Harvard Law Record
The Independent Newspaper
December 3, 2009
D E AD L Y
AFGHANISTAN
HLS CLASS OF ‘97 SUFFERS MULTIPLE DEATHS IN WAR
Obama Orders New Strategy: 18 Months and 30,000 Troops
Needed to Fulfill U.S. Mission, Fight Afghan Corruption
BY CHRIS SZABLA
After eight years of exhausting
war in Afghanistan, President
Barack Obama ’91 outlined his plan
Tuesday to achieve what he deemed
the U.S. primary goals there and to
bring the country’s involvement to
an end. Stressing the national secu-
rity threat still posed by Al-Qaeda,
President Obama said that 30,000
new troops would be deployed to the
battle-scarred Central Asian country,
Dukakis to Dems:
Knock on Doors!
Grasroots Campaigning
Critical to Success
BY MATTHEW W. HUTCHINS
The most important lesson of the
Obama presidential campaign, accord-
ing to former Governor Michael
Dukakis ‘60, is that successful cam-
paigns are founded upon organizations
that employ the grassroots power of di-
rect person-to-person contact. Dukakis
says his own political career as a mem-
Dukakis, cont’d on pg. 3
at Harvard Law School
www.hlrecord.org — twitter @hlrecord
Down to
Vol. CXXIX, No. 7
E N DG A ME I N
the Wire
MASS. SENATE RACE
NARROWS IN FINAL WEEK
?
Coakley Retains Slim Lead –
along with additional contribu-
But Dukakis Backs Capuano
tions from the U.S.’ NATO allies. and Globe Endorses Khazei
But he also outlined additional
steps to be taken in the country, in- BY CHRIS SZABLA
cluding program to turn some Tal-
iban away from the movement, a Polling data over the last several months made
“civilian surge” to shore up trust it seem as if Massachusetts Attorney General
in the government, training of Martha Coakley was a shoe-in for the Democratic
Afghanistan’s police and military, Party’s candidate to fill the late Ted Kennedy’s
Top: Alpha Company, 2nd Battalion, 508th Parachute In- and a closer partnership with Pak- U.S. Senate seat. But new numbers show other
fantry Regiment support Afghan police during a cordon and
istan. Despite the apparent open- Democratic candidates challenging her lead – and
picking up a number of high profile endorse-
search of Pana, Afghanistan, June 9, 2007. U.S. Army photo
by Staff Sgt. Michael Casteel. Above: Pres. Obama and U.S.
endedness of these goals, Obama
Army generals salute the remains of soldiers, including
Michael Weston ’97, during a ceremony at Dover Air Force declared that the U.S. withdrawal ments. With the primary for primary for the state’s
Base, Oct. 29, 2009. U.S. Air Force photo by Jason Minto. special Senate election set to be held December
Afghan, cont’d on pg. 3
8th – less than a week away – the
chances that another candidate may
INCREASED LIPP, SPIF MAKE UP FOR
h a r v a r d a n d t h e c r i s i s pull off a surprise victory are now
higher than ever.
The good news for Coakley’s chal-
INSIDE
PUBLIC SERVICE INITIATIVE CUT
Senate, cont’d on pg. 3
Financial Aid Reform: $5.2 Million Increase in
Grant Funding Despite Endowment Costs
BY MATTHEW W. HUTCHINS school's vision of the future, Dean
Martha Minow announced this week
The HL Record
The very visible decline of the Har- that the university's financial woes had
vard endowment has had notable im- forced the school's administration to News
pacts in all sectors discontinue the • Judge Sinks Piracy Defense
of the university, recently launched • Check Here for Labor Unions
and the law Public Service
school has been Initiative (PSI) tu- Opinion
no exception. ition forgiveness • End Blocked Ballot Access
From the unfortu- program and limit • Obama to Earth: Drop Dead
nate layoffs of the amount of • Harvard to Poor: Drop Dead
staff to the uncer- summer public in-
• Swiss Miss on Minarets?
tainty regarding terest funding
• After the Mumbai Massacre
free coffee, HLS (SPIF) available
students have had to current stu- • Genocide Denial in Rwanda
Photo: Siyuan Chen, LL.M. ‘10
the woes created dents.
by the frigid job market compounded But despite the changes announced, Features
by a sense that the economic crisis was representatives of the school's adminis- • Figuring Out Feminism
permeating all corners of academic life. tration say students should have no • Climenko’s “Wire” Spouse
Indeed, not long after the installation of doubt that HLS has retained its strong • Harvard-Yale Hate
the highest steel of the Northwest Cor- commitment to providing public inter-
ner project seemed to have dispelled est funding to all its students and grad-
any doubt as to the solidity of the law Funding, cont’d on pg. 4 BEHOLD HLRECORD.ORG
Page 2
Two-Party Ballot Suppresses Change
BY THERESA AMATO
In October 1958, Ralph Nader, then a
recently-graduated, former editor of the
Harvard Law Record, co-authored an
article decrying the monopolistic prac-
tices of the Democratic and Republican
parties on state ballot laws and their ill
effects on minor parties. In defense of
political dissent and the engagement of
new proposals, Nader noted the “many
times in our history” minor parties had
“deeply stirred opinion.” It was easier
in the 19th century for regional or small
start-up parties to get on the ballot and
infuse elections with ideas such as the
abolition of slavery, a woman’s right to
vote, worker and farmer reforms—all
of which we take for granted today,
though the minor parties first advocat-
ing these rights did not win the presi-
dency.
Five decades later, Mr. Nader, now an
internationally-renowned consumer ad-
vocate, has announced his candidacy
for the U.S. presidency three times,
twice as an Independent and once on
the Green Party ticket. His prescient
words concerning the suppression of
minor parties and dissenting agendas
remain even more accurate today as
they were fifty-one years ago.
I have an intimate knowledge of these
ballot access burdens because I man-
aged the Nader’s 2000 and 2004 presi-
dential campaigns and had to navigate
through these laws and oversee or in-
stigate nearly four dozen lawsuits to de-
fend against or seek reform of their ill
effects. Indeed, in 2004—motivated by
the 537-vote difference between Al
Gore, Jr. and George W. Bush in Florida
in 2000—the Democrats and their allies
launched two dozen complaints in 12
weeks against Nader’s candidacy, con-
suming the time, energy and resources
of the 2004 campaign, which was, in
addition to blocking ballot access, the
expressed goal of these major party po-
litical bigots and their brethren. The
litigious onslaught targeted Nader’s
candidacy simply because he, like all
eight minor party candidates on the bal-
lot, received more than 537 votes: but
he received the most and was posi-
tioned to appeal to voters again with a
progressive agenda.
Today, as in 1958, ballot access for
minor parties and Independents remains
convoluted and discriminatory. Though
certain state ballot access statutes are
better, and a few Supreme Court deci-
sions (Williams v. Rhodes, 393 U.S. 23
(1968), Anderson v. Celebrezze, 460
U.S. 780 (1983)) have been generally
favorable, on the whole, the process—
and the cumulative burden it places on
these federal candidates—may be best
described as antagonistic. The ju-
risprudence of the Court remains hos-
tile to minor party and Independent
candidates, and this antipathy can be
seen in at least a half dozen cases de-
cided since Nader’s article, including,
Jenness v. Fortson, 403 U.S. 431
(1971), American Party of Tex. v.
White, 415 U.S. 767 (1974), Munro v.
Socialist Workers Party, 479 U.S. 189
(1986), Burdick v. Takushi, 504 U.S.
428 (1992), Arkansas Ed. Television
Comm'n v. Forbes, 523 U.S. 666
(1998).
Justice Rehnquist, for example, writ-
Harvard Law Record
ing for a 6-3 divided Court in a fusion
case, Timmons v. Twin Cities Area New
Party, 520 U.S. 351 (1997), spells out
the Court’s bias for the “two-party sys-
tem,” even though the word “party” is
nowhere to be found in the Constitu-
tion. He wrote that “The Constitution
permits the Minnesota Legislature to
decide that political stability is best
served through a healthy two-party sys-
tem. And while an interest in securing
the perceived benefits of a stable two-
party system will not justify unreason-
ably exclusionary restrictions, States
need not remove all the many hurdles
third parties face in the American polit-
ical arena today.” 520 U.S. 351, 366-
67.
This license, in effect, to discriminate
against third parties and Independ-
ents—as well as the Court’s general re-
luctance to require much substantiation
of “state interests” when states proffer
that rationale to defend discriminatory
laws—have not made it easy to be an
Independent or the candidate of a
Green, Libertarian, Socialist or Consti-
tution Party, not to mention all the oth-
ers. Moreover, the Court has left
unreviewed outright miscarriages of
justice, as Nader knows from his half
dozen unheard petitions to the Court
springing from his 2004 campaign.
The burdens faced by minor party
and Independent candidates are sys-
temic. First, there are 51 different sets
of Byzantine rules, written the by the
partisan members of the legislatures of
the fifty states and the District of Co-
lumbia. As the major parties are usu-
ally automatically on the ballot, the
partisan legislators show little concern
for leveling the ballot access playing
field for challengers to their incum-
bency or parties.
Second, many of these ballot access
laws are blatantly unconstitutional—as
in they have already been held by the
courts to be so, but the administrators
of the elections cannot get their own
state’s legislatures to bring the election
codes into compliance with judicial rul-
ings. (We found this to be the case in
multiple states, including Alaska,
Arkansas, California, New York, Penn-
sylvania, and West Virginia.)
Third, election officials in the thou-
sands of state and local jurisdictions ad-
ministering these state laws controlling
federal elections often don’t know what
their own ballot access laws contain or
mean or are reluctant to tell candidates
their meaning for fear of being sued.
Fourth, compliance with the laws
may be overseen by partisan civil ser-
vants, commissions, or courts, and we
encountered all of the above in the ad-
judication of our cases, including egre-
gious examples of partisanship—such
as the use of the denial of ballot access
as a partisan fundraising promotion by
the then-Secretary of State of Oregon.
Finally, the aggregate of these ballot
access laws, either cumulatively by
state, or even within a state, as alluded
to by Justice O’Connor in her concur-
rence in Clingman v. Beaver, 544 U.S.
581 (2005), may be overwhelmingly
burdensome.
Of course, ballot access is just one of
the burdens faced by third party and In-
dependent candidates. Others include
the federal regulatory system, the lack
of public financing, the often dismis-
sive if not derisive media, the Democrat
and Republican cartel otherwise known
as the Commission on Presidential De-
bates, which acts as a debate and media
gatekeeper to millions. Also, the
hodgepodge of irregular and inconsis-
tent laws can devalue the rights of a
voter or candidate (from what counts as
a vote to who is entitled to seek an
audit) depending on the particular state
jurisdiction in charge of administering
the peculiar state laws applying to fed-
eral elections.
Ten years ago, The Appleseed Center
for Electoral Reform and the Harvard
Legislative Research Bureau published
in the Harvard Journal on Legislation A
Model Act for the Democratization of
Ballot Access, 36 Harv. J. on Legis. 451
(1999). A decade later, not a single
state has, and the problems remain.
I contend in my recent book, Grand
Illusion, the Myth of Voter Choice in a
Two-Party Tyranny, that a better re-
sponse would be to federalize federal
ballot access laws by creating one fed-
eral statute applicable to all federal
elections. (State laws written to control
the processes for candidates for Con-
gress are often as bad, indeed worse
than presidential ballot access laws,
with some voters never having the
chance to vote for Independent candi-
dates for Congress because of their
harsh state ballot access laws.)
Since 1985, a few members of Con-
gress—John Conyers, D-MI (e.g. HR
2320, HR 1582), Ron Paul, R-TX (e.g.
HR 3600), and Tim Penny, DFL-MN
(e.g. HR 1755)—have attempted over
nine sessions to introduce federal legis-
lation to ease these burdens for either or
both congressional and presidential
candidates. Congress has shown that
it can exercise control over federal elec-
tions where necessary by passing fed-
eral legislation to regulate a variety of
aspects including registration (the
“Motor Voter” Act), provisional ballots
and state registration databases (the
Help America Vote Act), and most re-
cently absentee ballots for those abroad
(the MOVE Act (Military and Overseas
Voting Empowerment)).
The prospect of passing a federal law
(which has been introduced in some in-
carnation and voted out of committee
and received a floor vote at least once in
the House in the last two decades) is
dim, but greater than the nonexistent
movement for passage of a state model
ballot access law, which has seen no
success in the last decade.
The question we should be asking is
why we continue to permit this injus-
tice when no other western country puts
its third party and Independent candi-
dates through the kind of hazing
process ours does? The congressional
incumbency rate (routinely in the 90th
percentile) reflects the often uncon-
tested or merely predictable-by-
landslide-proportions state of our
congressional elections.
These uncompetitive elections can be
impregnable for many reasons, not the
least of which are gerrymandered dis-
tricts, a winner-take-all or first-past-the-
post electoral system, and the lack of a
choice-maximizing vote counting sys-
tem, such as instant runoff or ranked
choice voting.
December 3, 2009
Do Third Parties Have a
Chance? Ballot Access and
Minority Parties (1958)
The following article, by Ralph Nader
’58 and Theodore Jacobs ’58, was pub-
lished in the HL RECORD on Oct. 9,
1958. Mr. Jacobs died Aug. 7, 1998 of a
neuromuscular degenerative ailment.
Most people will agree, as a general
proposition, that our democratic faith is
reflected in our treatment of minorities.
But, as so often happens with national
professions, it is in the translation of
these declarations into actual practice
[...]
In state after state there is a practical
monopoly of the ballot by the Demo-
cratic and Republican parties. The per-
petuation of this monopoly is insured
by laws which subject the entry of new
or minority party slates to the ballot to
almost impossible burdens, and by ju-
dicial interpretation of these laws which
ignore their prejudicial effect on small
parties. [...]
What requirements must a small
party or independent group meet in
order to place its candidates on the bal-
lot? There are 48 different answers to
this question. Each state has its dis-
tinctive statutes, ranging from liberal to
harsh, [...]
Without taking into account all the
minor variations in the several states,
three main aspects of the independent
nominating petition may be treated: (1)
The number of signatures required; (2)
Apportionment of these signatures
throughout the state; (3) Stipulations
concerning authentication of signatures
and restrictions on persons who sign
petitions.
In its Model Election Law, the Amer-
ican Civil Liberties Union urged that
minor parties be required to accumulate
signatures equivalent to only one-tenth
of one percent of the total vote cast [...]
Compare this standard with the re-
quirements of 2 percent in Missouri
(36,000 votes), 3 percent in Massachu-
setts (71,643 votes), 5 percent in Cali-
fornia (259,000 votes) and 7 percent in
Ohio (259,000 votes).
See more at HLRECORD.ORG
The lack of candidate and program-
matic choice are also to blame, and for
that we can look at the still onerous bal-
lot access laws Nader warned of in
1958 and the ignominious role those
laws have played in narrowing voters’
options by dictating the flipside of those
choices—candidates’ rights to run on a
level playing field. Improved third
party and Independent candidate
rights— by invigorating and diversify-
ing voter choices—will give citizens
more meaningful elections.
Theresa Amato, a public interest
lawyer, is a graduate of Harvard Col-
lege and NYU Law, a former Wasser-
stein Fellow at HLS and an Institute of
Politics Fellow at the Kennedy School.
Her book, Grand Illusion: the Myth of
Voter Choice in a Two-Party Tyranny,
based on her experiences as the na-
tional presidential campaign manager
and in-house counsel for Ralph Nader
in 2000 and 2004, was published this
year by The New Press.
For more information on ballot access
issues, see links on hlrecord.org
December 3, 2009
Afghan, cont’d from pg. 1
would begin in July 2011, just 18
months from the deployment of fresh
troops.
Obama’s address at West Point comes
just weeks after another Harvard Law
School graduate died in Afghanistan, on
assignment with the Drug Enforcement
Agency. According to a report in the
National Law Journal, Michael Weston
’97 had already been deployed to
Afghanistan as a Marine three times
when he was sent in on a DEA raid on
a Taliban drug and weapons bazaar. The
raid was successful, but Weston did not
make it home: his helicopter crashed
while attempting to take off in thick
dust.
Weston’s wife, Cynthia Tidler ’97,
had been there before. Her first hus-
band, Helge Boes, also died in
Afghanistan – working for the CIA – in
2003. It was another accidental death –
a grenade training misfire. Boes was
also a member of the HLS Class of
1997. "He was selfless in a way that
few who pass through Harvard Law
School have the strength and the
courage to be,” Weston, had written
about Boes when the latter died. “He
was the best of us."
On the morning of October 29, it was
Weston who was being remembered.
His body arrived with those of fifteen
others at Dover Air Force base, where
Harvard Law Record
Obama and Attorney General Eric allies and of Afghan civilians who will
Holder were attending the arrival of suffer from the escalation of the war ef-
fallen soldiers for the first time. We- fort – will be on the line. And the pro-
ston’s body was the second off the posal itself appears to be a gamble –
plane. The iconic photo of Obama that the additional troops can help sub-
saluting the coffins that passed has stantially weaken Al Qaeda beyond its
since become iconic. ability to strike the U.S. again, that the
At Harvard, where he, Boes, and Ti- Taliban can be significantly weakened
dler were close friends, Weston had to the point at which it is in no position
considered becoming a patent lawyer. to threaten overthrow of the Afghan
His father, Steven Weston, is a land de- government, that the “civilian surge”
velopment attorney at Alston & Bird in will help restore credibility to the em-
Los Angeles, and Weston was flying battled and corrupt Hamid Karzai gov-
back to California for a summer associ- ernment in Kabul, and that closer
ate position after his first year when he partnership with Pakistan will reduce its
encountered a plane full of Marines. ambiguous stance toward the Taliban.
Impressed by their dedication, Weston All this must occur before 2011, when
joined up while he was still a 2L. He Obama has promised to begin with-
served as a judge advocate – never, if drawing troops.
possible, flaunting his HLS credential – Already there is deep skepticism. In
and then deployed to the fronts of his address at West Point, Obama at-
Afghanistan and Iraq. tempted to dispel fears that Afghanistan
Obama stayed at Dover until 2:30 in would be “another Vietnam” by point-
the morning, speaking with the families ing out three critical differences – the
of the deceased. Eventually, he spoke U.S. is supported by more allies in
with Weston’s father. “Mr. President,” Afghanistan, is not facing a national re-
the elder Weston told the Los Angeles sistance, and has a legitimate casus belli
Times he’d said to Obama, “my son – the attacks of September 11, 2001.
went to Harvard Law School just like But the terrain on the Afghan-Pak-
you did.” istan border, where Al Qaeda is said to
The president now faces a critical have its base of operations – is even less
test of his leadership in his Afghanistan forgiving than Vietnam’s. U.S. troops
plan. Thirty thousand more American will deploy in greater numbers to
lives – not to mention those of the U.S.’ Afghanistan without a new strategy for
Page 3
fighting on the ground. Obama’s at-
tempt to woo low-level Taliban who
lack ideological commitment to the
cause is hobbled by a lack of existing
infrastructure to incentivize or support
such defectors. And Obama may be ig-
noring the regional element to the con-
flict: one of the reasons Pakistan has not
hit the Taliban harder, some say, is its
longstanding policy of using jihadist
militias as proxies against its perennial
South Asian rival, India.
Obama’s goals are certainly clearer
than those that seemed to be guiding the
U.S. in Afghanistan before. But they are
still somewhat vague, and it remains to
be seen how committed he will be to
them. At the close of his speech at West
Point, he noted that the cost of the wars
in Afghanistan and Iraq was hampering
the U.S.’ economic recovery, a prosper-
ity, he said, that financed its power.
The balance he draws between this
consideration, the deaths of American
soldiers, and the diminishing returns of
pursuing Al Qaeda into the deepest
mountains of the Hindu Kush, or up-
holding even the sparsest nation-build-
ing program in Afghanistan, is likely to
determine whether the withdrawal that
begins in 2011 marks a quick U.S. exit
from one of the longest wars in its his-
tory, or merely the beginning of its long
denouement.

Senate, cont’d from pg. 1 Dukakis, cont’d from pg. 1

cerned that the other candidates would try to spin
lengers – who include House of Representatives ber of the town meeting of Brookline began with the com-
Congressional act and White House policy against
member Mike Capuano of Massachusetts’ 8th Dis- mon sense step of knocking on doors and asking for the
him: he is the only candidate in the race with ex-
trict, Boston Celtics owner Steven Pagliuca, and support of voters. When he ran for the governorship in
perience serving in elected federal office. More
City Year service organization founder Alan Khazei 1972, he made sure to have a captain in every precinct
than once he was forced to point out that the Trou-
’87 – began on November 18, when a Boston across the state, working to make sure every voting house-
bled Assets Relief Program (TARP), the unpopular
Globe poll showed Capuano appearing to gain sup- hold would be directly contacted, and he managed to defeat
“bailout” of major banks, was not equivalent to the
port among undecideds. His numbers shot up from his opponent, the incumbent state attorney general, while
stimulus pushed by the Obama administration ear-
16 to 22% within a ten day period. The trend ac- spending only $25,000 on mass media.
lier this year.
celerated with the release of a Rasmussen poll Dukakis admits that he made many mistakes in the 1988
Khazei and Pagliuca, for their part, tried to get
showing Coakley’s appearing to be chipped away campaign for the presidency, but he says that in retrospect
past the barrier of inexperience. Pagliuca pointed
by Khazei, who gained 8 percentage points be- he should have gone with his instinct and mobilized grass-
out that he was highly active in Democratic
tween the Globe poll and the November 23 tally. roots support across the country. The Obama campaign,
fundraising and had opposed the Iraq War within
That was before the Boston Globe, in a surprise which succeeded in Iowa through grassroots, faltered
the business community, but commenters texting
move, offered its endorsement to the now-dark briefly before recognizing the potential for the internet to
WCVB pointed out that he had also donated money
horse candidate Khazei. The weekend endorsement open access to a broad base of support. The result was
to George W. Bush. The same commenters seemed
came with surprising rebukes against the other can- fundraising of over $750,000,000 from 4,000,000 support-
surprised by the appearance of Khazei who, despite
didates – the firey Capuano, the paper said, was ers, shattering all the records.
his Globe endorsement, lacks for name recognition
“too populist,” Coakley “too cautious,” and Pagli- But despite the phenomenal success of the Obama orga-
in the state. Khazei emphasized the twenty years he
uca, a Harvard Business graduate who made his nization’s grassroots strategy on the national level, local
had spent working in Washington, pointing out that
fortune in consulting, not experienced enough in candidates have reverted to reliance on mass media and ig-
he had played a role in passing several major pieces
politics to inherent Kennedy’s mantle. Citing norance of the person-to-person organizational strategy.
of legislation with Ted Kennedy.
Khazei’s bold stances on the issues and experience The only candidate employing the tried-and-true methods
Martha Coakley’s reputation as a safe and per-
with grassroots organizing, the Globe called him in the present Massachusetts senate race, says Dukakis, is
haps even overcautious candidate was borne out by
“Massachusetts’ best chance to produce another Alan Khazei ’87, but unfortunately the compressed sched-
her performance that evening, as she continued to
great senator”. Khazei has also rolled out a list of ule of the special election will likely minimize the benefit
assert that a “second stimulus” aimed at job cre-
endorsements running from AOL CEO Steve Case this provides.
ation may not be as much of a priority for her as an
to New York Mayor Michael Bloomberg to Max To Dukakis, a serious candidate will start organizing 18
evaluation of the first economic recovery measure.
Kennedy, a scion of the Kennedy family itself. months ahead of the election. The process begins with the
But the Attorney General revealed passion when
No more than a day later, Capuano picked up a selection of an experienced organizer who can work the
discussing her stance on whether abortions should
major endorsement from former Governor and field tirelessly and appoint a captain in every precinct.
be covered by health care.
1988 Presidential candidate Mike Dukakis ’60 – Once each precinct is staffed by local block captains, the
Although the House health care bill includes an
Dukakis’ first endorsement for a statewide position process of knocking on the door of every voting household
amendment substantially restricting access to
since 1990. Capuano has also been endorsed by begins, and it doesn’t end until each house has been can-
health care funds for abortions, Pagliuca said that
Diane Patrick, the wife of current Governor Deval vassed multiple times.
he would vote for it. In the sharpest exchange of
Patrick ’82, though the Governor himself has not The most obvious proof of this strategy’s success is, for
the evening, Coakley declared that the issue was
endorsed anyone in the primary. Dukakis, the victory of Governor Deval Patrick ’82. When
“not political, but personal”. Capuano quickly
Advertising for the Pagliuca campaign has been Patrick came to Dukakis in 2005, he was an unknown
backed her up with a severe jab at Pagliuca: the
copious over the last few weeks, with ads for his across Massachusetts. Dukakis told him to get a captain in
businessman would “send America’s women to the
campaign flooding television and computer screens every one of the 2,157 precincts across the state and begin
back alleys” for abortions by voting for the current
across the Commonwealth. But the businessman’s organizing a direct appeal to voters. “And this neophyte,
incarnation of the House health care bill.
numbers have been stagnant: after an early surge in who had never run for elected office before and who very
The candidates claimed the mantle of Kennedy,
late September, they have stabilized at around 15%. few people knew, not only beat two much better known and
but each displayed a slightly different side of the
After the Globe’s endorsement, Khazei appeared to quite capable candidates to win the nomination, but he
late Senator’s personality: his sometimes brash,
be in position to overtake him as the third place went on to win the election over the incumbent lieutenant
righteous anger (embodied by Capuano), his will-
candidate. governor by 20%. How did he do it? It was all grassroots
ingness to compromise (a trait that seemed to be-
The tightening of the race was reflected in sharp organizing.”
long most to Coakley) and his dedication to public
words exchanged between the candidates at a de- Red-states and Blue-states, Republicans and Democrats,
service (the mantle clearly inherited by Khazei). As
bate sponsored by Boston’s ABC affiliate, WCVB. he believes an aggressive candidate should reach out to
voters learn more about the four, they seem less
Each of the candidates fiercely defended their back- every voting household and make a direct appeal using the
able to choose between these qualities , which they
grounds – Capuano appeared particularly con- voice of members of the local community who have joined
so admired, together, in the late Senator Kennedy.
the campaign organization. Do this, and you will win.
Page 4
Funding, cont’d from pg. 1
uates. Dean Minow's announcement expressed a shift in
strategy to emphasize the Low Income Protection Program
(LIPP) as the preferred method of post-graduate public in-
terest funding, indicating that the gross funding of the pro-
gram had increased by $1.1 million and that eligibility
would be extended to unpaid public interest workers, who
had previously not qualified. According to Alexa Shabecoff,
head of the Office of Public Interest Advising, the strategy
change was necessitated by the double-bind of declining
endowment funding and increasing demand for funding due
to the troubled job markets. “The world has changed in the
last year and a half,” said Shabecoff, who spoke with the
Record along with the head of Student Financial Aid, Ken
Lafler. “When the economy is bad,” said Lafler, “there is
more need for financial aid.” The result has been a net
deficit of $5.2 million for the law school's existing com-
mitments to provide public interest funding, the combined
effect of a $2.5 million decline in endowment funds and a
$2.7 million increase in program needs.
According to Lafler, the LIPP program has this year re-
ceived more applications, only halfway through its fiscal
year, than it did during the prior twelve month period. Lafler
says this is partly because of the safety net structure of the
program itself, which has no requirement of years of serv-
ice and is designed to allow free movement of alumni in
and out of public service positions. With more graduates
moving directly into public service after school and a large
number of private sector attorneys being forced to pursue
alternative pathways, estimating the program's total costs
will be difficult until the job market begins to recover. In
fact, the large number of deferred first-year associates ex-
posed the program to a problem of under-inclusiveness
which the administration hopes will be adequately ad-
dressed by the promise to include unpaid graduates who are
at least employed.
But in order to support its expanding commitments
under LIPP, the PSI pilot program could not be continued.
Contrary to the facts reported by the Harvard Crimson,
Lafler says that enrollment in the PSI had been in line with
the administration's projections of 60 students for the first
year and 80 students in the second year, with final enroll-
ment reaching 58 and 73 students respectively. Even with
the PSI available, some students he advised made the in-
formed choice to accept only LIPP funding, preferring the
flexibility of not making a definite commitment under the
PSI framework. And although the PSI program helped over-
come the psychological aversion to debt, many students
have already seen complete protection from exposure to
debt payments under LIPP.
Shabecoff, who was involved in the design of the PSI,
says the program was also partly an effort to create an an-
nual cohort of students that resembled her alma mater's
Root-Tilden-Kern scholars program, with a kickoff banquet
aimed at establishing collegial connections among partici-
pants. She remains convinced that the funding available
through the LIPP and SPIF programs provide unparalleled
opportunities to HLS students and hopes that a new pro-
gram will be developed that captures the best aspects of the
PSI's design. In the meantime, she is relieved that the
Holmes Fellowship program will provide employment op-
portunities for a dozen new graduates each year.
For current students, the total evaporation of 1L em-
ployment at law firms and the imperilment of 2L opportu-
nities have swelled SPIF applications from 495 students last
year to more than 600 this year, an increase of over 20%.
To accommodate the increased volume, the program has
been limited to an 8-week funding period, which Shabecoff
says was a necessary trade-off in order to protect open ac-
cess. Lafler declined to say that the program would be ex-
tended again when the economy recovers, saying only that
every dollar available for public interest funding will con-
tinue to be directed whatever program is deemed to provide
the most benefit to students and graduates.
In a time of severe limitation in private sector employ-
ment opportunities, both current and prospective students
will be focusing close attention on the funding law schools
provide to pursue public interest employment. Both
Shabecoff and Lafler urged students to consider the flexible
and open structure of the LIPP program as a continued tes-
tament to the commitment Harvard has made to provide
loan repayment assistance no matter what causes an em-
ployed graduate's financial need.
Harvard Law Record December 3, 2009
Climate Depends on Copenhagen
Upcoming Climate Agreement Will Change the World,
But the United States is Not Taking the Lead
BY CRAIG ALTEMOSE like the Maldives, Brazil, Mexico, Ghana, and oth-
ers, which are willing to make significant emis-
From December 7 to 18, the representatives of sions reduction pledges, China and India are
192 nations will gather in Copenhagen, Denmark, looking to only pledge to reduce the rate of growth
to decide the fate of the human race. Will we con- of their emissions.
tinue to live in a world with a stable climate, or To make things even worse, leading scientists
will we condemn ours and future generations to a now believe that the 450 target that countries are
world with steadily decreasing amounts of food failing to even have a 50% chance of hitting is out-
and water as the population is set to dramatically dated and overly conservative. NASA’s leading
increase? climate scientist, Dr. James Hansen, Director of
Among the attendees will be President Barack the Goddard Institute for Space Studies, has de-
Obama ’91 and the heads of state of close to 100 termined that the highest safe level of CO2 in the
nations, including Australia, Brazil, Canada, atmosphere is 350 parts per million (ppm). We are
China, France, Germany, and the UK. now at 390ppm and climbing quickly, on pace to
The original goals of the summit was to try to hit over 900 by the end of the century. The world
reach an agreement to keep temperature increases has not had CO2 levels stabilize at 400ppm for
to less than two degrees Celsius; thereby fore- some 13 million years, long before human beings
stalling what scientists said would be the worst walked the planet, much less rode on it in carts or
consequences of global warming. This two degree cars. This goal has even been endorsed by the
goal was based on a report by the Intergovern- chair of the Intergovernmental Panel on Climate
mental Panel on Climate Change, the Nobel-win- Change.
ning body charged with summarizing all of the So, basically, the world is screwed. Almost
available scientific literature on global climatic every major environmental organizations in the
disruption. United States is so excited to have President
This body was not empowered to make recom- Obama actually doing something, after decades of
mendations, but their analysis revealed that to inaction in the hands of Reagan, Bush, Clinton,
have a 50% chance and another Bush, that
of avoiding two de- they forget that sci-
grees, we would need ence actually does
to stabilize emissions care about the num-
at 450 parts per mil- bers. We are not ne-
lion (ppm) of Carbon gotiating with
Dioxide in the atmos- Republicans, we are
phere. negotiating with
In order to earn that Physics and Chem-
50% chance, devel- istry, and they do not
oped nations like the handle negotiations
US would need to re- well. We get no credit
duce their emissions for recessions, for fil-
between 25-40% Iceberg on the Thames. Photo: flickr user IanVisits ibusters, or for good
below 1990 levels of emissions by the year 2020, intentions.
and by 80-95% by 2050. Since most heads of state Copenhagen will fail to reach a deal that will
will not be in office in 2050, the 2020 goals are safeguard your future. If you are planning to have
much more telling of the current state of affairs: children, you might want to reconsider. Some sci-
The European Union has pledged to reduce entists estimate that we may have enough food and
emissions across the block by 20% below 1990 water left on the planet for less than one billion
levels by 2020, and increase that pledge to 30% if people by 2100. A recent report funded by the
other nations similarly follow suit. Some Euro- United States Army, the World Bank, and UN-
pean nations have pledged even more: Norway ESCO stated that, without dramatic action “bil-
has pledged to reduce its emissions a full 40% by lions of people will be condemned to poverty, and
2020 (what most developing nations are now call- much of civilization will collapse.” Scientists es-
ing for); and our strong ally the UK has pledged to timate that as early as 2035, melting glaciers in the
reduce its emissions 34% below 1990 levels by Himalayas would see the water supply of over 400
2020. Japan, too has stepped up, with a 25% million people (more than the entire populations
below 1990 levels pledge by 2020. of American and Canada combined) completely
So how is Obama ‘reclaiming’ American lead- dry up, leaving the nuclear-armed nations of
ership and returning us to good-standing in the in- China, India, and Pakistan scrambling to find, buy,
ternational community? He is going with a pledge or steal enough water to quench a thirst the size of
of 17% below 2005 levels by 2020. While this North America.
sounds fairly close to what other nations are doing, Here in Massachusetts, the Leadership Cam-
it is indeed a national embarrassment. In 1990 lev- paign is leaning on the state government to em-
els, when most of our rich peers are in the 20-40% brace the goal of 350 parts per million by
range, Obama is going to Copenhagen with a committing to repower Massachusetts with 100%
pledge to reduce emissions by only 3% below Clean Electricity in ten Years. The campaign is
1990 levels by 2020. led by students at over twenty schools across the
Canada and Australia are using U.S. intransi- state, but is conducted in partnership with the Mas-
gence as an excuse to refuse to be less aggressive, sachusetts Council of Churches, the Massachusetts
but they would quickly fall into line if we stepped Climate Action Network, and the Sustainable
up to the plate. But more frustrating and damning Business Network. Twenty-five legislators (rep-
is that developing nations can also use our failure resenting 1/8 of the entire state legislature) have
to lead as an excuse. already pledged their support.
All observers recognize that China, India, and
other major developing nations will have to agree Craig Altemose is a 3L pursuing a joint degree
to binding emissions reductions if we to avert ca- with the Kennedy School and a member of the
tastrophe. Yet with Obama coming to the table Leadership Campaign, online at www.theleader-
with such a measly pledge, it is hard for those na- shipcampaign.org. Thosewith a desire to assist his
tions to go back to their people having made any effort can contact him at caltemose@jd10.law.har-
substantial commitments themselves. So, despite vard.edu.
the courageous leadership of developing nations
December 3, 2009
Harvard’s Pharmaceutical Patent Policy Still Limits
Access to Drugs by World’s Poor
BY MARIA VAN WAGENBERG
About a third of the world’s population, or roughly
two billion people, lacks even the most basic access to
essential medicines. Each year an estimated 25 mil-
lion individuals, 10 million of them children, die of
treatable and preventable diseases. A large share of
those deaths could be averted by low-cost access to
pharmaceuticals developed and patented by U.S. uni-
versities. University patents are found in a quarter of
HIV/AIDS drugs and a fifth of high-impact drugs ap-
proved between 1988 and 2005. The number of uni-
versity patents has been on the rise since the 1980
passage of the Bayh-Dole Act, which gave universi-
ties title to patents arising from federal funding. Once
a university obtains a patent, it will typically license
the patent to pharmaceutical companies for further de-
velopment and commercialization. However, unlike
pharmaceutical companies, which are tied to profit
margins, universities are non-profit actors whose
work is largely financed by public funding. Therefore,
universities have a special obligation to ensure access
to their research.
In 2001, a group of Yale students learned that d4T
(stavudine), an HIV antiretroviral drug patented by
Yale and licensed to Bristol-Myers Squibb, was being
sold at outrageous prices overseas, blocking off ac-
cess for HIV patients living in South Africa and other
developing countries. Troubled that Yale-developed
drugs were being priced out of reach for HIV patients,
the students joined in a publicity campaign that even-
tually pressured the university and pharmaceutical
company into reducing the price of the drug and mak-
ing it available for generic production in South Africa.
Today, the organization those students founded, Uni-
versities Allied for Essential Medicines (UAEM),
continues to advocate making university-developed
drugs available to poor countries at low cost.
On November 9th, the campaign for increased ac-
cess scored a significant victory when Harvard and
five other research universities signed a statement of
principles pledging to “promote the availability of
health-related technologies in developing countries
for essential medical care.” The policy represents an
important step forward for Harvard, which is both a
research powerhouse for diseases such as AIDS and
malaria, as well as a leader in the global technology
access movement. However, the policy does not go
far enough in several important ways.
First, it is not clear the new policy represents an im-
provement over current licensing practices. Harvard
has included global access provisions in only 5 of the
62 licenses concluded over the past two years. How-
ever, these licensing agreements are secret, so the na-
ture of the access provisions, the number of medical
licenses, and even the identity of the drugs covered,
remain opaque. The new policy promises that Har-
vard’s intellectual property will not pose a barrier to
essential medicine access in the developing world. It
also commits to applying “meaningful metrics” to
evaluate the success of its efforts. This commitment
is extremely vague. It does not address what the met-
rics are or how they will be applied in the context of
individual agreements. How meaningful will the com-
posite, retrospective metrics be, especially when so
few agreements are concluded each year?
Second, while the policy also sets out a menu of li-
censing options, it does not assemble these options
into a coherent plan that would facilitate access to
Harvard licensed drugs. University licenses can im-
pose global access conditions on pharmaceutical li-
censees in a variety of ways. Some of the most
discussed options include: (1) Requirements that
NGOs receive the rights to distribute discounted or
donated drugs for humanitarian purposes (though
NGOs rarely have the capacity to meet the needs of all
patients in poor countries). (2) Tiered pricing for low-
income and high-income patients in countries with a
significant income gap, such as China or India (a dif-
ficult policy to administer and enforce). (3) “March-
in rights” which allow the patent holder to revoke the
Harvard Law Record
licencee’s rights and license the patent to another
company, if, for example, a global access condition is
breached. (4) Financial incentives, such as forgive-
ness of university royalties, for licensees in exchange
for providing low-cost drugs in the developing world.
(5) Mandatory sub-licenses to specific generic manu-
facturers in developing countries. (6) Non-patenting
policies, where the university simply does not patent
in poor countries, allowing any manufacturer to make
generic versions of the drug without a license.
The new policy requires universities to select
Photo: flickr user RESchroeder
among these options with the goal of “align[ing] in-
centives among all stakeholders.” This is a vague
standard. Future policies should instead guarantee that
a minimum level of access is negotiated into all rele-
vant licenses; alternately, universities should commit
to making access a primary consideration in negotiat-
ing global access provisions. A mandatory policy
would reduce the need for transparency and oversight
and might also give universities greater leverage and
credibility in negotiating agreements with pharma-
ceutical licensees. As it stands, however, the policy
does not articulate a clear, access-based strategy.
Third, under the new policy, Harvard will continue
the practice of asserting patents in the so-called
“BRIC” countries (Brazil, Russia, India, and China),
in addition to patenting in developed regions such as
Europe and North America. The BRIC countries pro-
duce over 40 percent of the active ingredients in the
world’s generic and over-the-counter pharmaceuti-
cals, and remain the only source of generic drugs out-
side the developed world. The effect of patenting in
BRIC countries would be to close the “pharmacy to
the developing world,” shutting down all sources of
generic production bound for developing countries.
Generic manufacturing represents the most sustain-
able option for delivering drugs to the poor, compared
to the relatively stopgap measures of sublicensing and
royalty forgiveness.
Finally, Harvard has stated that the policy will not
apply to drugs for non-communicable diseases, even
though these diseases are major killers in the devel-
oping world. The developing world now accounts for
80% of the world’s deaths from non-communicable
diseases such as heart disease, cancer, and diabetes.
While HIV/AIDS and malaria are often the first things
to come to mind when thinking about global health,
the problem of access extends beyond those two high-
profile causes.
The policy for non-communicable disease drugs
might be explained by a deference to three pharma-
ceutical company concerns. The first concern is “par-
allel importation” – the idea that discounted or generic
drugs meant for distribution in the developing world
will be smuggled back to the developed world and
sold through black markets. Unlike malaria or tuber-
culosis drugs, non-communicable disease drugs have
significant markets in both the developed and devel-
oping worlds. There is scant evidence that parallel im-
portation of donated or discounted drugs exists or
poses a threat to industry profits. HHS estimates that
about 10 million shipments of unapproved prescrip-
tion drugs entered the U.S. in 2003; however most of
these originated in Canada or Mexico. It is not clear
what percentage, if any, of these imports represented
Page 5
discounted or donated drugs that were destined for
poor countries. A fair portion of these parallel imports
consist of counterfeit or illegal drugs, rather than le-
gitimate generic or brand-name drugs, according to
HHS. The European Union allows parallel importa-
tion among its member states, but even the EU has
experienced very few instances of parallel importa-
tion of drugs destined for the developing world. After
incidents like the one in 2002 when GlaxoSmithKline
discovered a trader had diverted 44,000 packs of
HIV/AIDS medications from five African countries,
governments have cracked down on these types of
shipments. Manufacturers have also adopted tech-
niques like color-coding and special packaging to
counter smuggling. As long as drugs are sold at a
lower price in the developing world than the devel-
oped world, there will be an incentive for parallel im-
portation. However, the solution is not to sell drugs
to the developing world at the same price as the de-
veloped world, but rather to combat the smuggling.
The second concern is that pharmaceutical compa-
nies, and by extension universities, will lose profits
by forgoing potential pharmaceutical sales in the de-
veloping world. Pharmaceutical companiess have
publicly stated that they will seek to recoup any prof-
its lost as a result of healthcare reform by raising
prices in poorer nations (see, for example, “Drug
Firms See Poorer Nations as Sales Cure,” Wall Street
Journal, July 7, 2009). Medications for chronic, long-
term diseases like heart disease, cancer, and diabetes,
are lucrative pharmaceutical sellers, and thus repre-
sent the best way for pharmaceutical companies to
maintain their double-digit profit margins. However
the developing world represents a miniscule portion
of pharmaceutical profits. PhRMA, the industry
lobby, concedes that Africa comprised only 0.5% of
sales in 2007, with China and India at 0.6% and 0.2%
respectively. By comparison, the U.S. represented
67.7% of 2007 world sales. With the developing
world accounting for such a small percentage of over-
all sales, pharmaceutical companies cannot claim that
global access provisions would drastically alter their
R&D incentives or lower their profit margins. More-
over, universities rarely make money off of their li-
censes. In 2007, Harvard University had about $1.88B
in total research expenditures, but only $12M in li-
cense income. Universities will occasionally hit the
jackpot with isolated blockbuster drugs – New York
University and Columbia had the highest licensing
revenues in 2007 with $791.1M and $135.6M re-
spectively, each from single deals. These amounts are
almost never high enough to offset universities’ re-
search expenditures.
The third concern is that global access provisions
will serve as a “poison pill,” discouraging pharma-
ceutical companies from licensing with universities
that require such provisions. This risk is probably
overstated. Pharmaceutical companies will still com-
pete to license promising drugs. Furthermore, licenses
are primarily made with small companies (49.9% of
deals) or start-ups (16.5%), many of them formed by
the researcher who originally discovered the technol-
ogy. These companies take the drug a bit further down
the development pipeline before licensing to a big
pharmaceutical company. Global access provisions
are unlikely to change the first licensee’s decision to
license, especially if the licensee has discovered the
drug. For the second licensee, often a large pharma-
ceutical company, global access provisions are un-
likely to discourage licensing for a drug with
demonstrated value.
Since these concerns remain unproven, they should
not serve as a basis for unnecessary concessions to
pharmaceutical companies. If Harvard continues to
enforce its patents in a way that prevents generic man-
ufacturing of essential medicines, it will create a real
barrier between these drugs and the people in devel-
oping countries who need them the most.
Maria van Wagenberg is a 2L.
 Harvard SWISS MISTAKE?
Page 6 Harvard Law Record December 3, 2009

Law
Record
The World Was Shocked When Switzerland Voted to Ban New Minarets,
But the Decision was About More Than Just Blind Xenophobia
EStabLiShEd MCMXLVi

Matthew W. Hutchins
Editors-in-Chief

Chris Szabla

News: Rebecca Agule

Staff Editors

Opinion: Jessica Corsi

Sports: Mark Samburg

Editor Emeritus: Ralph Nader

Craig Altemose
Contributing Writers

Theresa Amato
Philipp Fischer
Nicholas Joy
Patrick Karuretwa
Konstantinous Stylianou
Karan Singh Tyagi
Maria van Wagenberg
Stephanie Young
record@law.harvard.edu
Submit Letters and Editorials to:
or
Harvard Law Record
Harvard Law School
Cambridge, MA 02138-9984
Letters and opinion columns will be
published on a space-available basis.
The editors reserve the right to edit
for length and delay printing. All
letters must be signed. Deadline for
submissions is 11:30 p.m. Tuesday.
The Harvard Law Record is a publication
of The Harvard Law School Record Cor-
poration. All rights reserved. The Harvard
Law School name and shield are trade-
marks of the President and Fellows of
Harvard College and are used with permis-
sion from Harvard University.
SUNSTEIN NAMED
TOP THINKER
Foreign Pol-
icy magazine
recently named
Prof. Cass Sun-
stein ’78, who
is on leave
from Harvard
Law School to
serve as head of
the Office of Information and Regu-
latory Affairs, the #7 thinker of the
year in its list of the top 100 most in-
fluential intellectuals of 2009. Sun-
stein was cited for his book Nudge,
co-written with economist Richard
Thaler; he had taken the #3 slot on
the Prospect/Foreign Policy ranking
of the world’s most prominent public
intellectuals of 2008.
With his spouse, the Kennedy
School’s Samantha Power ’99, who
is working with the National Secu-
rity Council, ranked #80, the D.C.
duo were the only married couple to
both be named to the list. We look
forward to the debut of their son, De-
clan, on the list around 2045.
The controversial poster displayed around Switzerland in support of a ban on new minarets. Photo by Flickr user rytc.
BY PHILIPP FISCHER initiative for the interfaith relationship despite the fact that this decision casts a
in Swiss society. All the polls published shadow on Switzerland’s image as an
Switzerland’s vote to ban the con- in the weeks preceding the vote sug- open and tolerant country. This vote
struction of minarets, the prayer towers gested that the initiative would be rather reflects a sentiment of fear and
of mosques, was greeted with a mixture solidly rejected. Sunday’s result there- uncertainty that recently grasped this
of astonishment and disbelief around fore came as a colossal surprise for the country. In the past months, some of the
the world. The impact of this decision country and for the entire world. fundamental pillars that defined the
was certainly magnified by the fact that Against this background, it is worth Swiss society over the past century
– coincidentally – it occurred on the last noting that the initiative does not ban were shaken to the core, particularly
day of the “Festival of Sacrifice” (Eid the construction of mosques or the ex- following the disclosure of the dire fi-
al-Adha), a holiday celebrated by Mus- ercise of the Muslim religion as such, nancial situation of its flagship banks
lims worldwide. Some commentators but only the construction of minarets on and the relentless attacks on the Swiss
have already suggested that the vote mosques. The four minarets that cur- banking secrecy. Furthermore, an on-
will spark a backlash similar to the one rently exist in Switzerland are not af- going diplomatic row with Libya fol-
triggered in 2005 by the publication in fected by the vote, nor are the lowing an incident involving the
a Danish newspaper of cartoons repre- approximately 400,000 Muslims living Libyan leader’s son in Geneva may also
senting the Prophet Muhammad. That in Switzerland restricted in any way have been on voters’ minds when they
makes it critical to shed light on the from practicing their faith in their cast their ballots.
legal and political process that led to places of worship. That being said, this But it is also worth pointing out that ,
this vote. until recently, the Swiss Constitu-
Switzerland takes pride in a tion contained a provision whereby
century-old political system the creation of a new Catholic dio-
which allows its citizens to have cese was subject to the approval of
the last word on almost any im- the federal government. Given the
portant issue regarding their coun- Protestant alignment of the Swiss
try. The Swiss Constitution grants government at the time this provi-
each citizen the right of initiative, sion was introduced in 1874, the re-
i.e. the right to propose a consti- quirement for a prior approval was
tutional amendment which, if tantamount to an outright ban. In
signed by at least 100,000 citi- 2001, Swiss voters decided, again
zens, is then submitted to a popu- in a popular vote, to remove this
lar vote. discriminatory legal provision.
A Turkish mosque in Wangen bei Olten, Switzer-
In July 2008, a minor conserva- Sadly, the blank line left in the text
land sports one of the country’s four minarets.
tive political party announced that of the Constitution by the 2001 vote
it had collected the required number of formalistic approach to the scope of the will now be filled with the new provi-
signatures to force a vote on the prohi- initiative fails to reflect the symbolic sion banning the construction of
bition of the construction of minarets in power of the message sent by a major- minarets.
Switzerland. This proposal was imme- ity of Swiss voters this Sunday. Sunday’s vote will probably be seen
diately opposed by three of the four Some commentators have argued that around the world as a step backwards
main political parties that share power this initiative might be contrary to the on the road towards the peaceful co-
within the Swiss government. The liberty of religion, as guaranteed by the habitation of religions. This notwith-
fourth main political force endorsed the European Convention on Human standing, this decision – which was
initiative, but only half-heartedly. At the Rights, to which Switzerland has been a taken democratically in a sovereign
outset of the political campaign, a num- party since 1974. But the practical con- country and therefore ought to be re-
ber of Swiss cities, citing concerns sequences deriving from the conflict spected – must be considered as a
under Swiss anti-racism laws, an- between Switzerland’s duties under an unique opportunity to initiate a pro-
nounced their intent to ban from their international treaty and a constitutional found dialogue with the Muslim com-
streets the posters the proponents of the amendment ratified by an overwhelm- munities, both in Switzerland and
initiative printed, showing missile- ing majority of Swiss voters are un- elsewhere in the Western world, in
shaped minarets piercing a Swiss flag. clear, and are currently the subject of a order to define the necessary precondi-
This proved to be a costly strategic mis- heated debate among Swiss law profes- tions of a peaceful and harmonious co-
take by the initiative’s adversaries. sors and politicians. existence.
From then on, the public debate focused More importantly, this vote cannot
essentially on the limits of freedom of and should not be seen as the ultimate Philipp Fischer LL.M. ’09 is currently a
expression and touched only very su- proof of a predominantly anti-Muslim researcher at the University of Geneva.
perficially on the significance of this sentiment within the Swiss population,
December 3, 2009 Harvard Law Record Page 7

MUMBAI MASSACRE: QUESTIONING THE AFTERMATH

One Year After Terrorists’ Deadly Assault on India’s Financial Capital, Mumbai Still Lacks
Security, Justice – or Gratitude for Those Who Fought Back
BY KARAN SINGH TYAGI government's support for their capabilities, however, Why is the Maharashtra Government so insensitive
has been shoddy, to say the least. Even today, the local and apathetic? And when will its so-called policy
I remember November 26, 2008. I remember, police are grossly unprepared to deal with terror at- makers stop hiding behind the veil of anonymity?
vividly, the smell of terror surrounding Mumbai when tacks, because of an acute shortage of weapons and After the last bullet was fired in Mumbai, there was an
10 young jihadis with guns in their hand and hate in ammunition. Official records show that for a force of outpouring of anger and much dismay at the "politi-
their eyes took over my city and declared war on my well over 180,000, the home department procured a cal system": the whole country ranted, raved, and took
country. The dastardly events took place in two well- meagre 2,221 weapons, 577 for Mumbai and 1,644 to the streets to protest against a political leadership
known luxury hotels, a 20-year-old railway terminus for the rest of Maharashtra, in the last six years. In the that had wholly mismanaged internal security.
traversed by thousands every day, a popular cafe filled absence of a firing range and ammunition for prac- A year later, the same political leadership has re-
with foreign tourists and locals, an un- turned to power, and the section of the
known place of refuge, and a common population that had taken to the streets
maternity hospital. Terrorists opened one year earlier were nowhere to be
fire and cut down men, women and seen on voting day. The voter turnout
children of every social stratum of the in Bombay was an abysmal 46% in the
city and from every corner of the State Assembly elections and an even
globe. more dismal 43% in the Parliamentary
The attacks raised a lot of questions elections. The truth is that the fault lies
in the minds of Indians. Are we living not only in our politicians and leaders,
in callous times? Are we being run by but also in us. The low voter turnout
a bunch of corrupt and inept politicians proves that we Indians have started to
who can’t even have in place a basic believe that the intangible "political
game plan to manage a crisis of this system" is demonic and that there is
magnitude? Do we need to change our nothing that we as common men and
mechanism of intelligence gathering? women can do to change it. What we
Now that the first anniversary of the need to realize is that it is only the cit-
attacks is here, it might be a good time izens that can cause real change. The
to revisit the same questions to know current electoral system in India offers
how much has really changed since, no hope and the need of the hour is ur-
A candlelight vigil for the victims of the Mumbai attacks. Photo by Flickr user aloshbennett.
Mumbai and India were held ransom gent changes that will invite engage-
by ten terrorists. tice, local policemen have not opened fire in the last ment, loyalty and pride from all of us.
Sadly, not much has changed. A year down the line 10 years. The newly-created Indian Marine Police But the biggest tragedy is that we don’t know how
no individual has been held accountable or punished (IMP) has set up some of the planned seven dozen to respect our heroes. We don’t know how to respect,
for such a heinous act. It was only yesterday that the coastal police stations but, they have only received cherish and immortalize their sacrifices. November
Pakistan Anti-Terrorism Court formally charged about four dozen of the total of 20 dozen small five- 26th should mean something for us all. It should mean
seven suspects, including Lashkar-e-Taiba com- tonne and 12-tonne-high speed boats. The IMP needs recognition of the sacrifices that have been made, and
mander Zakiur Rehman Lakhvi, with planning and more than 500 small high-speed boats and about 12 that are still being made, by policemen, soldiers, their
helping execute the Mumbai attacks. It is better late dozen coastal police stations for more effective pa- families and their children. It should mean apprecia-
than never, but one only hopes that this indictment trolling. tion for what thousands of brave policemen and sol-
will be taken to its logical conclusion without any fur- Substandard bullet-proof jackets are supposed to be diers have done for India - not just on that fateful
ther delay. one of the many reasons that caused the death of many night but in all other wars that my country has fought
In India itself, the trial of Ajmal Amir Kasab, the brave policemen during the terror strikes. A year after and is still fighting to preserve our freedoms. I pray
lone jihadi captured alive, has been turned into a pro- the attacks, the Maharashtra chief minister Ashok that heroes like Major Sandeep Unnikrishnan, Anti-
longed circus that is serving no one. Kasab initially Chavan said last Sunday that he would investigate re- Terrorist Squad Chief Hemant Karkare, Additional
pleaded not guilty, but later, on July 20th, admitted ports that policemen remain easily exposed to bullet Commissioner Ashok Kamte, Senior Police Inspector
his guilt. The court accepted his plea and placed the wounds. But these reports have been circulating for Vijay Salaskar, Constable Ombale and several others
confessional statement on record, but dubbed the ad- almost a year, and the question could well be asked: shall not have lived and fought and died in vain.
mission of guilt as a partial admission and let the trial what exactly Maharashtra’s Chief Minister and Home
proceed. Minister have been doing for the last 12 months? Karan Singh Tyagi is an LL.M. student from India.
By all reckoning, Kasab's is an open and shut case.

CAMBRIDGE, USA: AT HARVARD-YALE

So why not get on with it and reach the inevitable
end? I am not suggesting kangaroo courts and sum-

“D Y W
mary trials, but delays like this don’t translate into jus-

G P F ?”
tice. It is especially distressing to see such problems
continue to emerge after the discomforting maze of O OU ANT TO ET UNCHED IN THE ACE
the Indian judicial system was so badly exposed to the
whole world when the Trial Court took thirteen years BY JESSICA CORSI psyched to go.
to bring down curtains to the 1993 Bombay Bomb We arrived late. We had
Blast case. The time had come in ambitiously promised a
In the immediate wake of the attacks, there was a my HLS career to show friend that we would drive
change in guard at the Ministry of Home Affairs, with some school spirit: I was down at dawn to catch the
the appointment of P. Chidambaram, a lawyer and a going to Harvard-Yale. traditional 9am Harvard-
Harvard Business School graduate, as Home Minister. I’m not normally a school Yale Law Review game of
Regional hubs of the country’s elite anti-terrorist spirit person, and even (flag) football. We were
force, the National Security Guard (NSG), were also growing up in Texas had obviously hallucinating
established. A National Investigation Agency was set not made me interested in when we said this. We hit
up by him to probe and pre-empt any terrorist attempt. socializing around foot- the road around ten, and
But, the fact is that Mr. Chidambaram needs to rec- ball. But my year at began seeing signs for
ognize is that India has never lacked agencies–in fact, Cambridge University New Haven around kick-
it is the multitude of intelligence agencies, and their had changed me into a off time. No problem, we
lack of cooperation, that has been the reason for the person who enjoyed en- said to ourselves. We’ll
failure to prevent terrorist attacks like those of No- gaging in petty rivalries still see plenty of action, if
vember 26, 2008. The lack of co-ordination between alongside hordes of affil- there was any action to be
the Intelligence Agencies, the Naval Agencies, the iated University revelers. seen; after all, Harvard and
So, I decided that there was Yale are not the country’s
Photo: flickr user Kaptain Kobold
Coast Guard Agencies and the local police was what
enabled the terrorists to slip through and land on no time like my last semester to engage in this sup- premier football schools. But whatever happened, we
Bombay’s beaches that day. posedly quintessential Harvard experience. And with were going to be there, screaming and chanting while
It is the Indian local police that are entrusted with that, we were off to New Haven, dressed in Crimson juggling our funnel cake and beer.
the duty to implement strategies to prevent terrorist and ready to wave our white and red pompoms. I did- There is something inherently hilarious about a
attacks at the ground level. The Maharashtra state n’t even have to feign excitement; I was genuinely Yale, cont’d on pg. 11
Page 8 Harvard Law Record December 3, 2009

MASTERMIND’S RELEASE FUELS RWANDAN GENOCIDE DENIAL

BY PATRICK KARURETWA
The recent encouraging news of the arrest in Ger-
many of two of Rwanda’s suspected criminals, Ignace
Murwanashyaka and Straton Musoni, overshadowed
the latest development in the appeal chamber of the
International Criminal Tribunal for Rwanda (ICTR).
On November 16, the tribunal reversed a 20 year
prison sentence and ordered the immediate release of
Protais Zigiranyirazo (“Mr. Z”). Based on a finding
of ‘serious errors’ in the first chamber’s handling of
the defendant’s alibi, the decision immediately
sparked a wave of protest and consternation in
Rwanda and the Rwandan diaspora.
The release of a suspected war criminal will not cre-
ate much disturbance in a country where convicted
killers live side by side with their victims’ relatives.
The community-based gacaca, a local justice mecha-
nism, have tried hundreds of thousands cases. They
have also allowed the release of thousands of perpe-
trators under a plea-bargaining scheme.
But Mr. Z is not your usual genocide suspect. He is
largely considered one of its masterminds. Many
feared him too much to pronounce his full name, for
Mr. Z is the brother of Agathe Kanziga, wife of the
former Rwandan president Juvénal Habyarimana.
Zigiranyirazo’s reputation as a radical extremist
went beyond Rwanda’s borders. In 1993, he was ex-
pelled from the Université de Québec à Montréal –
and then from Canada altogether – after being con-
victed of uttering death threats against Tutsi refugees
in Montreal. He moved back to Rwanda, where he
was already known as the head of the ‘Akazu’, an in-
formal but powerful organization revolving around
the former president’s wife, who controlled the omi-
nous ‘Zero Network’ death squads.
The existence and sinister agenda of the ‘Zero Net-
work’ death squads were revealed as early as 1992 in
the Rwandan press and confirmed in various local and
international fora throughout the years that led to the
genocide. General Romeo Dallaire, the UN peace-
keeping commander, sent a now-famous report to
New York in January 1994 based on the very detailed
information and warnings provided by Jean Pierre,
one of several defectors of the ‘Zero Network’.
Everything Dallaire’s informant told him became re-
ality three months later, and close to a million human
beings were slaughtered. Like all other defectors, Jean
Pierre had mentioned ‘Mr. Z’ as one of the key actors
in the preparations.
Today, Mr ‘Z’ is a free man. The Trial Chamber, be-
cause of serious procedural errors, had led to a find-
ing that he is not guilty. The memories of thousands of
Rwandans of the vicious anti-Tutsi roadblocks he had
established in direct proximity of all his residences in
Kigali and Gisenyi weigh little or nothing to the court.
It is useful to remember that the ICTR was estab-
lished by the UN Security Council Resolution 955
with the dual objectives of accountability and deter-
rence on the one hand and reconciliation and peace
on the other hand. In the words of Richard Goldstone,
the Tribunal’s first prosecutor, the ICTR trial process
is “an important means of promoting peace and rec-
onciliation in Rwanda, providing catharsis to sur-
vivors.”
By clearing Protais Zigiranyirazo of any culpability,
the appeal chamber arguably followed international
standards of justice. The consequence of that decision,
however, is not a simple mistrial. It is the acquittal of
a man whose acts, though not properly documented
by a prosecutor, are not easily forgotten in a country
where genocide was committed in broad daylight.
How much consideration was given to the assess-
ment of the impact on peace and reconciliation that
the Tribunal is meant to serve? How locally relevant
are the decisions of a transitional judicial body that
applies rules and processes developed to address fun-
damentally different realities than that of a genocide?
Most importantly, what are the implications of Mr. Z’s
release for the very concept of Genocide Planning?
No planning = No genocide?
‘Mr. Z’ was reportedly still stunned by the appeal
chamber’s decision when a news release co-signed by
his lead defense attorney, Jean Philpot, celebrated the
rejection, for the second time, of the charge againt
him of genocide planning. The press release also calls
for “the ICTR trials to be halted, ICTR convictions to
be reviewed by an independent UN Commission, and
the conditional release of detainees”.
Interestingly enough, Jean Philpot is the brother of
no other than Robin Philpot, the Canadian politician
who, in 2007, attracted intense media attention for re-
peatedly denying the 1994 genocide of the Tutsis.
For Jean Philpot, Peter Erlinder and others, the con-
cept is quite simple: no planning = no intent = no
genocide.
But the genocide deniers’ campaign goes beyond
the ICTR trials. A small but very active group of aca-
demics, often with ties of some kind to the ICTR de-
fense lawyers, does not miss an opportunity to
propagate their revisionist views. In the words of Pro-
fessor Gerald Caplan: “the deniers’ reach and influ-
ence has been spreading, metastasizing like a
malignant cancer, thanks to the anarchy of the blo-
gosphere and to the embrace of the deniers’ arguments
by a small but influential number of left-wing, anti-
American journals and websites. Google Rwanda and
you will quite likely get a deniers’ rant featuring the
tiny band of usual suspects.…”
Similarly, Oxford University’s Phil Clarck worries
about the increasing influence of deniers in the form
of “scholars pursuing the latest academic fads that
revel in ‘alternative narratives’, no matter how spuri-
ous or morally questionable; ‘génocidaires’ seeking
to deflect attention from their crimes; and critics of
the current Rwandan government who try to connect
alleged RPF crimes to unrelated concerns with its cur-
rent policies.”
Despite the lack of evidence for their assertions and
the extensive works of reputable scholars and organ-
izations that amply documented the planning of the
1994 genocide, this group persists. Could we be wit-
nessing their increasing influence over the ICTR? An
increasing number of genocide survivors apparently
think so.
International Justice for the
International Community
“Arusha’s justice is not ours. It is yours. That Tri-
bunal was created to cleanse your conscience”.
Yolande Mukagasana (survivor of the genocide).
November 18, 2009
Yolande lost her three children as well as her hus-
band, brothers and sisters. She has devoted her life to
supporting genocide survivors in Rwanda. She has
seen and heard enough. Her cynicism can therefore
be forgiven when she suggests that the ICTR, sitting
in Arusha, should imprison the orphans and widows
instead of the killers. “At least they will have three
meals a day. At least they will have a shelter. At least
they will get medical care,” Mukagasana writes.
International standards of justice certainly have
their own merits. There is, however, room for much
more thinking on their societal impact in a post-con-
flict context.
For several years, Rwandan genocide survivors
have been accusing the ICTR of repeatedly neglecting
and watering down their testimonies. Today, they are
once again in dismay. They feel ignored and aban-
doned, blocked from going to Tanzania and appear-
ing in Arusha at the ICTR to tell the terrible truth.
Arusha’s justice is not theirs if it considers Mr. Z an
innocent man.
The ICTR has spent more than 1 billion dollars and
completed less than 50 cases. With its profound de-
tachment from Rwanda’s social realities, the tribunal
could not be further from its claimed objective of con-
tributing to national reconciliation.
Patrick Karuretwa is a Rwandan lawyer and army of-
ficer. He is currently studying at Tufts University’s
Fletcher School of Law and Diplomacy as its first
ever LL.M./M.A.L.D. joint degree candidate.

Illusion of Free Choice: Experts Debate Merits of EFCA

and collec- question with former Dept. of Labor
tive bargain- Solicitor Eugene Scalia on Monday,
ing. But November 30th, in an event sponsored
experts are by the Federalist Society and the John
divided on Templeton Foundation.
the question The new labor law would institute
of whether “card check” unionization, automatic
the in- recourse to binding arbitration when
creased collective bargaining stalls, and higher
power to penalties on employers for unfair labor
unionize practices. Scalia, a partner at Gibson,
would actu- Dunn, & Crutcher, said that the EFCA
ally reflect would give unions greater power in ex-
the au- actly those situations when their inter-
Eugene Scalia (left) and Prof. Thomas A. Kochan (right) tonomous ests are not aligned with those of
BY NICHOLAS JOY choices of workers. “Unions have self interests of
employees or if the Act’s proposed their own to serve,” he said. “They see
How difficult should it be for em- changes would simply increase the co- a moment to get this through. They
ployees to form a union? The proposed ercive power of unions. Professor want this because union membership is
amendments to federal law embodied in Thomas A. Kochan, who is the co-di- declining.”
the Employee Free Choice Act would rector of the MIT Sloan School of Man- Scalia sees card check unionization
remove some of the hurdles that have agement’s Institute for Work and as eliminating “the hard won right to
historically stood between organizers Employment Research, debated the vote one’s conscience.” As evidence
that the election model does not give
unionization efforts short shrift, he cited
statistics that unions won more than 68
percent of elections last year, the high-
est proportion in years. Scalia believes
that the secret ballot is “absolutely nec-
essary” to avoid abuse. “It is really not
credible that the reason unions support
card check is to prevent intimidation,”
he said. “Unions want a monopoly on
intimidation.”
But according to Kochan, the rights
of employees to unionize are not being
adequately respected in the U.S. today.
“The evidence is overwhelming that
American labor law is broken.” Under
the current system, employees inter-
ested in unionizing must gather at least
30 percent employee card check ap-
proval, at which point the federal gov-
ernment supervises an election by
secret ballot. Card check unionization
EFCA, cont’d on pg. 10
 PERSPECTIVES ON FEMINISM
December 3, 2009
Is the Future of Feminism
Conservative?
BY NICHOLAS JOY
Christina Hoff Sommers is a feminist
who believes the women’s movement
has taken “a wrong turn,” and she is
willing to court controversy to say so.
On October 28, Hoff Sommers dis-
cussed “conservative feminism” in the
Ames Courtroom. The talk was co-
sponsored by the Federalist Society and
the Abigail Adams Society.
Hoff Sommers’ books include Who
Stole Feminism?: How Women Have
Betrayed Women and The War Against
Boys: How Misguided Feminism Is
Harming Our Young Men. She advo-
cates “equity feminism,” which focuses
on securing equal legal rights for
women.
Hoff Sommers sees her views as
being rooted in the tradition of classi-
cal liberalism.
“Equity feminism promotes harmony
between the sexes. It is not new,” she
said. “I’m not here to ask you to reject
classic equity feminism.”
According to Hoff Sommers, the
modern feminist movement has been
appropriated by “gender war ec-
centrics” who want to “knock down
doors that are already open.”
“If you looked at men and women to-
gether, it would be hard to say who is
better off,” she said. “There are still un-
resolved equity issues, but the real 21st
Century challenge is outside this coun-
try.”
This challenge, she said, is the liber-
ation of women in the developing
world, which she called “the human
rights challenge of our time.”
“There is something wrong with fem-
inism on campus,” she said. “We need
to turn the focus to other parts of the
world.”
Hoff Sommers categorized modern
feminist theorists as believing in “what
they call a sex-gender system,” in
which “every institution in our society
bears the imprint of patriarchy.” She
took issue with this theory.
“I read that and just do not recognize
the society we live in,” she said. “It is
too dramatic and negative about our so-
ciety.”
Hoff Sommers said that modern fem-
inist theorists have bolstered their
views with urban myths and “egre-
giously false information.” She said she
had found that many commonly cited
statistics, such as that violence against
women increases 80 percent on Super
Bowl Sunday, did not have any basis.
“Over and over again, you could
count on theorists to overstate,” Hoff
Sommers said. “The truth is so much
more complicated. If you want to help
women, help them by using the truth.”
According to Hoff Sommers, the
feminist movement has also become in-
creasingly hostile towards men, “impli-
cating an entire gender.” It does so by
focusing on the bad behavior associated
with “aberrational masculinity” rather
than what most men are like.
“We get the worst-case male stand-
ing for masculinity,” she said.
Harvard Law Record Page 9
Freedom to Sell Sex?
The Debate Continues
This attitude, Hoff Sommers said, is BY STEPHANIE YOUNG that showed legalizing prostitution cre-
partly the reason why the increasing ated a great increase in illegal prostitu-
plight of American boys has largely Should prostitution remain a crime? tion and organized crime, although
been overlooked. On Monday, November 16, 2009, four Prof. Majic disagreed with Dr. Farley’s
“American young men are under- panelists, Professor Samantha Majic, interpretation of those statistics.
achieving, underperforming,” Hoff Dr. Melissa Farley, Ms. Vednita Carter, Ms. Carter, a survivor of prostitution,
Sommers said. “The gap favoring girls and Dr. Elizabeth Wood, gathered to re- runs Breaking Free, a center in St. Paul,
is getting close to a chasm.” frame the issue in their own terms. The MN for African-American women es-
She cited statistics to support the no- eager audience included Harvard law caping prostitution. She drew parallels
tion that American girls are succeeding and government students, members of between current prostituting of African-
while boys struggle, saying that leading the Massachusetts and Rhode Island American women and historical en-
veterinary schools are 80 percent task forces against human trafficking, slavement. Ms. Carter related the
women and that women have taken and professors from several schools. difference between street and “indoor”
over the social sciences and biology. Prof. Majic is an assistant professor prostitution to the difference between
To the extent that women remain un- of political science at CUNY. She slaves who worked in the field and
derrepresented in areas such as the sci- spoke on the difference between de- those who worked in the “big house.”
ences, Hoff Sommers said that, while a criminalization and legalization of sex Although the house slaves were better
better job could be off in some ways, and the conditions of
done of encouraging slavery could be improved, the facts of
young women to enter enslavement and oppression could not
these fields, general be changed.
preferences between Harvard LL.M. student Alejandra
the sexes could be at Suero asked about the assumptions un-
issue. derlying the panelists’ definitions of
“I accept the fact that sex, and about the distinction between
the sexes are different, sex work and other types of paid labor.
different but equal,” Dr. Wood responded that “sex” can in-
she said. “What you clude a broad range of activities which
want for women is dig- are private and not usually discussed.
nity, equality but not She drew parallels to nurses’ aides, who
sameness.” are continually in very physical and in-
She cited polling data timate contact with their patients, yet
that showed that, do not draw the same social stigma as
“under conditions of sex workers do. Ms. Carter stated that
freedom,” 20 percent of sex and prostitution are separated by
women are “careerist,” differences in process and interpersonal
20 percent “just want to dynamic, in the same way that sex and
stay at home,” and 60 rape are differentiated. Dr. Farley fo-
percent want both. In cused on the prostituted woman’s emo-
contrast, when men are tional presence, and pointed out that
polled, 80 percent are Theran Prostitute by Shirin Fakhim. Photo: flickr user Joep de Graaff
many prostituted women dissociate
careerist, 20 percent want emotionally during their acts, either
to balance careers and homemaking, work, advocating for decriminalization through emotional means or through
and “a tiny percent want to stay at so that sex workers could more effec- substance abuse.
home.” tively access social services and the All the panelists agreed on what they
“Women who embody stereotypes legal system. would say if President Obama called to
should not be made to feel bad,” she Dr. Wood, a professor at Nassau ask their advice on prostitution, unani-
said. “20 percent will defy the stereo- Community College and prolific blog- mously stating that they would decrim-
type – that’s why we need equity femi- ger, views coercion and violence as dis- inalize the selling of sexual acts, and
nism. But 80 percent will embody the tinct and separable from sex work. She increase social services such as health
stereotype.” found that explicit exchanges of sex for care and housing. However, Dr. Wood
When Hoff Sommers first published money do not equate to exploitation or and Professor Majic wanted to decrim-
her views of the modern feminist move- violence, and described the conflation inalize both selling and buying sex,
ment, she said that her “colleagues were of sex and rape as “troubling.” Dr. while implementing labor laws and reg-
outraged,” and she was subjected to a Wood pointed out that women also ex- ulations on the industry. Dr. Wood felt
“colorful attack” by the feminist estab- perience violence within marriages or that this would help sex workers access
lishment. the military, but we do not seek to abol- courts for real violations of their rights,
“I am not a backlasher, a traitor, an ish these; rather, we try to improve civil in that the workers would not fear pros-
anti-woman,” she said. “I am a philoso- liberties for the people within these so- ecution. Ms. Carter and Dr. Farley, on
pher.” cial institutions. In one of the most con- the other hand, both argued in favor of
Despite her issues with the modern troversially received comments, Dr. holding “johns” or customers account-
feminist movement, Hoff Sommers be- Wood confirmed her support of a state- able, and shifting the criminal burden
lieves that organizations such as the Na- ment on her blog that bestiality or from supply to demand. Dr. Farley
tional Organization for Women were zoophilia can be noncoercive. cited research in Sweden that showed
integral to improving the lot of women Dr. Farley, whose research focuses on criminalizing the demand side of pros-
in America and can still perform an im- prostitution and sex trafficking, ex- titution actually decreased sex traffick-
portant role. plained that women are forced into ing by a large margin.
“Those organizations were essential, prostitution by a series of “invisible co- After two hours of debate, Professor
but they’ve been here a long time,” she ercions.” In her work, she has found Glenn Cohen, the event’s moderator,
said. that the rates of PTSD in prostitutes thanked the audience for being “feisty,”
Hoff Sommers hopes that the rival those found in rape victims, tor- but some participants were not yet
women’s movement will recast itself in ture survivors, and combat veterans. ready to leave. Professor Majic contin-
the future. Dr. Farley conceptualized prostitution ued to emphasize the importance of the
“I don’t think we should reject con- as a form of “paid rape,” and explained language and terms that frame the
temporary feminism,” she said. “We that the conditions for consent simply issue, but Dr. Farley got in the last
should reform it.” could not exist within prostitution. She word: “Legalizing prostitution is a fan-
cited statistics from Victoria, Australia, tasy.”
Page 10
Wire, cont’d from pg. 12
Citizenship and Public Affairs, Cora received her
LLM from HLS and worked briefly for Cravath,
Swaine & Moore LLP. She left private practice to
concentrate on international research and advo-
cate for on women’s issues in both Sierra Leone
and East Timor.
In preparing for the event, Cora checked in on
Booker T. Washington, the Baltimore school
where she taught 7th grade. “It was as bad as it was
when I taught there in 1992. On test scores, it
ranks at 1 out of 10,” she said. “And it consistently
ranked highest on issues like failure to attend,
pregnancy, and guns. It is a nexus of the most
challenging social problems that schools face.”
But Cora later went to Mott Hall, a Harlem
magnet school, where she saw another side of the
public school system. “Mott Hall is a school for
gifted and talented kids. These were kids who had
really motivated parents and family support, peo-
ple who got them into one of the better public
schools.” The contrast revealed to her the stark re-
ality of unequal opportunity. “While I was there,
I kept thinking of kids I had at Booker T. who
were just as gifted and talented, but who I lost to
the street,” she continued. “In those two experi-
ences, I saw the two extremes of public educa-
tion.”
For Cora, the roadblocks faced by students in
The Wire are tangible and pervasive. “These are
not problems unique to Baltimore,” she said.
“These problems exist across this country.” Cora’s
desire to build up her advocacy arsenal led to her
decision to leave the classroom and enter the law.
“I wanted to empower myself to fight the stratifi-
cation in this country,” she said.
Jim readily acknowledged that Cora’s experi-
ences as a teacher informed his performance as
Pryzbylewski. “When I was reading scripts, I felt
like I was reading the scripts that Cora had been
talking about for years,” he said. He went on to
admit that it felt a bit odd to examine the relevant
issues by watching television, asking, “Why aren’t
we watching clips of Cora in the classroom?”
However, he went on to recognize the value of
popular entertainment as a teaching tool. “For
those who have seen The Wire, it’s a godsend,” he
said. “It’s great that those issues have been
brought to a bigger public arena and a larger au-
dience than they usually would be.”
A former teacher in Camden, NJ, one audience
member credited The Wire for its depiction of the
issues that plague schools throughout the country.
She very much saw herself on the screen.
“All my friends said, ‘I am Mr. Prezbo’, no ‘I
am Mr. Prezbo’,” she added. David Simon’s writ-
ing partner, Ed Burns, brought his own experience
as a Baltimore teacher to the script, deepening the
show’s realism.
The audienceeagerly joined the discussion, re-
counting their own joys and disappointments in
the classroom. While watching The Wire, one stu-
dent recalled her own frustrations, crediting them
with driving her from the classroom and into law
school.
As might be expected of an educator, Cora
closed by encouraging the audience’s commit-
ment, noting several ways to advocate for stu-
dents, even outside the classroom. Though not
currently working directly in primary or second-
ary education, Cora remains in contact with for-
mer colleagues now working on policy or
attempting to open their own schools.
“To this day, teaching remains the most impor-
tant job I’ve ever done, the hardest job I’ve ever
done. And that includes my time in Sierra Leone
and East Timor.”
“Its great to have had teaching be my first pro-
fessional experience, because subsequent places
I’ve been, I knew when it wasn’t fulfilling me, and
I knew it was possible to be fulfilled,” she added.
Child and Youth Advocates, a Harvard Law
School organization bringing together students in-
terested in a range of children’s issues, including
child welfare, juvenile justice, and education,
sponsored the event.
Harvard Law Record
U.S. Can Learn From EU Telecom Reforms
BY KONSTANTINOS STYLIANOU
This winter, the global telecommunications sector is
active as never before. On November 24, Europe voted
on its new Telecoms Package, a set of Directives that
will serve as Europe’s future network policy. The U.S.
is revising its own broadband policy at the same time,
commissioning Harvard’s Berkman Center for Internet
and Society to compile a study on the current global
broadband trends. This fortunate conjuncture of regu-
latory overhauls both provides a clear vista of where
we are heading to in terms of telecommunications, and
highlights important differences between the U.S. and
Europe, offering lessons, examples and alternatives to
both sides of the Atlantic.
The EU’s approach is clearly consumer driven, and
reasonably so. European countries strove hard to instill
competition in the telecommunications sector over the
past 20 years, and, having succeeded, they can now
shift their attention to enhancing the consumer experi-
ence. This did not stop the EU from taking further ac-
tion to increase competition, facilitating functional
separation of national telecoms, requiring more inde-
pendent national authorities, overseeing national regu-
latory remedies proposed by national regulators and
reallocating spectrum. To achieve uniform application
of these rules, the EU will establish a new oversight au-
thority, the Body of European Regulators for Electronic
Communications (BEREC).
But the new directives will also gravely change the
lives of millions of network users directly. The EU will
officially embrace a form of network neutrality: na-
tional telecom authorities will set a minimum quality
level for all services, while network management al-
lows more demanding types of applications to take up
the necessary bandwidth. Customers will also receive
transparency in the form of better information on what
services they subscribe to and what they can or cannot
do with those communications services. A requirement
that obliges all website operators to ask permission be-
fore installing almost any kind of cookie on the user’s
computer is another step towards consumer protection,
but this privacy provision is so strict that has attracted
negative criticism. Finally, European consumers will
also be able to change their fixed or mobile phone op-
erator in one working day while keeping their old
phone number (it currently takes, on average, nine).
EFCA, cont’d from pg. 8
would eliminate the election and make the initial
process of checking cards determine if a workplace will
be unionized, once a majority has indicated approval.
Kochan said that this change is necessary because
many who would like to join unions give up because
they are “subject to delays both legal and illegal.” He
cited data indicating that a third of those who pass the
current card check hurdle never manage to conduct a
full election to determine if the workers will actually
unionize. “You lose an enormous number just in the
early stages,” he said. “The majority never reach the
endpoint.” In addition to legal challenges to the pre-
liminary steps, Kochan said illegal activity by employ-
ers creates an additional set of actual impediments to
unionization. According to Kochan, there are approxi-
mately 300,000 labor law violations by employers
every year.
Another EFCA provision that the panelists addressed
was mandatory, binding arbitration if a company and
union representatives could not draft a collective bar-
gaining agreement within a certain window of time.
While arbitrators are generally known for “acting like a
judge,” Scalia believes that labor arbitrators would be
“writing the contract” and “acting like legislators”. He
questioned who the arbitrators would be, whether qual-
ified people could be found to perform that role, and
emphasized the “enormity” of the implications of the
arbitration provision.
“When you’ve got an arbitrator sitting down and writ-
ing how you can run a business, that can be life or
death,” said Scalia. “I think it would be an even greater
disruption to the economy than card check itself.”
Kochan minimized the possibility that contracts de-
December 3, 2009
Most importantly, though, the EU has declared that
Internet access is a fundamental right and no discon-
nection from the internet can take place absent a prior
fair and impartial procedure, including the right to be
heard, and the right to an effective and timely judicial
review. The provision came as a response to the oppo-
sition against France’s infamous three strikes law. EU
Telecoms Commissioner Viviane Reding said that “the
new internet freedom provision represents a great vic-
tory for the rights and freedoms of European citizens….
‘Three-strikes-laws’ could cut off Internet access with-
out a prior fair and impartial procedure or without ef-
fective and timely judicial review, will certainly not
become part of European law.” The UK is considering
a similar law, but both countries recognize that their
version of the three-strike law is not inconsistent with
the new EU requirements.
Some of the issues the EU’s Telecoms Package aims
to tackle are common to the U.S. The FCC National
Broadband Plan taskforce has also identified a “con-
sumer information gap” and a “data privacy gap,” while
the management of the frequency spectrum is also a
priority there, especially given the tremendous growth
in the smart phone and netbook market. But because
American telecommuications companies lack an obli-
gation to share infrastructure, entry barriers for new
competitors remain very high, and lack of coordination
between firms when laying infrastructure dramatically
increases costs. The problems of low rural penetration
and digital divide are more acute in the U.S. than in Eu-
rope, and the FCC’s efforts are more likely to focus
thereon. In that direction a reorganization of the Federal
Universal Service Fund, to subsidize the broadband
sector more effectively, is under examination.
The following months are critical. The FCC must de-
liver its plan to Congress by February 17, 2010,
BEREC is expected to be formed by mid 2010 and the
rest of the European directives must be transposed into
national law by 2011. The synchronized mobility in the
telecoms sector comes in a time where both the US and
Europe need to catch up with more technologically ad-
vanced countries, like Japan and South Korea, which
show the way towards the future: a fast, ubiquitous, in-
tegrated network to cover people’s information needs.
Konstantinos Stylianou is an LL.M. student from
Greece
termined by arbitrators would have major effects for
businesses. He said that the scope of arbitration was
limited and that “arbitrations are by nature conserva-
tive”. “Arbitrated agreements almost always mirror ne-
gotiated agreements,” he said. “I’m a critic of
arbitration for not being as innovative as we would want
it to be.”
For Kochan, the arbitration process would provide a
way to ensure that more agreements are completed.
Moreover, he believes the threat of binding arbitration
would lead to 90 percent of contract negotiations end-
ing in negotiated settlements, while the success rate cur-
rently stands at only about 60 percent. Kochan also
disputed the argument that it would be difficult to find
qualified arbitrators. “There is no rocket science to
being an interest arbitrator,” he said.
Ultimately, Scalia and Kochan differed on the nature
of unions in the U.S. and the reasons for their recent
struggles. Kochan said that the union system has been
responsible for the success of companies such as South-
west Airlines but has been damaged since the 1980’s.
“You can see that this process is clearly broken,” he
said. “We ought to fix the law and fix it systematically.”
Scalia, however, described unions as losing traction
because of savvier companies raising working condi-
tions and wages, blunting workers’ desire for unioniza-
tion, and increasing competition as well as their own
success. Furthermore, Scalia believes that federal enti-
tlement and social safety net programs have replaced
many of the core functions unions once served in the
regulation of economic activity. “Unions have put them-
selves out of business by asking the government to do
the things they used to do.”
 Trial Judge Sinks Nesson’s Piracy Defense
December 3, 2009 Harvard Law Record Page 11

BY MATTHEW HUTCHINS
The outcome of the trial was predictable if tragic.
An industry dominated by corporate titans, seeking to
make an example of an individual who had infringed
on their intellectual property, brought suit in federal
court with the expectation of settling
their claims for a substantial monetary
penalty which would deter the public at
large. Joel Tenenbaum had done no
more than many thousands of other
young computer-savvy music listeners
by installing and using Napster, but it
was his unfortunate fate to be selected
as a target of opportunity for his copy-
right infringement. When his case came
before Judge Nancy Gertner in the Dis-
trict of Massachusetts, she suggested to
Professor Charles Nesson ’63 that he
consider taking the Case. But even a
brilliant professor from Harvard Law
School couldn't win against the stacked
deck of legal authority favoring the
recording industry.
To Nesson, the final judgment at the
trial, awarding $675,000 to the Record-
ing Industry Association of America
(RIAA), was both disappointing and ab-
surdly excessive. “I got my ass kicked
pretty well in this trial.” But Nesson is
confident that the long-shot case was a
good opportunity to make a stand.
“What Joel did in downloading and
sharing songs was what just about every
kid in his generation did and which I bet a great many
of you did.”
Addressing a room full of HLS students, Nesson ex-
plained his motivations and methods in the defense of
Tenenbaum for the innocuous downloading of thirty
mp3's. When the case first came to his attention, Nes-
son knew that there was little chance of victory on the
merits, with the only truly viable strategy at trial being
the minimization of damages. Nonetheless, Nesson
pressed forward with a defense on the merits to the
validity of the charges, arguing that the behavior as-
serted by the RIAA as violating the law was a ubiq-
uitous and socially acceptable activity which should
not be considered infringement.
Young computer users like Tenenbaum, called “dig-
ital natives” by Nesson, grew up in a world where the
explosion of music sharing was a widespread cultural
phenomenon. “In a way, if you didn't participate in
Napster, you really didn't know what was happening shouldn't put its weight behind an inferior product.
on the Net,” said Nesson. “The idea that a whole gen- When you have an alternative that is ubiquitous, that
eration was guilty seemed wrong to me.” Indeed, Hi- the industry has been responsible for making so [be-
lary Rosen, the chairperson of the RIAA, recognized cause CD's were not encrypted], if the law enforces
Napster as, “the most efficient method of distributing copyright based on the encrypted product, which is
music ever invented.” inferior to the available product [which is unen-
Despite the doubts crypted], then it's acting in a way which is counter to
of colleagues, Nesson innovation.”
believed that the ex- The rejection of this argument by the trial court left
ception to statutory Tenenbaum's fate in the hands of a jury, but the evi-
copyright infringe- dence presented by the RIAA, which made it look like
ment for “fair use” Tenenbaum blamed others and lied, interfered with
might be applied to his effort to appear credible and sympathetic. The
Tenenbaum's case. RIAA was thus able to convince the jury that his con-
The doctrine was orig- duct was basically, in Justice Breyer's words in the
inally developed to Grokster case, “garden variety theft.”
provide freedom for Upon the entry of judgment, Nesson plans to take
creative production of the case to the First Circuit on appeal, hoping for a
derivative works, and reevaluation of the legal theories presented and an in-
though Tenenbaum's validation of the damages as unconstitutionally ex-
use of the music did cessive. But in the meantime, there has been an
not have a creative extended delay in the entry of judgment and an ex-
component, Nesson change of motions that have led to Judge Gertner tak-
believed that the ing the matter under advisement. Nesson believes
Supreme Court's pro- there may be reversible error due to the exclusion
tection of VCR home under Rule 408 of certain parts of a settlement letter
recording might pro- offered as evidence by Tenenbaum, since that rule is
vide a basis for view- intended to protect the party that makes a settlement
ing copyright law as offer and the letter should have been admissible, and
protecting the public that Judge Gertner may hold that the jury's calcula-
interest of consumers, tion of damages was incorrect and should be reduced
a category which fit to the statutory minimum of $750 for non-willful vi-
Tenenbaum. But olation.
precedent was He believes now, in retrospect, that he should have
strongly against this theory. Courts had already re- treated the case as a criminal case, pleading the Fifth
jected Napster's fair use arguments based on preview Amendment and demanding a bill of particulars, and
of music for later purchase as well as MP3.com's that future defendants should treat such cases like
“space-shifting” argument that the internet could act criminal trials. But despite the rejection of his theory
as a jukebox for owners of licensed CD's. by the trial court, Nesson believes that statutory dam-
In fact, Judge Gertner accepted Nesson's theory of ages were never intended by Congress to be imposed
fair use, but only for the “interregnum” period from against individuals.
Napster's creation in 1999 until the recording industry Furthermore, he believes that the statutory fair use
began to offer a legal alternative for purchase of its defense supports Tenenbaum's case on each of the fac-
music online. But by 2004, when Tenenbaum down- tors of amount of the work taken, the effect of the
loaded the music in his case, the music industry al- market, nature of the work, and nature of the use. In-
ready provided online access to music. Nesson deed, to Nesson, sharing music has had a net positive
argued, however, that until 2007, when fully trans- effect on the music market by offsetting the harm to
ferrable, unencrypted music was available online, large record producers with a huge stimulus to inde-
there was no full technological substitute that would pendent music production, and Judge Gertner's own
rule out a fair use argument. recognition of the “interregnum” following the advent
“The fair use argument then, to a Court, becomes, a of Napster makes the policy arguments in the case
policy argument, in effect, of saying that the law eminently cognizable to a judge and jury.

Yale, cont’d from pg. 7

football rivalry between Harvard and
Yale. The real rivalry between the
schools is of course the question of who
is smarter, more elite, more prestigious,
more likely to take over the world.
There’s also the Cambridge-New
Haven rivalry, in which we hate on each
other’s cities. But, fine, let’s pretend its
about football for a minute. However
you want to classify it, we were look-
ing forward to acting like pro-Harvard
anti-Yale jerks for a few hours.
It was a stunningly sunny day—an
auspicious beginning. We walked into
the stadium grounds (the Bulldog’s
den!) and were met by civilized teasing.
A golf cart of blue clad men trundled
by, clutching Budweisers. “Go back to
Boston!” they yelled, laughing. Come
on, that was all they had in them? “We
will!” I yelled back. “In about five
hours!” As we left the tailgating area, a
few couples attempted to come up with
something witty and harsh and could
only stutter, “Ew, is that Crimson?” I
turned around. Were we being referred
to as a personified color? “Barf!” they
giggled. I waved my pompoms in their
face and they broke out laughing. On
the way into the stadium, two Yale men
asked me to pose for a picture with
them in front of the giant inflatable
Bulldog. Just to show they meant busi-
ness, they attempted to give me bunny
ears.
This was hardcore rivalry, alright.
Across the stadium, a friend of mine
doing a PhD at Yale was at the Forestry
School’s barbeque. She gushed to me
that they were roasting oysters sprin-
kled with cilantro.
Arriving late was the accidentally
smart thing to do. We loaded up on
fried food and piled into our seats at the
end of the third quarter. Depressingly,
the score was Yale: 10, Harvard: 0, and
the mood was pessimistic. My friend
turned to me in angst. “What do you
think they’re going to do?” he said, ges-
turing at Harvard’s team. I am not the
right person to ask about these ques-
tions. I follow the game by mimicking
what the rest of the crowd is doing. “I
think they’re going to play football,” I
said. “I mean what will they DO?” I
stared back at him, and then I offered
up a distraction. “Funnel cake?” He
does love funnel cake.
We tried getting serious about foot-
stomping, but the mood was not conta-
gious. A group of our LL.M. friends
abandoned hope just before the start of
the fourth quarter and left to tour Yale’s
campus. What they missed was a sur-
prising and triumphant comeback. Har-
vard capitalized on poor playcalling by
Yale to win the game 14-10.
This was it! This was the reason we
drove all the way down to New Haven
on a Saturday morning! The crowd
poured onto the field. We filed out to
the funnel cake stand, again. No sense
in getting in their way.
We shuffled back into town with the
masses, high on the victory and sugar,
and I was feeling particularly obnox-
ious. “Stinks to be you!” I laughed at a
man in a Yale shirt. “Do you want to
get punched in the face right now?” he
asked, glaring at me. Uhm, NO. “Do
you want to learn to take a joke right
now?” I asked. This man was threaten-
ing to punch a girl in the face because
she was lording a football victory over
him?
He wasn’t backing down. “I play on
the team,” he growled. Well that ex-
plained things. I sized him up. Appar-
ently, Yale had recruited some very
small football players that like to punch
girls in the face. But victory had been
destined to be ours from the very be-
ginning. “Yeah, okay,” I responded.
“So you play on the team. Sorry.” He
kept glaring. “Hey man—don’t
worry!” one of my friends reassured
him, in a cheery voice. “You’ll come
back next time!”
Traitor! Why was he even speaking
to him? This little person had just
threatened to hit me! He was psychotic!
“Whatever,” the small angry football
player spit out, stumbling into the forest
on the side of the road.
“What the hell was that?!” we asked
each other, before deciding to head for
pizza, the one thing that New Haven
may do better than Cambridge. But the
day was ours. Victory was delicious,
and not even hostile miniature football
players could take that away from us.
Page 12 Harvard Law Record December 3, 2009

The Wire Meets The Streets Climenko Fellow and “Mr. Prezbo”
Explore Intersection of TV and Reality
BY REBECCA AGULE cult-like following for its portrayal of Baltimore’s the law, and now her academic research as a Cli-
streets and citizens. Jim’s work has included numer- menko Fellow concentrates on case studies in family,
When Cora True-Frost asked the audience how ous programs centered on the criminal justice sys- trade and criminal law as a means of understanding
many had seen The Wire, nearly all hands were tem. In addition to The Wire, he appeared on several the fragmentation of norms at the international level.
raised. It was obvious that no one had come for ad- editions of Law & Order, CSI: Miami and Crime After completing her JD-MPA at the Syracuse Uni-
vice on their Legal Research and Writing homework. Story, as well as Homicide: Life on the Street, based versity College of Law and the Maxwell School of
Everyone was much more interested in learning on the book of the same name by The Wire executive Wire, cont’d on pg. 10
about Cora’s husband, Jim True-Frost, and his expe- producer and head writer
rience working as a television actor. But while Jim’s David Simon. Jim now
success came from portraying a cop working the serves as an adjunct fac-
streets and schools of Baltimore, Cora’s inspiration ulty member with the
came from hands-on experience in the real class- American Repertory The-
rooms of Baltimore, where she saw the grim conse- ater’s Institute for Ad-
quences of life on the street during her service for vanced Theater Training.
Teach for America. “For three years I didn’t
On The Wire, Jim portrayed Roland “Prez” know that I would be any-
Pryzbylewski, a police officer known for his incom- thing but this misfit cop,”
petence on the street who shines due to an aptitude he explained. “Then, late
for cracking codes and utilizing wiretaps. His char- in the 3rd season I got a
acter later becomes a middle school teacher at a hint that something seri-
blighted Baltimore middle school. To provide con- ous was going to happen
text for the event, Jim played several clips from the to my character. I thought
show, depicting Pryzbylewski’s interactions with stu- I was going to get killed
dents. “It’s amazing when we meet people on the off. Then they told me,
street,” said Jim. “They are so touched by the inter- you are going to play a
actions between Prez and the kids. But when I try to teacher, and it was bizarre
redirect the conversation to Cora, who actually has and wonderful.”
experience in those schools, they aren’t interested.” Cora went from her own
Running on HBO from 2002 until 2008, The Wire Wire experience serving Cora True-Frost LL.M. ‘06 and her husband Jim True-Frost. Cora was a teacher in a

Fall of 1L Year
garnered critical acclaim and developed an almost for Teach for America into Baltimore school; Jim played one on television in The Wire.

You can't contract your way into happiness, but, shhh, no one
tell the 1Ls - at least until after exams. For these eager young
lawlings, implied warranties of liability begin more friendships
than break them up. As fall frosts turn to winter chills, examtide
camaraderie breeds bizarre rituals around campus, like the dor-
mmates at left, who got comfortable enough with one another to
begin coordinating clothes.
For the upperclassmen among us, it's either heartening to see
first-year students, whose heads are more often found wedged
inside casebook pages, out and about – before submitting, again,
to the confinement of the library. Take heart, young ones: your
lives will probably be waiting for you on the other side of Win-
ter Break, or at least that newfangled problem-solving course.
Oh, and don't worry: 10% of you will get low passes, no matter
what. Thanks to Sandra Ray for the great photos!
Top: The 1Ls of Ames 3rd floor only wear navy blue: Jeremy Troxel,
Ben Watson, Sam Kuhn, Big Mike, and Danny McEntee; Bottom, left:
1L Brian Wood being very pensive outside the Hark; Bottom, cen-
ter: 1Ls Sandra Ray and Greer Libbey at the Head of the Charles;
Far right, top: Greer Libbey walking in Harvard Square; Bottom,
right: 1Ls Samantha Kuhn and Greer Libbey waiting to board the
bus to The Harvard-Yale Game in the B-school parking lot at 6:30am

Yalies Trounced by HLS Teams

in Basketball, Poker Matchups
Crimson Come From Behind for 14-10
Victory in 126th Meeting of The Game
The Court Classic, which took place
the night before the Harvard-Yale foot-
ball game in New Haven, raised money
for summer public interest funding at
Harvard and Yale. Coach Mike Lloyd
'10 led the HLS team to a victory over
its New Haven rivals. The event was
sponsored by the law firms of: Paul,
Weiss, Rifkind, Wharton & Garrison
LLP; Fried, Frank, Harris, Shriver &
Jacobson LLP; Freshfields Bruckhaus
Deringer US LLP; and Davis Polk &
Wardwell LLP.
HLS also came up victorious at the
third annual Harvard Yale Poker Face-
off on Friday, Nov. 20th. The individ-
ual results were wins for: Jonathan
Montgomery ‘10, Jamison Davies ‘11,
Ryan Adrian ‘10, Peter Ostrovski ‘10.
Joe Ferdinand ‘10 scored a tie due to Left to Right: David Hamilton '11, Brent Herlihy '12, Jamie Bull '10, Cory Baird '10,
the time limit expiring. Robert Young '10, Jamie Ianelli '10, and Francesca Butnick '10 represented HLS in its
victory over Yale Law on the basketball court.

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