they would save consumers, workers, taxpayers and voters more dollars than the entire Pentagon budget. Not to mention the quality of life, peace of mind and life-saving justice that cannot be measured just in dollars.

Meet your candidates; ask your candidates “The Question Never Asked!”

Ralph Nader was the Green Party candidate for president in 2000 and a former editor-in-chief of the Record.

Lawyers need to act to save critical component of justice: juries

By Andrew Guthrie Ferguson

Juries are in crisis. The jury trial exists today unloved, neglected, and largely avoided in legal practice.

Procedural barriers and civic apathy have combined to gut one of the central tenets of America’s constitutional structure.

The civil jury trial is dying. In federal courts, less than 1% of civil cases are resolved before a jury. In state courts, the percentage of jury trials is only slightly higher.

Lawyers can leave law school, make partner, and become a judge without ever trying a case before a jury.

Arbitration, mediation, and settlement dominate litigation practice. Take a look at almost any long form contract (from your smartphone to your rental car agreement) and you (and everyone you know) likely will have signed away the right to a jury trial.

Fine print waivers have shifted a system of public justice to a process of private settlements. And, even if you retain the right to sue, you still face daunting odds overcoming legal roadblocks (narrowed pleading and class action rules) and financial realities (lawyers cost more money than most law students can afford). Going to trial is simply not an option for most individuals.

The criminal jury trial is dying.

More than 97% of criminal defendants in federal court plead guilty.

More than 94% of defendants in state courts plead guilty. Fewer still defend themselves in front of a jury of their peers. As Justice Anthony Kennedy conceded in Lafler v. Cooper, “[C]riminal justice today is for the most part a system of pleas, not a system of trials.”

Again, from the principle of public

justice in a constitutional protected “public trial,” the result is that defendants no longer have ordinary citizens passing judgment on their guilt.

Jurors are themselves failing the justice system. If the systemic erosion were not bad enough, citizens have stopped showing up for jury duty. “No show” rates for jury service in some jurisdictions range close to 80%.

Last year, Philadelphia, Pennsylvania created a “scofflaw court” to adjudicate wayward jurors after almost a third of summoned jurors failed to show up. The right to a jury trial – so important to the Founding generation that Thomas Jefferson mentioned it in the Declaration of Independence and so essential that it made it into the text of the Constitution (Article III), the Sixth Amendment, and the Seventh Amendment – has regularly been ignored by this generation.

This slow death of the jury distorts the constitutional structure, diminishes the role of citizens, and means that you will likely graduate from Harvard Law School and never have the opportunity to stand before a jury like thousands of alumni before you. Here are four reasons why you should care.

Twelve heads are better than one. Twelve hearts are also better than one.

1. Juries work.

Empirical and anecdotal evidence demonstrates that juries tend to reach the correct result. Polls comparing jury verdicts with judge decisions, scholarly research, and the common knowledge of trial lawyers (who keep trusting juries) all point to the same conclusion: juries are good fact-finders. Twelve heads are better than one.

Equally important, juries are good fact-finders within a system that takes

into account the human element behind the lawsuit. Twelve hearts are also better than one. Common sense judgments based on common sense legal interpretation tends to lead to common sense justice.

2. Juries are part of our constitutional identity.

It is hard to think of a more uniquely American institution than the jury. Juries have been a part of America before there was an America (the right to a jury trial coming over on those first boats to the Jamestown Colony). Juries place core decision-making power in the hands of a localized, democratic, public institution composed of ordinary citizens.

Juries are a daily manifestation of “We the People,” and, thus, a microcosm of democracy. Plainly, the Founders believed that juries were central to a constitutional system. But, this original understanding has only been amplified in the more modern era as Suffragettes and civil rights leaders both claimed the right to serve on a jury as a fundamental expression of political equality. Before and after the Nineteenth Amendment, the League of Women Voters made jury duty a priority equal to the right to vote.

Before Brown v. Board of Education, Charles Hamilton Houston and the NAACP-Legal Defense Fund litigated equality in jury service before the Supreme Court. In both cases, the understanding was that jury service was as important a political and civil right as voting. Jury duty was constitution duty and a marker of constitutional identity.

3. Juries empower citizens.

The jury has always been considered a structural power. Juries grant power to citizens at the expense of judges, legislatures, and prosecutors.

As Justice Antonin Scalia stated in Blakely v. Washington, “Under our

Constitution, the right to a jury trial is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” In an era of growing special interests and corporate money influencing state judicial elections, and at a time in which prosecutors have more power than any other figure in the criminal justice system, this reservation of power to citizens matters.

4. Jury service improves civic engagement.

Studies by researchers at The Jury and Democracy Project show that by merely sitting on a jury through deliberation and unanimous verdict, citizens are more likely to vote in future elections. Of course many people always vote, and some never do, but for citizens who had spotty voting records in the past, deliberating on a jury in criminal cases and most civil cases generated a “civic spark” that encouraged further political and civic involvement outside the courthouse. This research proves that Alexis de Tocqueville was right to conceive of juries as political institutions which help educate, inspire, and teach citizens about democratic responsibilities. After all, in a jury, a citizen is required to become a constitutional actor and do the hard work of self-government. Once citizens do this work successfully in one context, it appears that these same citizens become engaged to do it in other civic spaces.

So if juries work, define constitutional identity, empower citizens, and improve civic engagement how can we reverse the slide of jury trials in America? Here are two concrete steps to save the jury trial.

First, join or contribute to one of

It is hard to think of a more uniquely American institution than the jury. the new education projects to stop the decline of the civil jury. This fall the NYU Law School launched a Civil Jury Project headed by famed trial lawyer Steve Susman to educate citizens about the civil jury trial. The project’s goal is to support research and studies on why the civil jury matters. The American Board of Trial Advocates (ABOTA) has created the “Save Our Juries.org” project. ABOTA is an organization devoted to saving the civil jury trial, and holds summer trainings at Harvard Law School.

Both organizations could use talented, smart legal thinkers about the problems of juries in America. Of course, at Harvard Law School you also have several of the preeminent jury experts in America. By researching, writing, and thinking about ways to save the jury you can contribute to its rebirth.

Second, take up the fight against fine print clauses in those contracts all around you. How many waiver clauses exist in your daily life? Try to challenge them. Ask about them.

Spread the word about how this principle of waiving constitutional rights in largely non-negotiable contracts is undermining the jury.

In the end, constitutional rights are only as strong as constitutional citizens. The jury trial is our constitutional inheritance. Let’s protect it.

Andrew Guthrie Ferguson is the author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action. He is a Professor of Law at the UDC David A. Clarke School of Law.

6

Harvard Law Record

December 7, 2015

NEWS & OPINION

Lessig Discusses Presidential Bid, Future of Campaign Finance

By Lindsay Church ’16 and Brianna Rennix ’18

HLS Professor Lawrence Lessig brought campaign finance reform to the center of national attention with his run for the Democratic presidential nomination. Lessig also founded Rootstrikers and the Mayday Super PAC. Though Lessig withdrew his bid earlier this month, he was happy with the support he received from the HLS community throughout the campaign.

On November 23, Lessig sat down with HLS Professor Jonathan Zittrain to discuss what he learned running for president. Lessig said that his presidential run was animated by his belief that “we are at a point in the history of our democracy, maybe on the way down, when we have got to recognize that a fundamental flaw has emerged.”

Members of Congress currently spend the majority of their time soliciting campaign money from the tiniest fraction of the top 1 percent of the American population – and as a result, Lessig contends, congressional politics are driven by the concerns of a small number of ultra-wealthy donors, not the concerns of the populace at large. Add this to the problem of gerrymandered districts, which ensure that only 90 out of 435 Congressional seats are competitive in any given election, and the result is that Congress “is an institution that no longer recognizes the people.”

Lessig’s campaign was an attempt to “hack” the problem of Congressional gridlock by turning the presidency into a referendum on campaign finance reform. If elected, Lessig would have refused to sign any legislation into law until a campaign finance reform bill, the “Citizen Equality Act,” crossed his

desk. Having secured this legislative reform, Lessig would then immediately resign, ceding the presidency to his Vice Presidential running mate. The only problem with this idea, Lessig said, was that some questioned his sanity.

Press coverage focusing on Lessig was far more interested in the surrealism of “getting elected to resign” than in the substantive reform issues Lessig sought to publicize. Nonetheless, Lessig had hoped to use the Democratic primary debate as an opportunity to give campaign finance reform a public hearing, and thus force other candidates to adopt more concrete stances on the issue. Though Lessig raised more money than at least two other Democratic candidates, he was informed by the Democratic National Committee in early November that only candidates who had been polling at 1 percent in three polls “six weeks prior to the debate” would be invited to participate.

This was a revision of the DNC’s earlier policy, which had simply stated that candidates needed to achieve the requisite poll numbers “in the six weeks prior to the debate.” Speaking to The Record, Lessig said that he was not sure why the DNC had “moved the goalposts.” His best guess was that DNC was focused on buttressing support for Hillary Clinton’s candidacy, and had sought to minimize “wild card” elements within the primary debates.

Lessig believes that, with Congressional approval ratings at an all-time low, the American public would be open to discussing novel methods for tackling the problem of government corruption. A referendum in Seattle on “democracy vouchers” – a program that allows each voter to divvy up $100 of their tax dollars amongst

local candidates of their choosing, provided that the candidates agree to refuse funding from PACs and adhere to other restrictions on campaign spending – was overwhelmingly approved by voters earlier this month.

Lessig told The Record that he was surprised by how “fun” and “rewarding” the campaign process had been, particularly when he had the opportunity to speak one-on-one with potential voters. He found that many of the people he met were receptive to learning more about the issues surrounding campaign finance. “Most people want to do the right thing,” he said.

So, what is next? Lessig will return to teaching but says that he currently does not have plans to create any new HLS courses or organizations. He believes that the Mayday Super PAC is running well under the direction of Zephyr Teachout, but indicated that he would continue to support Mayday’s efforts to promote campaign finance reform. And on November 24, he helped publicize Mayday’s involvement in Democracy Spring, a mass demonstration to take place next April in Washington, D.C., which Lessig describes as “the largest American civil disobedience action in a generation.”

Ally Chiu, president of HLS Rootstrikers who spoke with The Record in her personal capacity, hopes that many students at HLS will advocate for reform. “I encourage all students to become involved at any and all levels that suit them – whether that be writing an editorial to address a larger audience, petitioning to their public representatives, or starting a conversation with their peers,” said Chiu.

“Campaign finance is at the root of every single issue of national importance,

By Alene Anello

Photo credit: Lessig Equal Citizens Exploratory Committee

and not only HLS students, but all Americans should be concerned about it.”

Third-year student Sara Murphy, who is also involved with HLS Rootstrikers, notes that campaign finance is an issue that affects all other issues important to HLS students – “whether that’s climate change, mass incarceration, or improving public health. Students should have a basic understanding of the problems in our current campaign finance system and should push their representatives to implement creative policy solutions, like democracy vouchers.” Murphy also mentioned that students who wish to get more involved can join local and national advocacy groups, like HLS Rootstrikers.

Though Lessig ran as a Democrat, he believes campaign finance reform is an issue that transcends partisan politics. “The real difference in American politics is not between the right side and the left side,” Lessig argues. “The real difference is between the inside and the outside.”

Rennix: It’s disgraceful to implicitly allow mass death Rennix continued from page 6

and children, are left to the mercy of the elements?

Our implicit willingness to allow the deaths of so many of our fellow human-beings, rather than risk any possibility of danger to ourselves, is disgraceful. No doubt our country’s current antagonism towards refugees arises in part from some people’s hatred for immigrants, some people’s anxiety about extremism, and some people’s desire to exploit either of these emotions for political gain. But I think it’s too simple to pin it all entirely on racists, alarmists, and opportunists.

I rather suspect that many people are buying into the “refugees are likely to be terrorists” argument because outrage feels less selfish than indifference – and indifference is, in fact, our deeper and more insidious national sin. It was our attitude towards Syria pre-Paris, and even more markedly pre-Aylan Kurdi. It has been our attitude towards refugees closer to home, fleeing gang-controlled territories in Central America. We simply do not care if these people are murdered. We do not care if they drown. We do not

care if their children die in refugee camps. We do not care if their children perish from hypothermia on the shores of Greece.

Why this unwillingness to help? Is it because we’re honestly afraid that refugees will murder us all in our beds? I think not. We don’t want to help refugees for the same reason that we don’t want to know where our commodities come from, how our food is harvested, how our clothes and our devices are made: because it’s damned inconvenient. Because when we acknowledge that suffering is taking place in the world, that it is widespread, that it is abetted by our own actions and omissions, we must then think seriously about how to change our national policies and our individual behavior. This process involves risk, uncertainty, sacrifice. If we take some refugees, should we take lots of refugees? If we take lots of refugees, what will be the effect on Americans living here now?

Some economists have argued that immigration usually has net positive economic consequences, but what if it doesn’t? Could our standard of living

change? Could our cities become more crowded, less safe? Will racial, religious, and cultural tensions become more pronounced?

These possibilities are unpleasant.

But they become even more unpleasant when we place them in juxtaposition to the hellish conditions in Syria – because when we do that, we are forced to acknowledge that our own worst-case scenario is still immeasurably better than anything these refugees have had to endure already. And then, perhaps, we may start to feel petty. It is not nice to feel petty. It’s not nice to admit to ourselves and to one another that we are petty. So we try not to think about it at all, and readily latch onto any line of reasoning that seems to absolve us of responsibility. We are, quite simply, morally lazy.

But we don’t have any choice about whether to involve ourselves in the troubles of the world. All of us are already involved. The entire, ordinary-seeming structure of our lives, all the abundances and conveniences which we think of as quintessentially American, and seek to preserve

How to write a good exam

of the thermos, say “brrr,” and snuggle forward a little in your seat. No one will be the wiser.

2. Eat a good breakfast.

We all know that the outcome of a case is largely determined by what the judge ate for breakfast. A good study technique is to spend some time researching and sampling representative breakfasts from various jurisdictions throughout the U.S., and thinking about how each breakfast might affect your ruling, were you a judge. Are you full or hungry? Gassy or constipated?

Following each meal, how much time did you need to accomplish your optimum morning dump, and do you think a judge could realistically incorporate the full length of that window into his or her busy schedule?

3. Take control of the exam question.

Remember, all exam questions are purely hypothetical. Their reality, such as it is, arises out of a knowing collusion between writer and reader, who each sustain separately in their minds the same agreed-upon fiction. DO NOT ALLOW YOUR PROFESSOR TO BECOME THE TYRANT OF YOUR IMAGINARIUM. Anything is possible in the world of the mind! Repeat to yourself as you read the question: “This

is not real. This is not real. I am in control.” With practice, you will find that you can make the question say whatever you wish.

4: Deny everything.

Your professor’s framing of the facts may not be advantageous to your client. Concede nothing at this stage; it could be used against you later. Bring in character witnesses to discredit your opponents. In the past I have often called to the stand various widows and orphans whom the relevant defendant/ plaintiff had defrauded for personal gain. Public sympathy for widows and orphans is at a low ebb at the moment, however, so your most unimpeachable witness these days is probably a welltrained labrador retriever. You will have explain why, within the fictional universe of the exam question, animals have the power of speech; but this can be done in a couple sentences. Most juries, having had personal experience of both species, will readily trust a dog’s word over a human’s.

For questions involving medical matters, I’ve invented an expert witness named Dr. Rex Alvarez, M.D., a brilliant but troubled surgeon who is forced to constantly justify his radical methods to philistine hospital administrators. You’re more than welcome to

know the actual security risk posed by individual refugees – that therefore we must assume that it is high, because the consequences of assuming that it is low are too great. But even supposing, for the sake of argument, that admitting a large number of refugees does entail some increased risk of terrorist attack on our soil, this consideration cannot possibly outweigh our overwhelming moral obligation to provide protection and shelter to people displaced by violence.

We could theorize that there is some percentage of risk to our national security that could obviate some percentage of our responsibility to take in refugees.

But it would have to be an enormous risk, an immediate and catastrophic risk, a complete and existential risk, to rid of us of the responsibility to take in any refugees at all. And has the present level of risk, as we currently understand it, truly even earned us the license to spend well over a year on every application – when winter is on its way, and thousands of men, women,

By Fenno

Let me begin by saying that the “free press” in this country is a sham, and The Record is no exception. I recently submitted two pieces for publication in this paper: one, an exposé entitled “Time-Travelling SS Officers at Harvard” (with chilling video evidence), and the other, a detailed proposal for replacing the Harvard Law School crest with a picture of an orca devouring the CEO of Goldman Sachs.

Both of these pieces were rejected by the Harvard Law Record Editorial Board, on the grounds that they were a) badly spelled and b) “not a constructive contribution to the serious conversations currently taking place on our campus.”

Rest assured that I will continue to speak out on these matters, regardless of what the Dean has to say about it (I don’t think she’s said anything yet, but in case she does), or the student-journalist junta that controls this so-called newspaper. However, in the interest of actually reaching my HLS readership this week, I’ve chosen a “safe” topic upon which to expound my wisdom:

HOW TO WRITE A GOOD EXAM. I have many years’ experience taking exams at Harvard Law School. You can get your advice from LexisNexis or Barbri or whatever other two-bit corporate scammer is clogging up your inbox these days, or you can get your advice from me, who has been in the wars and lived to tell the tale. Your choice.

1. Get comfortable.

To write a good exam, it’s important to be as relaxed as possible. Where you take your exam makes all the difference. Pick somewhere that makes you feel at home. If you’re looking for a good place in the Harvard area, I’ve completed a number of exams at Shays on JFK Street. If you prefer to work downtown, then you might consider Carrie Nation, which has a very good whisky selection – though, fair warning, the staff does not react kindly to one’s taking a mid-exam nap (another practice I highly recommend) on their billiard table.

If you have an in-class exam, then I suggest bringing along five fingers of your preferred liquor in an opaque thermos. To deflect suspicion, periodically cup your hands around the base

Donate to the Harvard Law Record

By Michael Shammas ’16

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

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

been relegated to an online existence.

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

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

numerous other media outlets.

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

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

Chicks Will Get on the Ballot It looks like, in 2016, our state’s ballot will ask voters whether a chick deserves enough space to stretch her wings.

Last week, Massachusetts received 130,000 signatures of voters who want a farm animal protection question on the ballot – twice the required number.

This initiative received more signatures than any other pro-animal initiative in Massachusetts so far. HLS students helped gather signatures on and off campus. Now the Secretary of the Commonwealth just needs to approve the votes.

A factory farm generally keeps a baby calf used for veal, a pregnant pig forced to breed more pigs, or a hen used for eggs in a cage too small for the animal to even turn around. Some merciful states have begun to ban such extreme confinement.

Massachusetts voters can soon give our state’s animals some space, too.

(I call a hen used for eggs a chick because the egg industry will kill her so young. A bird’s body quickly gets worn out from factory farm life. The egg industry thus considers a hen useless at just a year or two old. In nature, a chicken could live ten to fifteen years.)

against outside threats: all of it is an edifice borne on the backs of millions of disempowered people throughout the globe. There is agony in the dregs of our coffee and despair in the fibers of our shirts. There is hidden misery metastasized in every area of our lives, so that even our most mundane choices are twitches upon the threads of a vast system of exploitation, exclusion, and waste. The world of refugees and migrants, of slaves and sweatshop-laborers, is not some dark otherworld: it is our world. It exists both within and without our borders. We sustain it, and we allow ourselves to be sustained by it. In this age of information, we can hardly claim that we know not what we do.

We tell ourselves that things are the way they are, that they cannot be otherwise. We hide our cowardice under a veneer of pragmatism, under the cynical pretense that we have made hard choices in the face of hard truths. But the hard truth is that doing the right thing is not always easy, and does not always feel safe.

Brianna Rennix is a 1L. She is the news editor for the Record. borrow him for your exam. Think carefully before you do: his biting sarcasm, rakish good looks, and unorthodox approach to medicine have sometimes worked against his credibility on the stand. However, many open-minded judges have great respect for Rex’s expertise and integrity.

5. Take a nap midway through.

See above. As somebody once said (possibly Cass Sunstein) sleep knits up the raveled sleeve of care. You should plan to sleep anywhere from 20 minutes to three hours, depending on how fucked up your care-sleeve is and how good you are at knitting.

6. Cite as many cases as possible.

If you can think of a case that dealt with a related issue, throw it in. If you don’t think the holding supports the way your argument is wandering, invent a subsequent case that reverses the holding completely. This is easier than “distinguishing” the case, and quicker (see below).

7. Don’t spend more than ten minutes on any one question.

After that, you’re just second-guessing yourself.

I hope this has been helpful. Just remember: you cannot fail out of Harvard Law School. God knows I’ve tried.

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

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