The Harvard Law Record: 2015-2016, Issue 9

Record The Harvard Law

TUESDAY, MARCH 10, 2016

INDEPENDENT AT HARVARD LAW SCHOOL SINCE 1946

VOLUME 4, ISSUE 9

IN THIS ISSUE:

Jim An ’18 writes that even law students are sometimes bad speakers and listeners, p. 3 Namita Dhawan ’18 shows why everyone should care about animal rights, p. 4

Michael Shammas ’16 encourages conservatives who feel censored to speak, p. 4 Andrew K. Gershenfeld says that the rise of drones means we need to rethink privacy law, p. 6

Jordan Raymond ’16 is sleeping in Belinda Hall because it's time for change, p. 8 Steve Salcedo '16 says that Reclaim protesters went too far when they protested Dean Minow, p. 8

Poll on Protestors Shows Divided HLS The least Majority of students want new seal, oppose most other changes

By Nic Mayne ’18

A recent Harvard Law Record op-ed questioned if the shield conversation really has two sides. This week, we polled members of the HLS community to find out.

We fashioned the poll questions after the list of “Collective Demands” posted on the Reclaim Harvard Law web page. The poll required an HLS login and limited everyone to a single response. The Harvard Law Record unfortunately does not have the budget to employ a statistician, but we endeavored to make a reasonably fair poll that would give some insight into where members of the community stand on various Reclaim HLS related issues, and provide a space for members of the community to share their

thoughts anonymously. Nonetheless, the poll is, of course, not a scientific one.

We received 517 individual responses. In addition, nearly 100 responses included expanded comments. Some of these comments are highlighted in this article, and all are published online.

We appreciate all of those who took the time to thoughtfully respond and to share their feelings on the shield, Reclaim HLS, Belinda Hall and more.

the shield further highlighted the diversity of views. One student wrote: “I am not a student of color, but agree with the decision to change the seal.

What are the arguments against replacing it? Is it that HLS letterhead is too costly to replace? I think a majority of HLS alumni would be hard-pressed to remember what the seal even looks like without the current controversy…”

Others recognized the reason many desire change, but disagreed with replacing the current shield. “Regarding the seal, I think it has multiple meanings, but the one related to slavery should be explained and acknowledged, not simply erased.” Another wrote: “The seal does reflect a legacy of slavery, just like Pound Hall reflects

By now, most of you have heard of Critical Race Theory. Its narrative, ideology, and even vocabulary have become a familiar refrain. “Systemic oppression,” “institutional racism,” and “white privilege” have become common topics of debate. At Harvard Law, a group of protesters calls for $5 million and three tenure-track faculty to establish a program on Critical Race Theory at HLS. But,

Blacks could pave victory for Trump Trump can capitalize against a Democratic party that has ignored Black priorities.

By Amos N. Jones ’06

Hillary Clinton’s “firewall” could morph into Donald Trump’s safety valve if the two face off in November’s general election, in spite of what happened over white nationalist David Duke’s endorsement of the New York businessman over the weekend.

This startling projection flies in the face of conventional w isdom, which puts black voters almost entirely with the Democrats.

Nevertheless, it is grounded in data from this cycle’s most reliable polls and qualitative evidence adduced from careful reporting and personal interactions.

Three trends point toward the iconoclastic billionaire springing yet another surprise: black-voter proportions in several key states, black self-reporting in a September poll that showed Trump getting 25 percent of the black vote against Clinton plus a Quinnipiac University survey released just last week showing him at 12 percent, and waning interest in Democratic candidates as evident in relatively low Black turnout in South Carolina for last weekend’s primary.

The third trend, I have found, implicates a simmering anger not unlike that experienced across the white electorate in recent years. As a black employment-discrimination lawyer, law professor, and ordained Baptist deacon who interacts with all kinds of black people nationwide – and, who, like almost every other black person in America, voted twice

Other 3.9%

Do you support the creation of a new official HLS seal?

This question was one of just two that was favored by over 50% of those who responded.

Anonymous comments regarding

beneath the demands, there remains a lack of clarity about what Critical Race Theory actually means.

Critical Race Theory Calls for Permanent, Codified Racial Preferences At the heart of Critical Race Theory lies the rejection of colorblind meritocracy. “Formal equality overlooks structural disadvantages and requires mere nondiscrimination or

“equal treatment.” Instead, Critical Race Theory calls for “aggressive, color conscious efforts to change the way things are.” It contemplates, “race-conscious decision making as a routine, non-deviant mode, a more or less permanent norm” to be used in distributing positions of wealth, prestige, and power.

Critical Race Theorists wish to move beyond the narrow scope of current American affirmative action

OPINION

for President Barack Obama ’91 – I hear and address the range of African American rage all the time. In fact, I have never seen our angst so high.

Black Democratic drift In 2008, Obama took 95 percent of black votes nationally and 93 percent in 2012. However, a 2012 nationwide Gallup poll found that only 64 percent of U.S. blacks identified as registered Democrats. A significant 29 percent identified as Independent/ Other/Don’t know, and five percent as registered Republicans. Now flash forward four years. In the Quinnipiac poll from August, 21 percent of blacks refused to state an “unfavorable” view of Trump.

With his focus on black unemployment and underemployment at the fore, Trump could exploit cracks in the presumed Democratic stronghold on the black vote.

Blacks are tired of being stuck on the bottom rungs of the economic ladder, unemployed or underemployed, and frequently just an afterthought as emerging matters such as gay rights come to dominate the nation’s “diversity” discourse.

T he y r e ga r d pro-homosexuality, which became a cornerstone of ideological orthodoxy when same-sex marriage was added to the Democratic platform amid the party’s Charlotte, N.C., convention in 2012, as a serious issue of civil liberties calling for moderate updating, rather than a bona fide civil rights cause mandating a moral revolution.

Lately, blacks are facing this particular challenge to their very world view even in their mainline Protestant denominations. Here, they are being nakedly dismissed as oppressive bigots for refusing to abandon ancient family values common among 99 percent of the Christian church globally simply because the Supreme Court now requires every state to license samesex marriages (despite preemptively enacted state constitutional amendments and statutes to the contrary in nearly 40 states). This blind-siding attack from previously allied left-leaning elites in their churches

Black voters clearly agree that “black lives matter,” but might the problem of black jobs matter more at this point?

ANALYSIS

Trump continued on page 3

on con law challenges are unjustified.

By Richard A. Epstein

One of the great achievements of the late Justice Antonin Scalia lies in his heartfelt insistence that key terms of the U.S. Constitution should be interpreted in accordance with their original public meaning.

Most people think that this general invocation leads necessarily to a conservative jurisprudence on the major issues of the day. But nowhere is that connection more decisively repudiated than on the thorny question of who has standing to bring

No 40.5%

Yes 55.6%

a legacy of vehement anti-Semitism.

If we replace the seal and attempt to wash away the school’s history, it does nothing but sweep it under the rug.”

Poll continued on page 5

Critical Race Theory is ... the latest in a sad line of theoretical justifications for legally-codified racism. policies, “which strangles affirmative action principles by protecting the property interest of whiteness.”

Barlow continued on page 2

suit in federal courts under Article III. In this instance, the original public meaning of the relevant language of the Constitution calls for a far broader level of access to bring constitutional challenges in federal courts than is available under current law.

Like a good originalist, it is necessary to start with the key text of Article III, Section 2, which does not mince words when it states: “The judicial power shall extend to all cases, in law and equity,” after which it gives an enumeration of the types of cases covered. The key is figuring out what disputes are caught in this section’s sweeping language.

Originalism implores that we

Recently at Harvard Law School, there have been many discussions about marginalized populations and the role of the law in protecting the defenseless and disadvantaged. Notably absent from this discussion is that there remains a class of human beings who are still excluded from the fundamental rights guaranteed to all persons by the United States Constitution.

Newborn babies aren’t self-aware.

Should it be legal to kill them?

I am referring, of course, to the unborn. Since 1973, there have been approximately 55 million abortions performed in the United States. In many states, including my home state of Colorado, abortion is legal through all nine months of pregnancy, up until the day of birth. In fact, the United States is less protective of unborn life than nearly every other country in the world — ranking alongside China, North Korea, and Vietnam.

As we seek to form and shape the law in a direction that is increasingly protective of basic human rights, consider the case for consistently defending the right to life, before and after birth. For without the right to life, all other rights are meaningless.

OPINION

influential approach to interpreting the law, popularizing originalism and textualism. Professor Sunstein called him the most brilliant administrative lawyer to ever serve on the Court, and alongside Justices Holmes and Jackson, one of the greatest writers, too. Professor Fried remarked that generations to come will encounter his legacy through his memorable and thoughtful opinions.

Professor Vermuele commented that the late Justice’s ruling virtue was courage. “His brilliance is not just a function of IQ, but stemmed from a courage to follow a line of reasoning wherever it led,” he said. As a clerk for Justice Scalia, Professor Lessig recalled watching his boss struggle in his chambers between what he knew he should do based on his principles and what Scalia continued on page 7

Craddock continued on page 2

Article III continued on page 5

Scalia’s Death Draws Mixed HLS Reactions On Wednesday, February 24, Harvard Law School hosted a panel featuring Dean Martha Minow and Professors Frank Michelman, Larry Lessig, Richard Lazarus, Adrian Vermuele, John Manning, Cass Sunstein, and Charles Fried. They represent a wide range of political ideologies and legal interests. But there is one thing they all share: a deep respect for Justice Scalia’s contributions to the legal community.

Each of the panelists had a connection to the Justice — some worked for him, others argued before him, and the moderator, Professor Michelman, shared an office at the Harvard Law Review’s Gannett House during their law school careers.

Justice Scalia will perhaps be most remembered for his

By Josh Craddock ’18

The Basic Case for Life The pro-life position can be encapsulated in a brief logical syllogism: 1. The unborn entity — from the moment of conception — is a member of the human community.

2. It is prima facie morally wrong to kill any innocent member of that community.

3. Every successful abortion kills an innocent unborn entity, who is a full-fledged member of the human community.

4. Therefore, every successful abortion is prima facie morally wrong.

If the unborn are members of the human community, then intentionally killing an unborn entity through abortion is a grave moral wrong. That’s using an intrinsically valuable human life as a disposable means to an end. On the other hand, if the unborn are not members of the human family, abortion is no morally different from having a wisdom tooth removed. The only question that matters is whether the unborn are members of the human family.

That’s why slogans about “privacy” and “choice” miss the boat.

Only a monster would advocate making it legal to kill two-yearolds in the name of choice. No reasonable individual could contend that, as long as the toddler-killing occurs in the privacy of one’s doctor’s office, a penumbra of Constitutional “rights” should protect the act. At this point you might say, “These comparisons are totally unfair. Killing a twoyear-old is morally different from killing a fetus.” But that’s the whole debate, isn’t it? Are the unborn, like toddlers, members of the human family?

Although Justice Blackmun infamously stated that the Supreme

OPINION

By Lindsay Church ’16

Fetuses should be by any measure.

Article III: Return to the Original Meaning Standing restrictions

safe space

considered human

OPINION

Critical race theory is racism justified

By Bill Barlow ’16

Do you support the creation of a new official HLS seal?

NEWS

2

Harvard Law Record

March 10, 2016

OPINION

Barlow: Critical race theory contrary to reason, liberalism Barlow continued from page 1 Instead, Critical Race Theorists argue for a “conception of affirmative action where existing distributions of property will be modified by rectifying unjust loss and inequality.” “Property rights will then be respected, but they will not be absolute; rather, they will be considered against a societal requirement for affirmative action.”

“In essence this conception of affirmative action is moving towards reallocation of power.” Race-conscious decision making is necessary to “deliberately structure institutions so that communities and social classes share wealth and power” where race is seen as “a rough but adequate proxy for connection with a subordinated community.”

Meanwhile, Critical Race Theory treats the idea of meritocracy — or the idea, in this context, that the law can and should treat all equally regardless of the color of their skin — as “a vehicle for self-interest, power, and privilege” This “myth of meritocracy” is merely a tool to perpetuate the existing power structures that are based on white supremacy and white privilege. Thus, the myth of meritocracy marginalizes people of color.

The only alternative, then, is to use racial preferences to “delegitimize

the property interest of whiteness — to dismantle the actual and expected privilege that has attended ‘white’ skin.”

Critical Race Theory Rejects Liberalism Along with meritocracy, Critical Race Theory “rejects the traditions of liberalism.” As described by Critical Race theorist Richard Delgado, “[Critical Race theorists] are suspicious of another liberal mainstay, namely rights.” “Particularly some of the older, more radical Critical Race Theory scholars…believe that moral and legal rights are apt to do the right holder much less good than we like to think.” “In our system, rights are almost always procedural (such as due process) rather than substantive (for example, to food, housing, or education).” “Moreover, rights are said to be alienating. They separate people from each other ‘stay away, I’ve got my rights’ — rather than encouraging them to form close, respectful communities.”

As a result, Critical Race theorists tend to be less protective of traditional liberal rights, most notably those involving speech. Critical Race theorists have called for “tort remedies for racist speech” and some theorists believe that “formal criminal

and administrative sanction — public as opposed to private prosecution — is also an appropriate response to racist speech.” These debates, once academic in nature, have become increasingly salient with the recent wave of campus protests. Concerns about free speech are interpreted by some Critical Race theorists as an expression of “white fragility,” which is “in and of itself an expression of white supremacy.”

Critical Race Theory’s Narrative Approach to Truth Critical Race Theory is uniquely reliant on narrative to substantiate its claims. “An essential tenant of Critical Race Theory is counter storytelling.” Narrative analysis can be used “to reveal the circular, self-serving nature of particular legal doctrines or rules.” “Most mainstream scholars embrace universalism over particularity, and abstract principles and ‘the rule of law’ over perspectivism.” “Clashing with this more traditional view, Critical Race Theory emphasizes the opposite, in what has been termed the ‘call to context.’”

“For Critical Race Theorists, general laws may be appropriate in some contexts (such as, perhaps, trusts and estates, or highway speed limits), but political and moral discourse

is not one of them.” Narratives need not necessarily be true to prove their point. “In order to appraise the contradictions and inconsistencies that pervade the all too real world of racial oppression, I have chosen in this book the tools not only of reason but of unreason, of fantasy.”

Narratives are employed to shore up other basic premises of Critical Race Theory, such as the notion that “racism is a permanent component of American life” and that racism continues to play a “dominant role” in American society. For instance, Critical Race Theorists use individual narratives of hate crime incident to explore the import and impact as hate speech in order to argue for the inadequacy of current punishment. Salient to the current campus debate, campus protesters often employ narratives to argue that Harvard today engages in “systemic racism and exclusion.”

A Brief Critique Critical Race Theory offers a potent mix: rejecting racial neutrality in the law, rejecting the liberal emphasis on individual rights, rejecting the possibility of objectively neutral legal analysis and embracing “the tools not only of reason but of unreason.” It is an unusual combination for a theory originating on the far left.

Craddock: Protecting fetal life integral to a just society Craddock continued from page 1 Court “need not resolve the difficult question of when life begins,” the question has long been long settled scientifically. Biologically, individual members of the species Homo sapiens begin their life-cycle at fertilization. Open practically any embryology textbook and you’ll find the same information: “[The zygote], formed by the union of an oocyte and a sperm, is the beginning of a new human being.” This period “of fertilization represents the starting point in the life history, or ontogeny, of the individual.” As Prof. Mathews-Roth of Harvard Medical School put it, “It is incorrect to say that biological data cannot be decisive . . . It is scientifically correct to say that an individual human life begins at conception.”

Unlike skin cells or gametes, which are part of a larger human organism, the embryo is a whole organism of the species Homo sapiens. From fertilization, this new entity acts in a coordinated manner to support continued healthy function of its constituent parts — a biological property which individual cells and recently deceased corpses do not share. The new organism possesses unique DNA that is distinct from the mother, and which determines the new entity’s genetic characteristics, such as sex, hair color, and eye color.

From the earliest stage of the human life-cycle, the unborn entity is biologically human. You were never a sperm or an ovum: those cells from other human organisms (your parents) died in the process of creating a new organism. On the other hand, you didn’t come from a zygote and later transform into a human; you once were a zygote in the same way that you were once an infant or an adolescent and you remained human through the entire process.

The Only Four Differences Despite frequent dehumanizing and othering rhetoric leveled against the unborn, there are just four differences between us and unborn humans in the womb. None of them form a principled basis upon which to deny the right to life.

1. Size. A person’s size and appearance shouldn’t determine their value or worth. Embryos are smaller than infants, just as children are smaller than adults. Just because men are often larger than women shouldn’t mean men deserve more rights. Do we really want to say that large people are “more human” than small people?

2. Level of Development. Because embryos and fetuses are at an earlier point in their life cycle, they are less developed than adults. But why should that matter? Toddlers are less developed than teenagers, but killing toddlers is illegal. Abortion is ageism. Some contend that self-awareness bestows human rights. But why should this kind of sentience be the criterion for ascribing moral value to life? It’s entirely arbitrary. Setting brain function as a standard for personhood implies that individuals with higher capacity for cognition have greater moral value. If this is so, why shouldn’t creatures with higher intellect or with more numerous and noble aims be considered more valuable than those with fewer long-term

aims or less brain capacity? Newborn babies aren’t self-aware. Should it be legal to kill them? After all, newborn infants lack the immediate capacity to perform some mental functions that most fully-functioning adults can. (I’ve responded to some abortion activists who say yes.) By this criterion, individuals suffering from severe Alzheimer’s disease or under general anesthesia, whose caudate nuclei are incapacitated or greatly impaired, could no longer be considered moral persons. Even people who are sleeping lack present capacity for self-awareness. We know, however, that the patient in a coma or under general anesthesia retains her human value despite her temporary lack of sentience. Her humanity must cohere in some other underlying nature, a substance unrelated to her present capacity or incapacity to exercise particular functions.

3. Environment. The unborn child and the newborn infant are only separated by a few inches. The short journey down the birth canal does not magically transform that entity from non-human to human. The event of birth cannot impart humanity upon a non-human entity.

4. Degree of Dependence. The unborn child’s dependence upon another human being doesn’t make her any less of a person. Children, especially newborns, are particularly dependent on adults and can hardly survive without them. Human value cannot vary based on the degree of that dependence. If it did, those who depend on insulin or kidney medication would have less value than the rest of us. If dependence is the criterion for human value, would conjoined twins who share vital systems possess a right to life?

If any of these standards were the criterion for legal and moral personhood, it would be impossible to claim that “all men are created equal,” since each individual’s value would vary to the degree they fulfill certain functions. Living human individuals must possess value because of what they are, not because of some arbitrary attribute that comes in varying degrees and which may be gained or lost during their lifetimes.

Functionalist arguments attempting to distinguish between the unborn and the rest of us fail to establish a principled criteria for doing so.

Humans must possess an essential nature that is intrinsically valuable throughout their life cycle. The biological reality of being a living human organism necessarily entails that the organism is a human being with moral worth. All human beings are persons endowed with dignity and rights based on what they are, not what they can do.

Responding to Abortion Advocates’ Arguments Abortion is often defended on the basis of gender equality or bodily autonomy. Both arguments fail to justify the intentional killing of an innocent member of the human family.

Abortion advocates argue that to be on a level playing field with men, women must have control of their reproductive systems, which are used by the patriarchy to keep women in the home and under male domination. Yet men and women are equal by nature. To presume that a

You once were a zygote in the same way that you were once an infant, and you remained human. woman’s reproductive system makes her inherently inferior to men is an implicit misogyny against women’s equality. Women don’t need abortion to fix some natural “handicap.”

Furthermore, using the notion of equality for one class of persons to undermine equality for another class of persons is incredibly perverse.

Legalized discrimination against the unborn undermines basic human equality. We would recoil from the argument that, in order to achieve equality, parents must be able to kill their toddlers who would otherwise prevent them from leading lives of self-determination. In other words, the equality argument assumes from the outset that the unborn are not human beings.

Some abortion advocates accept that the unborn are human beings, yet contend that bodily autonomy justifies the killing of an innocent person in some cases (including abortion).

Judith Jarvis Thomson presented the most famous argument of this form through a thought experiment of the killing of an innocent person she believes justified. Imagine a prominent violinist who will imminently die without a kidney transplant from a matching donor. Suppose that, to keep the violinist alive, a woman was kidnapped and her body connected to the violinist. Thomson concludes that, in that situation, disconnecting herself from the violinist would be justified based on bodily autonomy, and further says that this situation is analogous to abortion in cases of rape. She concludes that disconnecting could be justified even if the person were not kidnapped, but were confused, drunk, or even volunteered but changed her mind.

Though the donor may be justified in disconnecting from the violinist, the analogy to abortion fails in several respects. The distance between the actors frames the moral intuition.

The stranger has no responsibility to care for the violinist, but a mother — and a father! — owe special responsibilities to their children based on their relationship. The law punishes child neglect and imposes duties on parents irrespective of their consent because it recognizes the defenselessness of children. Even if a stranger could abandon the violinist, parents can never abandon their duties to their toddlers when doing so results in the child’s death, notwithstanding a change of heart and the large burden caring for children can be. Accepting the personhood premise, there is no morally significant difference between a fetus and a toddler, and this parental duty attaches at fertilization.

Moreover, an unborn baby is not an intruder, but is in its proper place in the design of the reproductive system. Unlike passively “disconnecting” one’s body from the violinist,

abortion entails violently tearing an unborn human apart. It’s only “withholding support” in the sense that choking someone to death is withholding oxygen. The violinist is further dis-analogous since, unlike one who has been unnaturally connected to the woman’s body, the baby is not an intruder, but rather in its proper place according to the biological design of the reproductive system.

Finally, the autonomy argument has disturbing implications: if a mother may abort her child as an exercise of autonomy, may she take thalidomide (a sedative for morning sickness which causes birth defects) for the purpose of deforming and disabling her child? If one believes mothers have a duty not to do that, how can bodily autonomy justify intentionally killing the unborn child, but not intentionally disfiguring that child? Bodily autonomy is not absolute.

Erring on the Side of Caution Setting aside for a moment the overwhelming scientific and philosophical evidence that the unborn are members of the human family and adopting the perspective of a system designer, what legal approach should be taken on the issue of abortion? Let’s assume we don’t know whether the unborn are human beings or not. To which side should the law err? According to the philosopher Peter Kreeft, there are only four possible scenarios: Justice Blackmun’s notion of “neutrality” on the question of when life begins is impossible: the law either protects the unborn or it permits killing them. If it permits killing the unborn, then the courts have established a public policy that the unborn do not deserve the same basic protections owed to other human beings.

The Court’s decision to treat the unborn as if they were not human beings in the face of uncertainty is analogous to the conduct of a hunter who shoots into a rustling bush without knowing whether he shoots a turkey or his companion. To kill a living organism without knowing whether that being is a human entity with a right to life is willful and reckless disregard for the value of human life. Admitting its ignorance on this important question, the Court’s only responsible reaction would have been to err on the side of life.

On the other hand, all of the biological and philosophical evidence indicates that the unborn are human beings deserving the same right to life that you and I enjoy. The only reason we pretend that we don’t know when life begins or whether the unborn are “persons in the full sense” is to justify abortion. Our consciences know better.

“One’s right to life . . . depend[s] on the outcome of no elections.” Nor should it depend on the outcome of Supreme Court decisions. As long as the Court continues to interpret the Constitution so as to perpetuate a discriminatory caste system of separate and unequal for unborn human beings, there can be no equal protection under the law.

Josh Craddock is a 1L and a member of Harvard Law Students for Life.

Harvard Law Students for Life can be reached at hlawstudentsforlife@ gmail.com.

If Critical Race theory were just about affirmative action, perhaps we could let such indulgences slide. But Critical Race theory not only directs how to structure the university, but also how to structure the relation of the individual to the state. Raciallybased taxes, racially-based employment quotas, racially-based redistributions of wealth: none would be beyond the theoretical horizon of Critical Race Theory. All are justified by an appeal to inadequate racial justice, an appeal that can neither be proved nor disproved, an appeal that can just as easily be used for naked racial subordination. All fall within a context where speech labeled as “hurtful” and “racist” could be punishable by law, and opponents of the racial regime would be silenced.

To teach Critical Race Theory is to teach the latest in a sad line of theoretical justifications for legally-codified racism. As a proponent of academic freedom, I have no problem with this, just as I would have no problem for studying the legal justifications for other regimes that have codified race into law. But let’s not pretend that we are doing anything else, and let’s certainly not mandate the teaching of any such ideology.

Bill Barlow is a 3L.

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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

March 10, 2016

Harvard Law Record

3

OPINION & ANALYSIS

Talking past each other

By Jim An ’18

A few weeks ago, I was at a restaurant up near Porter Square with two other law students. The three of us were eating and talking about race issues in the United States. Besides one other table, the place was basically empty.

After the three of us had been talking for a while, a young Asian woman from the other table interrupted us, saying that she was extremely offended by what we had been saying (in particular, by what I had been saying), demanded that we respect her right to have dinner without having to overhear such disagreeable talk, and finally, insisted that I had no understanding of race issues at all.

She told me that she was a law student, that she suffers constantly from people thinking less of her because of her race, and that I could not possibly even imagine the racism and prejudice that she endures daily as an Asian law student. (As it happens, I actually am also an Asian law student.)

At her suggestion, we left, but it’s hard to see how she could have hoped to convince me of the correctness of her views. Where I thought I was knowledgeable, she told me that I was ignorant and that her experience was definitive.

Where I was speaking in good faith, she told me that I neither understood nor cared about minorities.

Where I would have valued an open

discussion, she told me that my values were wrong and that she was in any case entitled to live in a bubble without my intrusion.

Dear reader, my fellow diner is far from alone. Race is but one place where people insist on the other side’s perfidy and largely side-step real objections.

For instance, pro-choicers aver that it’s impossible that we Americans could sensibly protect a fetus as a sentient life, never mind that modern societies have extended protections to life forms with far less cognitive capacity than a 23-week old fetus. They claim that guarding reproductive freedom is obviously paramount, never mind that pro-lifers would find it no less logical to claim that guarding the potentiality of life, if not life itself, is obviously paramount.

Similarly, pro-lifers argue that all life must be absolutely protected, never mind that our society has always valued some lives over others (how else could we justify our foreign aid budget?). They suggest that it’s wrong to kill the innocent, never mind that many pro-choicers do not view abortion as a killing at all.

Both sides ignore the reasonably held values and beliefs of the other, insisting that their side is impelled by sense and reason and that the other side is motivated by hatred or stupidity.

In a 1960 poll, just 5% of Democrats and 4% of Republicans reported that they’d be “displeased”

The fault, dear reader, is not in the obstinacy of others, but in ourselves. if their child married someone of the other party. In 2010, the numbers had shot up to 33% of Democrats and 49% of Republicans feeling that they’d be upset if their child found a spouse of the other party.

I understand this division. Like many Americans these days, I feel that my political choices are compelled by my moral values. It can be hard to not feel aversion to those who have fundamentally different values from you.

Nevertheless, the political animosity that envelopes us today is poisonous to American society. A house divided against itself cannot stand.

The difference between conservatives and liberals is not always even reducible to values, but rather to a gap between how people of different political leanings understand the facts of our world. Sometimes people draw different conclusions from the same set of facts. But sometimes people don’t know the facts.

And sometimes people simply refuse to accept inconvenient facts.

For example, conservatives often refuse to accept anthropogenic climate change and that a government,

not just private enterprise, can produce things of value. Liberals often deny that zoning restrictions and rent controls generally reduce the supply of affordable housing and that low-skill immigration depresses low-skill wages. That list is far from comprehensive.

In either case, we each have a duty to aim to understand one another. We have a duty to speak — and to listen — in good faith. Has any of us never been wrong? And if so, what’s to say that in any given disagreement, especially if it’s with another presumably intelligent and sensible Harvard Law student, that it isn’t “we” rather than “they” who are wrong?

Looking out at the American community, would not listening and then looking to address actually held concerns, rather than just calling people racists or telling people to “educate themselves” do infinitely more for whatever cause one espouses?

There are surely the intransigent out there who would not be convinced by any measure of reason, but this is a democracy where we need not unanimity, and 51% can suffice to effect policy change. Are we so uncertain of the reasonableness of our views or so certain of the stupidity of others that we think that reason would not be accepted by even a simple majority? The fault, dear reader, is not in the obstinacy of others, but in ourselves.

This is not about the “politics of respectability.” This is about giving others the bare minimum of respect that one ought to accord to those whom one wishes to convince. To pretend that that’s the way things

are now, to pretend that agitators on the left or the right are nearly universally intelligent and articulate is to be willfully blind.

Reader, you might feel that it is a bit unfair for me to write this to Harvard Law students but not, say, climate change deniers (not that the two are mutually exclusive, unfortunately). But alas, this is where I have a forum. And it seems to me that we ourselves are only too often guilty of putting on blinders as well.

(Just look at the dialogue, or lack thereof, over Reclaim HLS.) If we would not reach across the divide, then who would?

Go and ask why someone would support restricting immigration.

Unless they straight say that they don’t like brown people, take it on good faith that they are no racist.

Go ask someone why they support cultural pluralism. Similarly, take it on good faith that they seek not the downfall of the American republic.

Assume that they are no more ignorant than you. Assume that they just might be able to imagine what Asian law students face.

Ask not only yourself, but ask friends, and ask strangers.

Don’t just read things on the Internet, but talk to people in real life.

Talk to people who agree with you.

Talk to people who disagree with you.

Take them up in good faith.

Push back when they are wrong.

Accept that you might be wrong too.

Jim An is a 1L. He is the deputy editor-in-chief of the Record.

Democrats’ indifference to Blacks could drive them toward Trump Trump continued from page 1 was a lament I was repeatedly asked to address when I presented last year at the national Black Methodists for Church Renewal Conference in Orlando. This kind of commentary from informed black voters never airs on television, but you will hear it at the barbershop, in Sunday school, and among colleagues and clients.

Swing voting has happened this way among whites to considerable effect. President Nixon’s “silent majority” had grown profoundly disturbed by the urban rebellions of 1968 and the attention civil rights had gotten when whites decided to vote their disgust without talking openly of it, having quietly left their central cities in retreat. Similarly today, an underlying sense of persecution for merely holding to, and upholding, mainstream principles has now finally spread into the black community.

This unique form of racial tension is new and hardly acknowledged, but Trump, more than any previous Republican or Democrat, has demonstrated the independence to sense and to speak to it.

Thus, Trump’s David Duke flap is fading fast. Independent-minded black Democrats figure that the former Ku Klux Klan Grand Wizard, who just endorsed Trump, has voted for plenty of previous Republicans, and they trust that Trump is not himself a white nationalist.

Moreover, black people are accustomed to being boogey-manned, even by usual allies. Notice that innumerable blacks back Clinton today even though in 2008 she criticized Obama’s failure to gain traction among the “good, hard-working white voters” while he and she were battling neck-and-neck during the Democratic primary.

White politicians in the South have often played to a lower element to get as many votes as possible, as President Ronald Reagan did when he launched his 1980 General Election campaign in tiny

Philadelphia, Miss. That was where three young black and Jewish voting-rights organizers just 16 years earlier had been assassinated in a then-unsolved Ku Klux Klan wave of terrorism. “I believe in states’ rights,” Reagan told his people in Mississippi shortly after winning the Republican nomination at his party’s convention. (Reagan still won 14% of the black vote that year.) GOP contenders Marco Rubio and Ted Cruz ’95 can’t stop extolling Ronald Reagan, but they are still bashing Trump over the disavowed Duke endorsement.

Democrats have done it, too.

Fighting in a competitive Democratic primary in 1988, then Sen. Al Gore of Tennessee gave us Willie Horton against former Massachusetts Gov. Michael Dukakis ’60. Horton was the black murder convict from Massachusetts who raped a white woman in Maryland while on a weekend prison furlough. That tactic wound up cannibalizing Democratic hopes for Dukakis in the general election, after then-Vice President George H.W. Bush adopted it. Bush ran a television ad that frightened many swing voters, Horton’s menacing expression and black features underlining the us-versus-then, lawand-order inference. Dukakis got trounced.

If anything, Trump, who has re-disavowed the KKK and Duke repeatedly since Sunday, has simply out-Southern-Strategied earlier white candidates, winning big on Super Tuesday last night. And now he is moving on.

Primaries won, silly season over No longer so easily distracted by heated or lofty rhetoric that pushes emotional buttons very well but does not deliver needed results in their lives, black people this year appear to be all about bread-and-butter issues.

Yet, on the Democratic campaign trail there, black issues were largely synonymous with police violence, as Clinton and rival Bernie Sanders racked up televised endorsements

Trump’s prescriptions – protectionism, immigration-law enforcement, making China pay – play well to black voters. from families of blacks recently slain by police officers. Another major theme was criminal-sentencing reform, even though most blacks are not caught up in the criminal-court complex. This focus could explain why turnout among South Carolina’s heavily black Democratic electorate over the weekend was down by nearly one-third compared to 2008.

According to a Newsweek analysis published on Monday, South Carolina was the first real test of how African American voters respond to the post-Obama era. A third of them stayed home. Black voters clearly agree that “black lives matter,” but might the problem of black jobs matter more at this point? If yes, then those Obama folks who are staying away from the Democrats this time could go post-partisan in the mold of Trump in November. He always frames his concern for black interests in terms of the economic disparities under which virtually all blacks struggle.

The states to watch According to the latest published Census data, blacks comprise 17 percent of Florida and Michigan, 22 percent of North Carolina, 13 percent of Ohio, 12 percent of Pennsylvania, and 20 percent of Virginia. In these elector-rich states recently known for razor-close contests, black voters could carry the day.

Appealing to these blacks will be important because Trump could

easily gain a national victory if he attracts 20 to 25 percent of the black vote in just one or two of the several traditional swing states – and a landslide if he does so in more, presuming ordinary turnout. The best that Republicans have done nationally with blacks in the most recent eight presidential elections was only 11 percent, in 1988 and 2004.

So, how does Trump get them?

The answer is keeping the agenda combative about Washington’s shortcomings, while showing how his record backs up his economic promises. Trump’s prescriptions – protectionism, immigration-law enforcement, making China pay – play well to black voters who, while proud of having a black president, have bemoaned their economic and social stagnation over the last eight years as foreign interests forged to the fore of the political agenda.

Largely evangelical Christians in world view and practice while relatively liberal on racial justice and economic policy domestically, black voters have often made the difference at the polls, including on referenda like California’s 2008 same-sex marriage ban, in which they were the decisive demographic in blocking gay marriage, while fully backing Obama.

In 2008, Obama won my state of North Carolina, but in 2012 – the year 61% of N.C. voters passed the constitutional amendment banning gay marriage – GOP nominee Mitt Romney won the state with just 50.6% of the electorate. Black voters might matter more this year for the Republican nominee in such states, especially as a few Romney Republicans decline to vote for Trump.

Trump’s tell-it-like-it-is, fix-it-fast style speaks to the most politically frustrated blacks, who identify with his being unfairly marginalized for so long during his candidacy by a media and political establishment that dismissed his seriousness and his accomplishments. It’s the same

The inextricability of human and animal welfare

By Namita Dhawan ’18

Caring about animal welfare is not a “white person thing,” Or at least it shouldn’t be. One of my favorite lyricists, Common, questions in his song “The People,” “why white folk focus on dogs and yoga.”

Aptly named, “The People,” puts this in the context of the struggle that Common’s fellow African Americans and ultimately, people in general have faced.

This is a general argument that I’ve heard from friends and peers here at HLS when they discover my interests in animal welfare.

Only people with a certain amount of privilege, perhaps white people, can afford to care about how

animals are treated. Why should I care about how orcas at SeaWorld are being treated when black people are unabashedly murdered by law enforcement and refugees throughout the world are struggling to find asylum?

While I very much understand where such people are coming from, I believe that they are unnecessarily creating a binary. I don’t have to care about animals to the exclusion of people and vice versa. While I hope to help animals with my J.D., I also hope to use it to help people gain access to medicines through an altered patent system.

Ultimately, however, we do choose to focus on things that our experiences have lent themselves

to. Having grown up with my best friend, my dog Sheeba, I grew fond of dogs and animals in general at a young age. I grew from valuing animals as a source of comfort and therapy to valuing animals as individuals who have their own emotions and personalities.

However, for those who haven’t had such experiences or aren’t concerned with the treatment of animals, particularly when pitting it against the struggles faced by human beings, there are anthropocentric reasons to care about the treatment of animals. The philosophy behind animal welfare has dealt with the subject from various points of view, including one that looks at animal welfare as inextricably

intertwined with human welfare.

Promoting compassion towards animals is not incompatible with promoting compassion towards our fellow humans. The same factory farm that brutally mistreats its animals is likely to also outrageously exploit its workers. The same man who beats his pets also beats his wife. And a growing realization of the number of dogs murdered by police officers during drug busts and arrests underscores the pervasiveness of police brutality.

There is no question that human violence and animal abuse have a deep connection. Hatred, racism and fear are manifested as violence, discrimination and exploitation — be it towards humans or animals.

sort of prophetic style that has him appealing to, and winning big among, white evangelicals, another big surprise from those Southern primaries.

Listen to Trump’s response to a question at his huge August rally in Mobile, Ala., about what to do to quell the urban unrest that rocked American cities in 2015: “You look at Baltimore. You look at Ferguson. You look at St. Louis over the last week.

You look at all of the things that are happening. We’re sitting on powder kegs. There’s no spirit. There’s no jobs. There’s no anything,” he said, adding that he will become “the greatest jobs president that God ever created.”

The frank talk of jobs should be music to the ears of blacks, who have long understood jobs to be their best hope for absolute uplift. Recall that the Rev. Dr. Martin Luther King’s most famous 1963 demonstration – held amid the Great Migration of blacks from the South to Northern cities mostly to acquire gainful employment – was named the March on Washington for Jobs and Freedom.

In late February, Trump told CNN’s Jake Tapper that he expects to win “states that aren’t in play” on his way to November, including Michigan and New York, and expects to garner a “tremendous amount” of the African-American vote. “I’m going to do great with the AfricanAmericans,” he declared.

Channeling tenets of the Protestant work ethic he spectacularly personifies, whereby one’s occupation is central to one’s life and legacy, Trump went on: “AfricanAmerican youth is 58 percent unemployed. African-Americans in their prime are substantially worse off than the whites in their prime, and it’s a very sad situation.”

Amen, Mr. Trump, amen. Now let’s do something about it.

Amos N. Jones ’06 is an Associate Professor of Law at Campbell University in Raleigh, N.C.

The same man who beats his pets also beats his wife.

My goal is not to convince everyone to go out and advocate for animal welfare, but to convey the message that animal welfare and human welfare are not mutually exclusive.

Not only can people care about both animal and human well-being, but affinity groups and animal welfare groups have many goals and many enemies in common. There is ultimately great opportunity and potential for collaboration that must be acted on.

Namita Dhawan is a 1L.

4

Harvard Law Record

March 10, 2016

OPINION LETTERS TO THE EDITOR Analysis in “The Least Safe Space” unfounded in science To the editor: In “The Least Safe Space”, Josh Craddock asserts his belief that life begins at conception. That belief is true because it is what he believes. That is acceptable. And he can champion his position from his moral framework.

What is unacceptable is his, and the editorial staff’s, misunderstanding of the scientific data used to support the author’s belief. As a research scientist, I am disturbed by the blending of poorly cited facts and moral opinion that characterize this article. It is symptomatic of a larger trend in scientific reportage and opinion that use the authoritative weight of apparently scientific data to hide a blatantly moral perspective. It is this cocktail of fact and opinion that continues to confuse the lay-public on topics ranging from climate change to the health benefits of the latest miracle diet.

There is no scientific consensus on when life begins. The author cites an American Medical Association report from 1859 and the author seems to believe that report is immutable and continues to be the consensus. The AMA currently takes no position on when life begins.

In 1859, germ theory was more than 30 years away from mainstream medical consensus and Joseph Lister’s theories of antiseptic surgery would take another quarter-of-a-century to grudgingly catch on in the United States. The discovery of chromosomes, genes, and DNA would roll out over the century. Citing the beliefs of a small portion of the surgical medical community in 1859, long before embryology had matured as a science, is equivalent to citing the Articles of Confederation to make a Constitutional argument. We live under a different medical paradigm.

The editorial staff should require a more recent citation, or ask that Craddock clarify that he adheres to all medical assertions made by the AMA as of 1859. Alternatively, Craddock could simply assert that he believes life begins at conception, acknowledging scientists continue to wrestle with what constitutes life, development, pregnancy, and humanity, and that he will not and cannot find a scientific consensus to support his view from the 21st century.

Craddock is not a doctor. Nor is Craddock a scientist, evidenced

by the misspelling of our species in his article. We belong to the species Homo sapiens. The genus must be capitalized, an elementary question from 7th grade biology. Otherwise the phrase simply means “thinking man” in Latin and does not refer to our species. Seeing this basic error would be grounds for both the writer and editor to be denied publication or participation in any opinion-based or evidence-based scientific publication. This kind of error, amongst many others, undermines Craddock’s credibility, reflecting his lack of engagement with embryological, medical, and anthropological literature.

Because of Craddock’s lack of engagement with current biological literature, he does not seem to understand the difference between development and an organism. The fetus is not capable of life outside the womb until, among other developmental necessities, the lungs are developed and pulmonary surfactant is produced by the fetus. Until that point, the fetus is not viable outside of the uterus. To argue that there is no developmental difference between a fetus, which cannot breathe or be nurtured by anything but regulation across the chorionic membrane, and a newborn (or fetus secreting surfactant) suggests the author has spent little time with Moore’s textbook, “Before We Are Born”, the sole embryological text he cites. A newborn child is a self-regulating organism that feeds itself, nurtured by any lactating woman or by synthetic formula. As a fetus is developing, possibly into a newborn, it is passively nurtured by regulatory processes dependent on the health of the mother.

The possibility that development constitutes the presence of human rights is a radical assertion with implications that redound through our interactions with the environment and other species. The development of the species is not limited to the time in utero. Each individual is ultimately the product of millions of generations of mutation and natural selection. Did every bacterium, limbed fish, reptile, and primate that is embedded in our genetic code deserve human rights because it was part of the process that lead to humans? Do all organisms related to humans deserve human rights because their evolutionary history affected our own development?

Craddock does not understand the implications of his arguments because he does not seem to

understand the science he is draw- students describing “other” views ing upon. Until he familiarizes condemned by history, willfully ighimself with a 21st century under- norant of the likelihood that they standing of biology, embryology, too will be condemned by history. and development, an endeavor I Let me be candid, if unkind. This would happily support and advise, is no academic institution. This is a I recommend he confine his dis- first-class sham, a 21st century recussion to moral arguments and ligion, so paradoxically smug in its legal definitions. I also recommend conviction of its own irreligiosity, so the Harvard Law Record editorial proud of its superior understanding staff exercise greater responsibility of justice, and so fooled by this poiwhen publishing material that is soned cup of pride. Hence the oblivoutside the realm of legal or soci- ious distribution of educational etal discussion. Pseudoscience and placemats, the High Priest of the antiquated facts like those cited in Temple of Diversity and Inclusion “The Least Safe Space” damage the instructing the young undergrad public discourse in genetics, medi- missionaries on how to educate the cine, and biology. uninitiated. The fresh zeal of the adolescent recently informed of the Matthew Borths is a postdoctoral truths of existence by the all-knowresearcher at Ohio University. ing father. And hence the bullies.

The bullies so characteristic of Student lounge occupants are a religious community. Those who nothing more than bullies scream loudest upon any variance from dogma. Whose screams inDear Editor, timidate the moderate majority, While I have limited objection now fearful to voice moderation, to the Committee decision to rec- lest the accusation of heresy be ommend the modification of the turned on them in turn. The bullies HLS shield, I have difficulty treat- who most often are themselves the ing the decision-making process as most insecure of the lot, threatened legitimate given its broader social by any perceived challenge to their context, regardless of (true) pro- pure ideology. The bullies who testations to the contrary. But the push their leaders to change things shield is ultimately not a significant just so that the world is aligned concern of mine. Far more concern- with their view of justice. Who ing are the broader implications of decorate the walls of Wasserstein the insurgency which has essen- Lounge with paraphernalia reflecttially forced the Committee’s hand, ing a decidedly leftist array of their and the mushrooming[1] of similar dogmatic concerns, and theirs only. insurrections in the haloed halls of Who snoop out your secrets, and this nation’s “academic” institutions. post documents shared in mutual I am all too familiar with social confidence on the public walls. settings dominated by dogma. The Who shamefully vilify faculty and shadowy feeling out for intellectual cast aspersions on anyone who comrades, the tentative sharing of disagrees with them in the pages fringe opinions and careful obser- of the Harvard Law Record. Who vance of elicited reactions. The re- decide that it’s their right to show lief when one finds such comrades, movies, host speakers, and genand the fear when you’ve misjudged erally render the lounge hostile to and shared too much. Most of my anyone not cleanly in their camp. intellectual development took place The Belinda Bullies. in such a dogmatic context. When I The Belinda bullies who travel came to Harvard, I came expecting to Brandeis Monastery, to show an exciting intellectual journey in a up a priestess of their own tradimore honest environment. But alas, tion, shaming her in a moment of all too frequently I experience my- well-deserved honor. And for what? self in a church masquerading as an For the failure to implement their academic institution. The canon of demands immediately. For taking principles making up church dogma. the time to consider what is the The certitude of conviction as to best way forward. For establishwhat is just and what is good, as if ing a committee to consider their God himself has manifested so in demands, rather than bowing and the Wasserstein Revelation. The lip scraping and promising immediate service commitments to ideals like obedience in the Temple of Belinda. diversity, another naked emperor In great irony, these bullies have efclothed by a delusion quickly dis- fectively claimed the sole privilege pelled by one wrong comment in a of free expression in Harvard Law class. The snickers and smirks of im- School. The sole right to have their partial professors and obsequious voice dominate the public discourse.

“Winston Syme”: You’re censoring yourself Recently, a Harvard Law student going by the pseudonym “Winston Syme” submitted a Letter to the Editor labeling Belinda Hall protesters “bullies.” This article is a response from the editor-in-chief.

By Michael Shammas ’16

“A book [or a protest movement] must be an axe for the frozen sea within us.” — Franz Kafka “Oh wow, I got into Harvard Law,” I said. “It’ll be such an exciting place — full of dynamic discussion and politically active students, the Ralph Naders and Barack Obamas of the world.” (At least, I’m sure I said something like that….)

I was naïve.

Upon starting law school, I found a place brimming with interesting people — yet they were largely repressing their interestingness.

Why? Because, they were too scared to speak. To engage. To be real. The sentiment runs like this: “How will I ever be a judge unless I’m a legal automaton who keeps opinions to himself?!” Or, in the Reclaim Harvard Law context, like this: “Oh my God, what if someone calls me a name — worse, implies I’m a racist?!”

Oftentimes, these are the same people who complain of censorship. The students (like “Winston Syme” or the asses behind Royall Asses) who object to some or all of Reclaim’s demands, yet never openly voice their convictions. The ones who refuse to enter Belinda Hall because they feel frightened someone will disagree with them in a way that’s uncomfortable, demeaning, or that paints them as a “white oppressor” abstraction instead of a human being.

If you’re one of those students, cowering within yourself in disagreement, you’re doing yourself a disservice — not because you’re wrong, but because you’re depriving yourself of an opportunity to learn

and grow.

This article is for you — the students who, alongside Winston Syme, sit in quiet or anonymous dissent.

I’ll attempt to convince you that while you’re admittedly right about a small minority of activists when you fear stigmatization and shaming, you’re wrong about the vast majority — who have generally become extremely accommodating of dissent. I’ll attempt to convince you that what’s happening in Belinda Hall right now is a good thing, especially if you disagree with some of it or all of it.

Why? Because Reclaim Harvard Law is bringing life to this habitually-stuffy campus.

A flower’s penetrating the ice.

You can either join the flower or stay locked under the ice, remaining silent or speaking out only from the comfort of anonymity in the cowardly manner of Winston Syme.

Getting Personal: How Engagement Changed My Views Over the past few months, largely due to my position as editor-in-chief, I’ve spoken with a spectrum of students about campus activism. I’ve been assaulted from both sides — as a “SJW” from conservative friends for supporting affirmative action and diversity training and the shield change, as a pretender to neutrality (I prefer the term “nuance”) by left-wing ones for calling out illiberal name-calling on the Left. Yet the net-result of engagement has been positive. For as a result, my opinion on certain issues has either (1) changed or (2) become more informed. As a result of that result, I’m a better person.

I have more a more competent take on Harvard Law, a fuller understanding of events that don’t impact me personally but that affect others — especially African Americans — every day.

On some things, of course, my

opinion has simply become more entrenched. Like anyone with a modicum of historical understanding, I’ve always accepted there’s racial injustice. Indeed, I’ve seen it outside the law school while working at a public defender’s office.

(Watch assembly-line “justice” ensnare countless black men in criminal court and tell me there’s no racial inequity.)

Yet I was not previously aware of, or awakened to, the degree of racism on campus. Speaking with students about how that injustice manifests in the classroom has lent me an empathy and awareness I’d previously lacked. It’s made me realize that even if you think Reclaim Harvard Law’s prescription is nonsense, its diagnosis isn’t: Harvard Law isn’t immune from racism.

Listen to what activists are saying — really listen: It shouldn’t be difficult to sense the shame and indignity that comes from constantly having your intellectual worth questioned, from habitually facing the implication that “you must think X because you’re a person of color,” from sitting in a criminal law class in the midst of the #BlackLivesMatter movement yet hearing nil about racial inequality.

Being a minority at Harvard Law — like being a minority anywhere — is hard. Anyone acting in good faith, from a place of compassion, should want to ameliorate that sad fact.

And, Winston Syme, ameliorating racial injustice against minorities involves listening to — wait for it — minorities!

Listening to Reclaim protesters doesn’t require casting away all personal opinion; indeed, engagement has caused my opinions on some issues to solidify in directions that a lot of Reclaim protesters dislike.

For instance, like fellow liberals Bill Maher and President Obama I still believe — personal experience confirmed it — that a small minority of campus protesters aren’t receptive

to dissent, occasionally pigeonholing people who disagree even slightly — sometimes by misusing concepts such as white privilege or white fragility, other times by shaming dissenting minority students, still other times by questioning the motives of students who are even slightly critical.

Still, the sorts of protesters condemned by President Obama and Maher are not representative — especially with respect to Harvard Law’s protest movement.

The Cowardice of Winston Syme/Silent Dissenters versus the Bravery of Reclaim Harvard Law Speaking of the “censorship” issue: Many conservatives tell me they fear being called racist — that they’re frightened of being pigeonholed or told that since they are white or male or cis or whatever their opinion doesn’t matter.

Winston Syme is one such person.

Two points: (1) There is a hypocrisy in saying others are censoring you when, in effect, you are really censoring yourself due to a fear of being labeled racist. (2) Most of the time, acknowledged exceptions aside, when activists reference concepts like white privilege, it’s merely to suggest you lack crucial background perspective that could result in a more informed viewpoint — not to delegitimize your viewpoint. By equating all references to critical theory with censorship attempts, you leave the realm of good faith nuance and paint with not just a broad brush, but a paint roller. You become a Winston Syme.

Put differently, saying one might lack perspective is not the same as saying one lacks the right to speak.

If you become a broken record on free expression or academic freedom, you’re actually doing an injustice to the free speech rights of protesters. You’re using free speech in the same way some activists use

The sole right to string people up for heresy in the public forum, attacking them personally when they dare disagree, and shaming responsive students and faculty for any minor misstep from their purist ideologies.

And if their past behavior is any indication, they would like to extend this dominance by institutionalizing it with their presence on permanent committees, the establishment of a Diversity Temple within the Law School, and a mandated curriculum of intimidation. (I do not intend to inculpate all those involved in this general activism, but rather the few who set the abusive tenor of these “protests.”)

If there is one thing we learn from this election cycle, it should be the importance of calling things by their name.[2] A bully is a bully.

As is the way with religious bullies, they get in the way of real solutions.

They create entities that are responsible for problems – the “Harvard institution” is the problem (as if it has some independent ontological existence) – obscuring real causes, impeding solutions, and alienating allies and moderates. I wonder how much this activism will add to the safety of the innocent child playing in a park in an inner-city community, or more likely, how much it will get in the way.

I do not deny the colored racial history of this country. The egregious rates of incarceration facing the black community, the heart-wrenchingly disparate education and economic outcomes that one can predict merely on the basis of color. I venture that the vast majority of students at the Law School are deeply troubled by these and related phenomena, and moreover, would be happy to participate in real solutions. But there is no way that a candid discussion of the multiplicity of causes and best solutions to these problems will be had in the Belinda Hall echo chamber, or with the Bullies who know just where the issue lies. And as the recent Record polls show, I am not the only one who believes this.

Yours, Winston Syme* is a current student. *Winston Syme is a pen name.

The Record has confirmed that this piece was written by a current student and, after considering the student’s request for anonymity, agreed to publish his letter anonymously. We have published other pieces anonymously in the recent past.

white privilege — to delegitimize and pigeonhole anyone who disagrees with you. Except, instead of pigeonholing them as an “ignorant white oppressor,” you’re pigeonholing them as a “free speech-hating ‘fascist.’” How productive, Winston Syme!

Vaclav Havel famously said he’d rather share a drink with someone who’s searching for the truth than with one who’s found it. Maybe.

But sometimes, when two cocksure ideologues converse, they settle on a new truth that neither had previously gleaned. See, e.g., Hegel.

Students like Winston imply they avoid Belinda Hall because they think everyone there has already made up their minds. Maybe. But if you’re avoiding Belinda, haven’t you already made up your mind about the protesters? Aren’t you, the accuser, exemplifying the same sin you ascribe the accused: Close-mindedness?

At the risk of sounding repetitive instead of nuanced: The quiet dissenters, the anonymous ones like Winston Syme who avoid Belinda Hall — assuming, with little evidence, that they will be treated badly — are committing the same sin they accuse activists of committing. They are pigeonholing an entire group because of the actions of a few. (For example, even if you disagree with the protests against Dean Minow, only five Harvard Law students interrupted her speech — hardly a majority of Reclaim sympathizers.)

And that brings me back to the point I used to begin this essay: Agree or disagree with Reclaim; at least they care enough about something to inject some life into this sometimes-deadening environment. To stand up and to say: “This is what I think.” To be “an axe for the frozen sea within us” all. And to do so without cloaking themselves in anonymity like Winston Syme.

That’s valuable.

Michael Shammas is a 3L. He is the editor-in-chief of the Record.

March 10, 2016

Harvard Law Record

5

OPINION

Majority in favor of shield change, but not all demands Poll continued from page 1 These and the many other comments published online reveal there are indeed at least two, perhaps many more, sides to the shield debate.

Many students commented on their discomfort sharing views that differ from those of the Reclaim movement with regard to the shield.

One student chastised the movement, stating “You have created an environment in which views contrary to your own are not expressed for fear of ostracism from the community.

Ultimately it only harms your cause; you are not exposed to views that challenge your own, so you do not develop the skills to defend your ideas.”

Another wrote: “From the viewpoint of many students, it feels as though we’re not allowed to disagree for fear of being labeled (racist, intolerant, etc.). The only times that I feel like an outsider here are when I try to engage in a meaningful discussions about the movement, respectfully disagree, and then get shamed for it.”

Even those who supported changes had comments like “... I’d like to point out that I believe that the Reclaim movement would benefit from a more inclusive and coherent strategic vision” and “[w]hile I might have supported Reclaim Harvard’s movement, I have felt less inclined to do so as a result of tactics that end up excluding large portions of the student population.”

Still others had concerns regarding finances: “I support most of RHLS’s proposals though I think we need to look into their budgetary impact.”

Ultimately, there was a majority of students, though not a large majority, who want the official shield replaced.

There was a diversity of views on if, why, and how the shield issue should be handled, and many thoughtful comments from those on each side of the debate are published online.

Do you support the establishment of a Critical Race Program?

Though slightly more than 50% of students wanted a new shield, there was much more division concerning Reclaim Harvard Law’s other propositions.

On establishing a Critical Race Program, many expressed surprise that the administration is just now beginning to consider incorporating Critical Race Theory. One student wrote “The fact that the administration hasn’t come out and said ‘we’re going to start the process of looking for a critical race theorist to give tenure to’ is baffling.” Another wrote, “I absolutely think that Critical Race Theory has a place at this school. It is unacceptable that we do not have a faculty member here who specializes in this.”

On the other side, some expressed confusion at just what a Critical Race Program might encompass. “What is Critical Race Theory?” asked one student. “I honestly just want to know Reclaim Harvard Law’s answers to these questions; I might then agree with them.”

Another shared a similar sentiment: “I do not know what a ‘Critical Race Program’ would be. I suspect that ‘marginalized narrative’ does not include the currently marginalized conservative perspective. I do not

know what a ‘marginalized student’ is.”

Do you support reforming mandatory HLS curriculum to ensure integration of marginalized narratives?

The most divided answers came on this question regarding mandatory curriculum reform.

Many comments expressed opposition to mandating reforms. “I would support greater sensitivity towards and general inclusion of the role racism has played in leading to current racial inequalities, but not in any of these heavy-handed ‘mandatory’ manners that are being so aggressively suggested” said one student.

Another student who largely supported other Reclaim goals expressed some skepticism concerning efficacy: “I think this education should be mandatory, but to ensure that it is effective and that it does not engender resentment and breed hostility may be tricky, and I’m not so sure that a required 1L course would do the issue justice…”

Others defended the current curriculum. One student wrote “I believe that the proposals for curriculum change are misguided, regardless of one’s views on the broader points that Reclaim Harvard Law seeks to address. People who are, to various extents, “socially conscious” will be so anyway without the inclusion of mandatory 1L classes to that effect.

People who are not interested in using their legal training to address issues of class, race, and so forth will merely find mandatory 1L classes on those areas boring and useless. The curriculum does an excellent job, as is, at developing legal skills and, to use a cliche, helping us to “think like lawyers.” That is something that is useful to everyone.”

Some were greatly offended by my PSW suggestion: “…PSW is the most important class in the mandatory curriculum. Getting rid of it (for any reason) would be a monumental mistake.”

Others were less hostile to the idea: “I wouldn’t totally replace anything, but it seems like adding racial justice issues into PSW would be easy and useful.”

Do you support the establishment of an Office of Diversity & Inclusion?

Some students questioned what such an office would do. One person wrote “What would an Office of Diversity and Inclusion do? How, specifically, are non-white people not supported at HLS?” On the other side, however, many students support the creation of an Office of Diversity & Inclusion. “I hope substantive change happens soon,” said one student.

Do you support improving financial access and affordability for marginalized students?

This was the only other question, along with the shield question, that garnered over 50% support for Reclaim Harvard Law’s full proposition.

One student advocating for access and affordability said “I strongly support additional funding for marginalized and low-socioeconomic status

"Too many international students in the JD program, instead of real, American diversity of students of color.” students. More financial aid in grant form and less loans!!”

Another student advocated for increased funding for all students, stating “I think financial services should be improved for all students, regardless of race. Some students of color at HLS actually are from really rich backgrounds.”

Still others wanted to address other issues first. One student chided the admissions office: “There should be more of an emphasis on changing admissions. Too many international students in the JD program, instead of real, American diversity of students of color.”

Do you support a sustained commitment to recruitment, retention, promotion and professional development of Staff of Color at HLS? Reclaim Harvard Law advocates for an annual diversity audit, clear and published hiring targets, training, and mentorship. 49.6% of students polled agreed.

A significant number commented on the commitment to recruiting diverse scholars already demonstrated by the administration. One student wrote: “Harvard intensely pushes diversity in a number of areas. To fault them is to pretend that there are world class minority scholars “out there” that Harvard is refusing to hire. This is not the case, since Dean Minnow and others currently court minority scholars aggressively.”

Many others, however, wanted specific action. “We don’t have a single tenured Hispanic professor. Let’s work on that…” said one student.

Do you support the implementation of measures to ensure Staff of Color are respected and supported in their work?

Some of those polled had issues with this question. One student wrote “Who in the world would choose an answer such as “no, do not implement new measures to support Staff of Color.”

Do you support the adoption of a Diversity Committee?

Finally, we asked the community if they would like to see a committee established in line with Reclaim Harvard Law’s published proposal.

47.3% said they would. 42.2% opposed establishing a committee. 10.5% selected “Other” with some expressing a lack of understanding regarding what the committee would do, and others expressing reservations about the Reclaim Harvard Law proposal.

Belinda Hall/Fireside Lounge Comments We received a significant number of comments regarding the occupation

HLS survey results Do you support increased efforts to recruit, retain, and promote specifically staff of color at HLS?

Do you support the establishment of a Critical Race Program?

Other 5.5%

No 44.9%

Other 4.9%

No 45.5%

Yes 49.6%

Do you support the establishment of an Office of Diversity & Inclusion?

Do you support reforming the mandatory HLS curriculum?

Other 6.6%

No 37.7%

Other 2.1%

No 43%

Yes 57.7%

Other 8.9%

Other 8.2%

No 40.3%

Yes 48.2%

By Sarah Plavcan ’18

As a white student who is not affiliated in any way with Reclaim Harvard Law School, I was surprised and confused by the email sent by the Dean of Students Marcia Sells on Wednesday.

In contrast to the views Dean Sells gave a voice to in her email, I have found Belinda Hall to be an incredibly safe and welcoming place over the past few weeks.

The atmosphere in Belinda Hall has never felt more genial and welcoming. While I understand why it may be less conductive to those who need a space to study in quiet, Belinda Hall has always served as gathering place and a community area. The students currently occupying it have just as much right to use the space to meet their needs as do other students. This is especially true since — unlike other places to quietly study — a space for students concerned with diversity and inclusion to gather has not been provided by the HLS administration.

While I understand how some people may feel uncomfortable with the atmosphere in Belinda Hall, I also recognize that this is because

Reclaim HLS is dealing with inherently uncomfortable topics. The issues of diversity and inclusion have been minimized in the classrooms and community of HLS. Bringing them to the forefront is uncomfortable for everyone involved, but it is necessary for substantive change to occur.

The conversations Reclaim HLS is promoting do not provide “additional opportunities to make progress together towards our shared goals of enhancing diversity and inclusiveness” [emphasis added] — they must be the cornerstone of any such effort to make progress.

Furthermore, they are topics that are more painful to the people who have to live with exclusion, racism, bias, and stereotyping every day of their lives than to people like me, who have the ability to walk away from the Hall and ignore it.

I certainly cannot speak for all students at HLS. I cannot speak for all white students at HLS. I cannot even speak for all white allies at HLS. But that is because no person, and no group, can speak for all students.

There will always be someone who has a dissenting opinion, who will feel isolated and even unwelcome in any

given space because of their dissent. The administration of HLS should recognize this, and should recognize that the school is currently set up to overwhelming give preference to white needs and white comfort. It should not condemn a group that is working to open the zone of comfort to more students because some students may feel left out of that reclaimed space.

The law school is not currently “accessible and welcoming” for everyone. Look at records like “Socratic Shortcomings,” which document some of the isolation and discomfort that members of the HLS community experience throughout the law school.

Reclaim HLS is working to expand the welcoming atmosphere that already exists for some students to other students who do not feel welcome here. As one of the students who has been made to feel very welcome and comfortable by the law school, I do not and cannot begrudge my classmates and peers this space,

Yes 50.8%

Figures may not add to 100% due to rounding.

For full results, visit our website, hlrecord.org.

of “Belinda Hall.”

Some expressed support. “Belinda Hall is amazing” wrote one student.

“Belinda Hall is the only place I’ve felt comfortable since coming here.,,” Others sought to distance the occupation of the lounge from the broader goals of Reclaim Harvard Law. “…I think the Belinda Hall people are a minority within a minority ... occupying the lounge just frustrates students who are trying to learn.”

And there were many who expressed frustration with the occupation of the lounge. One comment said “I’m very bothered by the continued occupation of the Fireside Lounge.

I feel like if any other student group tried to indefinitely use a campus space, that would be stopped.”

Others couldn’t distinguish the goal of the occupation. “I do not support the takeover of the fireside lounge. I feel that I can no longer use that space...”

Others called for administrative

A welcome, and welcoming, protest A non-protester defends Belinda Hall

Yes 54.9%

Do you support improving financial access and affordability specifically for marginalized students?

Do you support mandatory cultural competency training?

No 43.5%

Yes 49.6%

but instead am honored that they are keeping their reclaimed space open as yet another place where I can feel welcome.

While I am grateful that Dean Sells “share[s the] goals of enhancing diversity and i nc lu s i v e ne s s ,” the language of the Dean’s email seems to prioritize the comfort of a group of students who are already made to feel welcome at the expense of removing one of the few welcoming spaces for students of color. The email’s warning to not disrupt the normal flow of activity and suggestion that students read protest guidelines misses the entire point of a protest, which is to disrupt a community’s patterns in order to make a change. That Reclaim HLS has managed to do so in such an open and welcoming way is a tribute to their consideration for, and involvement in, the HLS community.

Furthermore, even if Reclaim HLS was not as welcoming and open as it is, this kind of response by

I ... am honored that they are keeping their reclaimed space open as yet another place where I can feel welcome.

action: “The administration should remove Reclaim Harvard Law from the Fireside Lounge...” For some, the occupation affected their feelings on the movement as a whole: “the occupation of the lounge has negatively impacted my perception of the movement and its merit” said one student.

Ultimately, our poll revealed that there are many students on every side of these debates, and many students who are open to more conversations.

You can find all of the comments from the poll, unaltered and uncensored, on the Harvard Law Record Website.

We hope that these responses from nearly a third of our community shed light on the diversity of opinion that exists, and encourage students to have meaningful, open-minded conversations regarding these issues.

If you have additional questions about this poll, contact Deputy Opinion Editor Nic Mayne ’18.

the HLS administration makes the school itself seem like a much less welcoming place. We see ourselves as a place at the forefront of intellectual rigor, where ideas flow and leaders are made. For that, we must have the right to protest. The idea that we, the student body, might be restricted in our protests because some students find the topics uncomfortable or inconvenient is chilling.

Finally, I take factual issue with one of the complaints mentioned in the Dean’s email — that the occupying students have made the space otherwise unusable. Over the past few weeks, although I have not participated in any of Reclaim HLS’s formal events, I have been constantly using Belinda Hall. I have both dashed through in a frantic hurry and absentmindedly strolled through in the dark.

I have even traversed it a dozen times with my arms loaded with bowls of paint. And I have never had a problem moving about the room.

In fact, I have not even noticed any difference at all in my ability to access and navigate the room.

Whoever made those complaints has not visited the same Hall I have.

Belinda Hall, stripped of its colorful blankets, plentiful snacks, educational (if sometimes horrifying) posters, and enthusiastic ideas, would be a cold and unwelcoming place — and one we’ve already seen.

Sarah Plavcan is a 1L.

6

Harvard Law Record

March 10, 2016

OPINION

In Winning Rights for Animals, Approaches Differ Animal law speakers highlight diversity of challenges, strategies

By Daniel Sondike ’17

For animals, the current outlook may appear bleak: animals undergo abhorrent levels of suffering, especially on the farm and in laboratories, and help has not come from our legal system. Laws that grant animals greater protections must overcome disinterested legislatures and the powerful and wealthy animal agriculture and pharmaceutical lobbies. As a result, animals are subject to almost no protections.

Take animal agriculture, for instance. Humanity’s interaction with animals takes place almost entirely on the farm — 10 billion animals are raised for food yearly in the United States alone — so laws regarding how we treat these animals have crucial ethical and environmental implications (animal agriculture is to blame for between 18% and 35% of climate change). And yet, as animal law scholar David Wolfson remarks, there is no semblance of a legal system in place governing how farm animals are to be treated.

The Animal Welfare Act, the major federal law designating the proper treatment of animals, exempts farm animals from its provisions.

The Department of Agriculture has no statutory authority to determine how animals are raised on the farm; there exist no laws regarding how animals are to be treated until they are transported to slaughter.

Even with regard to slaughter, The Humane Methods of Slaughter Act exempts chickens, which constitute 96% of the animals slaughtered for food. State criminal animal cruelty statutes promulgate vague rules that are almost never enforced to

protect farm animals.

Wolfson, partner at the law firm Milbank, Tweed, Hadley & McCoy and professor of animal law at New York University Law School, spoke of the woefully inadequate legal protections for animals at Harvard Law School’s Animal Law Week, which ran from February 15th to 19th. The week saw six talks, each featuring advocates devoted to reducing animal suffering. The desired means by which to reduce that suffering varied.

Kristen Stilt, HLS professor and director of Harvard’s Animal Law & Policy Program, emphasized the importance of linking animal rights to other social movements. An Egyptian animal rights campaign that drew similarities between animal rights and women’s, children’s, and minority rights yielded a stunning provision in Egypt’s new 2014 Constitution requiring the humane treatment of animals: “The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals.”

Stilt further stressed the importance of knowing one’s audience.

For Egypt, that meant appealing to the country’s deeply religious population. To do so, animal advocates linked the kind treatment of animals to religious text — provisions from the Quran and Hadith that teach that animals are to be valued and cared for.

Law professor Randall Abate singled out environmentalism in particular for the animal rights movement to work alongside and learn from. The plight of animals and that of nature are linked, he argued, both because animal agriculture is in large part to blame for climate change and because both movements entail humanity’s role as

stewards of the earth and protectors of the vulnerable. Environmental concerns appeal to some who would not typically care about animal suffering — invoking these concerns thus may bring new people into the movement.

Abate also cited an alternative method to advance the rights of animals: tapping into international trade law. World Trade Organization rules allow countries to file objections to trade on environmental, health, and public morality grounds. Under these provisions, a country can ban importing goods produced with the cruel treatment of animals if those goods or the production thereof hurt the environment, endanger health, or offend the public’s conceptions of morality. Thus unlike United States law, international trade law represents an alternative legal system under which animal interests are taken into account.

Another reaction to the failure of the legislature to protect animals is for citizens to take matters into their own hands. Nancy Perry and Kelly Murray, of the American Society for the Prevention of Cruelty to Animals, spoke to HLS about the ballot initiative process, whereby voters can bypass the legislative process by voting directly on potential laws. Ballot measures have successfully protected animals in many areas, banning practices such as wolf hunting, horse slaughter, the trapping of fur animals, greyhound racing, gestation crates for breeding sows, veal crates, and battery cages for egg-laying hens.

Ballot initiatives have succeeded because, while the government has been slow to respond, an overwhelming majority of the public supports bettering the lives of animals. These initiatives are manifestations of this public sentiment unbounded by powerful interest

groups. Moreover, said Perry and Murray, merely the threat of such a measure passing has incentivized companies to adapt, citing examples such as McDonald’s shifting to using only cage-free eggs.

To Scott Heiser of the Animal Legal Defense Fund, the chief issue with animal cruelty laws is a lack of enforcement. A former elected District Attorney, Heiser now works to aid law enforcement in prosecuting animal abuse by drafting search warrants, doing legal research, locating expert witnesses, assisting on appeals, and drafting legislation. Heiser was joined in a talk at Animal Law Week by Nicoletta Caferri, head of the new Animal Cruelty Prosecutions Unit at the Queens County District Attorney, which is tasked with “pursing allegations of animal cruelty, abuse and neglect.” Caferri and Heiser have worked together to improve the enforcement of existing legal protections for animals.

Wolfson, while recognizing the advances in animal rights from the ballot initiative process and enhanced enforcement of animal cruelty laws, noted that still much of the worst treatment of food and laboratory animals persists. Thus Wolfson, mindful of the political barriers surrounding the enactment of pro-animal legislation, advocated for altering the market for animal products and their alternatives. Recognizing the rise of compassionate consumerism, Wolfson supports informing the public of the cruel practices behind animal products so as to reduce demand for them. On the supply side, he advocated for increasing the available alternatives to animal products, from meat substitutes to faux fur. As a law firm partner, he has worked with venture capital firms investing in novel and humane alternatives to animal products.

People for the Ethical Treatment of Animals (PETA) combines many of the above approaches. At the core of its multi-pronged attack that includes legal, educational, and investigative fronts, PETA promotes its overriding world view that humans should not use animals for their own pleasure. In outlining this stance at Animal Law Week, PETA president Ingrid Newkirk invoked familiar themes of animal advocacy, linking animal rights to other social movements. The abuse of animals, she argued, is justified through the same faulty logic that all social movements seek to dispose of: the notion that we are different, and that our differences justify the worse treatment of others. To further emphasize that human and animal causes are linked, Newkirk noted the environmental concerns and workers’ rights issues associated with the production of animal products.

Winning rights for animals remains a daunting task, given animal suffering’s unparalleled scale and the numerous political roadblocks.

Still, animal advocates have many tools at their disposal, whether going through the legislature or around it, whether enforcing existing laws or lobbying for new ones, whether working through domestic or international law, and whether using legal means or extralegal ones — perhaps by altering consumer demand for animal products. In championing these and other strategies, the speakers of Animal Law Week signified an uncertain, yet exciting, future for animal law.

Animal Law Week was hosted by Harvard’s Student Animal Legal Defense Fund, Harvard’s Animal Law & Policy Program, and the nation-wide Animal Legal Defense Fund.

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

The rebirth of privacy in the age of drones, Twitter and terrorism With the right legal frameworks, drones can be an opportunity rather than a danger.

By Andrew K. Gershenfeld

As the power and inf luence of drone technology continues to expand and ascend to new heights, far-reaching decisions will have to be made by legal experts and policymakers to determine nothing less than the fate and destiny of our American way of life.

With our most cherished values and the very character of our nation hanging in the balance, the time has come to act firmly and decisively to revolutionize our laws and renew the spirit of America as a nation deeply and profoundly committed to protecting the principles of privacy embodied in our Fourth Amendment.

In securing these ends, I believe the Supreme Court should not merely tinker within existing bounds of the antediluvian Katz privacy test, but should instead revolutionize the framework from the bottom-up with a fresh, new perspective, predicated upon the “uses” towards which the acquired information is to be employed, and a reasonableness analysis that recognizes the challenging new realities of the digital age.

In essence, the court must recognize the indisputable fact that information does not and cannot exist in a vacuum. On the contrary, when gathered, organized and assembled it becomes more than the sum of its

parts — in fact a kind of rich, mosaic narrative — depicting a unique human life and experience.

In a nutshell, here’s how the “mosaic” framework works: Traditionally activities like walking to the park, to the bar, to see one’s doctor or to go one’s place of worship have typically been considered “public” activities that do not implicate revealing aspects of one’s intimate life.

Nevertheless, in modern times when these isolated comings and goings are collated I would argue they should no longer be subsumed within the traditional province of the public domain but instead be re-conceptualized to be protected within the broader panoply of 21st century privacy law. Accordingly, collating these precious datum of daily activity ought to be recognized for what it is — a violation of a right more fundamental than the individual travel patterns connote in mere isolation: the Brandeisian right to be “left alone.”

To be perfectly clear, I do not seek to diminish one iota the considerable burden placed upon government officials to thwart the increasing threat of terrorist activity both at home and abroad. No doubt, National Security concerns remain daunting and will require a modicum of deference, perhaps even a lesser standard than probable cause in certain circumstances.

Yet the specter of a return to the arbitrary and unfettered discretion of “general warrants” originally rejected by the Founding Fathers in colonial times appears all too palpable and probabilistic a threat at this time given the current capabilities of drone technology.

Accordingly, law enforcement officials and policymakers must place special priority upon minimization and retention protocols so that private, sensitive information cannot easily be manipulated, misused, abused or misappropriated by unauthorized actors in violation of the rigorous “reasonableness” inquiry demanded by the text of our Fourth Amendment.

As future developments may require reevaluation of the precise contours of this balancing calculus, courts should f lexibly apply the standards of reasonableness to accommodate the exigencies of circumstance rather than expect the certainty of exactitude under conditions of considerable uncertainty.

In any event, one thing is certain, we can no longer continue to pour new wine into old wineskins, expecting anything less than both our privacy and national security to be utterly compromised. The answer in that regard is now clear — new conceptual wineskins for privacy are needed.

That is to say, at a minimum, we must recognize that drones though powerful and increasingly intelligent, are nothing more than instruments — neither good nor evil in and of themselves. They can be

If sensible regulatory and jurisprudential changes are implemented, I believe drones could be a major force for good. as productive and beneficial or as harmful and destructive as we — the agents who wield their awesome power — permit or direct them to be.

On the one hand, if drones’ technological power continues to expand, unrestrained by legal and social norms the consequences for our nation and our way of life, could be disastrous.

On the other hand, if sound and sensible regulatory and jurisprudential changes are effectively implemented, I believe drones could be a major force for good — spurring innovation and prosperity as well supplementing our current national security apparatus as a welcomed bulwark against emerging biological weapons and terroristic threats at home and abroad making our land more safe and free.

Ultimately, the haphazard, piecemeal approach currently governing the regulation of drones is woefully inadequate to meet the task before

Secretary Clinton: Oppose capital punishment

By Michael Shammas ’16

The story of the Democratic primaries is Hillary Clinton’s leftward shift. (It remains unclear whether the story’s a fiction.) Strangely, a key position she’s not yet “evolved” on is held by more Republicans than Democrats: She’s pro-death penalty.

Yes, Hillary’s said that execution should be reserved for “particularly heinous” crimes, that there should be adequate safeguards against

wrongful convictions.

But as a former defense attorney, Hillary knows better.

She knows there’s no consistent way to reserve executions for just one sort of “heinous” crime. She knows, for sure, that no matter how many safeguards there are, innocents will die.

As with drone strikes, so with state-sanctioned homicide: There’s always collateral damage.

The collateral damage isn’t pretty; and given her red herring stump

Hillary says she’s fighting for racial justice. But AfricanAmerican men convicted on dubious evidence are executed at a sickeningly disproportionate rate.

Hillary says she’s fighting for economic justice. But the poor are treated as fodder in a criminal justice system that sometimes treats indigent lives as products to be processed, as hens to the slaughterhouse, instead of human beings.

There’s no consistent way to reserve executions for just one sort of “heinous” crime. speech, wherein she maintains that she focuses on progressive issues like racism and crime while Sanders is a one-issue candidate, disregarding it reeks of hypocrisy.

us. Though the law is ill-equipped at the moment, with strong leadership and a sound strategy we can face these challenges with success — without the high risk attendant to either hastily responding to the next great national emergency, or (even worse) purposively waiting for such an emergency to compel us to act. Instead, we can and must address the future use of drones proactively by grappling with this coming storm head-on in the present — recognizing its significance as the preeminent national security issue of our time.

In conclusion, there are great risks and great rewards in exploring the myriad of applications of drone technology to our modern society.

Caution and care ought to be our guiding lights, to be sure. But these prudential constraints should not be blind us to our history and our heritage as Americans. Timidity and fearfulness have never suited the blazing spirit of American exploration.

From the wild trails of Lewis and Clark’s Great Expedition, to the sandy beaches of the Wright Brothers’ first flight, to the innovative assembly lines of Ford’s model T, to Armstrong’s triumphant march upon the moon — Americans have always been pioneers blazing new trails and exploring new frontiers.

Drones are the next frontier; the only question that remains is how will we respond to the challenge?

Andrew K. Gershenfeld is a 2L at Duke Law School.

Hillary says she’s fighting for a justice state rather than a police state. But the dead are unable to hold police who may have mishandled evidence or coerced confessions accountable.

Secretary Clinton: Not just Bernie Sanders, but a majority of Democrats, a fast-growing part of our party, is anti-death.

Join us.

Michael Shammas is a 3L. He is the editor-in-chief of the Record.

This post was originally published in Huffington Post.

March 10, 2016

Harvard Law Record

7

NEWS & ANALYSIS

GM owes it to Flint to help with toxic water

By Nicholas Kachman

tremendous strides in reducing polluting emissions from our plants and in cleaning up water discharges. During that same time period, the Michigan Department of Natural Resources acted as the junkyard watchdog over Michigan water supplies and the Great Lakes, resulting in tremendous improvement in water quality from pre-regulatory days. How the use of Flint River water could be approved by these agencies for community use is beyond comprehension. Recent political leadership has shortsightedly gutted these regulatory agencies to the point that they are no longer able to be effective.

But what of GM? It is public knowledge that within six months of the municipal switch to Flint River water in 2014, GM had switched back to water from Lake Huron. They were concerned about their rusting engine blocks. They were concerned about their profits. Where was their concern for the people of Flint, many of them either current or former employees? GM, no longer in bankruptcy, has the financial resources, the

political clout, and the environmental connections to offer significant help to Flint.

In my book, GM – Paint It Red, I chronicle the help that GM received in the past from water quality experts at Virginia Tech.

It was not until nearly a year after GM made the Flint water switch that engineering professor Marc Edwards, of that same university, published the alarming results of his study. If GM no longer has the internal experts to research the safety of the water for residential use, could it not have used its connections to reach out to the water experts of Virginia Tech at the first hint of a problem?

As a corporate giant, GM can be a player that makes a difference, but sadly, the environmental initiatives that they boast about today are largely smoke and mirrors.

They look glitzy in a press release, but I can tell you that in terms of hard numbers they are making a minuscule impact on the environment. It has long been my contention that protection of water quality and water resources is the key

Originalists should read broader Art. III jurisdiction

outsiders do not.

There is nothing in the text or the logic of Article III, which extends to “all cases in law and equity,” that places fatal constitutional shackles on these actions.

These class actions are essential for bringing discipline to private organizations, as in shareholder derivative lawsuits. Why then are they totally inapposite with respect to actions by national or state governments, when the possibility of official abuse is always present given the weak direct sanctions against public officials. How can the power of judicial review be exercised under Marbury v. Madison if no one has standing to challenge a broad class of structural constitutional violations?

In principle, I can think of no reason whatsoever why individuals who wish to challenge ultra vires (literally — beyond the powers) actions by the government should be routinely silenced because their grievances are shared in common with all fellow citizens. Rather than bar the suit, the better course of action is to allow dissenters to join as parties to the litigation, under the rules governing joinder and intervention, not standing.

In Lujan, Justice Scalia also mentions two other parts of standing doctrine. But these do not alter the basic analysis.

The first is the requirement that insists that the plaintiff trace his injury to the action of some government official. That rule makes sense for the tort victim that is run over by a truck, but not for injunctions against official abuse of government power. Nor is there any serious issue of whether the claimed injury is redressible by judicial action. That will always be the case if the injunction stops the unconstitutional violation in its tracks.

The third question was whether

General Motors could and should be doing more to assist their own. Flint, Michigan, the birthplace of General Motors as well as two of its major divisions, is in crisis. Celebrities are stepping in to help. Where is the corporation to which Flint gave birth – the employer of much of its historic population?

During my tenure at General Motors from 1957 to the early 1990s, environmental issues, in particular the protection of air and water quality, became my area of passion and expertise. Now as a retiree I can only shake my head as I read news article after article about the Flint water scandal. I am dismayed at the failures of the once effective state and federal environmental agencies. But what is shameful is the lack of action on the part of GM. Despite the tremendous resistance to regulation that came from upper management, the GM Environmental Activities Staff of which I was a member had made

Article III continued from page 1 don’t ignore the words that are in the text; nor do we add words that are not there. In this instance, the word “standing” does not appear in Article III, Section 2, yet current doctrine smuggles it in. To Justice Scalia writing in Lujan v.

Defenders of Wildlife, the doctrine of standing is a necessary outgrowth of the doctrine of separation of powers, where it serves as “an essential and unchanging part of the case-or-controversy requirement of Article III.” But this cannot be right.

Standing is not a peculiar creature of American constitutional law. As its Latin equivalent locus standi suggests, the term long antedates the American Constitution, and is only designed to make sure that in any court the plaintiff is an appropriate party to the case. To Justice Scalia that requirement is linked to the notion that the plaintiff suffers “an invasion of a legally protected interest which is (a) concrete and particularized,” and not just conjectural or hypothetical. But this supposed contrast does not exhaust all the relevant possibilities.

Nowhere in Lujan, or for that matter elsewhere in the Supreme Court’s tortured jurisprudence on standing, is any attention paid to the inclusion of the word “equity” in the opening phrase of Article III. Yet this term has immense significance both historically and analytically. At the time of the Constitution, some American courts were suspicious of the close connection between the English Courts of Equity and the abuse of royal in the person of the King’s

Chancellor.

Knocking out equity courts within the states could temper that risk. But by the same token, it would make it impossible to issue the usual kinds of equity decrees issued by federal courts, such as injunctions. This power would include, for example, the kinds of orders that are given to individual members of collective organizations to enjoin actions that are beyond legal powers.

The very logic of these suits is that any one individual is treated as a representative of the group of which he or she is a part. In Frothingham v. Mellon, Justice Sutherland noted that “resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation,” but insisted that matters were different in the federal context because the harm to the citizen in the local sphere is “direct and immediate.”

The supposed line of distinction between federal and state actions is wholly illusory. There can be millions of citizens in a large city.

The reason that the legal action should be allowed is that someone has to be allowed to bring a suit to stop illegal action where no single person has suffered compensable harm under tort or contract law.

The real problem in all these cases is that coordination among diffuse shareholders, partners, and charitable members cannot be achieved at reasonable cost. So courts of equity fill the gap by allowing any single group member to initiate the lawsuit to overcome the coordination problem. Standing is not unlimited because only group members or citizens can have it. Other

world-wide issue moving forward.

News sources like The Economist and The New York Times have carried numerous articles with this same message. Coca-Cola, the Bill and Melinda Gates Foundation, and Toyota are all effectively directing resources toward the protection and supply of clean water to their communities and to communities in need.

Meanwhile GM is boasting about wind turbines for a plant that has plenty of electricity, making their plants “landfill free” which goes beyond responsible recycle into absurdity, and spending $40 million to buy carbon credits in a mutually beneficial deal with ranchers in North Dakota.

The health of the children of GM’s own families and Michigan neighbors is exponentially more important. Wake up GM and use all the resources at your disposal to do something that really matters!

Nicholas Kachman was the Assistant Director of Plant Environment at General Motors from 1957 to 1993.

Someone has to be allowed to bring a suit to stop illegal action. it is likely that the harm in question could be redressed by a favorable decision. One reason why this might not be the case is that the Court does not have before it a party who will be practically bound by the decision, who ought to be heard before the case is decided. At that point it is appropriate not to hear the case for a reason common to all courts sitting in equity: it does not have jurisdiction over a necessary party. The Court was right, for example, to dismiss a challenge to the tax-exempt status of private hospitals in Simon v.

Eastern Kentucky Welfare Rights Organization, but only because those hospitals were not joined in the suit.

With all parties present, this joinder difficulty disappears. Thus in Flast v. Cohen, the plaintiff was allowed to mount an Establishment Clause challenge transfers of property by Congress to religious schools. But similar suits were not allowed against transfers by administrative departments or by presidential order. The standing requirement should not be fragmented in this mindless fashion.

The original broad public meaning of Article II, Section 2 is consistent with past practices in England and the states prior to the adoption of the Constitution. An originalist can ask for no higher pedigree for a comprehensive standing doctrine.

The public should expect no less.

Richard A. Epstein is the Laurence A. Tisch Professor of Law at New York University.

Justice Scalia remembered by Minow, profs Scalia continued from page 1 he wanted to do as a conservative jurist. Professor Manning, who also clerked for the Justice, discussed how each clerk would meet individually in Justice Scalia’s chambers to talk about the cases assigned to them.

Despite Justice Scalia’s notoriously conservative positioning, his clerks always felt free to challenge him.

Clerks debated issues thoroughly and fiercely, rarely breaking down on political lines.

Even those panelists who disagreed with Justice Scalia’s judicial philosophy recognized his impact on the Court. Professor Lessig noted that despite the differences in politics, he could not escape the fact that Justice Scalia affected how he thinks about law. And Dean Minow, in recalling the Justice’s “genuine interest in connecting over…ideas,” stated that their divergent ideologies did not matter to him — in fact, it made it a plus because he enjoyed the discussions. His commitment to engaging with his liberal colleagues was no more apparent than in his friendship with Justice Ruth Bader Ginsburg.

But the professors were not only struck by the Justice’s brilliance; he also had great warmth as a person and genuine friendships with his colleagues. Professor Sunstein respected Justice Scalia for being an extraordinarily generous and good person. Students at HLS shared this admiration.

“I was shocked and deeply saddened to learn of Justice Scalia’s passing,” third-year law student James Nelson said. “He was an amazing man, jurist, and constitutionalist. He will be known as a giant on the Court who championed textualism and stood courageously for conservative values. He was a model to me and many other young conservatives of rich intellectual thinking, rigorous application of a well-developed judicial philosophy, and joy in the face of great opposition. He transformed the Court for the better, and I hope his legacy will live on for many years.”

Not all are mourning Justice Scalia’s death.

Georgetow n University Law Center Professor Gary Peller, who graduated from Harvard Law School, stirred debate with his opposition to the Law Center’s press release. Professor Bruce Hay also criticized the Justice in a recent article published in Salon.

Although he clerked for Justice, Professor Hay characterized Mr. Scalia’s “true legacy” as “inhumanity.” He added, “He died as he lived, gun at hand, dreaming of killing helpless prey from a position of safety and comfort.”

The discussion last Wednesday followed a different path, however.

The panelists agreed that Justice Scalia will be remembered for his contributions to intellectual diversity and his gracious friendship.

“We will not forget him,” Professor Fried said. “He is with us.”

Secret government is stupid, reckless, incompetent and lawless

By Bruce Fein ’72

In 1961, after The New York Times downplayed the impending Bay of Pigs debacle, President John F. Kennedy remarked to editor Turner Catledge, “Maybe if you had printed more about the operation you would have saved us from a colossal mistake.”

President Lyndon B. Johnson tasked Secretar y of Defense Robert McNamara to visit Vietnam in December or early January of 1964 to assess the war situation.

Battlefields were toured. Briefings by generals were attended.

The secretary twice publicly voiced optimism about the progress of South Vietnam’s war effort.

But in the White House, McNamara told an opposite story, as Benjamin Bradlee of The Washington Post recounts based on the Pentagon Papers: “[E]verything was going to hell in a handbasket in Vietnam.”

But that assessment was concealed from Congress and the American people. If it had been disclosed, the United States might have been saved from the Vietnam War calamity the heartbreak of the Vietnam Veterans Memorial.

The Church Committee, A Senate Select Committee founded

by Senator Frank Church in 1975, revealed the intelligence community’s secret lawlessness in Operation

Shamrock, Project Minaret, assassination plots, and the overthrow of Chile’s President Salvador Allende in favor of the murderous General Augusto Pinochet. With impunity, the General later ordered the assassination of Allende’s foreign minister Orlando Letelier and Ronnie Moffat at DuPont Circle in Washington D.C. for denouncing his crimes against humanity.

These examples are but the tip of the secrecy iceberg.

Secrecy from time immemorial has been a recipe for government stupidity, recklessness, incompetence, and lawlessness all compounded by group think.

The First Amendment’s protection of freedom of speech and press are premised on this understanding. Justice Hugo Black elaborated in New York Times v. United States: “The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

To justify the unjust MexicanAmerican War, President James K. Polk lied about the killing of an

The intelligence community routinely stumbles for want of intellectually uncompromised outside scrutiny.

American soldier on American soil and risk of British or French colonization of Mexico.

Ulysses S. Grant served as a junior officer in the war. He was not squeamish about killing, as demonstrated by his Civil War record. In his Personal Memoirs after serving two terms in the presidency, Grant condemned President Polk’s manufactured war as, “one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory.”

The Mexican-American War set the precedent for chronic executive branch concoctions to justify a cavalcade of gratuitous wars: the Spanish-American War (USS

Maine), World War I (munitions on the Lusitania), the Korean War (a police action), Vietnam (second torpedo attack), the Persian Gulf War (new world order of peace and security, freedom and the rule of law), the Bosnia and Kosovo wars (dissolution of NATO’s southern f lank), the Iraq war (WMD), the Libya war (genocide), and the wars against Syria and ISIS (existential threats).

Depend upon it. The President of whatever political stripe will soon fabricate national security dangers to justify wars not in self-defense against China, Russia, Iran, and North Korea. With the acquiescence of a craven, invertebrate Congress, the White House–by telling fairy tales–will transform our republic into a carbon copy or worse of the monarchy we repudiated at Lexington Green in 1775.

The intelligence community also routinely stumbles for want of intellectually uncompromised outside scrutiny. It was wrong in labeling Iran’s democratically elected Prime Minister Mohammad Mossedegh a dupe of the Soviet Union to justify his overthrow in favor of the corrupt and megalomaniacal Shah.

It was wrong about the Domino Theory. It was wrong about a global communist monolith including the Soviet Union and China. It was wrong about the “missile gap.” It

was wrong about the Bay of Pigs. It was wrong about Gorbachev. It was wrong about Saddam’s WMD. Justice Louis D. Brandeis was right. Sunshine is the best disinfectant.

To forestall the evils of secrecy, the executive branch should be completely transparent with Congress, which would have discretion in proper cases to refrain from public disclosure. Congress has proven a more trustworthy steward of state secrets than the executive. In 1988, then C.I.A. Director George Tenet complained to the Senate Intelligence Committee that the executive branch “leaks like a sieve.”

Transparency can be easily accomplished by congressional enactment of a bill that provides: “No monies of the United States can be expended to collect, analyze, share, communicate or store intelligence that is not shared with the House of Representatives or Senate as each chamber shall direct. Any action of the executive branch intended to circumvent the transparency purpose of this provision, directly or indirectly, is also prohibited.”

All that is missing is political spine.

Bruce Fein was the general counsel to the Federal Communications Commission.

8

Harvard Law Record

March 10, 2016

NEWS & OPINION

Why I’m sleeping in Belinda Hall Jordan Raymond ’16

Recent protests across university campuses have exposed the dissatisfaction that has long troubled students of color in the United States.

For most of our nation’s history, collegiate environments did not tolerate black and brown people. As political scientist Ira Katznelson explained, back then “affirmative action was white.” Only in the last half-century have students of color come to expect consideration when applying to universities, largely thanks to our utility in advancing the “compelling interest” of diversity that underlays the Supreme Court decision in Grutter v. Bollinger.

Un iver sit y ad m i n i st rator s champion diversity as a means to challenge students to think critically and break down stereotypes.

But even this mild aim is often reduced to an expectation that students of color conform to existing structures, allowing institutions to neglect their duty to tear out their white supremacist roots. Whether born of willfulness or ignorance, one cannot suggest that these institutions have made diversity and inclusion bona fide priorities. A true interest in diversity should encourage students of color to transform campus cultures, not

assimilate into them. Ideally, these students would critique the lasting legacy of institutions that excluded them for centuries — perhaps even in acts of protest.

Harvard is not insulated from this criticism. Despite Supreme Court opinions that have touted its commitment to diversity, Harvard too has failed to understand its true meaning on an institutional level.

For example, retaining a handful of professors who recognize racial inequity does not alone transform the culture of the institution to one of inclusivity. Despite inviting more students of color throughout the years, Harvard has departed little from its original design to groom intellectually elite white men.

Through their demonstrations, students have called for the removal of offensive symbols, the contextualization of sanitized academic material, and the appointment of faculty and staff of color. These demands call for a structural change in American education that requires institutions teach the continuity of our nation’s history. In doing so, the identities of all students — not just the white majority — are acknowledged and respected in a way that truly drives critical thinking and interrupts stereotyping.

This is why I’ve been in Belinda Hall for the past two weeks.

Belinda Hall was named in honor of a brave woman who successfully recovered reparations for her enslavement by the Royall family, whose wealth endowed our first law professorship. In her memory, Belinda Hall was established by Reclaim Harvard Law School to create the community and educational opportunities that demands can only roughly sketch. In essence, it has embodied diversity through the students, staff, and faculty gathering here.

In Belinda Hall, I and others have engaged in political education, comparing the writings of Stokely Carmichael and Bayard Rustin.

I’ve seen critical race theorists like Native American Professor Gerald Torres and Latina Professor Margaret Montoya expand students’ imaginations. I’ve watched films that deal with challenging topics of race, religion, gender, and sexual orientation like Brother Outsider and Omar. I’ve even enjoyed the comedy routine of Palestinian Professor Amer Zahr. And as I write this, I see classmates preparing for a student-led discussion of TaNehisi Coates’ Between the World and Me and James Baldwin’s The Fire Next Time.

Belinda Hall is a busy but transparent student space, where all students are welcome and encouraged to engage. Each night, after a long day of scheduled programming, we discuss the problems of exclusion into the early morning hours. We laugh and cry about the hollowing of our histories — the academic erasure of our genocide, slavery, and colonization. We unpack the

Belinda Hall is a space where all students are welcome. oppressive tool we’ve been told to call legal education.

Through these conversations we are finding our collective and individual voices. We are building the safe space that students of color have been seeking for years. With each moment spent in Belinda Hall, we are realizing true diversity and its power to foster an intellectually challenging but inclusive community when allowed to fully flourish.

Here, I have finally found my place.

Unfortunately, not all have experienced Belinda Hall in the same way I have. In a recent email, Dean of Students Marcia Sells suggests that there are dissenting voices that would prefer to see Belinda Hall returned to its original state — a whitewashed hall devoid of the colorful personality that students have given it. In reminding us that the lounge must be available for “all,” Dean Sells misrepresented the environment in Belinda Hall as exclusive.

It is not uncommon to hear passionate yet respectful, challenging yet congenial discussions between student activists and their critics.

Belinda Hall is open to all. Yet, through her email, Dean Sells prioritized the voices of those who benefit from the status quo — who may be threatened by the conversation

happening here — and placed the burden of inclusion on students of color, asking them to comfort dissenters who may be feeling uncomfortable for the first time.

But the call for the restoration of stability in Belinda Hall did not end with her email.

Administration’s subtle policing of our movement appeared to take a more aggressive tone the following morning. At 6:00am, students sleeping in Belinda Hall were suddenly awakened when custodial staff — black and brown people like me — were sent to disrupt and dismantle Belinda Hall.

Administration sent marginalized staff to confront marginalized students.

The staff apologized repeatedly, explaining that they were ordered to this task and that we should expect them each morning. But why were they apologizing? We are here fighting for them too.

We couldn’t be angry with them.

Their livelihoods are at risk. So, we got up and started to clean with them. At one point, we asked for bottles of cleaning solution, but were denied because each bottle is individually assigned to a staff member out of the fear of theft.

Harvard University made $62 million in operating surplus last year and yet still has custodial staff assigned to $3 bottles of cleaning solution. That aside, together the black and brown people of Harvard Law School cleaned Belinda Hall that morning to make it acceptable for protectors of the status quo.

Jordan Raymond is a 3L.

Protest against Minow at award ceremony ill-advised

By Steve Salcedo ’16

Harvard Law School Dean Martha Minow was recently awarded the Joseph B. and Toby Gittler Prize at Brandeis University.

According to Brandeis’s website, the award “recognizes an individual who has made outstanding and lasting scholarly contributions to racial, ethnic and/or religious relations.”

As reported by The Harvard Crimson on February 26, about twenty individuals — including five HLS students — staged a protest

at Dean Minow’s award ceremony.

They reportedly interrupted her acceptance speech, interjecting that her receipt of the Gittler Prize was “hypocrisy” and “a travesty.”

I am disappointed in the five HLS students who participated in this protest.

Dean Minow did not deserve to be subjected to such embarrassment

on an occasion meant to celebrate her work.

The five protesters’ actions were par ticularly saddening, as well as conf using, in light of Dean Minow’s extensive contributions to causes of racial and social justice. In addition to her scholarship, which was the

Dean Minow did not deserve to be subjected to such embarrassment.

reason for which she received the Gittler Prize, she has made numerous other contributions that the five protesters likely support.

For example, Dean Minow recently filed an amicus brief with the U.S. Supreme Court supporting racebased affirmative action in university admissions. As vice chair of the Legal Services Corporation, she champions increased funding for civil legal aid across the country. She commissioned a body here at HLS, composed of faculty, students, and staff, to consider

The strange administration of Martha Minow

By AJ Clayborne ’16

Last week a group of students and I from Reclaim HLS traveled to Brandeis University to stage a protest during an award ceremony for Dean Minow. She was receiving the Joseph B. and Toby Gittler Prize which is “presented annually to a person whose body of published work ref lects scholarly excellence and makes a lasting contribution to racial, ethnic or religious relations.” With the love and support of the tireless activists of Ford Hall 2015, we called out the Dean’s hypocritical tendency to “talk justice, but do injustice.” Recently, reactions to this protest have expressed “sadness” and “confusion.” Our critics seem to think that we are unaware of Dean Minow’s scholarship and her contributions to the legal field in advancing the causes of gender and racial equality. Yet we did not protest in ignorance. Indeed, we protested precisely because we are intimately acquainted with her work.

Reclaim’s Debt to the Dean Reclaim Harvard Law advocates for a wide range of changes to this institution. One of our demands is a change to legal pedagogy. The current law school pedagogy does not provide new lawyers with the tools they need to address systemic problems such as racism. As it happens, we are not the

We merely brought to the surface the tension between Dean Minow’s administration and Dean Minow’s scholarship. first people to make that observation. In a 2007 article co-authored with Professor Todd Rakoff, Dean Minow helped to make the case that the Langdellian case method was outdated and inadequate “Langdell’s case method fails in [getting students to ‘think like a lawyer’]. It fails because lawyers increasingly need to think in and across more settings, with more degrees of freedom, than appear in the universe established by appellate decisions and the traditional questions arising from them.”

In addition to her critique of legal pedagogy, Dean Minow has often emphasized further contextualization of legal problems in order to achieve equality. In one article she and her co-author write, “Like others concerned with the failures of abstract, universal principles to resolve problems, we emphasize ‘context’ in order to expose how apparently neutral and universal rules in effect burden or exclude anyone who does not share the characteristics of privileged, white, Christian, able-bodied, heterosexual, adult men for whom those rules were actually written.” Reclaim Harvard Law shares

these concerns about “abstract, universal principles” and we share an emphasis on context. We seek to import contextualized learning into the classroom so that a more inclusive educational environment might be achieved.

If these last two points were not enough, Dean Minow is quoted on the back of the textbook used by Professor Mack in his Critical Race Theory survey course. She writes, “Exciting political and social analyses are coming out of law schools, and none is more incisive or more important than critical race theory.” Reclaim Harvard Law also believes that critical race theory is important and that exciting political and social analyses may be found in law schools where critical race theorists may be found.

We merely point to the fact that Harvard is not one of those law schools and demand a remedy.

The Strange Administration of Martha Minow Knowing that we are familiar with Dean Minow’s work, and that the Dean agrees with us on these issues, the final question to be answered is why protest her? One

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good answer comes from Dean Minow. In a 1991 article, :Breaking The Law: Lawyers and Clients in Struggles for Social Change,” Dean Minow analyzed the relationship between lawyers and clients who break the law in protest.

She wrote “Working within existing legal rules makes it difficult to resist the patterns that our experiences as outsiders should lead us to protest.” This same principle, applied to the protest last Thursday might be reframed thus: Working within existing social norms makes it difficult to resist the patterns that should lead us to protest. In other words, protest is not polite. It is not fun. It is not respectful. Protest must challenge social norms and resist convention in order to expose injustice. True protest is always an interruption.

Martin Luther King Jr., in his letter from a Birmingham Jail, wrote “[W]e who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive.” By protesting at Dean Minow’s award ceremony, we merely brought to the surface the tension between Dean Minow’s administration and Dean Minow’s scholarship. They are at cross purposes. And these cross purposes are all the more jarring considering that there is no institution that more deeply inf luences the legal universe than Harvard Law School.

If progressive change is to be made

whether the school should change its official seal, which is linked to slavery. And the list goes on.

Protest can be a valuable part of democratic society, but protesters should not eschew basic principles of civility and respect, as these students did. In their well-intentioned zeal to bring attention to social justice issues, the five protesters lost sight (temporarily, I hope) of values that constitute the bedrock of constructive discourse.

Steve Salcedo is a 3L.

in the name of racial equality, a good place to start would be here, where Dean Minow is clothed with the prestige and power of administration. Unfortunately, thus far the Dean has merely offered committees, working groups, and repetitive “climate surveys.” These things sound nice, but they have all been tried before, and they do absolutely nothing to address the structural violence of Harvard Law School. Since it is beyond question that Dean Minow knows about these problems, it is entirely appropriate to ask why she has done nothing about it.

It is important to note that our activism is not about Dean Minow, but that which she represents – Harvard Law School. Martin Luther King Jr. tells us that “The nonviolent resister must often express his protest through noncooperation or boycotts, but he realizes that these are not ends themselves; they are merely means to awaken a sense of moral shame in the opponent. The end is redemption and reconciliation. The aftermath of nonviolence is the creation of the beloved community.”

I look forward to making Harvard Law School into a true community because my activism is informed by the deep love that I have for the people here, and that definitely includes the Dean.

However, that same love imports the duty of standing up for myself and for the marginalized against racial injustice and I make no apologies for carrying it out.

A.J. Clayborne is a 3L.

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