Harvard Law Record, 2015-2016, Issue 7

Record The Harvard Law

WEDNESDAY, FEBRUARY 3, 2016

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 7

IN THIS ISSUE:

Pete Davis ’18 demands OCS end its relationship with revolving-door corruption, p. 2 Nic Mayne ’18 polls HLS on the presidential election and breaks down the results, p. 4

Pete Davis ’18 explains how a visiting professor took her criminal law classes to a higher level, p. 5 Kirsten Hugo explains how antique ivory can still harm living elephants, p. 5

Deborah Beth Medows shows how to pick a field, p. 6 Michael Shammas ’16 takes on outrage culture, p. 6 Namita Dhawan ’18 talks out loud about life as a South Asian law student, p. 6

Lawyers, Private prisons prefer profits to justice not just attorneys

By Randall Robinson ’70

Bluebook continued on page 3

The Law of the Seas isn’t law enough. Oh sure, the long established United Nations treaty is used to regulate oceanic commerce, scientific exploration and maritime territorial claims. And while it’s not broad enough to address the most critical issues confronting our seas it’s enough to inspire anti-UN conspiracy buffs in the U.S. Senate who have blocked its ratification for over 30 years now. But to date the Law of the Seas and other treaties and multilateral agreements on the dumping of waste to the catching of tuna have not done enough to deal with the cascading disasters that threaten the survival of the ecosystems that make up a living ocean.

These threats include industrial overfishing for the global seafood market with fish being caught faster than they can reproduce and much of that protein being siphoned off to the supermarkets and white linen tablecloth restaurants of the developed world and China.

Then there’s the oil, chemical, plastic, farm and urban nutrient waste that’s created some 500 ‘dead zones’ in coastal seas and introduced bits of micro-plastic that act as toxic sponges for chlorinated compounds like PCB concentrating them in the

marine food-web from zooplankton to the seared ahi tuna you order at your favorite eatery. A recent report suggests that by mid-century there could be, by weight, more plastic than fish in the ocean.

There’s also the ongoing loss of coastal and ocean habitats including bays, estuaries, salt marshes, sea grasses, mangroves, coral reefs, seamounts and fishing trawl raked seabeds essential for the preservation and restoration of our blue planet.

And on top of all that, fossil-fuel fired climate disruption is warming and acidifying the ocean. Along with sea level rise and loss of polar sea ice it turns out that a warmer more acidic ocean also holds less dissolved oxygen. That’s not a problem for jellyfish but less happy news for marine mammals and bony fish. Also algae is on the decline as ocean temperatures rise and while the rain forest has been called “the lungs of the world” it’s actually tiny phytoplankton that provides us with about half the oxygen we breathe.

So given all we get from the ocean including recreation, transportation, trade, energy, protein, medicine, weather, oxygen and a sense of awe, wonder and joy, isn’t it time we gave something back? But what can I, a mere Harvard Law Student hope to contribute, you might wonder?

Of course the choices we make every day impact the seas around us. But the unique skills you’re developing as near and future lawyers might also provide some useful impacts. I’m not suggesting a focus on maritime law, that obscure corner of the profession that ranges from Dutch jurist Hugo Grotius who in 1609 argued for Mare Liberum or ‘Freedom of the Seas’ to today’s shipping and government counsels arguing over claims of access and ownership in the South China Sea, the Arctic Ocean and elsewhere, though that can be fun.

Rather I’m talking about the willingness of a few litigators and legal thinkers to re-imagine our relationship with the planet’s last great commons. Today there are a handful of environmental and human rights attorneys, prosecutors and maritime law-enforcement agents willing to go after the most egregious of the Salt Water special interests: the commercial fishing fleets, offshore oil and gas industry, shipping industry, the Navy and coastal developers who, through greed or ignorance or a combination have put the crucible of life on our salty blue planet at risk.

New York Times reporter Ian Urbina’s recent series ‘Outlaw Ocean’ helped expose the lack of

A History of the Bluebook’s Page Count 600

20th edition

500 400 300 200

1st edition

100 0

19 60 19 68 19 76 19 84 19 92 20 00 20 08 20 16

Everything you know is wrong.

At least that’s what a forthcoming article by Harvard Law School graduate and current Yale Law librarian Fred Shapiro ‘80 claims about the Bluebook.

The received origins of the Bluebook, bane of lawyers and lawyers-to-be everywhere, goes a little something like this: Once upon a time, there was a Harvard Law Review citation pamphlet, compiled by no less a figure than Griswold Hall’s namesake and Dean of Harvard Law School, Erwin Griswold.

Through sheer force of will, Griswold and the Harvard Law Review grew his little pamphlet into the 582-page monstrosity we have

today. This story is itself printed in publications no less illustrious than the Harvard Law Review and the Wikipedia article for the Bluebook.

However, if you were to think that the Harvard Law Review is not only responsible for the annual disappointment of 1Ls who failed to write on, but also responsible for the wretched citation manual that has an italicization error in its own explanation on how to italicize introductory signals in its most recent 20th edition, well, you’d be wrong, or at least, partly wrong.

According to Shapiro, it’s clear from the archives that the true originator of the Bluebook was Yale Law Journal editor and Iron Cross recipient Karl Llewellyn,

The ocean needs a lawyer too

By David Helvarg

Prisons continued on page 3

52

By Jim An ’18

19

Nader continued on page 3

some $3.3 billion a year.

Private prison owners like to say that prison privatization saves taxpayer dollars, and they often cite a Temple University study to corroborate their claim. What they often fail to mention is that that study was funded by three of their industry’s largest corporations. Indeed, a 2011 Arizona Department of Corrections

Bluebook Origin Myth Hides Newly Found Past

19 20 19 28 19 36 19 44

Today, we gather as both attorneys and lawyers to contemplate our privileged profession. The many specialized workshops today are largely designed to better our role as “attorneys” – as attorning for our clients. Permit some words on our role as “lawyers” urged by our ethical canons and codes to strive for justice, to enlarge the peoples’ access to justice and to improve the administration of justice. Of the nearly one million licensed members of the bar nationwide, the bulk of our time obviously is devoted to being “attorneys” as compared with our time spent exercising wider duties as “lawyers.”

Yet, if we profess to be a profession, invested with monopolistic authority, instead of a trade, we should address the three distinctions between a profession and a trade. They are: (1) A learned tradition; (2) An institutional independence; and (3) A spirit of public service.

Indeed, a careful reading of our

Today, however, the owners of private prisons are convincing government officials to make what used to be misdemeanors into felonies; to arrest broadly and aggressively; and, most importantly, to send the “guilty” to private prisons and taxpayer dollars to prison owners’ pockets. Today, just two of these businesses alone – GEO and Corrections Corporation of America (CCA)– enjoy revenues of

Pages

By Ralph Nader ’56

All across the country, businesspeople are acquiring prisons and running them as private money-making ventures. Funds that governments used to spend constructing and managing prisons are now being funneled to these “investors”, and shares in for-profit prisons are now being traded on America’s stock exchanges. The

more people get sent to prison and the longer they stay, the more money these “business people” make. And so, more and more people are now serving time for minor infractions - like the inability to pay traffic and other fines, for example.

What an indictment of 21st century America.

Prison was supposed to punish law breakers, scare the rest of society, and rehabilitate wrong-doers.

By mid-century there could be, by weight, more plastic than fish in the ocean. law or justice on the high seas, from murders of mariners that go unprosecuted to the use of Burmese and other slave crews by large scale fishing operators.

Today, the lines between industrial fishing, Illegal, Unreported and Undocumented (IUU) fishing, human trafficking, drug smuggling, and organized crime are becoming ever more blurred. Overfishing, and its criminal cousin, pirate fishing are common currency from Thailand and Korea to Russia, Fiji, Costa Rica, Italy, and Spain. Plus there are a few fishermen out of New Bedford who’ve had their run-ins with the law.

At the same time solutions are being scaled up and codified. Last May, delegates from my non-profit ocean conservation group Blue Frontier met with 9 Senators, 25 House members and 120 congressional staffers to support a bipartisan bill aimed at ending unregulated and pirate fishing in the world’s ocean and signing on to a global agreement.

Ocean continued on page 3

New century, new seal

By AJ Clayborne ’16

In 2017 Harvard Law School will enter its third century as an elite institution that educates the leaders of American law and policy. As always, this period of transition offers a risk and an opportunity. Will the law school continue to perpetuate systemic racism and inequality?

Or will it choose to fulfill its mission to “educate leaders who contribute to the advancement of justice”?

Recent events suggest that there may be reason to be hopeful. The law school has convened a committee to decide whether to recommend that the crest of the law school be changed. Dean Minow has

Changing the Royall shield is just the beginning.

Clayborne continued on page 2

A right of conscience for government employees Davis not unlike civil liberties champions, prolife doctors, whistleblowers, pacifist soldiers.

By Alan Hirsch

The refusal of Kentucky county clerk Kim Davis to issue marriage certificates to same-sex couples sparked a major controversy.

Conservatives hailed Davis’s principled refusal to violate her conscience and her understanding of the Constitution, whereas liberals insisted that anarchy will result if government officials fail to carry out laws they dislike.

But, as so often happens, the debate rested on a false choice. After unnecessary litigation leading to

Davis’s incarceration, eventually a win-win solution emerged which protected Davis’s right to conscience without violating the rights of same-sex couples. The solution was breathtakingly simple: Other officials in the clerk’s office, who do not share Davis’s scruples, issue marriage licenses to same-sex couples.

The episode called to mind an idea Ralph Nader and I proposed more than a decade ago (in an article in Hastings Law Journal) – the recognition of a “right to conscience” for government employees.

Ralph and I actually focused on government attorneys, but the right could and should apply more broadly. Why not stipulate that government employees may decline an assignment (without punishment) if they believe it would force them to act unlawfully or otherwise violate their oath of office or conscience?

An obvious objection is that respecting such a right would impede government efficiency. But experience suggests the folly of assuming that the proposed right of conscience would be exercised so wantonly as to create significant disruptions. Germany recognizes a right of conscience for all employees (private as well as public). To my knowledge, no one argues that

its economy has suffered as a result.

Here, in America, the law exempts conscientious objectors from military service. America has never had difficulty fielding an army as a result.

There are other situations, too, in which American law respects a right to conscience. Many states have long had “conscience clauses” stipulating that physicians may not be penalized for refusing to perform abortions, and, following the Supreme Court decision in Roe v.

Wade, the U.S. Congress enacted such a statute. Oregon extends similar protection to physicians who refuse to participate in physician-assisted suicide (which is legal in Oregon).

Kim Davis

American law also extends various protections to government employees that theoretically could disrupt an agency’s efficiency or harmony, such as protection for the outspoken government official who expresses views on controversial issues and the whistleblower who reports misconduct. Despite potential Davis continued on page 3

2

Harvard Law Record

February 3, 2016

OPINION

End OCS’s complicity in D.C.’s revolving-door corruption

doesn’t matter. They start to believe their pockets are not deep enough to be worth D.C. insiders’ time.

Harvard Law School’s Office of Career Services should not exacerbate this corruption. America needs corporate lawyers. America even needs

By Pete Davis ’18 to the law firm” with “government into law firm positions.” Indeed, the industry lobbyists. But America does experience” in tow, allowing us to as- law school which launched the pub- not need young law students working you will enjoy them. Don’t limit your interest to the higher-level subject matter or policy In his final State of the Union cend to senior associate and receive lic-minded, transformative career of for our national government with the implications. address, President Barack Obama a higher paycheck (likely four times the citizen who founded the CFPB is mindset that they will bring the intel (JD ‘91) reminded each American the American salary) providing students with a statement they learn there back to serve power11. median INTERNATIONAL LAW funded that “our collective future depends by the deep-pocketed (his words, not them tofirm’s work for may it with ful interests. If our nation’s oldest law Takeaway: International Law is not a practiceencouraging area in DC law firms.

The clients be on your willingness to uphold your mine) international, interests orfor wehandle con-may have theinternational primary issues, purpose of developing school is going to recommend people the which matters they but international law is obligations as a citizen.” It echoes ductednot—in immersive the skills you to evade, resist — or even, to go into government work, it should itself—a research practice area.over Instead, for example, will find corporate attorneys who poshandle transactions, project finance for international clients, or litigators who Harvard Law School’s mission state- prior two to cross-border three years. sibly, subvert — its mission. only be in the context of entering on international recommendatrade disputes. Similarly, international clients do not automatically mean ment, which is to “educate leaders The focus OCS-endorsed Fortunately, Garrison & Sisson’s such work as a public servant with an international law practice.

19. MOCK INTERVIEWS who contribute to the advancement our national community’s interest in of justice and well-being of society.”

Takeaway: Failing to do a mock interview could bemind one of while the costliest your onemistakes worksofthere.

12. GOVERNMENT OPTIONS career. Mock interviews afford an opportunity to identify issues and not perfect responses to Unfortunately, a page on the Office One may find a serious probTakeaway: The federal government is a great placequestions to gain practical and training, regardingexperience your background and interest inlem their firm or department. planning one’s of Career Services’ website strongly in strategically and government practice generally affords a more predictable schedule than a law firm practice. encourages Harvard Law students career around monetizing their For purposes of leaving the government to20. enter a DC law firm,BEFORE/DURING firms are more likely to hire RESEARCH THE INTERVIEW to participate in Washington’s reggovernment work. However, the orgovernment attorneys with experience from the following agencies: (1) Department of Justice Takeaway #1: For law firm interviews, review the firm’s website carefully and pay attention ulatory revolving door, a corrupt ganizations tasked with ensuring (DOJ) (i.e. the Antitrust Division or Criminal Division); (2) Securities and Exchange to the following data points: practice that runs counter to the government and regulatory integCommission (SEC) (i.e. Division of Corporation Finance, Division of Investment  What are the core practices? The more attorneys in a practice area, the higher odds they President’s message and our school’s rity take revolving door corruption Management, Division of Enforcement, or Division ofwill Trading and Markets); (3) Federal need to continue hiring (assuming the practice area is busy). stated mission.

Trade Commission (FTC) (especially the antitrust/competition arm); (4) Food and Drug very seriously. Almost every agency  Lateral hiring – are there vacancies at the junior level in particular practice areas? If so, this Administration (FDA); (5) Federal Energy Regulatory Commission (FERC); (6) International Recently, students received a ‘Hire could suggest a need for entry level attorneys. mentioned by the Office of Career Trade Commission (ITC); (7) Federal Communications Commission (FCC); (8) Patent and Ground’ email with a link regardServices documents as ripe for cor News stories and press releases – educate yourself on the recent cases/developments in Trademark Office (PTO); and (9) Department of Treasury. ing “Law Firm Reception Etiquette porate interest experience is threatcertain practices and/or new hires in the DC office.

Questions.” When a student clicks ened by regulatory capture.

13.

GOVERNMENT/ PRIVATE SECTOR INTER ESTS Point 12 from OCS/Garrison & Sisson tip sheet.

Takeaway #2: Call alumni, friends, or friends-of-friends to ask for any advice they might on that link, they are taken to a page Two years ago, the Project on Takeaway: If you are starting in the government but want keep your options open for a firm. law Related outreach suggestion: when have for to somebody interviewing at their that encourages students to browse tion reads like a corrupted version of OCS-recommended tipsheet does Government Oversight recently firm in the future, here’s a rule of thumb: the morecontacting expertise you develop connection with do not be afraid to pick up the phone. Email can attorneys forinadvice/networking, OCS’ “Researching Employers” page. President Kennedy’s inaugural adinclude one takeaway that, in a way, published a report, Dangerous issues that directly affect private sector clients, the feel moreless marketable be. For intrusive,you but will students whoexample, make contact through the phone often have the best If one declares their interest in the dress. Instead callingcoming young people serves Law’s interest Liaisons: Revolving Door at SEC at the DOJ,ofattorneys from the Antitrust Division, Tax Division, or Criminal Division resultsHarvard because they make apublic stronger personal connection.

“Washington, D.C. Legal Market,” to workand/or for U.S. theAttorney’s federalOffice government mission.

In Point 20, Takeaway Creates Risk of Regulatory Capture, tend to have more market options in the private sector than #5, Takeaway #3: Good lawyers ask good questions. An interview is an opportunity to show they are invited to browse a docu- by challenging them to “ask what you Garrison & Sisson informs readers which describes how alumni of the those attorneys leaving the Civil Rights Division.

Additionally, the SEC also tends to be a your thoughtfulness and intellect with well-crafted questions. When in doubt, ask about the platform for a futurethe law Office firm practice the experience is verybehind relevant for clientsof the ment and podcast transcript pro- can do good for your country,” of since of the hollowness some SEC firms at avoid regulations. interviewer’s personal experience – what do they like most help about practicing the firm, what litigation, regulatory, and transactional support. by Washington’s corporate duced in partnership between the Careerrequiring Services at the law school of claims Last the year, former Delaware types of associates excel at the firm, what do they consider strongest practices in the DC senaOffice of Career Services and the le- Kennedy’s university is directing stu- interest law firms that they are seri- tor Ted Kaufman, who chaired the office, etc. gal recruiting firm Garrison & Sisson dents to statements that call students ously committed to pro bono work: Congressional Oversight Panel, said Takeaway #4: Do not ask administrative-type questions that often can be found online (e.g., about the D.C. legal market. to work two-to-three years for the The section opens by stating that there a “gigantic built-in information about hours, benefits, and salary). If you cannotwas find information you need, wait conIn the documents, a Garrison & federal government by challenging “what use sell you (or onask the of interest revolving inofand untilfirms you have an to offer in hand thefirm recruitingflict coordinator/manager directly instead a out Sisson representative directly rec- them to ask what you can do to gain partner or associate during an interview). ommends, in explicit terms, that stu- knowledge and skills for deep-pockTakeaway #5: What firms use to sell you on the firm are not necessarily things you should ask dents participate in the revolving door eted future clients. “The federal govPage 3 of 6 about. For example, firms like to emphasize their commitment to pro bono. Pro bono is very between corporate interest advocacy ernment,” Point 12 reads, “is a great important © 2011 - 2015 Garrison & Sisson, Inc.to law firms and the community, but firms are increasingly mindful of “becoming and government regulation. In Point place to gain practical experience more like a business” where billable hours and profitability reign supreme. Feel free to discuss 14 of the tip sheet, under a header and training.” Indeed, the school your interest in pro bono but do not make it the focus of a meeting because this could raise with a literal pictogram of revolving whose mission is “to educate leaders concern about your commitment to (or understanding of) practicing in a law firm door corruption (“Government <--> who contribute to the advancement Takeaway #6: Get in the DC state of mind. For several weeks before your interviews, Law Firm”), the OCS-endorsed doc- of justice and well-being of society” Point browse BLT (Blog of5the LegalOCS/Garrison Times), Bisnow Legal, Washington Business Journal, 20,the Takeaway from & the Sisson tip sheet. ument recommends that students frames government work no longer the Washington Post, and the Washington Times. should: (1) work first for a corporate as service to our national community, are not necessarily things you should of” the Justice Department. When Page 6cite of 6 lawyers shuffle back and forth beinterest law firm, then (2) work for but rather as experience to be strate- ask about.” As an example, they © 2011 - 2015 Garrison & Sisson, Inc. a government agency or department gically monetized. firms’ pro bono commitment claims, tween prosecuting and defending “that governs the activities of private Garrison & Sisson even point di- explaining that “firms like to em- white-collar criminals, he told VICE sector clients facing specific regula- rectly at the agencies with the most phasize their commitment to pro News, it makes observers wonder tory issues” (which, the document lucrative revolving doors, citing, for bono” but that “firms are increas- “whether the laws are the same for reminds us, “provides contexts and example, the Department of Justice’s ingly mindful of ‘becoming more like everyone.” The attrition rate from skills to re-apply to the private Antitrust Division, the Securities and a business’ where billable hours and CFPB to corporate interest law firms sector”) and then (3) return to a Exchange Commission, and the Food profitability reign supreme.” The doc- is raising concerns and The House corporate interest law firm as a senior and Drug Administration as “good ument cautions against making pro Oversight and Financial Services associate. platforms” for future corporate in- bono “the focus of a meeting because Committees penned a letter saying this could raise concerns” about your that “the close relationship between 14. GOVERNMENT LA W FIRM “understanding of” what practicing the CFPB and its former officials at their corporate interest firm is like. ultimately could harm consumers.”

Takeaway: If you wish to work in government and maximize the likelihood of moving to a This is a useful moment of candor In recommending that students exlaw firm at some point in your career, the following reflects a typical pathway: in the corporate interest firm recruit- plicitly work for these agencies with Years 1-3: Law firm experience ing process: upon reading these doc- the intent of quickly leaving them to Benefit: You receive training and substantive expertise. You also gain uments, one gains an understanding serve the interests that are regulated exposure to and experience with supporting the diverse needs of a range of that claims of pro bono commitments by them, OCS exacerbates the above private sector clients. can often be simply window dressing problems.

Years 3-6: Government experience with an agency or department that governs for organizations that allow profitabilTrue, the Office of Career Services the activities of private sector clients facing specific regulatory issues. ity to reign so supreme over the pub- is supposed to provide a frank picture Benefit: You develop an understanding of the agency or department’s lic interest that they encourage the of the reality of the legal job market. enjoy them. limit your interestBut to thewe, higher-level subject matter orhave policy to deperspective on legal issues, which provides context and skills to re-apply to practiceyouofwill doing publicDon’t service work as a community, implications. the private sector. in our nation’s government with the cide if that frankness should come at primary intent of usingLAW that service the moral cost of implicitly endorsYears 6-8: Return to law firm as senior associate or counsel 11. INTERNATIONAL to gather intel and connections for fu- ing the corrupt practice of revolvBenefit: In addition to your government experience, law firm employers Takeaway: International Law is not a practice area in DC law firms. The firm’s clients may be ture wealthy and or powerful ing international door career paths that monetize will value your prior firm experience with billing time, working with private international, the mattersclients. they handle may have issues, but international law is In his State of the Union, the government experience for narrow, sector clients, etc. In other words, you already “know how law firms work” not—in itself—a practice area. Instead, for example, you will find corporate attorneys who President argued forcefully thatproject “de-finance deep-pocketed interests. and this provides a smoother transition back. handle cross-border transactions, for international clients, or litigators who mocracy breaks down trade when the avA schoolclients withdoanot mission likemean ours focus on international disputes.

Similarly, international automatically *Disclaimer: This is a typical pathway but not a “one size fits all” approach. Many attorneys erage person feels their voice doesn’t in a nation that depends on public an international law practice.

Point 14 from OCS/Garrison & Sisson tip sheet. begin their careers in the government and then transition successfully to law firms. The three matter; that the system is rigged in trust as much as ours must draw primary factors determining the ability to move from public to private sector are practice area 12. GOVERNMENT OPTIONS In the interview elaborating on and terest advocacy.

They explicitly rec- favor of the rich or the powerful or the line somewhere. The millions of expertise, market demand for that expertise, seniority (due to the corresponding billing rate Takeaway:interest.”

The federal government is a greatAmericans place to gain practical experience and training,that implications). the takeaways, the Garrison & Sisson ommend against working for the some narrow Democracy, across the country and government generally“basic affords a more schedule than a lawin firmhis practice. representative explains how Harvard Department of Justice’s Civil Rights the President said,practice requires thepredictable President mentioned State For purposes of leaving the government to enter a DC law firm, firms are more likely to hire 15. CONNECTIONS TO DC : Law graduates should first “learn Division — which is designed to bonds of trust between its citizens.” of the Union address — the “quiet, government attorneys with experience from the following agencies: (1) Department of Justice how the law firm played” “uphold the civil constitutional When citizens begin to believe that sturdy” citizens whose “goodness Takeaway #1:game DC is ais transient city in withamany out-of-towners, but lawand students with a (DOJ) (i.e. the Antitrust Division or Criminal Division); (2) Securities and Exchange corporate interest firm and then “get rights allinvestments.

Americans, particularly their public servants are not work- and decency and optimism” maintain connection to DC are considered more favorably as longofterm If you have a Commission (SEC) (i.e. Division of Corporation Finance, Division of Investment to the city (for example, if for you previously DC,most have family or friends here) some connection government experience” somelived of in the vulnerable mem- ing for Management, them, but Division insteadofworking foror Division our public life; and good Enforcement, of Trading andwhose Markets);“grit (3) Federal if you years. have an interest in athese practicetwo area thatbers is specific DC,society” you should highlight this in two to or three During of to our — presumably their future careers serving narrow humor and kindness” “helped Trade Commission (FTC) (especially the antitrust/competition arm); (4) Food have and Drug youryears cover letter, resume, and/or during or three of government work,your interview. because they do not primarily govern interests, they lose(FDA); trust the Energy sys- Regulatory America travel so far” (6) — International deserve betAdministration (5)in Federal Commission (FERC); he recommends that students should “the only types ofmention clients tem. They to believe their voice ter fromCommission us.

Takeaway #2: If you are interviewing for positions in DC, thisthat duringhave your govTradestart Commission (ITC); (7) Federal Communications (FCC); (8) Patent and work for the the federal agencies that ernment problems and deep pockinterview.

Trademark Office (PTO); and (9) Department of Treasury. “govern the activities [where] private ets.” However, the Garrison & Sisson 13. GOVERNMENT/PRIVATE SECTOR INTER ESTS sector clients are facing specific reg- interview transcript provided does Takeaway: If you are starting in the government but want to keep your options open for a law ulatory issues.” To make himself even namecheck the Consumer Finance firm in the future, here’s a rule of thumb: the more expertise you develop in connection with more clear, he recommends that stu- Protection Bureau — the agency that issues that directly affect private sector clients, the more marketable you will be. For example, dents work for agencies that govern Harvard Law professor Elizabeth at the DOJ, attorneys coming from the Antitrust Division, Tax Division, or Criminal Division Page 4 of 6 “the types of clients that have gov- Warren designed to ensure that the and/or U.S. Attorney’s Office tend to have more market options in the private sector than 2011 -pockets” 2015 Garrison 2007 & Sisson, Inc. financial crisis, which ernment problems and©deep global those attorneys leaving the Civil Rights Division. Additionally, the SEC also tends to be a so as to develop “context and skills plunged millions into poverty, is not good platform for a future law firm practice since the experience is very relevant for clients to re-apply to the private sector.” repeated — in saying: “we’re already requiring litigation, regulatory, and transactional support.

Afterwards, the OCS partner recom- seeing demand for attorneys from mends that students should “return this agency already increasing to go Point 13 from OCS/Garrison & Sisson tip sheet.

Creating better oceans great career path for lawyers Ocean continued from page 1 Two months later the House passed the bill and the Senate followed.

On November 5, President Obama signed it into law. Now suspected pirate fishermen, shark finners and the like can be more effectively tracked and seized when they come into various ports around the world with their ‘hot fish’ and slave crews.

In November we also founded the Sea Party Coalition to stop offshore oil drilling. Members range from the Sierra Club and Greenpeace to commercial fishermen, coastal businesses elected officials and homeowners. We even have a few Tea Party Republican Congressmen along with

climate activist Bill McKibben, an 85-foot inflatable blue whale, and other more usual suspects.

The Sea Party aims to make proposed new offshore drilling in the Arctic and along the Atlantic coast the next Keystone Pipeline (an idea whose time has passed). Our slogan: ‘Don’t Spill on Me;’ our election year goal: nothing less than restoring the blue in our red, white and blue.

Lawyers like Joel Reynolds of the Natural Resources Defense Council have also commanded multi-year legal battles with other ‘Big Fish’ ocean powers such as the U.S. Navy, repeatedly suing the Navy over its use of low-frequency sonar that has been linked to the stranding deaths

Page 3 of 6 © 2011 2015 GarrisonCalifornians & Sisson, Inc. and other marine

of various whales mammals.

Reading the book War of the Whales that starts as a scientific mystery thriller and ends up as a legal drama made me think of Reynolds as very much like the lawyer in A Civil Action if the plaintiffs in that case had been Flipper and his pod mates.

All I’m really saying is it’s a big world and most of it is ocean. Where I live in California, the world’s 6th largest economy with some 40 million people, cutting edge marine science actually informs policy which has resulted in the kind of laws that allows us to live well with our coast and ocean. That’s because

have a sense of entitlement to the Pacific Ocean and a democracy of blue interests that makes for contentious democratic debate with generally good outcomes.

Not surprisingly some of the best lawyers I know, including a dive buddy of mine, get to enjoy the ocean while also defending it by suing polluters and creating practical solutions for sustainable seas. That’s a lifestyle I might recommend to any new attorney.

David Helvarg is an author and Executive Director of Blue Frontier, an ocean conservation group. He can be reached at helvarg@bluefront.org.

Clayborne: HLS must change for 21st century Clayborne continued from page 1 announced that a climate survey will investigate some matters of inclusion in the Spring. Yet these small concessions represent only very minor victories and are certainly incommensurate with the herculean efforts of students on campus who have demanded major systemic changes to the law school.

Thus the hope that these small efforts represent carries a significant amount of risk. There is the risk of diversion, or the possibility that we might be placated by the illusion of cosmetic change. There is the risk of a self-congratulatory attitude of fulfilling minor expectations. There is a risk that we may lose the momentum that many of us worked so hard to build over the last few months.

In order to prevent this sort of indolent backsliding, a shared and renewed commitment to a new law school is necessary. Royall Must Fall (RMF) and Reclaim Harvard Law have not been idle. RMF instigated a committee that will consider whether to recommend that the Harvard Corporation change the crest, and Reclaim drafted a comprehensive set of demands designed to address the structural racism currently permeating Harvard Law School. As these demands and the continued efforts of RMF and Reclaim demonstrate, this fight has never been just about the Harvard Law Shield. It is about systemic change to an institution designed by and for white males.

It is about bringing this institution into its third century as a new and better place.

Sixty years ago the United States finally committed to a new beginning by changing some of its policies of hatred and violence against minorities. It finally chose to take its own constitution seriously. Now it is time for Harvard Law School to do the same with its mission. It is time to change the shield, time to support staff of color, time for Critical Race Theory, and time for Royall to fall. It is time for real, meaningful inclusion of the diverse marginalized peoples to whom this institution has at long last opened its doors. Changing the Royall shield is just the beginning – a new beginning for a new century at Harvard Law.

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

February 3, 2016

Harvard Law Record

3

ANALYSIS & NEWS

Robinson: Time to push back on for-profit penitentiaries Prisons continued from page 1 study found that private prisons often actually cost the taxpayer more.

Now, not satisfied with profiting from others’ incarceration, CCA will avoid $70 million in tax payments this year by becoming “a real estate investment trust” and designating its prisons as “residential”.

As a result of the Clinton-era “three strikes” legislation, the vast majority of America’s prisoners today are neither murderers, thieves, nor batterers but non-violent persons who were caught with small amounts of drugs or who committed a minor infraction. And although conditions in privately owned prisons are more brutal than in government-run facilities, many leading corporations still choose to avoid paying at least minimum wage to job-seekers “on the outside” in order to be able to pay prison labour cents per hour instead.

Religious organizations such as the U.S. Conference of Catholic Bishops, the Presbyterian Church

USA, and the United Methodist Church have condemned the perverse incentives involved in forprofit incarceration. And in light of America’s harsh racial origins and history, it is particularly troubling that blacks are far more likely to be sent to privately owned prisons than whites.

Other non-profit groups such as ColorOfChange have been waging a national campaign to have American corporations pull all investments from private prisons, and three major corporations, Scopia Capital, DSM, and Amica Mutual Insurance in April withdrew $60 million from GEO and CCA – the country’s two largest private prison companies.

Asha Rosa, a Columbia University student concerned that her school was “profiting from the incarceration of less privileged black people by investing in for-profit prisons”, spearheaded a campus campaign to have Columbia withdraw its investments from private prisons, and in July Columbia became the

We must move without delay to scrape the pox of privately owned prisons forever from this land. first American university to withdraw its investments from privately owned prisons.

Those on the frontlines of the private prisons divestment campaign and the institutions that have heeded their call need the support of Americans now. Yes, the civil rights movement enabled black Americans to achieve some degree of personal stability via education.

Manufacturing jobs in urban centers did offer a path to working class stability for many more. And government assistance did provide vital relief for the many still hobbled by the inherited impact of enslavement and the twentieth century exclusions that followed.

However, the demand that males leave any home receiving welfare

assistance dealt a major blow to impoverished black families. The exporting of jobs from America’s cities sent massively destabilizing jolts throughout America’s black working class. The laws that made the sentences for crack-cocaine use literally 100 times harsher than the sentences for powder cocaine use mocked the most basic precepts of equal justice since the former tends to be used by the urban poor, the latter by suburbanites. And the resultant throwing of more than a million black fathers, mothers, sons and daughters in jail since the 1990’s, for the types of infractions for which many whites go free, has wreaked havoc with families and communities throughout black America.

Now, against this troubling history, like some toxic mold, forprofit prisons are sprouting across America with the wanton arrest and imprisonment of blacks being key to making the dollars flow.

This is a scourge our democracy cannot long withstand.

Americans roundly condemned anti-Solidarity forces in Poland, the abuse of Refuseniks in the Soviet Union, and the brutality of apartheid in South Africa. Today, like Douglass, Garrison and Tubman two hundred years ago, we must now move without delay to scrape the pox of privately owned prisons forever from this land.

Senator Bernie Sanders (I-VT) has introduced legislation to outlaw privately owned prisons in America.

And on the pressing moral issue of prisons for profit, every presidential candidate should be called upon to take a stand.

Randall Robinson is a professor at Penn State Law School. He is a 1970 graduate of Harvard Law School.

Hirsch: We all lose when workers forced to choose between work, morals Davis continued from page 1 drawbacks of allowing such behavior, the Supreme Court protects the public employee’s First Amendment rights and many states protect whistleblowers from retaliatory action. In each case, public values, including protection of conscience, trump concerns about convenience or efficiency.

So, too, the Supreme Court prevents the government from forcing individuals to articulate viewpoints with which they disagree. In landmark cases, the Court has struck down (in 1943 and 1977 respectively) statutes requiring a compulsory f lag salute in school and a compulsory display of a state’s motto on one’s license plate. Chief Justice Rehnquist characterized these cases as protecting “the constitutional interest” of “freedom of conscience.”

Why not extend such protection to government employees? Kim Davis’s refusal to sign marriage licenses may have caused inconvenience, and sowed dissension, but that is a tolerable price to pay when the alternative is requiring people to choose between their conscience and their job.

Because many (including me) reject Davis’s views on same-sex marriage, she may be a poor poster child for the proposed right to conscience. Accordingly, anyone resistant to recognition of such a right should ponder other situations in which government employees have been discharged for refusing to undertake actions that violated their consciences.

A prosecutor in Minnesota (“popular and well known” according to the Minnesota Star-Tribune) was fired because he refused to prosecute a case where the evidence

derived from a police search which, he felt, lacked probable cause. A California prosecutor was fired because he refused to prosecute a “three strikes and you’re out” case that could have resulted in life imprisonment for a man charged with possession of less than a quarter of a gram of cocaine. The prosecutor explained that, when he declined the case, he expected it would be reassigned to an attorney who didn’t share his misgivings. The obvious question is why that win-win solution was eschewed in favor of discharging a devoted and able public servant ­– “a young and rising star” according to the Los Angeles Times.

Such cases make their way to the newspapers, but numerous government employees face similar conf licts. Imagine an Environmental Protection Agency regulator expected to promote an interpretation of a statute which she believes

contradicts the intent of Congress and increases pollution. Or someone who works for the FCC and is asked to promote a policy he thinks contravenes the First Amendment.

Obviously the views of these hypothetical employees cannot trump those of their superiors. But must they be forced to take an assignment that violates their conscience?

Protecting such a right to conscience is unlikely to undermine the effectiveness of government agencies: After all, the employee who frequently finds assignments morally unpalatable is working in the wrong place, and will presumably realize as much before long.

The importance of the proposed right transcends its values to those who exercise it. As things stand, many talented and credentialed people entering the workforce choose the private sector because of the prospect of greater

Alum’s Research Upsets Bluebook History Bluebook continued from page 1 that Griswold wasn’t much more than a copy-maker, and that the Harvard Law Review improperly hoarded Bluebook royalties all to itself for decades. The Record talked to Shapiro to find out more about his revisionist take on the Bluebook’s history.

Record: How did you get into Bluebook history research?

Shapiro: Back in the 1990s, I noticed there were two tiny little booklets in Yale’s rare book collection that seemed clearly to be precursors of the Bluebook. They looked like the Bluebook, the same examples were used for citations, and a lot of the text was the same. I didn’t do anything about it until a few years ago, when I decided that this was worth researching further.

R: You mention that the Bluebook is a cause of conservative thinking in your paper. Can you talk more

about that?

S: Because law review editors want a source for every assertion, authors may be intimidated from original thought. If you say the sun rises in the east and sets in the west, they’ll ask for a footnote. Generally in scholarship, original research is considered a good thing, but law reviews want a source for everything.

R: How does the Bluebook affect the law and the legal system?

S: The Bluebook has reinforced the doctrine of precedent, and the doctrine of precedent is certainly a conservative force in the legal system. It constrains judges from doing something original.

R: Why do you think the Bluebook had grown in length as it has from a single-page pamphlet to what it is now?

S: The benign explanation is that there are more kinds of sources. The more malignant explanation is that

it’s just grown the way a cancer cell grows, and that the legal profession as a whole may benefit from obscurity. I work as a law librarian and it can take me a half hour to find the right rule.

R: What was the Harvard Law Review’s initial involvement with the Bluebook?

S: Yale actually created the movement for uniform citation and the Harvard Law Review was opposed to the movement at the beginning.

They had to be convinced by Yale and Columbia.

R: What’s the story with the Bluebook royalties?

S: So for the first 50 years of the Bluebook, Harvard got all the money.

Then in the 1970s, a student at Yale on her summer associate job was talking to other summer associates who were Harvard Law Review editors and who were bragging about all their money from the Bluebook. When

Nader: The law needs lawyers Nader continued from page 1 canons perceives these characteristics both explicitly and implicitly.

They are not simply idealistic principles good for placement on our office walls. For they represent important public interests that we are uniquely empowered, free and expected to render operational. Should we not give meaning to the words “officers of the court” – a quasi-official status that could properly mean both being sentinels and guardians for the just rule of law?

The world is becoming exponentially more complex, so is the law.

Yet the enduring purpose of the law remains as critical as ever – to restrain, redirect, discipline, at times, displace abusive power completely, and to facilitate the civic and political energies of the people. Serious failings in these roles allow the supremacy of raw power over the law, either to enact legislation that serves the few rather than the many, or to take existing legal systems and distort them into

instruments of unfair advantage or injustice against their presumed beneficiaries. That is what happens when the few (plutocrats and oligarchs) control the many to benefit the few. It is what Justice Louis Brandeis meant when he said: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” This is what Judge Learned Hand meant when he wrote: “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”

Today those insights bear application. We have a serious continuing problem of tens of millions of Americans unable to afford legal representation. Existing legal services and public defender resources are grossly inadequate and relatively on the decline – a deplorable condition criticized repeatedly by former Supreme Court Justice, Sandra Day O’Connor. Court budgets are being cut back harmfully, as prison budgets loom so much larger.

The national security government

has given us secret law, secret courts, secret evidence, surveillance of attorney-client communications, unauditable secret expenditures for quagmires abroad, even redacted published judicial decisions, and secret prisons.

It has shunted aside probable cause, habeas corpus and upended the other bulwarks of due process, such as through indefinite imprisonment without charges, and dragnet snooping. An unaccountable executive, breaking constitutional, statutory and treaty restraints, and condoned by abdicatory legislative and judicial branches, is a recipe for tyranny that was foreseen by the framers of our Constitution.

The two pillars of our legal system – the laws of contract and tort – are incrementally ravaged by powerful corporations advised by power-attorneys. Corporate privileges and immunities deepen as fine print contracts and tort deforms both stripmine the rights of defrauded and wrongfully-injured people and destroy deterrence. Corporatism

she got back to Yale, she ended up leading a movement. It took several years before the other three schools who share copyright got a share of the revenues. Harvard still gets more money, presumably because they do more work.

R: Do you think the Bluebook should shrink in length?

S: As a law librarian, I like the details, but the original, created by Karl Llewellyn, was only one page of rules.

Somewhere there has to be a compromise between simplicity and completeness, and I think that’s what’s lacking currently.

compensation. If we wish (for the sake of society) to encourage the public-spirited among them to opt for public service positions, we should make such positions more attractive. Recognizing a right to conscience is a small step in that direction.

Our society shows sensitivity to the call of individual conscience. We respect the conscience of draftees who oppose war, physicians who oppose abortion, whistleblowers who oppose their superiors’ misconduct, and citizens who oppose government dogma on license plates and in the classroom. Why not protect the rights of government employees whose conscience leads them to resist a particular assignment?

Alan Hirsch graduated from Yale Law School in 1985 and is the chair of the Justice and Law Studies program at Williams College.

The Bluebook: Growing Ever Thicker Edition

Year

Pages

1st

1926

26

2nd

1928

38

3rd

1931

38

4th

1934

48

5th

1936

51

6th

1939

53

7th

1947

68

8th

1949

87

9th

1955

96

10th

1958

129

11th

1967

124

12th

1976

200

13th

1981

250

R: Thank you so much.

S: Thanks for your interest. Take care.

14th

1986

268

15th

1991

362

This interview has been edited for length and clarity. “The Secret History of the Bluebook” is forthcoming in the Minnesota Law Review and is available now on SSRN at www.ssrn.com/abstract=2697068.

16th

1996

382

17th

2000

406

18th

2005

432

19th

2010

530

20th

2015

582

– the blending of big business and big government – produces massive corporate welfare bailouts, subsidies, handouts, outsized tax escapes, and other giveaways – and lock in the purpose of commercial campaign contributions.

Where are the law yers? Where are the sentinels and the guardians?

They are here and there. We know them, don’t we?

Shall we call them the brave one percent? The ones who have knowledge in their brain and fire in their belly.

There are nowhere near enough of these brothers and sisters-in law.

Far greater numbers of their peers know what they know or could know.

They need to join with them and also arouse the over-vocationalized law schools and the under-challenged bar associations, who need more active members.

They need, in a variety of

institutional ways, to organize our profession. We are under-organized as “lawyers,” as compared with how intricately organized we are as “attorneys.”

With a higher estimate of our significance, we must respond to the silent cries of the people for justice – what Senator Daniel Webster called – nearly two centuries ago – “the great interest of man on Earth. It is the ligament which holds civilized beings and civilized nations together.”

Thank you.

“We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”

– Justice Louis Brandeis

Ralph Nader was the Green Party candidate for president in 2000 and a former editor-in-chief of the Record. Mr. Ralph Nader these remarks on the occasion of receiving the Connecticut Bar Association Distinguished Public Service Award.

4

Harvard Law Record

February 3, 2016

OPINION

HLS straw poll indicates preference for Bernie, Dems

By Nic Mayne ’18

The Harvard Law Record recently conducted a poll to gather information concerning HLS students’ preferences and predictions regarding the 2016 Presidential election.

We asked likely Republican voters which candidate they preferred, and the overwhelming response was Senator Marco Rubio, who was preferred by 43.2%.The next most popular candidate was Senator Rand Paul, who received 13.5% of support. Current poll leader Donald Trump was preferred by 10.8%, which was tied with support for John Kasich and Jeb Bush.

Harvard Law School alumni Ted Cruz ranked 6th among candidates, Democratic nominee preference

with 8.1% of support.

We asked likely Democratic voters who they preferred, and 53% selected Bernie Sanders. Clinton received 43% of votes, while Martin O’Malley and other possible candidates combined for 4% of responses.

We then asked students to predict who they believed would be the eventual candidate, regardless of preferences. Among Republicans, Ted Cruz was the narrow victor, with 34.7% predicting him as the nominee. Rubio and Trump tied for second, each receiving 31.4% of votes.

Between possible Democratic nominees, HLS students overwhelmingly predicted Hillary Clinton as the eventual nominee, with 86% responding in favor of Whom do you think will be the Democratic nominee?

O’Malley

Clinton. Sanders received 14% of votes, while no students predicted O’Malley or others to win the nomination.

We also polled students regarding the 6 most likely Presidential election matchups. While Clinton and Sanders performed similarly against all likely Republican candidates, Sen. Rubio significantly outperformed both Ted Cruz and Donald among likely voters, receiving 10% more votes than Cruz and more than 15% more votes than Trump against Clinton, 8% more votes than Cruz against Sanders, and 12% more votes than Trump against Sanders.

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LETTERS TO THE EDITOR On the HLS Crest: Keep the crest, change the future Editor: All peoples throughout history have held other humans as slaves.

They do so even today in many other countries and other cultures.

Species oppression, in the way the term is being used today at HLS, predates the first Homo sapiens sapiens. Let HLS not be myopic or narcissistic. Purging the Royall crest of waving wheat does not eliminate slavery or hate, cannot change the rampant slavery that exists even today in Africa, Asia, the Middle East, and will not purify HLS of an American past where slavery was once legal.

The line into the past, and into past slavery, the line of humans oppressing other humans, is a line that never stops. It can never be traced to a single seminal beginning. We all have slave forebears.

This truth of universal slavery and oppression, of the dreadful way that people can treat each other, is why keeping the crest on the HLS seal is the only right act that has any possibility of affirming good and changing the cycle of millennia.

If we change the crest, we stomp down the good act of someone long dead who may have owned slaves. We decree that humans, as a species, may get no further than killing in the mud, or massacring in San Bernardino. Is this true?

Are all humans doomed with our first unkind action? Tarred with the brush of our ancestors’ misdeeds? Tainted by original sin of some sort? Denied redemption even if we act in ways that start the unraveling of wrongs we ourselves may have done? Changing the HLS crest declares that there is no future for humankind, and once an eye is taken, then all eyes born thereafter must be put out.

In truth, we can only do better going forward. Most of our ancestors were slaves and oppressed in one way or another. There is a cycle of the oppressed becoming oppressors. So, let us put aside ancestors now. Put aside divisive talk. All of us have been on both sides of the hate and hurt and

discrimination table in our short lives. Stopping harm can only stop here and now, with each of us.

Harm does not stop by hiding what has gone before. It stops by recognizing a good act, by differentiating that from harmful acts, and by holding both of them firmly before us as reminders to do even better, ourselves, if we possibly can.

I direct a K-8 school. We teach our children that they are judged for and held accountable for what they do, and how they behave. They are judged on the content of their character, not on the color of their skin, or on the actions of their forebears. They learn that it is only this particular instant, this moment in life, each going-forward second, they can control. They cannot change or undo the past, but they can build a better today.

Yes, they are human. And so they call each other names, they break each other’s toys, they may even hit each other in frustration or anger or due to poor aim. We teach them that they can make amends, and we teach them how to do it here and now. Building a better future is not accomplished by tearing down their good deeds, on grounds that they have done other wrong or hurtful things in the past. The same is true today at HLS. The person who donated monies in 1781 to fund the first HLS professorship acted for a valuable and moral purpose. Whether or not he was a slaveholder himself, he made a bequest unrelated to slavery or its perpetuation, to a young institution that needed support, and that unrestricted gift helped to open a path for a future without slavery and a better America.

The situation would be different if the crest were adopted by HLS as a declaration in favor of slavery, or if it were universally known as an endorsement of slavery. It was’t and it isn’t. We aren’t dealing with a swastika, which in Western culture is known world-wide as a declaration that Jews, homosexuals, and gypsies are to be exterminated. We aren’t examining a cross, which in Western culture is

known worldwide as a declaration of belief in Jesus Christ. We don’t have a hammer and sickle, known in most of the world as a declaration of Soviet dictatorship. This crest is not a six pointed star of the Jews, nor a lotus of the Budda, not even a skull and crossbones flag.

At no time — or at least not within my knowledge of Harvard Law School — has slaveholding been endorsed by HLS. HLS materials do not hold out the crest as anything connected with slavery. I wear my law school ring and think of Clark Byse, Alan Dershowitz, C. Clyde Ferguson, Richard Parker, Bernie Wolfman and more. I think of my Section 1 classmates, including Adam Clayton Powell Jr. (and his humorous invocation of the Magna Carta in my contracts class).

This ring with its crest of wheat was – is – my engagement ring.

Yes, obliterating the crest would be symbolic. The real narrative of its obliteration would be that we are spitting at hope and truth. Destruction of the crest, a crest which recognizes a kind and important act, a legal and valuable act, erases the hope that all of us want. This hope is the yearning that we can change – both individually and collectively as a community — and become better than we are, kinder than we thought possible, more humane than we have courage for. The very imperfect person who gave funds over 200 years ago also helped HLS to thrive, and thereby gave strength and support to a continuing tradition of legal protections against slavery that Americans of any color enjoy today.

No one learns anything by obliterating the crest, other than the horrible lesson that we are damned to repeat history. Without honoring and being grateful for beneficence, we fail to create a silver line of evolution and bar our own path forward. Why stop killing when you will be slain the moment you sheath your sword?

Removing the crest means that all ends in the past and the future is dead. No new meanings are possible and, with no different ways of

being possible, what is the incentive for change?

The HLS students most interested in the crest can profitably redirect energies to international work, including places like Africa, Asia and the Middle East, where slavery is common today. Changing the crest does not change America’s past. It is not weregild.

The irony is that the crest, re-examined, is part of an actual narrative showing that there is a better way — that imperfect people can nevertheless do good things, things that are better than what came before, and in so doing, proving that we are all not limited to rancor, bitterness, war and chaos. Today, understand that the crest is your charge to be a better person. Act in goodness. Say hello to your professors. Shake the hand of a student next to you.

Pick up the paper your neighbor has dropped. Put away the tea mug someone has left in the corridor. Make a better actual world for yourself and those right beside to you, here and now, by acting kindly at Harvard Law School today. Call it HLS privilege.

Victoria Wagner Talkington is a 1981 graduate of Harvard Law School A response to “On the HLS Crest”: Do better tomorrow and change the crest today To the editor: On December 11, The Record published a letter to the editor called “On the HLS Crest,” which begins: “All peoples throughout history have held other humans as slaves . . . . Purging the Royall crest of waving wheat does not eliminate slavery or hate.”

The argument in the letter is that slavery is ever present, that everyone makes mistakes, and that changing the crest is to “stomp down the good act of someone long dead who may have owned slaves.”

The letter proceeds by making sweeping statements, intended to minimize the evil of any one

slaveholder’s actions, to erase the unequal impact of slavery, and to chastise those who wish to change the shield for their lack of mercy and gratefulness.

For example, the author of the letter states, “Most of our ancestors were slaves,” “[The line of oppression] can never be traced,” “[Royall] . . . helped HLS to thrive, and thereby [strengthened] . . . protections against slavery that Americans of any color enjoy today,” “Removing the crest means that all ends in the past and the future is dead.” The letter makes mention of Africa (in the context of modern slavery), but never mentions African Americans. The letter concedes that Isaac Royall “may have owned slaves,” but proclaims that “building a better future is not accomplished by tearing down good deeds.” She compares the “mistake” of holding slaves to the mistakes of the children at the K-8 school of which she is the director: “They call each other names, they break each other’s toys . . . We teach them that they can make amends . . . the same is true today at HLS.” And, she argues that Royall made amends when he donated money to HLS, and, therefore, we should keep the shield to honor his change of heart. To do otherwise, is to erase hope for human change.

Her letter is misguided. Royall’s donation to Harvard does not represent a change in heart. If Royall freed his slaves and gave his money to them to make up for the years of unpaid labor that they were forced to give to him, that would represent a change of heart. Royall’s money is itself a symbol of slavery because slavery was its source. Thus, his donation to Harvard and Harvard’s honoring of him are tied directly to the evil of slavery. Students that wish to change the crest do not wish to erase history. They (1) want to inform others about the history of the school, (2) discuss the inequality that still exists here today, and (3) change the crest because, as the previous letter notes, we can “only do better going forward.”

Lauren Greil is a 2L.

February 3, 2016

Harvard Law Record

5

ANALYSIS & NEWS

Visiting prisons with her class, visiting professor elevates curriculum Seeing jails and prisons gave a 1L section a new perspective on crime and punishment.

By Pete Davis ’18

It is often said that the purpose of Harvard Law School’s 1L curriculum is to prepare each student to “think like a lawyer.” It would be much more accurate to say that the present curriculum aims to prepare each student to think like an attorney.

The distinction is rarely articulated to students: an attorney is a legal representative to a specific client, while a lawyer is a member and caretaker of the legal profession, tasked with serving the justice system and advancing its public interest mission. Solely understanding important cases involving the major areas of law (Contracts, Torts, etc.) may be sufficient to “think like an attorney,” but if Harvard Law is interested in also helping each student to “think like a lawyer,” we must expand our 1L curriculum beyond solely case studies to include direct experience with the realities of the justice system.

Incorporating Legal Realities into the 1L Curriculum There are three main ways to incorporate experience with legal realities into the mandatory 1L curriculum.

The first way is through visits from those who have been directly affected by the machinations of the justice system. These could include: discussions in Property courses with landowners who have been affected by eminent domain or creatives stymied by copyright laws; q-anda’s in Criminal courses with those who have been incarcerated or been survivors of crime; panels in Torts courses with victims of environmental destruction who were made whole through civil litigation or hospital administrators who set up procedures to avoid medical malpractice suits; and chats in Legislation and Regulation courses with refugees who had to navigate our complex asylum system.

The second way is through visits from those who are, as Harvard Law’s mission statement challenges

us to be, “leaders who contribute to the advancement of justice and well being of society.” This could include bringing: lawyers who advanced transformative tort cases to our Civil Procedure courses; criminal justice reformers who are advancing public safety through smarter corrections programs to our Criminal courses; and those working to ensure that consumers are not hoodwinked by small-print contracts to our Contracts courses.

The final way is through trips to the real-world sites of legal institutions. This could include visits to: courts, prosecutor offices, public defender offices, evening “know your r ights” trainings with neighborhood groups, government agency offices, corporate interest law firms, public interest law firms, union worker interest law firms, public policy think tanks, grassroots community advocacy organizations, jails, prisons and immigration detention facilities.

When these issues have been raised with our administration, the standard response is that we do not need to integrate experience with legal realities into the mandatory 1L curriculum because one can voluntarily pursue real world experience through clinics, student practice organizations and other extracurriculars. Such a response makes one ponder what makes certain aspects of learning how to “think like a lawyer” mandatory while other are left voluntary. One could imagine, for example, a reasonable alternative arrangement where one hears talks and visits legal institutions in mandatory morning classes while having the option to learn case law in voluntary afternoon extracurriculars. The problem with that arrangement, of

course, is that Harvard Law could not ensure that its degree-holders had learned black-letter law. Students would only learn the black-letter law of the areas in which they were predisposed to be interested.

Similarly, in the present arrangement, Harvard Law cannot ensure that its degree-holders have ever visited a prison, met an asylum-seeker, or saw what a public defender’s office looks like relative to that of a white collar defense firm. Voluntary elements of the Harvard Law experience are often sorted by what we were already predisposed to be interested in, resulting in the most important learning experiences — the future prison reformer hearing from a victims advocacy group, the future prosecutor learning from a formerly incarcerated person, the future corporate interest lawyer experiencing a union meeting or a visit with victims of corporate malfeasance, and the future government regulator meeting a startup entrepreneur — never happening. If we believe those experiences are necessary to “think like a lawyer” in 21st century America and if a Harvard Law degree is supposed to signify that its holders have been through the experiences necessary to “think like a lawyer,” then the curriculum of Harvard Law should incorporate those experiences. In short, we should put our mandatory 1L curriculum where our mouth is.

“A lot of people come in without a real picture of what happens after sentencing.” ­— Matt Reardon, 1L

Professor Nancy King blazing the trail for an alternative Unfortunately, for most Harvard Law 1Ls, the only mandatory experience with legal realities has been the Winter Term Problem-Solving Workshop’s required meeting with a representative from a corporate interest law firm. However, a visiting professor has blazed a trail in her Section 2 Criminal Law course that could serve as an inspiration for a 1L curriculum that forces Harvard

Law students to face legal realities and thus better prepares each of us to “think like a lawyer.”

Professor Nancy King, a visiting professor this past Fall, had been taking her Vanderbilt students to corrections facilities for years. When King came to Harvard and was assigned to teach Section 2’s Criminal Law course, she continued the practice, working with the Dean’s office to arrange trips for her students to see local prisons and jails. She included the trips in her syllabus and encouraged her students to participate, explaining that such trips had impacted students in the past and that these trips would likely impact them as well.

At various points throughout the semester, groups of about twenty Section 2 students met early in the morning and traveled on Harvard buses to the facility they had selected from a list that included Framingham Women’s Prison, Cedar Junction State Prison, Concord Medium Security Prison and Nashua County Jail. Section 2 student Heather Artinian, who visited MCI Framingham, shared with me how her group spoke with correctional officers about “their process and experiences working in the system” and toured the prison’s segregation unit.

Matthew Reardon’s group, who visited a medium security prison, saw the solitary confinement ward and learned how the prison goes through intake and daily rituals. They talked to an inmate in the prison’s educational wing, who explained to the group their processes of learning together and preparing for their reentry.

As King had expected, the experience was impactful on Section 2.

David Kimball-Stanley, who visited a maximum security prison, described how the “powerful experience” gave his views on criminal justice some “important context.”

Annie Manhardt was struck by how jarring it was to transition from taking a bus from a prison back to a law school classroom and how strange it was to hear her tour guides “pitch” their facility while walking past people locked up in cells. Artinian explained to me that, before their

tour, she and her classmates may have “learned about the law and practiced the application in class,” but that only the tour gave her “a tangible image of what it means to send someone to prison.” It helped her “connect the implications of sentencing and charges with the end result.” The tour, to Reardon, was a reminder of the human potential wasted by overzealous incarceration.

“To see the waste… people withering away… [losing] a lot of their lust for life there,” made him feel “that they could be doing something productive for the world” and that there are “better ways to effect the purposes of punishment.”

The Section 2 students I spoke with believed such experiences with legal realities should be expanded at Harvard Law. Kimball-Stanley told me that “it seems self-evident that the tours would be a good opportunity for law schools.” Reardon believes “a lot of people come in without a real picture of what happens after sentencing” and that “it’s important for people who are thinking about going into criminal law to know what you’re really doing… to have a visceral sense of what happens.”

Annie Manhardt agrees, but believes experiences like these should be better integrated with “the actual curriculum” in “a careful way.”

“There needs to be a lot of conversations beforehand about what the experience is going to be like,” she argued. “There needs to be a lot of structured debriefing afterwards… incorporated into the classroom.”

Manhardt is right: one-off experiences are only the first step; they must be incorporated into the classroom curriculum. But Professor King’s import of experiential education was a great first step. We should build on her initiative by moving towards a 1L curriculum that fully integrates experiences with the realities of the legal system. If we do not, our school may continue to produce competent attorneys. but will fall short of our duty to generate vigorous lawyers.

Pete Davis ’18 is the online editor of the Record.

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Choosing a field: Advice from a practicing lawyer

By Deborah Beth Medows

A bright law student whom I mentor recently asked for advice in determining which field of law she should practice. She articulated the stress that she experienced in struggling to narrow her focus in the legal sector with little actual experience or exposure to different aspects of law. This situation is one that law students routinely face, and below are some suggestions to help you in your journey.

You are not alone. If I had a dollar for every law student (and lawyer) with looming uncertainties regarding what area of law to practice, I could probably afford to retire right now (not that I would, because I actually found a job that was the right fit and honestly love practicing law, and if you follow this advice, you hopefully will as well).

Take the time to connect with others who can guide you in your career explorations. HLS specifically hires professionals to help you consider your options, and you should take advantage of that resource.

Don’t stop at that. Talk to professors and practitioners whom you may broadly encounter. Speak to alumni.

Connect with family friends. Be as informed as possible.

Put yourself out there, although this can be difficult, as recent studies have suggested that lawyers are predominately introverts. We both know you are probably so busy in law school that you are one step away from killing your plant from lack of the time to water it, despite the fact that it’s a cactus. However, if you can squeeze in a few minutes, go to lectures. Talk to practitioners to learn about various kinds of law and ask the attorneys whom you meet what they like most about the type of law that they practice, and keep an open mind. Meet as many people as possible and never discount the possibility that sheer coincidence can later influence your career trajectory, so be open to recognizing possibilities when they are appear.

As a caveat, carefully consider the advice that others may offer as you plan your career trajectory, rather than necessarily using it to dictate your life choices. You are the only one living your life, and you should ultimately take ownership of your decisions, regardless of family pressure (even if well-intended).

Take a variety of courses.

Consider taking courses in subject matters in which you may not have had previous exposure. You may have assumed your entire life that you would become a divorce lawyer like your cousin, but suddenly a class on sports law might seem fascinating. Many professionals (myself included) have encountered happy accidents that have led to career success, and without this exposure, they would not have encountered a type of law that best suited them.

Assess your skill set.

Just as no two people are alike, so too your career should be individualized and tailored to your strengths.

If you’ve made it thus far at HLS, you obviously have the talent and tenacity to be successful. Harness that talent to identify the best suitable fit and make the most of your assets.

As my wise colleague, David Spellman, suggested when I consulted with him regarding my mentee, the distinction between oral advocacy and more transactional-based work can be a major factor in determining the path of a future lawyer’s career. Do you see yourself in a courtroom on a regular basis, or would you feel more comfortable based in your office? As a former moot court judge, I know that many students experience jitters during moot court sessions. This is completely normal; even experienced litigators often get stage fright in the courtroom, and there is always the opportunity to improve. However, if you know with certainty that practicing in a courtroom is not for you, be confident that you can still be an accomplished and skilled lawyer, and rest assured that there are other

avenues for success in the legal field.

Consider what drew you to law school in the first place. Although you should always keep an open mind with regard to specialization, the type of law that drew you to law school in the first place can be a good indicator of what you want to practice after graduating from Harvard.

Think about what fascinates you.

Reflect on what kind of law would energize you to get up in the morning and practice. What do you find academically stimulating; not just mildly interesting, but downright fascinating? If you dread getting up in the morning for a certain class because you do not connect with the subject matter, that field of study might not necessary be for you, even if it could ultimately prove to be a lucrative type of law. Think about what kinds of periodicals from bar associations you would find engaging to read. What kind of law could you see yourself wanting to practice ten years from today?

Imagine what your you dream job would be.

Sometimes, it is easy to lose focus among daily stresses to ponder what kind of job you would want in a perfect world. Realistically, you will not be a Supreme Court Justice on the day after graduation (if you can make that happen, then lunch is on me). Once you identify your dream job, consider how to get there. What types of classes can prepare you for your interview or empower you to shine on day one? Strategize through exposure to classes and lectures in the subject so that you can see if you would be realistically interested in the subject matter with all its banalities rather than in the glamor of what you may imagine such a career would entail in the abstract.

If you are a born litigator, courses in trial advocacy can be effective for preparing for that type of career. If your dream is to work for a federal agency, then administrative

law might be worth taking into consideration. If the concept of sitting through a tax class would bore you to death (although, for the record, some of my colleagues inexplicably find it downright enthralling), then tax law would not be the career for you. There are so many different types of law out there to discover, and you have only one life to live, so take courses that would prepare you for a career that you will hopefully love. We both know that you deserve more than to spend your life languidly staring at your office clock every minute of each day and wishing away the precious hours of your life until you can go home after a miserable day at the office.

Cast a wide net for new opportunities.

Thinking about joining the Jessup Team but not sure if international law is for you? Considering an interesting 1L summer internship but not certain if working as a prosecutor would ultimately be the right path for you?

Want to work on a project on the First Amendment as a research assistant for your professor, but unsure if constitutional law is your forte? Seize new opportunities as a law student to test out future career steps and diversify your experiences to make a more informed choice.

Do not let your classroom performance unduly dictate your options.

Never let one classroom experience destroy your chances at a certain type of legal career if you truly are dedicated to practicing that type of law. Perhaps a professor’s teaching style differed from your learning style; this shouldn’t adversely affect your ultimate career decisions.

Consider this personal illustration—my father was a brilliant pediatrician and masterful diagnostician who was beloved by his patients. His medical school had a policy of not disclosing grades to students and only informing them of whether or not they had passed their courses. It

was not until my father had already trained as a pediatrician and was serving as a Captain and medical officer in the United States Air Force that his records were disclosed and he was stunned and shocked to learn that the lowest score that he received in his entire medical school career was in pediatrics, although to his shock, he had scored highest in his entire class year in psychiatry. When he recounted the story, he softly said that if he had known that his professor considered him to be only mediocre in pediatrics, he never would have specialized in the area.

Some of my father’s patients were inspired by him to become medical professionals in their own right, and after my father passed away, one young patient had to literally go to therapy because he was so devoted to my father and devastated by his death. Now, if my dad had been aware of that non-stellar grade in pediatrics and had chosen to let that particular grade define his career choice, he never would have saved as many lives nor impacted the lives of those children in the same way.

Learn from his story and do not let one course experience dictate your future.

Breathe. Your first job likely won’t be your last, so don’t stress that the choices that you are making now will be irreversible. Sometimes, working in the field is the only way to know what the right path is for you. If you find yourself working in a type of law that isn’t the fit that you wanted, keep networking and learning about different avenues of law. Some legal skills, such as drafting or research, can be fungible across different kinds of law, and you can apply them in your career search. Best of luck and remember, if you can get into Harvard, you have what it takes to succeed.

Deborah Beth Medows is a Senior Attorney in the Division of Legal Affairs at the New York State Department of Health. She can be reached at dbmedows@gmail.com.

6

Harvard Law Record

February 3, 2016

OPINION & NEWS

Outrage culture is killing productive discourse

By Michael Shammas ’16

President Obama took a lot of heat recently for criticizing college leftists who are offended by dissenting opinions. But he’s absolutely right: Productive discourse is dying, trampled over by closed minds who value comfortable opinion-holding over uncomfortable soul-searching. As dialogue lies flailing and gasping, outrage culture’s pulse is stronger than ever. We see the degraded consequence everywhere.

We see it in Donald Trump’s xenophobia. We see it in the smug rise of a regressive, illiberal “liberalism” on college campuses that interprets (and misinterprets) the other side’s words in the most negative possible light— even trifling dissent is labeled a product of white male privilege or (when the opponent is neither white nor male) simple ignorance. We see it in any online comments section—cesspools of racism, sexism, xenophobia, naked hatred. At its most extreme, we see it in tribalistic mass murderers, from Dylann Storm Roof to the San Bernardino shooters.

Hatred is everywhere; empathy and its cousin, civility, are nowhere.

For in this culture of reflexive outrage, empathy is weakness. Listening?

Surrender. When discourse is a competition instead of a dialectic, there are winners and losers; and one wins by persuading the other side (or at least scoring more re-tweets), even though we learn most from engaging our opponents. Outrage culture turns productive discourse into dumb competition.

Listening is hard, and sitting still can be taxing, especially when someone is being belittling, condescending, or immature. But outrage culture is so much pricier. By naming all disagreement problematic—“ignorant” (to the close-minded leftist), “naïve” (to the close-minded right-winger)— it trashes thoughtful deliberation, which happens to be the very fuel our democratic machinery needs to run.

Since no one’s mind is malleable, nothing changes. Gridlock clogs the drains. Democracy halts.

Worse, outrage culture tempts us to cram a political opponent, always a complex human, into a simple box: Sexist, racist, xenophobe, bigot. The Right lobs different labels—communist, naïve kid, bleeding heart— but the underlying psychology is

identical: An anti-democratic stigmatization of the Other, which facilitates productive discourse’s fall.

Many people with valuable insights refrain from contentious discussions since they’re afraid of being called names. I see this dynamic every day here at Harvard Law School (where, unfortunately, an intolerant Left commits most of the name-calling).

I suspect that social media–with its capacity to collate like-minded people into echo chambers promoting brevity at the expense of nuance, likes and re-tweets at the expense of knowledge—is helping outrage culture proliferate. Just ask President Obama. He’s had to tolerate the anti-democratic ethos of knee-jerk outrage more than anyone else—and he happens to be the first president whose term fell entirely within the era of the social media echo chamber.

Maybe that’s why the President has spoken out so strongly against the illiberal liberalism strangling college campuses lately. Maybe it’s why, in his final State of the Union address, he denounced a politics where the rhetoric of offense and tribalism trumps that of reason and common

purpose. In addition to condemning outrage culture during his State of the Union speech, he exemplified its opposite by playing to our hopes instead of our fears, by daring us to exhibit the same audacity that allowed us to reach the moon and to recover from the Civil War. The same audacity that enabled him to open-mindedly befriend conservatives as an aspiring Harvard lawyer, with and without the approval of liberal friends.

Did Obama betray college liberals when he condemned their bizarre characterization of free speech, humanity’s most hard-won political liberty (just ask my Lebanese parents), as regressive? No. He simply understands that to grow, personally and collectively, we must give and take.

We must, from time to time, shut up and listen. Too many college liberals have forgotten how to listen, even though they constantly demand that others listen to them.

Obama knows that it’s easy to hold opinions, especially when they mirror your inclinations. It’s harder to think, with no aim—not self-justification, not self-righteous anger, not the will to power—aside from truth.

And yet, as so often, the harder path

is more fruitful than the easy one.

So take it from the President: America is best when it’s “[b]ighearted. Undaunted by challenge.

Optimistic that unarmed truth and unconditional love will have the final word.” As years of congressional gridlock show, democracy excels only when citizens—from Congress on down—are willing to listen and to assert, to give and to take. Democracy doesn’t work absent hard discussion– uncomfortable dialogue that, though anything but a “safe space,” makes us a more cohesive (and thus safer) society in the long-run.

Whether you’re a proud lefty like me or a right-winger, stop fearing disagreement. We’re in this boat together—and unless we start plugging up this rig’s leaks soon, we’ll all go down together. Perhaps, as we drown, some partisan buffoons will come gasping and screaming to the surface.

“X person is a Y!” they’ll exclaim, to replies of “you’re so ignorant!”

We’ll still be dead.

Michael Shammas ’16 is editor-in-chief of the Record. This blog post was also published in The Huffington Post.

Massachusetts Moving Towards Blanket Ban on Ivory

By Kristin Hugo

After searching out a dozen antique stores in Boston, I finally found ivory on Newbury Street. The antique earrings were about the size of a pair of pencil erasers, white and with tiny black ships scrimshawed into them. I turned them over in my fingers and tried to determine how they were different from the bone, plastic, tagua nut and mammoth ivory I had seen before.

The store was small and sun-lit, and probably not the only store in Boston or Cambridge selling ivory. I asked the other shopkeepers in the neighborhood if they had any. “Not really,” said one. “It’s illegal,” said another. “But there is a guy up the street … Tell him I sent you.”

The global concern over elephant poaching has galvanized a trend to implement more regulations and bans against selling elephant ivory.

New York, New Jersey and California have already banned most trade in elephant ivory. President Obama has proposed legislation to ban all interstate trade in the substance as well.

Massachusetts is one of several states with pending bills to implement a statewide ban, and on October 21, 2015, the Massachusetts State House hosted a public hearing for comment on two bills restricting ivory trade.

Given the complicated legal and ethical status of buying and selling ivory, it’s no wonder that it was so difficult to find any at an antique shop. But are these restrictions necessary?

The Massachusetts ivory bills are S.440, sponsored by Senator Jason Lewis (D-Winchester), and its companion, H.1275, sponsored

by Representative Lori Ehrlich (D-Marblehead). The way the bills are currently written, “ivory” includes not just elephant ivory, but merchandise that is in whole or in part made of the teeth and tusks of whales, hippos, and mammoths. If the bills pass as written, selling these items in Massachusetts would become illegal, even if the item in question is legal under federal law. However, after considering testimony at the hearing and in the future, sponsors of the bill could revise them. Representative Ehrlich has already publicly stated that she plans to amend the bills to exclude whale ivory and exempt scientific institutions.

China is the world’s largest consumer of ivory, and the United States is the second. The Boston/Cambridge area is the seventh largest market in the U.S. for ivory products, meaning that legislation in the state of Massachusetts could have a considerable effect on the trade as a whole.

The apprehension about the ivory trade continues to grow as both poaching and trade increases every year. In 2011, poachers killed about one in 12 of the earth’s elephants, according to WildAid’s 2015 Tanzania Survey report.

Furthermore, National Geographic’s September 2015 cover story explained how the illegal ivory trade funds terrorist groups such as Boko Haram and the

Lord’s Resistance Army.

How can the legal sale in nonpoached, antique elephant and mammoth ivory hurt living elephants? The concern is that it is difficult, but not impossible, to distinguish what is legal and antique, and what is not. (Paperwork is not required for antique ivory, and tests to determine age are a few hundred dollars each.) A more widespread ban would make it easier for law enforcement to confiscate and impose fines, without having to prove that the ivory is new.

A lot of people love elephants, but that doesn’t mean everyone is in favor of a complete ivory ban.

Michael Viennau is the owner of The Scrimshander Gallery in Nantucket, in which he sells carved and engraved whale teeth and mammoth ivory pieces. Even though the bills aren’t likely to include whale ivory, they might still ban mammoth, which Viennau estimates make up about half his sales.

“I thought that would be the ethical material to use, so I moved into that totally,” said Viennau of mammoth ivory. “I didn’t think there would be any chance that they would ban that. There’s no reason to. It’s already extinct!” If mammoth ivory is included on the bill, Viennau said that he would join other vendors in an “inevitable” class-action lawsuit against the state for the value of their collections.

Not all antique dealers believe that ivory needs to be protected.

Tom Lang, co-owner of Alexander Westerhoff Antiques in Essex, Massachusetts, was also at the ivory hearing, to testify in favor of the ban.

“The illicit trade is actually riding on the back of the legal trade, meaning the antique ivory,” Lang said. “The newer ivory is being stained and carved in a period-looking style.”

In 2014, U.S. ivory dealer Victor Gordon was sentenced to 30 months and fined $150,000 for trafficking in poached ivory and painting it black or staining it to make it look antique.

Representative Lori Ehrlich and her Legislative Aide Joseph Gravellese acknowledge that, to address the concerns of people who own and trade in legal ivory, representatives could amend parts of the bills.

“Lots of things have been brought to the table,” said Gravellese. “From blanket exemptions for items over 100 years old, to musical instruments.”

There are also disagreements about whether more bans on ivory would even protect elephants. John Frederick Walker is a journalist and author of Ivory’s Ghosts: The White Gold of History and the Fate of Elephants. He believes that there will always be a global demand for ivory, and there are ways to regulate the trade to protect elephants without making criminals of antique dealers.

“I think that the current aim [of more complete ivory bans] is liable to be very counter-productive and a waste of resources,” said Walker. “Like the war on drugs.”

Standing at the panel in favor of

“It’s illegal, but there is a guy up the street … Tell him I sent you.” the elephants were activists with Global March for Elephants and Rhinos, and an entire class of highschool students asking the panel to save the elephants. The legislators will consider the public comments and written testimony. They have not yet made a decision as to whether it will pass in its current form, or at all.

When I first asked for ivory in the Newbury St. antique shop, the shopkeeper said she didn’t have any.

“You would have a hard time finding someone who would look you in the eye and say they have ivory,” she added. But after I told her I was writing about the proposed ivory ban, she showed me the earrings.

I asked if she thought I was from Fish and Game when I first asked about ivory. “No, I’m not worried about that, because we don’t keep any,” she said, even as I held the tiny pieces of elephant tusk in my hand.

“I took it all off the shelves. I couldn’t look at any more pictures of dead elephants. So no more ivory.”

Kristin Hugo studies Science Journalism at Boston University and audits Harvard Law School classes.

A premature perspective: Thoughts on being a brown girl at HLS

By Namita Dhawan ’18

A disclaimer: I’m fully aware that some, particularly my South Asian peers who have had experiences similar to mine, may disagree with some points I may make, and perhaps rightfully so. I write not to offend but to share honestly my experiences and my subsequent reflections. While this disclaimer may seem superfluous, I believe that discussions on race always warrant a framework.

I think I can safely say that on a superficial level, in America and at Harvard Law, racial issues are often seen dichotomously. There are white people and black people. Then there are a lot of groups who have various experiences based on whether they’re considered the “model minority” like South/East Asians or have their abilities constantly questioned, as do many Latinos, or of a background with an even more convoluted experience.

My life has often confirmed the

racisms of society, including the “model minority” characterization of Indians. Having a lighter skin tone than some of my fellow Indians, Americans, particularly here in New England where the South Asian population is relatively low, often mistake me for some kind of Latina. Once I tell them that I’m Indian, there’s a perceivable shift in how I’m treated.

They begin to ask me more about my academic or professional endeavors.

I’ve also had experiences where I was believed to be of some kind of Arab/ Middle-Eastern ancestry and upon correction there was simply more amicability in the interaction. They start to tell me about how they always dreamed of visiting India or about their love for Bollywood.

As someone of South Asian descent, mindful of arguments to the contrary, I think that I have it “the best” at HLS with respect to the discussion on race. I’m able to remark on racial tensions on campus without

much fear of offending anyone. I could talk about various moments of racism I’ve experienced without being questioned.

That’s not to say that my background doesn’t pose disadvantages.

I’m fully aware that I’m treated differently than my male, white peers at HLS are by faculty and by peers.

I have received confirmation of certain experiences I’ve had in class with other female students of color; certain white, male professors might subconsciously give me easier or shorter questions during cold calls; many other female students of color have remarked that they’re barely noticed and evade cold-calls entirely.

And while I think experiences like these speak to the harm of differentiated treatment, on some level, humans will always necessarily treat/ perceive other humans differently based on appearance.

I am petite, female and of PunjabiIndian descent and so I’m necessarily

Donate to the Harvard Law Record

By Michael Shammas ’16

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not going to relate to certain experiences or issues that white men may deal with, so to some degree, I think differentiated treatment is appropriate and not necessarily harmful.

I will ultimately never be a white man’s equal because we are necessarily so different and to treat us equally would seem strange. And yet, many would point to the fact that my personality and who I am has very much been shaped by the way that society has perceived and treated me—that racism shapes who we are and that we are therefore never free from it.

Just thinking out loud.

Ultimately however, whatever differentiated treatment I might receive from my appearance/background, I do think that being Indian at Harvard Law gives me the ability to call myself a “person of color,” while experiencing a minimal fraction of the disadvantage that my Black, Latino or Muslim peers might experience. Nonetheless, I realize

that my South Asian peers might feel very differently and have very different experiences based on what shade of “brown” they are or whether they were brought up in South Asia.

While I started by discussing the dichotomy that race is often framed in, there are so many variables to the equation. And thus, being South Asian in America or at HLS is not a homogeneous experience, nor is it for any ethnic group. And although I speak of my experience at HLS as being tolerable, I do fear for my future in the legal work-force where any disadvantages or differentiation that I speak of will likely be ever expanding. While I was fortunate enough to grow up in the Bay Area, a place where I rarely had to consider race and ethnicity, I’m excited by the opportunity to explore more fully what it means to be a South Asian at HLS and in the legal community.

Namita Dhawan is a 1L.

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

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