The Harvard Law Record: 2015-2016, Issue 8

Record The Harvard Law

MONDAY, FEBRUARY 22, 2016

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 8

IN THIS ISSUE:

David Freeman says now is the time to take action for an all-electric future, p. 5 A.J. Clayborne ’18 says that neutrality is a myth, p. 4

Let’s talk about slavery

By Brianna Rennix ’18

Harvard Law School is in something of a mutinous and discontented mood these days, which can only be a good thing at an institution of learning. Given that we are all eager to have conversations, I would like to initiate a conversation on a subject that seems to me very urgent.

The debate about the Royall shield has drawn attention to the importance of unflinchingly examining our history, of exploring the ways in which the underlying evil of slavery has metamorphosed and reappeared in many guises throughout the subsequent life of our nation. The Royall shield is a symbol of slavery, but before

OPINION

Rennix continued on page 2

Jon Geyman says healthcare needs more reforms, p. 4 Nic Mayne ’18 makes a conservative case for an Obama SCOTUS nominee, p. 3

Annaleigh Curtis ’16 says leaning in is not enough, p. 6 Bianca Tylek ’16 argues that the HLS shield debate is already over, p. 6

Activists Occupy Student Lounge

Reclaim HLS protesters demand changes to curriculum, plan to stay “indefinitely.”

By Jim An ’18

After a quiet winter term, student activism is back in the air at Harvard Law School.

Since last Monday night, dozens of students have staged an indefinite occupation of the Wasserstein Lounge in a protest against what they see as an unjust institution and an opaque administration.

Representing Reclaim Harvard Law School, the protestors have stayed day and night, bringing in air mattresses and sheets to help them weather the evenings.

“We’re here to bring visibility to Reclaim Harvard Law School,” said 3L Annaleigh Curtis. “But we’re also here to create the spaces we’re asking the administration to create.”

At the Wasserstein Lounge, which Reclaim HLS has redesignated Belinda Hall after one of HLS donor Isaac Royall’s slaves, activists

have aimed to create an area for marginalized students that they feel has been missing at HLS. “We wanted to create a safe space for students who haven’t felt that on campus,” 2L Isaac Cameron said.

“You’ll see people interacting in Belinda Hall in ways they’ve never interacted before. There’s a lot of love, there’s a lot of fellowship.

There’s a fundamentally different atmosphere.”

Indeed, Reclaim HLS has put up posters and signs for reading rooms, fireside chats, and areas for contextual learning. Regular speaker events, open meals, and group discussions have transformed the student lounge.

Criticizing Harvard for what they see as a “sterile, oppressive, and cold” environment, the activists have created a list of demands for the administration. Besides changing the Harvard Law seal, increasing

NEWS

Jim An

Reclaim HLS protesters hold a discussion over dinner. The protesters have continuously occupied the Wasserstein Lounge since last Monday.

the number of critical race theory professors at Harvard Law and increasing the contexualization of the Harvard Law curriculum are at the top of Reclaim HLS’s demands.

“Sometimes race is completely stripped out [of the classroom],”

said 2L Keaton Allen-Gessesse.

“Sometimes our professors will bring up race, but they don’t know how to bring it up in the ways we know are constructive.”

Reclaim continued on page 3

Firm cut student group funding over pizza at pro-Palestine event The story they don’t want you to hear about Milbank funding.

HLS Justice for Palestine

We have a confession to make.

We, Harvard Law School’s Justice for Palestine (JFP), are the

organization responsible for the highly controversial pizza order that cost the law school (and its students) an annual $250,000 in funding for student activities.

For the uninitiated, the “Milbank Tweed Student Conference Fund” (or Milbank Fund, named after the multinational law firm that endowed it), was established in 2012

to support the activities of student-run organizations at Harvard Law School.

The Dean of Students office allocates the funds through an open application process. As part of the arrangement, Milbank Fund recipients are

required to recognize the contribution by ensuring that all promotional materials for Milbank-funded programming include at least one

FEATURE

Milbank continued on page 2

Prof. Fights Lab Looking to Dump Chimps

Lazarus: Scalia raised the bar

By Alene Anello ’16

One does not forget one’s first argument before the U.S. Supreme Court. My own was October 7, 1986, the first Tuesday after the “First Monday” that year, which by tradition commences the Supreme Court Term.

It was also Justice Scalia’s first term on the Court and I well remember his unrelenting and unforgiving grilling of a colleague of mine from the Solicitor General’s Office on that First Monday. And, unlike me, my colleague was a longstanding friend and acquaintance of the newly-minted Justice. He had been a student of Scalia’s at the University of Virginia School of Law, where Scalia had been a law professor, and then he had subsequently worked for Scalia in the Justice Department’s Office of Legal Counsel, when Scalia headed that Office as its Assistant Attorney General.

Needless to say, I took note with some understandable trepidation of what was happening in the courtroom that Monday and, like everyone else in the Solicitor General’s Office, I quickly knew that oral argument before the Court would never

When a laboratory said it would donate money to a wildlife organization, the lab probably expected the organization to express appreciation.

But Harvard Professor Richard Wrangham, who runs the Kibale Chimpanzee Snare Removal Project in Uganda, saw through Yerkes National Primate Research Center’s plan. Prof. Wrangham turned down the money and jumped into an administrative law battle as Yerkes’ biggest critic.

The story starts a win for animal welfare: In 2015, the National Institutes of Health decided to stop funding chimpanzee research, and the U.S. Fish and Wildlife Service declared all chimpanzees endangered.

So would our evolutionary cousins, once experimented on in laboratories, now get to live free? Not so fast.

Yerkes, a Georgia laboratory that previously experimented on chimpanzees and that has a reputation for ethically-questionable primate experiments, still owns eight chimpanzees. Precluded from continuing to

experiment on its eight chimpanzees, Yerkes has decided to get rid of them.

Multiple U.S. sanctuaries have come forward offering to take care of these eight individuals for the rest of their lives. A sanctuary would provide the chimpanzees with space to roam and to exhibit their natural behaviors for the first time in their lives. Instead, however, Yerkes has decided to send the chimpanzees to an unaccredited zoo in England, where noisy crowds can pay to look at the animals. Why? Perhaps because a well-run sanctuary requires money to properly care for an animal. An unaccredited zoo, however, uses animals to make money, and thus will jump at the chance to own a crowd-pleaser like a chimpanzee, without requiring any compensation beyond the expensive animal.

Does the Endangered Species Act allow a laboratory to save money by shipping endangered animals to another country? We’ll see. Generally, the Endangered Species Act prohibits the export of an endangered species. U.S. Fish and Wildlife Services may authorize an exception to this

NEWS

Chimps continued on page 4

By Richard Lazarus

be the same with Justice Scalia on the bench. And we were right.

Even before Scalia arrived on the Court, one needed of course to be thoroughly prepared for a rigorous grilling. However, it was not unusual back then to have cases in which one was asked relatively few questions or even no questions at all. And when questions were asked, one could fairly assume one would have ample time to answer.

But once Justice Scalia joined the bench, what might at most have been a tough grilling quickly became more akin to the advocate’s equivalent of a bonfire. Spurred on

by Scalia, the number of questions asked by the justices has steadily increased during oral argument. The average number of questions asked of both advocates averages around 100 in an hour-long argument and it is not unheard of to have the justices ask as many as 125 questions of a single advocate in 30 minutes.

Let’s just say oral argument before the Court is not for the fainthearted. One can fairly debate whether the Court has gone too far, and its members ask too many questions and give too little time for answers. But it cannot be gainsaid that

OPINION

because of Justice Scalia, the quality of oral advocacy is far better today than before he joined the Court.

The same can be said for the quality of written briefs. Here too, there is more than a little room for debate about the validity of Justice Scalia’s particular views on textualism and his obvious disdain for all forms of legislative history. But he clearly made better lawyers of us all by insisting on more careful and precise readings of text and by exposing sloppy reliance on certain kinds of authorities that were, in fact, hardly authoritative at all.

I have my next argument before the Court this coming fall, and the argument will once again fall during that first week in October. The date will likely be almost precisely 30 years to the day from my initial appearance in October 1986. Justice Scalia has been a persistent presence in all my cases.

The Justice was demanding, probing, combative, and at times, yes, mocking of my position when, as was often the case, it differed from his own. It is hard to imagine the Court without him. He will be missed.

Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard Law School.

Antitrust law rooted in history to protect ordinary citizens Antitrust law is as American as the Boston Tea Party.

By Carl T. Bogus

The fear of concentrated power is embedded in the American DNA. Every law student understands that the Constitution safeguards our system of divided power – including federalism, separation of powers, a bicameral legislature, judicial review, and much more – that our Founders devised so that too much governmental power is not in a single set of hands.

But government power is not the only power in America. Should we not be concerned about consolidated commercial power too? If so, what field of law ensures that commercial power is at least reasonably dispersed?

The field of law originally charged with this mission was antitrust. While the Founders did not write an antitrust provision into the Constitution, the dangers that flowed from powerful corporations and monopolies were well understood at the birth of our Republic.

Americans knew how the British East India Company had grown powerful through monopolies granted by the Crown, and how company executives amassed personal fortunes through all manner of abuses of power – including extortion and terror in India – and how the company successfully resisted regulation by corrupting government officials. For example, the company often required that its large debtors borrow money at usurious rates from key members of Parliament, thereby indirectly buying the loyalty of those legislators. That was crony capitalism, 18th-century style.

Americans took note when, in April of 1773, Edmund Burke rose on the floor of the House of Commons and declared that unless Parliament controlled the East India Company, “this cursed Company would at last, viper, be the destruction of the country which fostered it in her bosom.”

Ten months later, Americans dressed as Native Americans raided an East India Company ship in Boston Harbor and threw its tea overboard.

They were, in part, protesting taxation without representation, but they were not then protesting a high tax on tea. Just the opposite. Parliament had permitted the East India Company to drastically cut the price of its tea in order to reduce a bloated inventory.

Although the company had a legal monopoly on tea, American merchants nonetheless competed with East India

FEATURE

When Maryland and North Carolina adopted state constitutions in 1776, both included provisions banning monopolies and declaring them contrary to free government. by smuggling – and were often considered heroes for it. Americans viewed the slashed price of tea as predatory pricing by a monopolist.

Burke waged a fourteen-year campaign to force Parliament to bring the East India Company to heel. He was ultimately unsuccessful. The giant company’s hold on English government was too strong. But Americans paid attention. When Maryland and North Carolina adopted state constitutions in 1776, both included provisions banning monopolies and declaring them

contrary to free government. Notice the concern expressed: free government. Other states later followed suit.

Antitrust became part of American state constitutional and common law.

The industrial revolution created corporations of unprecedented size and power. As had the East India Company a century earlier, the new corporate giants found many ways to purchase political influence in the state capitols.

Antitrust continued on page 5

2

Harvard Law Record

February 22, 2016

FEATURES & OPINIONS

Student groups burned, but Milbank still donating to Harvard Law firm upset over funds going to pizza served at discussion on Palestinian rights Milbank continued from page 1 reference indicating Milbank as a headlining sponsor.

At the start of this semester, HLS announced, without explanation, the sudden termination of the Milbank Fund. We are writing today so that the record may reflect that the termination of the Milbank Fund is, in fact, completely our fault.

In our defense, we couldn’t have possibly foreseen how our actions would come to affect the rest of the campus community. On the eve of our first-ever Milbank-sponsored speaker event, titled “The Palestine Exception to Free Speech: A Movement Under Attack”, the only thing we were really concerned about was what type of food to order for our fellow classmates. Like many others, we are an organization that recognizes the value of quality food as a major key to the success of any lunch talk.

So we ordered pizza—about $500 worth. We made sure to get a little something for everyone, because inclusivity! We got some margheritas for the traditional, buffalo chicken for the carnivorous, and of course, some formaggio for our colleagues with a more refined palate. The pizza was delicious, and for that, we must take a moment to sincerely thank Milbank for its generous contributions.

Even though we had only used Milbank’s money for the pizza (our speakers, two civil rights attorneys and an undergraduate student, graciously offered their time at no additional cost to the school), we held up our end of the deal by including, in all promotional e-mails and at the bottom of the event’s official Facebook page, some iteration of the following sentence: “This event is brought to you by the generous support of Milbank LLP.” Between bites of Milbank-funded formaggio, event attendees listened as speakers discussed the widespread suppression of Palestinian rights advocacy in the United States. One of the cases highlighted was that of Steven Salaita, an academic whose tenure position at the University of Illinois was revoked after he tweeted criticism of Israel’s 2014 aerial bombardment over Gaza. Salaita’s lawyers later discovered that the university had caved in to significant pressure from donors who had threatened to pull their donations if the university insisted on retaining him.

Ironically enough, a very similar sequence of events would unfold at Harvard Law School in the aftermath of our event. The very next day, the Dean of Students office — citing a flood of angry phone calls and emails received from Milbank

executives and other off-campus parties over the previous 24 hours— asked an organizer of the event to disassociate from Milbank in all past and future Justice for Palestine programming. As a start, the organizer was asked to immediately remove the reference to Milbank’s “generous support” from JFP’s Facebook event page.

After acknowledging that they recognized the irony in asking a student to retroactively edit the description for an event that was about free speech and its exceptions, the Dean of Students administrators proceeded to make it very clear that our cooperation would be greatly appreciated. Even though the event had already passed, it was evident that the administration was feeling tremendous pressure to do something, anything, to appease Milbank.

In exchange for a written guarantee that JFP’s future funding (be it from Milbank or any other source) would not be adversely affected, we agreed to remove the sentence from the Facebook event page. Though that guarantee was promised to us, we never got it.

Turns out, that’s because our request was directly incompatible with what Milbank was demanding. Administrators would later reveal that Milbank had gone so far as to demand that JFP’s Milbank funding be rescinded completely.

According to Dean Minow, this was not a demand her administration could honor, so Milbank decided to

pull out all of its annual $250,000 in student activity funding as a result of her administration’s “principled stance” in support of our right to speak openly and honestly about Palestine.

We are grateful to Dean Minow and the law school administration for refusing to buckle under intense anti-Palestinian pressure. We are also disappointed, though not particularly surprised, that at Harvard Law School, too, there exists such an exception to free speech when it comes to Palestine. Frankly, this whole ordeal should not have happened, and it is absurd that students will have to bear the (quite serious) consequences of our pizza order.

Of course, in its reaction to our event, Milbank has only proven the point we were trying to make that day. But this incident should serve also as an alarming reminder of how dependent this law school has become on earmarked funding from private donors, and how such a dependency can lead to significant compromises in the quality of both the academic experience here at HLS, and in honest political discourse more broadly.

Here, the revocation of just one annual contribution has left the law school and its students scrambling to scrape together enough funding from other sources to support this semester’s planned student activities. Some organizations have yet to fully recover, and it seems likely that funding for student activities in

Rennix: New laws necessary to change manufacturing Individual and collective effort necessary to improve conditions for worldwide workers.

Rennix continued from page 1 Royall Must Fall held its first rally, before you learned its story, before you knew where it came from, your eyes probably passed right over it.

Maybe, if someone had asked you, you wouldn’t even have been able to describe what it looked like, though you encountered it a dozen times a day as you moved throughout the campus. And the truth is that the Royall shield is far from unique.

There are many such cunningly-disguised symbols of slavery in the architecture of our daily lives. Can you think of any?

How about those little bowl of candies that are sitting out in all the Harvard student offices? Did you know that some of those candies—it’s hard to know exactly how many—were made from cocoa that was harvested by slaves? How about a startling percentage of all the items you have ever bought? How often do you contemplate the fact that they were manufactured in whole or in part by fellow human beings, conveniently hidden from your sight, who are not paid a living wage, whose lives are devoid of the most basic necessities?

Another HLS student, writing in a satirical vein, has expressed an opinion on this topic; I would like to differentiate my own views, insofar as I do not think it is fair to characterize the campaigns to change the HLS shield or promote inclusiveness at Harvard as hypocritical simply because we live in a world with myriad other problems. A single student movement cannot expect to accomplish a thousand things at once, and Reclaim Harvard Law/ Royall Must Fall has identified a specific set of goals that they believe are both meaningful and achievable.

However, I do hope that the conversation about the Royall shield can help galvanize a separate discussion about the very real ways that all of us are actively participating in a slave economy: today, right now, this minute. Many, if not most, of the items we unthinkingly purchase, consume, and discard every single day are harvested or created by human beings—including children—living under conditions of abject misery and fear.

The next time you stop by that free coffee station near the Hark, pause a minute and think about what you’re doing. Want a cup of coffee?

There’s a good chance those beans were picked by children under the age of 15. Some of them had to quit school to work in the fields. Many others were trafficked and enslaved.

Those children worked long hours— Big Law firm hours—as many as eighty hours a week. They groaned under the weight of loads so heavy that their burdens left them with open sores on their bodies. When their pace slackened, some of them were beaten with branches or bicycle

chains. If your coffee picker was an adult, he or she still likely earned next to nothing, was forced to pay inflated prices for essential goods at the estate shop, and was then bound to the plantation by their debts. The coffee industry, overflowing with the milk of human kindness, has performed a Cost-Benefit Analysis, but says that ensuring that child labor and forced labor are absent from their supply chains would be “onerous and especially costly to implement.”

Okay, so maybe you’re not feeling coffee today. What about tea? We’ve got Lipton! Well, the goods news is, Lipton’s parent company, Unilever, was one of the founding members of the Ethical Tea Partnership, an industry partnership that endeavors (very, very slowly) to improve worker conditions on tea plantations. The bad news is, Unilever subsequently dropped out of the partnership because they wanted to “undertake their own initiatives.” What are those initiatives? Hard to say. Poor housing, discrimination, and sexual abuse are still endemic on Unilever plantations. In the tea industry at large, workers endeavor to live on about 17 cents an hour. Sex trafficking of tea pickers’ children, with or without their parent’s knowledge, is rampant, because parents cannot afford to feed a family on the wages they earn.

Don’t like the sound of that? Why not have some of that hot cocoa, then? Yes, yes, some of Nestlé’s cocoa beans are harvested by children, a number of whom are trafficked, and who work as many as 14 hours a day. Nestlé is on it, though! In 2005, they vowed to remove child labor from their supply chains. As of this year, they were still giving their full attention to the problem. Maybe in another ten years they’ll have it figured out.

I do not mean to downplay the complexity of the economic and logistical issues implicated by global trade. There may be some truth in saying that misery is a fact of human life, that we cannot simply will it away by disliking it. But let’s be honest with ourselves: we all instinctively know that to harness the misery of humans in one part of the world to provide comfort and entertainment for humans in another part of the world is a perverse and inexcusable form of evil. No person on earth would choose to toil away all the years of their life, on starvation wages or worse, with no hope of improving their lot, manufacturing useless luxuries to be fleetingly enjoyed by others upon whom the accident of birth has bestowed greater fortune. That is injustice itself.

When people respond to exposés of worker exploitation with statements like, “Well, they’d be worse off if they weren’t making our products!” what they are employing is, quite simply, slaver logic. To shrug

Want a cup of coffee?

There’s a good chance those beans were picked by children. and accept obvious moral evils simply because they would be difficult to address. because altering the prevailing system will likely have complicated economic and political consequences, is the kind of thinking that perpetuated the institution of slavery in this country throughout multiple centuries during which many people of both conscience and influence were fully aware that it was wrong. During those intervening years, thousands of human lives were trampled, degraded, mutilated, both spiritually and physically; and the ruination of those lives can never now be repaired. For law students today who believe that justice is not a mere category defined and circumscribed by our legal system, but is rather a holistic moral worldview that should inform all the decisions of our daily lives, we simply cannot accept a status quo that makes us all into the mirror image of an earlier generation of American elites: masters who do not know how to free their slaves.

So what can we do? On an individual level, the Kantian or “conscientious objection” approach is ethical consumerism: to boycott companies that engage in unfair labor practices (including unpaid or minimally-compensated labor, use of child labor, bans on or retaliation against unionization, inadequate sanitation and safety standards, tolerance of sexual assault and harassment, and environmental destruction) and patronize companies that use good practices. This is a start. I would, for example, be very glad to see the Hark start offering products by Equal Exchange, a Massachusetts-based company with a comprehensive “Ethical Best Buy” rating from the Ethical Consumer Research Association. If Harvard (quite rightly) offers vegan and vegetarian accommodations for students who have moral objections to eating meat, why not also have some options for people who have moral objections to consuming products made by enslaved and exploited workers? In addition, when the shield is changed—as it likely will be—I would like to see Harvard publicize a commitment to place the new seal exclusively on merchandise manufactured by workers operating under fair labor standards, using materials extracted and processed by workers operating under fair labor standards. To get rid of a slaver’s symbol at our school, only to have the new seal branded onto products manufactured through literal or de facto slavery, would be a grotesque hypocrisy unworthy of a serious legal institution.

Ethical consumer ism is

necessarily an approach with serious limitations, however. If enough people do it at once, of course, it might have the potential to move the domestic products market without recourse to legal or regulatory measures: if consumers place a premium on ethics, companies may try to meet the demand. But there are a number of problems here. For starters, making ethically-informed choices can be horrendously difficult due the high level of informational asymmetry between companies and consumers, and the misleading or unverifiable nature of most “fair trade” labels. Ethically-made products are more expensive, making it much more difficult for low- and fixed-income people to make purchases based on ethical considerations, as compared to middle- and upper-income individuals. (Companies like Wal-Mart have had great success with the reverse-Robin Hood approach, whereby, in charging rock-bottom prices for cheaply-manufactured goods, they rob the poor to feed the poor.) Finally, while it’s comparatively easy to be an ethical consumer of many common food products, it’s next to impossible when it comes to necessities such as clothing and (what is now effectively a necessity in modern society) technology. Ethically-produced garments are nearly impossible to find; ethically-produced electronics are, I think, entirely impossible. You can buy used items, but that’s as close as you get. It’s always pretty hard to move the market towards a product that doesn’t exist.

The prevailing wisdom in some circles is that the bad PR surrounding labor abuses can compel multinationals to voluntarily improve their standards; or that multinationals, which are major regional players in most developing economies, will self-regulate in increasingly a humane direction due to the growing popularity of the “corporate responsibility” ethos. Perhaps that’s true.

But once again, asymmetry of information, financial resources, and political power means that we will simply have to take their word for it. We will have to, in the words of Pope Francis—one of the few political figures in the public eye who ever speaks candidly on this issue—place “a crude and naïve trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system.”

The fact is, if we want to hold those who make our products accountable, if we want better assurances than a pinky-promise that they will fulfill their moral responsibilities, we will need better laws. I would like to see a real conversation at Harvard about what those laws ought to look like. If we can’t have that conversation here—at the best-resourced law school on the face of the planet— where’s it going to happen?

Brianna Rennix is a 1L. She is currently serving as news editor and will be serving as one of two editors-in-chief next year.

Milbank’s behavior in this incident represents a slap in the face of academic freedom. the coming years will continue to be significantly affected.

Moving forward, Harvard Law School should take efforts to minimize the potential for meddling from its donor overlords. For starters, please don’t try to figure out another way to keep Milbank’s money!* Milbank’s behavior in this incident represents a slap in the face of academic freedom, and unless Milbank issues an apology and reinstates its unconditional support for all student programming, regardless of content, HLS would do well to end its relationship with the firm altogether.

As for us, we’ve got a lot more to say about Israeli apartheid and the struggle for Palestinian liberation.

Thankfully, we’ve still got some Milbank money left over from last semester, and we fully intend to put it to good use. *Editor’s note: Harvard Law School has issued statements indicating that Milbank funds will no longer go toward student activities, but Milbank has not otherwise ended its funding commitment to HLS.

If you have a response to any piece in The Record, contact Editor-in-Chief Michael Shammas at mshammas@jd16.law. harvard.edu or at editor@hlrecord.org.

Correction:

In the story “Bluebook Origin Myth Hides Newly Found Past” that ran in the February 3 issue, Julie Graves Krishnaswami was inadvertently left out as a co-author of the journal article mentioned.

The Record regrets the error.

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 ’58

February 22, 2016

Harvard Law Record

3

NEWS & ANALYSIS

Activists Demand HLS Add Race to Classes, Race Theorists to Faculty Reclaim continued from page 1 The activists, who plan to stay possibly into the summer, criticize Harvard Law’s pedagogy as not only incomplete, but inadequate.

“I came to Harvard wanting to represent minority and low-income communities like the one I came from,” Cameron said. “I don’t get taught in a way that prepares me to do that.”

Reclaim HLS members point to cases such as People v. Newton and Coker v. Georgia as cases that are taught without proper context.

In Newton, the California Court of

Appeal reversed Huey Newton’s conviction of voluntary manslaughter for failure to provide a jury instruction for the defense of involuntary unconsciousness. The activists say that the case is often presented without the critical context that Newton was a leader of the Black Panther Party and that race was implicated in the case and its outcome.

Similarly, the activists cite Coker, in which the Supreme Court struck down the death penalty as a punishment for rape on 8th Amendment grounds, as a case where race was an important yet untaught driver for the decision.

“People in the South were sending black men to death after being accused of raping white women with such frequency that the Supreme Court felt like they had to stop it,” Cameron said. “And that’s something that could be taught without any background.”

“It turns out they don’t teach you half the things that are necessary to understand what’s going on,” said 3L A.J. Clayborne.

Another demand of the activists is that the Law School bring in critical race theory scholars as professors.

Critical race theory looks to analyze the law from a race-aware

Jim An

2L Aparna Gokhale talks about her views in a reading group. Reclaim HLS has held several speaker events and discussion groups in WCC’s lounge, which the activists have renamed Belinda Hall, and across campus.

perspective, asking how laws and legal frameworks perpetuate racial inequalities and seeking to reverse these inequalities by changing the law. Critical race theory had many roots at Harvard Law School, though today the Law School has no tenured faculty specializing in the field.

“Imagine taking contracts without learning about consideration.

That’s what learning the law is like without understanding how race fits in,” said 3L Bianca Tylek.

At the occupation, speakers such as Derecka Purnell, Margaret Montoya, and Juan Parea have spoken to crowds of dozens of students.

“We’re looking to provide substantive information, for example, on critical race theory and the context of legal decisions,” Curtis said.

“But we’re also showing how the process would look if it were in the classroom.”

Reclaim HLS characterized the occupation as the latest in a series of strategies to change what they see as years of administrative intransigence in the face of student activist demands.

“This is an iteration of multiple campaigns that span decades,” said Cameron. “There’s a misconception that the timeline is very narrow, but students have been asking for these things for decades.”

The activists also welcome all students to come talk with them.

“If you look around we’re entirely transparent, entirely open,” Cameron said. “Anybody can come and engage.”

However, some students have been critical of Reclaim HLS. Some students have criticized the disruption from the 24-hour occupation, while others say that the activists are not as open as they portray themselves to be.

“The leadership has done a good job of being open,” 3L Kurt Krieger said. “But there are vocal members

“They don’t teach you half the things that are necessary to understand what’s going on.”

– A.J. Clayborne, 3L who take a hard-line stance. They’re fighting a monster, but they’ve become that monster.”

Cameron says he understands that some students might feel that the occupation of the Lounge might feel a little displaced, but he says that minority students are facing a much more significant burden in the current curriculum, and that a purpose of Reclaim HLS is to alleviate that burden.

“The way marginalized students are portrayed in the curriculum or left out of the curriculum and their experience at the law school is not comparable to [what Reclaim HLS is doing in Belinda Hall],” Cameron said. “It’s disingenuous to frame the conversation around the inconvenience faced by [majority students].”

The activists maintain that they are not occupying the Lounge merely for themselves, but to further the aims of justice. With plans to stay indefinitely until their demands are met, they say that they are not here just to make law school more comfortable for themselves. Rather, they are seeking to change the curriculum in order better understand the law and to learn how to change the law for the better.

“Where people are violated, where violence is used illegitimately, we have an obligation to see that that injustice is corrected,” Clayborne said.

“I hope my activism won’t stop here.”

Protesters Draw Criticism over Actions, Proposals

By Jim An ’18

In the past week, Reclaim Harvard Law School protesters have occupied Wasserstein Lounge, drawing dozens of supporters and holding free meals, speaker talks, and group meetings.

However, the protesters, who are demanding changing to the Law School seal, hiring several critical race theory professors, and evaluating professors on the basis of implicit bias, among other things, have drawn criticism as well.

“It makes me feel uncomfortable,” 3L Kurt Krieger said. “One of the problems with this movement is that it silences a large group of people.”

“Many of the students who disagree with [Reclaim HLS] aren’t willing to speak up about it from fear of being called racist,” 2L James D’Cruz said, though “people at Harvard are already the most accepting of race that I’ve ever seen.”

Beyond students leveling charges of racism, some professors have also suggested that opponents of some of Reclaim’s goals are misguided.

In a recent op-ed in the Record, 3L and Reclaim HLS member Bianca Tylek recounted a conversation with Professor Charles Fried, who suggested that defenders of the current HLS crest would most likely be found in “the Office of Mental Health.”

“If you look at Fried’s reaction, you’re not gonna get too many people who are gonna want to speak out on

the other side,” said 3L Bill Barlow.

Despite Reclaim HLS’s claims that they are looking to create a more welcoming environment for all students, some students feel that the occupation, especially in their dealings with the administration, has created the opposite effect.

“When some students feel that the administration has not gone fast enough far enough, treating them like the enemy rather than as productive partners is counterproductive and poisons the atmosphere at the law school,” said 3L Sarah Gitlin.

Thus far, the administration has not taken steps to remove or otherwise address the occupation, choices that some students see as problematic. “[It] shows that the school administration can be bullied by a small group of vocal activists,” 1L Josh Craddock said. “I can only imagine how the administration would respond if an ideologically conservative group on campus occupied the lounge and refused to leave.”

Reclaim HLS’s first demand is that the Royall family crest be removed from the Law School’s seal. However, Krieger argues that changing the seal is “ironic,” as it would ask students to “buy new t-shirts that will perpetuate slavery today [because of the slave labor going into t-shirt manufacture] in order to address something in the past.”

Barlow also took issue with Reclaim’s demands, in particular

their demand that students evaluate professors on their implicit bias and racial contextualization of course material, saying that such changes would restrict, rather than enhance, campus dialogue.

“It’s a little McCarthy-esque to have students report on the implicit bias,” Barlow said. “In theory it sounds nice, but in practice it would lead to professors shying away from difficult topics.”

Similarly, Sussman and Craddock took issue with Reclaim HLS’s proposed mandatory 1L course on “racial justice and inequality in the law.” Craddock criticized the proposal as turning theory into dogma, while 1L Jake Sussman described it as “propaganda.”

“I don’t think Harvard should be advocating select ideology rather than presenting all sides and rational arguments and letting students reach their own conclusions,” Sussman said.

Barlow also recounted some previous incidents in which he felt that other students on campus felt silenced, suggesting that Reclaim HLS’s occupation of the Lounge is the latest in a series of conversation-chilling occurrences on campus. Last fall semester, Barlow started a petition to opposed to some of the demands of Reclaim HLS, which garnered just under 40 signatures.

“We had several people who signed as ‘anonymous’ or ‘very regretfully anonymous.’ The guy I was

“Those who don’t have a liberal ideology are often shunned or not heard.”

– Jake Sussman, 1L working with wanted to be anonymous,” Barlow said. “It was comical but sad.”

Sussman, a signatory to the petition, agreed that people with dissenting viewpoints often feel pressure to keep quiet.

“Those who don’t have a liberal ideology are often shunned or not heard,” Sussman said.

Critical race theory and its use of narrative as an important source of scholarly insight was also a point of contention. Krieger criticized as exemplary a paper by University of Virginia law professor and critical race theorist Alex Johnson in which Johnson wrote, “It is perfectly acceptable … if that which is presented as the truth turns out not to be objectively true.”

In addition, opponents criticize Reclaim HLS’s demand that Harvard bring on several professors specializing in critical race theory. In contrast, they say that Harvard’s reputation is to hire the best available candidates for tenure-track positions without regard

to discipline.

“Establishing a professorship for a particular partisan viewpoint necessarily undermines academic freedom,” Craddock said.

Reclaim HLS member A.J. Clayborne defended critical race theory, noting that no less a figure than Plato also used stories to make philosophical and academically rigorous points.

“People assume critical race theory is some crazy leftist theory about how the U.S. is evil,” Clayborne said.

“It’s just honest. It incorporates a holistic theory. It demonstrates how the law has oppressed marginalized people for centuries.”

However, some students were still skeptical.

“Instead of analysis, [critical race theory provides] narrative,” Craddock said. It strikes at the core of what we believe is the purpose of a legal education.”

“I tried to find somebody to say on concrete terms what critical race theory was,” Barlow said, “[But their answers were] so vague that I don’t even know how to respond to calls to have more critical race theory.”

Overall, the critics of Reclaim HLS seemed frustrated that the activists and the reforms they are pushing form seemed as stubborn as the administration and societal system the activists are opposing.

“I think the best preparation for a young lawyer is rational inquiry and free discussion, not doctrinaire dogmatism,” Craddock said.

Hedge your bets: GOP Senate may yet approve Obama nominee

By Nic Mayne ’18

The Supreme Court has lost its conservative anchor, a respected jurist who will go down as one of the most entertaining and influential legal thinkers of an era. Within minutes of Justice Scalia’s unfortunate passing, the focus shifted from condolences to politics, with quick calls from leading conservatives urging the GOP-controlled senate to not confirm any nominee put forward by President Obama.

I understand the logic – Scalia was a champion of the conservative cause, and President Obama won’t put forward anyone with similar views on the Constitution and role of the Supreme Court, whereas a prospective Republican President could.

Additionally, within the climate of political opposition the nation currently endures, an Obama Supreme Court nomination provides an opportunity

for the Republican party to flex their Congressional muscle, while proclaiming confidence in the party’s eventual 2016 election nominee.

Still, the race is far from over.

And 342 days without a justice, especially as prominent cases move forward, is an unprecedentedly long period of time. While it is true that few Presidents have filled vacancies within their last year in office, only one has faced a vacancy longer than this could be.

Republicans may be willing to let the chair sit empty for that long, especially if the statements of McConnell, Cruz, Rubio, and others are any indication. But conservatives must consider all possible outcomes before taking a firm stand against Obama’s Supreme Court choice(s).

According to the most recent general election polls, Clinton and Sanders lead all Republican candidates, with the exception of Marco Rubio. And

Republicans may be best served turning down the opportunity to flex their muscle. while the more electable Rubio may prevail, the most likely matchups heading into South Carolina favor an eventual Democratic presidency.

Currently, President Obama knows that to have a nominee confirmed, he will need to present Congress with a moderate option both parties can reasonably get behind. If Clinton wins the Presidency, she will likely be less inclined to appease Congress with a moderate choice – if Sanders becomes President, who knows who his selection may be.

Even within the Republican party,

there would likely be ample disagreement on an eventual candidate. I can only imagine Donald Trump’s proposed solution – “I don’t know who I’ll nominate, but it’s going to be great.”

Cruz may be more likely to propose as close to a replacement for Scalia as he can find, while Rubio would presumably opt for a right-leaning moderate of some fashion.

So, assuming President Obama does propose a seemingly amicable candidate, Republicans may be best served turning down the opportunity to flex their muscle and instead, show Americans they can and are willing to get things done, while protecting the balance of the court against a possibly more liberal Clinton/Sanders nominee.

Yet, after coming out so strongly opposed to any Obama nominee, Republicans are unlikely to immediately forsake their opposition, a turn that could be interpreted as weakness.

No matter who Obama suggests, I can’t see Republicans backing down on their opposition to a lame-duck nomination.

As such, the President should and very well may plan for his initial nominee to be rejected. Perhaps the President should nominate former Ginsburg clerk Paul Watford or HLS alumna Loretta Lynch, both unlikely to be confirmed by Congress, before turning to the less divisive Sri Srinivasan, who was unanimously confirmed for his judicial post under three years ago.

And if and when he does, perhaps Republicans, having already had an opportunity to make good on their promise to oppose an Obama nominee, will hedge their bets, take the high road, and fill a very significant hole on the nation’s highest bench.

Nic Mayne is a 1L and the deputy opinion editor of the Record.

4

Harvard Law Record

February 22, 2016

OPINION

Tweaks not enough to reform U.S. healthcare

By John Geyman

The U. S. healthcare system is in a crisis that is still under-recognized. Though we are assured from many quarters, especially by corporate stakeholders in the present market-based system, that we have the best health care in the world, this is far from true. In actual fact, our system is slowly imploding and is unsustainable in its current form, even after six years with the Affordable Care Act. Dimensions of the Crisis Despite the intentions of the 2010 Patient Protection and Affordable Care Act (PPACA), access to affordable health care is still not available to many millions of Americans, as these facts on the ground attest: Today, there are still 29 million uninsured (down from the 50 million in 2010), but with tens of millions more underinsured.

Almost 80 percent of the uninsured have less than $1,000 in savings.

Twenty states have opted out of Medicaid expansion under the ACA, leaving 3.1 million people in a “coverage gap”—not enough income to qualify for ACA subsidies and too much to get Medicaid in their state.

Even with insurance, one in three Americans cannot afford necessary care as the ACA fails to address these underlying causes of medical debt: (1) high cost-sharing under many plans; (2) limited or no protection from outof-network care; (3) limits on essential health benefits; and (4) restricted drug formularies.

Access to care is still limited, and despite promises by the ACA, it is difficult for many people to keep their physician — 40% of physician networks in plans sold on the ACA’s exchanges include less than 25% of physicians in their region.

There are inadequate price controls under the ACA, which has given insurers, hospitals, drug companies, and others in the medical- industrial complex new markets with minimal oversight.

Up to one-third of all health care

services provided in the U. S. are unnecessary or inappropriate, and some are actually harmful.

Many insurers have been manipulating a provision of the ACA allowing them to get higher payments for enrollees deemed sicker than average.

Medical identity theft is on the increase whereby criminals steal personal data from millions of Americans to get health care, prescriptions, and medical equipment.

About one-half of the insurance co-ops funded by the ACA have already failed, mostly due to low enrollments, adverse claims experience, net losses, and inadequate funding.

The Centers for Medicare and Medicaid Services estimate that an expanding bureaucracy under the ACA will take up one quarter of health care spending and add almost $274 billion in new administrative costs heading into 2016.

Medical billing fraud is estimated at about 10 percent of all health care costs, or about $300 billion a year.

Some Lessons from the ACA Despite having added some 16 million people to the insured rosters, either through the exchanges or expanded Medicaid, and making limited reforms of the insurance industry (e.g. prohibiting exclusions and banning of annual and lifetime limits), the ACA falls far short of the population’s need for access to affordable care, has accelerated growth of bureaucracy and waste, and has not been shown to improve the quality of U. S. health care. Profiteering and the business “ethic” reign supreme, often trumping an ethic of service.

Physicians and other health professionals, in dealing with the hassle factor of increasing bureaucracy, are experiencing increasing burnout, with many retiring early.

Here are some of the lessons that we can take away from the ACA as the latest attempt at reforming health care: Health care reform through the ACA was framed and hijacked by corporate stakeholders, themselves largely responsible for system

problems. As an example: during the run-up to the ACA’s passage, some 1,750 organizations and businesses hired 4,525 lobbyists, eight for every member of Congress, at a cost of $1.2 billion.

You can’t contain health care costs by leaving for-profit health care industries to pursue their business “ethic” in a deregulated marketplace. You can’t reform the delivery system without reforming the financing system.

The private health insurance industry does not offer enough value to be bailed out by government. As examples, 300 patient advocacy groups sent a letter in 2014 to the Secretary of Health and Human Services detailing many ways in which insurers continue to discriminate against the sick; the overhead of private Medicare Advantage plans averages 19 percent vs. 1.5 percent for traditional Medicare; and underinsurance has reached epidemic proportions, with more than one million families seeking bankruptcy protection each year, despite two-thirds of them having been insured at the onset of their illness or accident.

It is futile to embark on unproven or disproven incremental tweaks to our present system while ignoring health policy and experience around the world. Managed care was discredited in the 1990s, but is back in the ACA’s privatized Medicaid plans, cost-sharing by patients at the point of care leads many to forgo care.

Current payment schemes to “pay for performance” have not proven to result in either cost containment or better quality of care. Almost all advanced countries around the world, including the United Kingdom, Western Europe and Scandinavian countries, Canada, New Zealand, Australia and others, consider health care as a human right, supported by one or another form of public financing, and yet pay much less for health care than we do.

In order to gain the most efficiency of insurance coverage, we need the largest possible risk pool to spread the risk and avoid adverse selection.

In health care, we have a 20-80

The myth of the neutral center

By AJ Clayborne ’16

Recently, Michael Shammas, Editor-in-Chief of The Record, wrote an article declaiming the present state of democratic discourse. His targets ranged from Donald Trump and his supporters to “student protesters”: “We see [the death of ‘productive discourse’] 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.”

Shammas is not the only person to make comparisons like this. Bill Maher recently compared student protesters at Yale to Ammon Bundy and his followers, who have occupied a federal building in Oregon.

The argument here is familiar: The times are simply too contentious and emotionally overwrought; what is needed is calm, rational debate.

Consideration must be accorded to

both sides in a deliberate manner.

Only such a cordial, empathetic debate can rescue our glorious republic from certain doom.

This argument sounds prudent.

It is actually facile. Not only does it establish a straw man argument on behalf of college protesters, it indulges in a false equivalence that bolsters the persona of the speaker.

This persona boost is achieved at the expense of people of color. This is especially true when the speaker is white. Let us be clear: these days the term “student protesters” generally refers to students of color. The recent uprising on college campuses around the world has tended to focus on issues of race and they tend to be led by students of color.

Shammas initially proceeds by choosing to characterize the term “white male privilege” as some sort of an insult. “Even trifling dissent is labeled a product of white male privilege . . . .” This description fails to take account of the complex nature of the term “white male privilege.”

Male privilege encompasses the subtle (to men), often unnoticed ways in which society privileges male views, male concerns, and male voices.

White privilege encompasses the subtle (to white folks), often unnoticed ways in which society privileges white views, white culture, and white concerns.

These are neither curse words, nor contumelies — they are concepts. They have a long history of ref lective philosophical

Feds to decide fate of chimps Chimps continued from page 1 anti-export rule, however, if the exporter shows that the proposed export will benefit the species’ propagation or enhance the species’ survival. So, to receive the economic benefits of sending its chimpanzees to the unaccredited zoo in England, Yerkes needs to find a way to make U.S. Fish and Wildlife Services think that the export to England will somehow help chimpanzees.

Yerkes came up with a creative idea: Yerkes would offer to make small donations to a couple of wildlife protection organizations in conjunction with Yerkes’ export of the eight chimpanzees to the unaccredited zoo in England. This way, by

describing the export to England and the donations to these unrelated organizations as one action, Yerkes could claim that its export of the chimpanzees would “help” the species. (If you’re thinking this doesn’t make any sense, that’s okay — it doesn’t.) A plan like this would let Yerkes save money by avoiding paying for the chimpanzees to receive proper care by instead just paying a smaller amount to some unrelated wildlife groups. Yerkes applied to U.S. Fish and Wildlife Services for an export permit based on this scheme.

But Yerkes forgot one thing — to ask the wildlife groups if they wanted its money.

As it turns out, Prof. Wrangham founded and directs one of the two

rule, which states that 20 percent of the population is responsible for 80 percent of all health care spending; the insurance industry is motivated to increase its profits by avoiding coverage of sicker people whenever possible, shifting their care to public payers.

The ACA is a massive bailout of private interests profiting on the backs of sick or injured Americans. Here is just one example: large insurers such as WellPoint and Humana expect to gain $5.5 billion through the ACA’s “risk corridor program” that covers their “losses,” even as it gives them larger subsidized markets.

Alternatives for Reform How to finance and deliver health care in this country has been a subject of great controversy for more than 100 years. As a progressive presidential candidate in 1912, Teddy Roosevelt proposed a publicly financed system of universal coverage through national health insurance, but it was shot down in that election year. Since then, health care has been a political football, and basic questions remain unanswered as a society, such as whether or not health care is a right (or privilege based on ability to pay) and what the role of government should be.

During and after this current 2016 election cycle, there are three basic alternatives to further reform our system, based in large part on the outcomes of the elections: (1) continue the ACA, with improvements as needed (as supported by Hillary Clinton without specific “fixes”); (2) implement whatever plan the Republicans put forward, including repealing part or all of the ACA and most likely replacing it with such already discredited approaches as consumer-directed health care, tax credits, health savings accounts, selling insurance across state lines, and state high-risk pools; and (3) single-payer national health insurance, which would provide universal coverage for comprehensive health care for our entire population, save some $592 billion a year, with financing through

progressive taxes whereby 95 percent of individuals and businesses would pay less than they do now for health insurance and care.

The problems with the ACA cannot be fixed with tweaks. More fundamental reform will be needed. The private health insurance industry has had a long run, but fails the public interest. It is too inefficient compared to public financing, has already been bailed out more than it deserves, and is not sustainable because of its costs and waste.

Conclusion There will be increasing needs for legal work as the health care system further implodes and as conflict among competing interests escalate.

The present system is not sustainable, and we can expect growing public discontent with its restricted access and unaffordable prices. This is a major economic, social/political, and moral issue. Hopefully HLS graduates will take the lead in helping to reform the present unfair system for the common good. In closing, these works by economist and Nobel Laureate Joseph Stiglitz are right on target: [We have created] a society in which materialism dominates moral commitment, in which the rapid growth that we have achieved is not sustainable environmentally or socially, in which we do not act together as a community to address our common needs, partly because rugged individualism and market fundamentalism have eroded any sense of community and have led to rampant exploitation of unwary and unprotected individuals and to an increasing social divide. There has been an erosion of trust—and not just in our financial institutions.

It is not too late to close these fissures.

Jon Geyman is a professor emeritus of family medicine at the University of Washington School of Medicine in Seattle.

This takes advantage of a common American myth that describes white people and especially white men as rational and peaceful.

formulation. They cannot be merely dismissed as if they are just labels that have no application to reality.

And when they are used, the white male hearer need not be defensive, but should be introspective. In what ways might my position in society be affecting my world view? How might the privilege I have obscure the suffering of the fellow human being in front of me?

Note how asking these questions truly takes account of the speaker’s views and respects their contentions. Surely this would constitute the “democratic discourse” for which the middle ground advocates pine?

Instead, middle grounders persist in maintaining the baseless assumption that “white privilege” is just a pejorative term, unworthy of the discourse in a democratic nation. And that is ultimately the most harmful aspect of this particular logical fallacy – it advances the assertion that terms developed by marginalized peoples to name the sources of their oppression are unserious constructs devoid of intellectual validity.

This effect is only compounded by the false equivalence drawn by Shammas’ comparison between Donald Trump and his political supporters, racist mass murderer Dylann Roof, the mass murdering San Bernardino Shooters and marginalized students of color. Setting aside, for a moment, the vapid intellectual malaise that characterizes the unfortunate and racist and sexist campaign of Donald J. Trump, the

most obvious difference between university protesters and mass murderers is, well, the murdering.

Violence has not generally occurred at America’s universities. For the murderous few which are named above violence is the only argument they advance. And as it turns out, Donald Trump and his supporters seem to be generally in favor of violence against marginalized peoples as well. If any side is destroying present day discourse, it is certainly not the university students.

Moreover, the pernicious effect of this false equivalence is often used to further enhance the persona of a neutral, rational, peaceful (read white) middle grounder. This takes advantage of a common American (read white) myth that describes white people and especially white men as rational and peaceful.

This same narrative stigmatizes people of color as irrational and violent. Thus, the call for “rationality” and “productive discourse” is actually a rhetorical move, which operates by boosting the credentials of the speaker and by denigrating the status of student protesters of color.

In claiming to seek “rationality” and “productive discourse” the middle grounder actually achieves neither. After all, the myth that student protesters of color are irrational is itself irrational and what is more,

it ignores the arguments of student protesters, which makes truly “productive discourse” impossible.

Thus the neutral center – the ideal, rational sphere of public discourse – is neither neutral nor rational. This rhetorical posture does a grave injustice to student protesters generally and student protesters of color in particular.

Student protesters here at HLS and across the country are nearly universally nonviolent, intelligent, and articulate. Should their words cause offense, should their tactics disrupt peace of mind, the truly democratic response is not to compare them to mass murderers and Donald Trump. It is to listen.

Or as Martin Luther King Jr. said, “Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.”

wildlife groups that Yerkes aimed to use as part of its scheme: Kibale Chimpanzee Snare Removal Project.

As someone who cares about chimpanzees, Wrangham did not take kindly to his organization being used as a pawn to evade the Endangered Species Act. When the two wildlife groups found out about Yerkes’ plan, both groups refused to accept donations.

U.S. Fish and Wildlife Services had opened a comment period for the public to weigh in on Yerkes’ permit application.

Professor Wrangham posted a scathing comment in opposition to the permit: “Importantly,” wrote Wrangham, “through this proposed export, the Yerkes National Primate Research Center is attempting to avoid financial responsibility

for lifetime care of the chimpanzees it bred for use in biomedical research.”

Other conservation and primatological experts also posted comments in opposition to Yerkes’ plan.

The New England Anti-Vivisection Society, the Humane Society of the United States, the Association of Zoos and Aquariums, the European Endangered Species Programme, the International Pr imate Protection League, the International Primatological Society, Born Free Foundation, and Great Apes Survival Partnership also all came out against Yerkes’ export permit. In fact, the permit received so much opposition that FWS had to re-open its comment period.

If U.S. Fish and Wildlife Services grants Yerkes’ permit after all this,

the permit would be the first of its kind regarding the export of captive chimpanzees. Such a permit would constitute disregard for the intent and language of the Endangered Species Act, and would set a dangerous precedent. The permit would promote a “pay to play” policy, in which applicants seeking exceptions to the Endangered Species Act provide financial donations to a conservation organization, in lieu of truly complying with the law..

Hopefully, U.S. Fish and Wildlife Services will see through Yerkes’ plan just as the Harvard professor did, and will require Yerkes to send the chimpanzees to a real sanctuary.

A.J. Clayborne is a 3L.

Alene Anello is a 3L and president of the HLS Student Animal Legal Defense Fund.

February 22, 2016

Harvard Law Record

5

ANALYSIS & OPINION

Government action can lower energy costs, stop global warming Now is the time to transition to an all-electric, renewable America with a national energy policy.

By David Freeman

The Bad News The climate scientists agree that the world has at most 35 years to reduce total greenhouse gas (GHG) emissions down to near zero otherwise we risk severe climate disruption and much of the world becoming virtually uninhabitable.

70% of the GHG emissions are caused by the burning of oil and natural gas. Their use is increasing. Not going down.

The controls proposed by President Obama apply only to the 30% of GHG emitted by electric power plants.

The federal government does not even count the methane (natural gas) that leaks from gas wells and old pipes. It is 100 times as potent as carbon for decades and thus makes natural gas as bad a GHG emitter as coal.

The Good News There exists today commercially available solar and wind power technology and means of storing that renewable electricity that can replace all the existing coal, oil, natural gas and nuclear power plants by 2050.

There exists today commercially available technology to substitute

renewable electricity for oil and natural gas in transportation, heating of buildings, and for all energy uses.

If we begin the transition at once– and advance 3 percent per year–we can achieve an all-electric renewable America in time by 2050.

The United States has been a nation of action throughout its history.

We have led extraordinary initiatives both at home and abroad on a global scale. When we needed a national highway infrastructure, we built it. When we decided it was necessary to go to the moon, we created NASA and got there. When attacked by a tyranny that threatened the world, we built thousands of airplanes, tanks and ships to win World War II in 4 years, a task far more challenging than building an all-electric America in 35 years.

Constructing an all-electric American energy system does not call on Americans to make any sacrifice. On the contrary, it will result in lower cost to consumers over time as well as preventing future disasters due to climate change. The choice is clear. We are on the road to climate hell, but we have a clear choice-we can choose the road to climate heaven.

In order to make real progress we

will need to enact laws that mandate the steady substitution of renewable electricity for the fuels we are now using. Laws are the way a civilized society solves problems that can’t be solved individually. It is the very reason we have a government. Fossil fuels and nuclear power are poison and they must be outlawed gradually but steadily over the next 35 years as a survival issue more threatening than even World War II. The time is at hand to enact a national energy policy that will put forth a combination of requirements and incentives to achieve both a low-cost energy supply and avoid climate catastrophe. The policy must be comprehensive and long-term so that significant progress is made each year over a thirty- to thirtyfive-year period. The proposals now being debated won’t solve the problem and keep the U.S. in accord with the 2 degrees Celsius temperature target. To be effective, the policy must lay out a clear path to an all-renewable all-electric energy system, as follows: 1. Outlaw the building of new fossil-fueled electric power plants.

2. Order a steady reduction each year in GHG emissions.

3. Require every electric utility—both publicly and privately owned—to meet the fol low i ng r e q u i r eme nt s: 30% GHG-free generation by 2025

60% GHG-free generation by 2035 100% GHG-free generation by 2050.

4. Transform the transportation sector by 2050.

5. Create a Federal Green Bank, which provides loan guarantees (not loans) for the financing of railroad electrification and for the construction of renewable electricity power plants that have long-term contracts with electric distribution utilities that are ratepayer-funded.

6. Institute tax credits for zero-GHG emission consumer products.

These proposals are designed to inject into the climate debate proposals commensurate with the danger we face both from inaction and from adopting measures that in fact just contribute to the emissions problem.

Our hope is that a better-informed public will demand the leadership that presently is so woefully lacking.

A prevailing opinion is that if we could enact a tax on carbon the problem would be solved. But would it really? Even a huge tax on carbon wouldn’t assure that all our power plants would be renewable and our cars, homes and other transportation would make the necessary transformation.

The only significant greenhouse gas reductions that have occurred have been when state laws required the electric utilities to increase the

Fossil fuels and nuclear power are ... a survival issue more threatening than even World War II. percent of their power generated by renewable energy and when we required more miles per gallon from our cars. These advances were not made voluntarily by private industry; they required mandates.

That is why we spell out an array of mandates and incentives that can achieve the emission reductions the scientists say we must.

Mandates have been enacted at the state level and we hope our book inspires the “Green States” to consider expanding mandates to those that we propose. And expectantly, in enough time, the federal government and governments throughout the world will follow.

David Freeman is a former director of the Tennessee Valley Authority and former general manager of the Los Angeles Department of Water and Power and the New York Power Authority.

Assault weapons protected by 2nd Amendment, Prof. Feldman wrong

By James A. D’Cruz ’17

Professor Noah Feldman, in a recent article titled “What Would Founders Say About Assault Weapons?” published on Bloomberg, purported that the Supreme Court, if given the opportunity, would rule that the Second Amendment does not protect assault weapons. The 4th Circuit recently released an opinion that will likely lead to a circuit split with the 2nd Circuit on the issue. The 4th Circuit’s decision requires the trial court to apply strict scrutiny to the issue of whether an assault weapons ban is constitutionally permitted.

In his article, Feldman suggests that intermediate scrutiny on the issue is almost self-assured by asserting that although the AR-15 and other “assault weapons” are “common,” only those weapons that are useful for both militia use and self-defense are constitutionally protected by United States v. Miller and District of Columbia v. Heller.

Without this test, Feldman contends that the Supreme Court would either have to allow citizens to possess rocket-propelled grenades (RPGs), vehicle-mounted machine guns, and armed drones, or it would have to limit the Second Amendment to weapons that were in existence when the Amendment was written— an unconvincing stance.

The Second Amendment has proven to be one of the most difficult Amendments in the Bill of Rights to interpret, likely because of strong political lobbying groups on both sides pushing their agenda. However, political bias aside, if a court wants to follow the logic of previous precedents,

it will, in all likelihood, hold that “assault weapons” are just as protected by the Second Amendment as any other firearm not under the purview of the National Firearms Act of 1934.

First, there are legitimate and noteworthy differences between an “assault weapon” and an “assault rifle.” Although Feldman uses these terms interchangeably throughout his article, these two categories of firearms are vastly different.

An “assault rifle” is a firearm used by the military and police departments which has the capability to fire in the modes of semi-automatic, burst, or automatic. An “assault weapon,” on the other hand, is a term devised by Senator Dianne Feinstein when she wrote the assault weapons ban portion of the Violent Crime Control and Law Enforcement Act of 1994.

The Act defined “assault weapons” as “a semiautomatic rifle that has an ability to accept a detachable magazine and has at least” two other features that were listed, including a pistol grip or a bayonet lug. This latter definition was molded and manipulated after the assault weapons ban expired to include less of these features, depending on the state legislature. For instance, Maryland’s now defunct assault weapons ban only required one additional feature on a long gun to be considered an “assault weapon.”

Under this law, anyone who attaches a flash suppressor on an otherwise legal hunting rifle, is in possession of a banned “assault weapon.” In the end, an “assault weapon” is still operationally equivalent to any other non-conspicuous semi-automatic rifle that fires only once with each pull of the trigger.

Just as a Lamborghini body on a Toyota Prius is still just a Prius, so too is an M16 body on a hunting rifle not covered under an assault weapons ban still just a rifle.

Although the military has begun to depart from promoting soldiers’ use of the burst and automatic features of their combat rifles, these firearms are not, despite their similar design, the same firearms that one would see at an American shooting range.

Although an American citizen could own an “assault rifle,” such machine guns come with a price tag well into the tens of thousands of dollars and are subject to a plethora of regulations under the National Firearms Act of 1934. Additionally, converting the modern AR-15 to function as an automatic firearm requires a skilled gunsmith, expert drilling and filing, and the acquisition of parts that simply are not available on the civilian market without paying the hefty price tag and dealing with the same regulations. The point is: these are not the “exceptionally lethal weapons of war” that Judge Robert King claimed.

Feldman rightly highlights that the Court in United States v. Miller ruled that the Second Amendment fully protects those firearms that a citizen would bring with them should the militia be called into service. Additionally, the Court clarified that individual citizens comprise said militia. To qualify for protection, according to Miller, a firearm must bear some “reasonable relationship to the preservation or efficiency of a well regulated militia.”

From this test, the Court ruled that short-barreled shotguns (shotguns with a barrel of less than 18”) were not subject to the full protections

of the Amendment, and, as such, could be regulated by the National Firearms Act of 1934.

Next, Feldman points to District of Columbia v. Heller which ruled that there is an individual right to own firearms and that pistols are among the protected class of firearms which enjoy the full benefit of the Second Amendment. Heller additionally sets forth a test to determine if a firearm falls within the protected category. This evaluation simply requires that the firearm “must be in common use at the time.” Scalia did not use Feldman’s narrow understanding of the legitimate uses of firearms, instead ruling that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Feldman nonetheless argues that the proper conception of whether a firearm should be protected is to determine if the firearm can be used for both self-defense and militia use.

However, this is not what the case law says. Self-defense is not the only, although it is the strongest, right that the Second Amendment aims to protect. There are, as Scalia claimed, other lawful purposes. Additionally, Scalia very clearly divorced the notion of the firearm needing to be connected to possible militia use as was required by Miller.

However, even if militia service were connected, it makes sense that “assault weapons” would be the preferred firearms to take if called into service. The fact that these firearms are not often used in self-defense does not mean that they are not purchased with that intention in mind.

Rather the 4th Circuit pointed to the ruling in Fyok v. Sunnyvale stating that “the fact that few people will require a particular firearm to effectively defend themselves should be celebrated and not seen as a reason to except [that firearm] from Second Amendment protection.” Judge Manion in his dissent of Friedman v. Highland Park added that self-defense is meaningless “if it does not include the right to choose the most effective means of defending oneself.”

With all of this in mind, the only test for whether “assault weapons” are a protected class of firearms under the Second Amendment is if the firearm is in common use at the time. As Feldman acknowledged, these firearms meet that standard due to the number of these types of rifles and shotguns that are privately owned in the United States.

As such, ownership of “assault weapons” should be afforded the full privileges of protection under the Second Amendment. This leads to the inevitable conclusion that because “assault weapons” are protected under the Second Amendment, any legislative enactment that seeks to restrict or ban the right to own these firearms must undergo strict scrutiny.

However, as Scalia notes, his ruling in Heller does not grant carte blanche to gun owners to carry whatever weapon for whatever purpose.

Regulations on when one can carry a firearm in public do not necessarily deprive one of their rights under the Amendment, and, as such, those legislative enactments may be subjected to intermediate scrutiny.

James D’Cruz is a 2L.

Antitrust law needs to be reinvigorated for today’s new Gilded Age Antitrust continued from page 1 It was a time, writes historian H.W. Brands, when “capitalism threatened to eclipse democracy.”

Since the large corporations effectively overwhelmed state governments, in 1890 Congress federalized antitrust by enacting the Sherman Act. Congress hoped that armed with this new legislation, the Department of Justice and the federal courts would effectively restrain both the growth and predatory practices of corporate giants.

Those hopes appeared to be dashed soon. One company purchased all of the sugar refineries in the nation save one, thereby amassing a 98% share of sugar refining.

The United States sued to force this great sugar “trust” – as the huge companies created through mergers and acquisitions were then called – to disgorge the last four companies it had devoured. But the United States lost. The Supreme Court held that the Sherman Act could not apply to manufacturing because that was a purely intrastate activity.

The sugar trust decision was a green light for more mergers. Before long more than two hundred trusts dominated a host of industries,

including oil, coal, railroads, farm equipment, beef, and whiskey, to name a few. The largest was the steel trust. In 1901, J.P. Morgan, John D. Rockefeller, and other moguls formed United States Steel Corporation, which was a combination of 180 previously-independent firms.

In the election of 1912, the two leading presidential candidates engaged in an historic debate about antitrust. Theodore Roosevelt, running on the Progressive Party ticket, argued that antitrust law should curb abuses practiced by large corporations but should not curb corporate size. The nation needed big companies to do big things, Roosevelt believed. He wanted a national government that was strong enough to rigorously regulate big business.

Woodrow Wilson, the candidate for the Democratic Party, argued that if corporate size were not constrained, big business would wind up controlling government. “Don’t you see that they must capture government, in order not to be restrained too much by it?” Wilson asked.

Wilson won in a landslide.

Two years later, with the help of then Boston lawyer Louis D. Brandeis, Wilson persuaded Congress to strengthen the antitrust

laws by enacting the Clayton and the Federal Trade Commission Acts.

Congress strengthened the antitrust laws again in 1950 with the Celler-Kefauver Act. “Shall we permit the economy of the country to gravitate into the hands of a few corporations?” asked Senator Estes Kefauver. And for a while, antitrust law was viewed as a tool for constraining corporate size and power.

But beginning in the 1970s a group known as the Chicago School transformed thinking about antitrust. Adherents of the Chicago School believed that antitrust should be exclusively concerned with consumer welfare. No matter how large a corporation might be, it should be permitted to merge with or acquire other companies as long as the new entity would not have the market power to raise prices and reduce total industry output (which are two sides of the same coin). According to Chicago School thinking, broader concerns with corporate size and industry consolidation are too subjective and value-laden, and thus illegitimate.

The Chicago School vision prevailed. Today there is a general consensus that antitrust should not be concerned that:

• Bigger is more powerful, and corporate behemoths use their political power to obtain government subsidies and favors; • Local communities are diminished when local businesses are vacuumed up by a corporations headquartered far away; • The freedom and welfare of workers are diminished when mergers reduce the number and diversity of potential employers; • Innovation is reduced when large companies do not have to engage in research and development themselves but can instead simply acquire other firms that develop new products; and • Economists’ predictions about whether merged companies will have sufficient market power to raise prices and reduce total production are often wrong.

We are today living in a new Gilded Age. The reasons for this are many, but surely one (mostly overlooked) reason is the rapidly increasing corporate size and industry consolidation as a result of mergers and acquisitions. In 1999, there were $1.475 trillion in mergers in acquisitions. It was a stunning number – triple that of just three years earlier.

But 2015 set a new record with $4.7

It is time revive and modernize original visions of antitrust. trillion in announced mergers and acquisitions.

It is one thing when a corporation grows large by producing better products or doing so more efficiently than its rivals; but it quite different when companies become giants by swallowing other companies. It is, therefore, time to overthrow the current consensus and to revive and modernize original visions of antitrust.

So here is something every Harvard law student should know: How we envision antitrust law has a profound effect on how America is organized. Students who are concerned about consolidated commercial power and its ramifications on our nation’s economy, politics, and society should take an interest in antitrust law – and consider joining an important battle.

Carl T. Bogus is a professor of law at Roger Williams University.

6

Harvard Law Record

February 22, 2016

OPINION

The self-defeating argument for Hillary Clinton

By Annaleigh Curtis ’16

I have seen a certain type of argument made recently by supporters of Hillary Clinton. The argument goes something like this: because of aggressive, ambient sexism in general, and Sec. Clinton’s decades of high-profile public life and service in particular, she has faced extreme challenges that no other mainstream candidate (and particularly not Bernie Sanders) has faced.

No woman, it is argued, could be an unkempt, ranting socialist from Vermont and have the level of success that Sen Sanders has had. And on the flip side, anyone with the sort of experience Sec. Clinton has, who has faced the unfair sexist barrage she has, would have had to have made similar political compromises. Thus, it goes, to fault Sec. Clinton for her ideological impurity, or for unpopular decisions, or for supporting regressive policies is to participate in a sexist system.

The charitable interpretation of this charge is that Sec. Clinton’s perceived faults qua progressive candidate for president are themselves the direct result of a sexist political system that constrains women in a way that it does not constrain men. Perhaps it is taking

the argument too far to impose on its proponent a further step that, as a result, supporting Clinton is some kind of affirmative feminist act, but I have gotten that sense from some recitations of the argument.

As a feminist who does not support Sec. Clinton (or any other major candidate), I have been unsure about the best way to engage this argument.

On one hand, it is beyond dispute that she has faced years of intense sexism that few other major political candidates have. It is also quite plausible that Sec. Clinton has been shaped and constrained by this fact in a way that has likely altered the policies she has endorsed. It is very likely that she would not have survived in politics at the levels she has otherwise.I have seen others counter that, while unfortunate, this history of sexism is largely irrelevant now, when faced with a choice among candidates, some of whom have policy positions closer to one’s own.

While I think this response is a good beginning, I believe there is a more serious problem with the argument: it is self-defeating.

The thrust of the argument is that an intensely sexist political process

The right response to a broken system is not to lean in, but to fight back. has molded and shaped a candidate, yet the way to strike a blow against this system is to vote for the candidate it created. Maybe I have missed some step in the argument that makes this make sense. As it stands, though, it seems to me that this particular argument can only serve to further undermine the feminist case for Sec. Clinton.

It is true that to get where she’s gotten she had to make certain decisions about the kind of politician she would be. Yet, for me, and others who think this political system is deeply broken, it is no selling point that she has found a way to succeed within its bounds. If institutions measure value in sexist or anti-feminist ways, then any candidate who rises to the top in the usual way will have done so in virtue of their having met some sexist or anti-feminist criteria. This fact makes it increasingly

unlikely that major candidates can lay claim to robust feminist credentials.

Perhaps this response is unsatisfying given that, broken or not, this is the system we have, and a series of choices has to be made in the coming months about who will be the next President.

But make no mistake: this move is a concession to that system, not subversive of it.

If Elizabeth Warren were running against Sec. Clinton instead of, or in addition to, Sen. Sanders, I wonder how this would change the political rhetoric around gender during this caucus and primary season. It would make less sense, then, to claim that a woman can only succeed in politics by compromising. Surely Sen. Warren’s meteoric rise in popularity, even while maintaining a significant degree of ideological integrity, is due in part to her later entrance into politics than Sec. Clinton.

Yet even with this later entrance, she has faced no small amount of sexism both within and outside of her political career, and she has been an unrelenting voice on issues similar to the ones Sen. Sanders is now gaining national support by highlighting. And why do I not see the same supporters of Sec.

Does the Shield debate really have two sides?

By Bianca Tylek ’16

Over the past few months, many have accused student activists from Capetown to Cambridge of engaging in polemic behavior and creating hostile campus environments.

Critics have argued that, in doing so, activists are killing productive discourse, ignoring the implications of the sound of silence, and exploiting terms like “white privilege.”

In a conversation last Monday, Professor Nesson described the recent debate about changing the HLS shield given its ties to slavery as an opportunity to distinguish ourselves from polemic student protests—we could set the standard for a dialogic process and protect its legitimacy.

I pushed back on this general characterization of student activists and those at HLS in particular, explaining the many ways in which they have tried to intellectually engage both the undecided and opposition (e.g. fireside chats). With that said, I encouraged him to consider whether we’d be discussing the shield at all without some student incitement.

I also rejected the notion that the existing process outlined by the HLS shield committee, charged with making a recommendation on the shield to the Harvard Corporation, was insufficient. After all, the committee, composed of faculty, alumni, staff, and students, invited all members of the HLS community to submit their opinions about the shield via email and hosted two open community forums to further discuss them.

Nevertheless, I had to admit that I too had heard some students claim

that those with views opposing the Royall Must Fall movement to change the shield had felt “brow-beaten.”

Thus, perhaps strengthening the dialogic process would protect the legitimacy of a recommendation to change the shield.

To that end, we organized a few students to host a series of anonymous online conversations in which participants could freely share opinions without the fear of personal retort. We agreed to launch the series with a debate between two pairs of professors, one in support of changing the shield and the other against it.

We quickly secured the co-sponsorship of the Black Law Students Association (BLSA), the Federalist Society (FedSoc), and the American Constitutional Society (ACS). While we did not look to attribute any particular perspective to each organization, it would be naïve for us not to have acknowledged that BLSA and ACS had both signed the Royall Must Fall petition while some of FedSoc’s members were among the loudest voices against the shield change.

Nevertheless, we amicably worked together to scan the faculty for professors willing to argue in our proposed debate, prioritizing the less active voices.

By Wednesday, we had two professors committed to arguing for changing the shield—Professors Ron Sullivan and Nancy Gertner.

Consistent with our instinct, both professors insisted that we identify sincere opponents (not those simply playing devil’s advocate) in order to effectively represent students with those perspectives. Unfortunately,

Putting the world on trial

By Randall Robinson ’70

Billions of people living in the United States and countries around the world have legal rights their governments may not likely have told them that they have.

Following World War ll and the filmed horrors of Adolf Hitler’s Nazi death camps, a new United Nations, meeting in San Francisco in the spring of 1945, moved with the Universal Declaration of Human Rights to begin putting in place a new body of binding international human rights laws. These new measures, evinced in comprehensive multilateral treaties and protocols, provided basic human rights for the first time in human history to billions of people living in countries which ratified and pledged to comply with the new laws.

Evolving from the work of the new

laws’ framers came further a new notion of sovereignty – “popular sovereignty” – a sovereignty that derives from the vested individual and not, as before, singularly from the state.

Before World War ll, what a country did to its own citizens behind its own borders was a country’s own business. After the war, this would no longer be the case.

The hundreds of nations that would become parties to the new international treaties and protocols would no longer be able to perniciously inveigh against their own citizens with complete impunity as before.

Systematically, between 1948 and 2006, the United Nations family of nations crafted and ratified a series of robustly binding comprehensive multilateral human rights treaties with the vast majority of the world’s nations signing on - the Genocide Convention

LETTER TO THE EDITOR HLS must solve its own problems before it can solve the world’s problems.

To the editor: When the pressure drops in the cabin of an airplane, we are instructed to first put our own masks before reaching out to help those next to us. The lesson we are supposed to learn from this is simple: If we want to help others we must

neither Professor Sullivan nor Gertner could identify a colleague who satisfied this requirement, but each suggested polling conservative professors likely to defend tradition.

We reached out to Professor Charles Fried, the faculty sponsor of FedSoc, though he had openly shared his support for changing the shield in a prior HLS shield committee forum.

What we intended to be a short meeting turned into more than an hourlong debate about the broader issues of race at HLS— the “manufactured” problem outlined by student activists and their “outrageous” demands. He was frankly not interested in discussing the shield, seeing it as an incredibly inconsequential “logo” developed by a public relations professional with no meaningful connection to the institution. Accordingly, if it had come to offend students, he could not find a rational argument against changing it.

The FedSoc board member present made an effort to explain that while he presumed the majority of its membership was indifferent, there were members who adamantly believed it should not change and surely they had some valid arguments. Professor Fried nearly leaped over the table, screaming “WHO?!” He vehemently insisted that FedSoc not engage in such a ridiculous conversation, stating “we’re not in the business of defending preposterous positions.”

Professor Fried continued by explaining that neither BLSA nor ACS should define the position that FedSoc takes on an issue and that they should not assume the organization always stands in opposition.

He joked that as organizations we

should not “stereotype” each either.

Known for a lack of political correctness, Professor Fried went as far as to say that if we wanted a co-sponsor to defend the shield, we should petition the Office of Mental Health—make what inferences you will.

While the FedSoc board member continued to push back, Professor Fried went on to say that he would rather FedSoc write a letter in support of changing the shield than it make a mockery of itself trying to defend it. He then recited the contents of his imaginary letter. Professor Fried concluded by saying that he could not identify any professors who would defend the shield except those who would debate even a “lunch menu.”

As we walked out, the FedSoc board member present said he would need to raise our conversation with leadership to decide whether the organization wanted to go forward with the co-sponsorship. I explained that while I understood its members might have a range of perspectives on this matter, if FedSoc pulled out as a result of Professor Fried’s guidance, it would suggest that the organization was adopting his opinion that the shield should change. Within the hour, FedSoc withdrew their co-sponsorship.

Yet, we didn’t end our efforts there.

Looking for another neutralizing organization, we pitched the event to the Student Government. President Kyle Strickland agreed to sponsor the debate if we could indeed find professors who would defend keeping the existing shield. With his support, we continued our search.

One conversation after another

(1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic Social and Cultural Rights (1966), a treaty to combat racism in 1966, a treaty to stop discrimination against women in 1979, a convention against torture in in 1984, a treaty to protect the rights of children in 1989 - 23 major United Nations conventions in all.

However, virtually no nation – rich or poor, big or small – wanted intrusive outside supervision or enforcement of the new laws. It was a counter-punch for traditional sovereignty.

The countries would implement the laws themselves.

But have they done so? Have they honored their pledge? Kept their word?

The countries that ratified the new international statutes agreed to respect the civil, political, economic, social and cultural rights of individual citizens living within their borders and throughout the world.

I created a public television

program, World on Trial, to assemble many of the world’s best lawyers, judges, and witnesses to test by jury-trial the extent to which ratifying nations have honored their treaty obligations and protected the human rights of their citizens and non-citizens living under their jurisdiction.

The ongoing series of trials presents both sides of sharply contested human rights issues in the context of courtroom trials conducted before multinational juries. Remote juries sitting at distinguished universities throughout the world view the proceedings, deliberate and render verdicts. Professional commentators drawn from every corner of the world remark the dissimilarity between verdicts reached, and the varying and, often, conflicting cultural prisms through which the proceedings are viewed, sifted and refracted.

The pilot episode of World on Trial examined the legality of France’s “headscarf” law. Episode Two examined the

our cellphones contain metals that were mined by slaves in the first ensure that we are in a safe Democratic Republic of the Congo. space.

Before we can address any of The world is in turmoil. those issues we must first put Currently today there are an esti- on our own mask, so that we can mated 20,900,000 people living breathe easy in a safe space. We in slavery, over 5,000,000 more must create a school where all can than the amount of slaves that go to class without worrying about crossed the Atlantic Ocean. 5% other people making judgments of the world’s cotton is picked by about our character simply beslaves in Uzbekistan, Nestlé uses cause of the way we look. We must child slaves to make its candy remove all symbols of past slavery bars, and more likely than not all at our school, so that we once and

for all can learn in a comfortable environment.

While it is true that fighting for slaves around the world and fighting for our own racial justice are not mutually exclusive, we are human beings with limited time and resources. Therefore, it is important for us to check our priorities and focus on the issues that affect us personally.

Just imagine what our campus will be like once we have solved these problems at our prestigious

Clinton who advance this argument calling for support of Jill Stein, the Green Party candidate for President?

Neither Sen. Warren nor Dr. Stein are as well-established in politics as Sen. Clinton, and I am not claiming that either is a perfect candidate all things considered, but they provide alternative narratives for women in politics that reject the idea that there is only one way to play, which is to capitulate to the system. We should be encouraging the elevation of these narratives rather than resigning ourselves to capitulation as the norm.

We can demand more of our candidates, political system, media, and each other. By all means challenge unfair sexist, racist, ableist, and ageist criticism in this election and elsewhere. But don’t stop there. We have the political system we deserve right now because we have refused to require it to improve. There are many ways to go about creating social change, but rewarding the people who play a rigged game well is not a way to make the game fair. The right response to a broken system is not to lean in, but to fight back.

Annaleigh Curtis is a 3L.

with people across the political spectrum and it started to become clear that we weren’t going to find even one professor interested in sincerely defending the HLS shield, let alone two.

These professors weren’t scared to share an unpopular opinion; instead, the overwhelming majority agreed that it should change for a variety of reasons. Only one declined to share a perspective given her position on the HLS shield committee.

By Friday, we were forced to call off the debate. We had given it a fair shot. Now, we were left questioning the underlying hypothesis that antagonistic student activists were silencing opposing voices through a polemic rather than dialogic process.

Are students opposing the shield change in fact being condemned or simply outnumbered? Have student activists just amassed more social capital? Do opponents find themselves in the uncomfortable position of being the short stack at the table?

Are they reluctant to go all in on this hand? Have they folded, saving what they have left for the next one? Dealt what we were, would they have played any differently?

Professor Noah Feldman explained that he’s confident that anyone who might want to defend the status quo at HLS will have the courage and ability to do so. He questioned the notion that student activists opposed to the shield have a duty to bend over backwards and invite the other side to a debate, thus potentially strengthening and encouraging a perspective with which they disagree. “Let them organize themselves,” he said. “They’re perfectly capable of it.”

Bianca Tylek is a 3L.

legality under international human rights law of American drone-use in Yemen. Among a list of issues being considered for future trials are: • South Korea’s detention and expulsion of Falun Gong political asylum seekers.

• Nigeria’s despoilment of the Niger River Delta region and the inequitable distribution of oil wealth.

• Ireland’s discriminatory policy towards non-Catholic children applying for school entry.

• Paraguay’s destruction of the Gran Chaco forest.

• Australia’s private prisons.

• The United States’ disproportionate execution of blacks and Hispanics.

Education is the critically essential tool of social progress. World on Trial is a global human rights education project.

Randall Robinson is a human rights professor at Penn State Law School.

school. After we have burned all of our shirts with the old shield and leave the COOP with our newly purchased cotton products.

Then we will be able to stop at the Office of Diversity and Inclusion to pick up some free Nestlé candy.

Finally, as we attend our Critical Race Theory class we will be able to pull out our cell phones and tweet, “Look how far we have come. #Freeatlast”.

Kurt Krieger is a 3L.