Harvard Law Record

The Independent Newspaper at Harvard Law School

October 8, 2009 www.hlrecord.org — twitter @hlrecord Vol. CXXIX, No. 3

MASS. It’s Tom Cruise in...Top Gunner!

SENATE: Actor Pops in on Lecture by Hollywood Attorney Bertram Fields ‘52
THE RACE
I S ON
INTERIM SENATOR
PAUL KIRK ’64 STEPS
INTO KENNEDY SEAT

Alan Khazei ’87 and a

New Generation Fight
Toward 2010 Election Photos - pg. 5
BY CHRIS SZABLA

One Year Later, Experts Still Dismayed

The race to occupy the late Senator
Edward M. Kennedy’s U.S. Senate seat
is in full swing. With the state now rep-
resented by one Harvard Law School
alumnus, interim Senator Paul G. Kirk
’64, another, Alan Khazei ’87, has
joined several prominent locals who are
now competing in a tight race leading
up to the election of a permanent re-
placement.
A U.S. Senate seat has not opened in
Massachusetts for decades, and the
quest to take over Kennedy’s brought a
number of new names onto the state’s
political radar. While Democrats and
Republicans sparred on Beacon Hill
over the possibility Governor Deval
Patrick ’82 would be able to appoint an
interim successor, potential candidates
for a special election, to be held in Jan-
uary 2010, gathered both forces and
funding for a contentious campaign.
State Attorney General Martha Coak-
ley was the first to step into the ring.
Her announcement – that she would run
for the first U.S. Senate seat vacancy in
Massachusetts in decades – followed so
soon after Kennedy’s death that she
faced criticism. Weeks later, however,
T H E F I N A N C I A L C R I S I S
Financial Crisis Continues to Elude Answers, Provide Headaches
BY MATTHEW W. HUTCHINS
One year and trillions of dollars of government
intervention after the financial crisis, experts on
financial regulation at Harvard Law School as-
sembled to assess the its causes and effects and to
provide insight into what reforms are needed to
effectively regulate financial institutions. Mod-
erated by Prof. Howell Jackson ’82, the panel in-
cluded: Geoff Miller, the Comfort Professor of
Law at NYU; Allen Ferrell ’95, Greenfield Pro-
fessor of Securities Law; Elizabeth Warren, Leo
Gottlieb Professor and Chair of the Congres-
sional TARP Oversight Panel; and Hal Scott, No-
mura Professor of International Financial
Systems.
Looking backwards, the events of September
and October of 2008 were characterized by wide-
spread uncertainty and unprecedented extensions
of the Federal Government’s authority to support
financial markets. On September 7th, Fannie Prof. Elizabeth Warren, right, wants stronger consumer protection in finan-
Mae and Freddie Mac were both taken into gov- cial regulation. Prof. Ferrell, left, wonders what caused repo market failures.

Brazil’s “Minister of Ideas” Returns to HLS

Crisis, continued on pg. 6 CORRECTION: In the print edition this caption is a repeat from Issue No. 1.
she was the frontrunner in a race that
was heating up long before anyone was
certain who would represent Massa-
Prof. Roberto Unger Succeded by S.J.D. Protégé Daniel Vargas

INSIDE
Senate, continued on pg. 3
BY CHRIS SZABLA been one of the President’s sharpest
critics, calling his one of the most cor-
Professor Roberto Mangabeira Unger rupt governments in the world.
LL.M. ’70’s 2007 appointment as Now, nearing the expiration of his

The HL Record
Brazilian President Luiz Ignacio da paid leave – which, he said, Harvard
Silva’s “Minister for Strategic Affairs” had refused to extend – Unger has re-
– a position that has been described as turned to his teaching post, and a much
“Minister of Ideas” – piqued curiosity more modest office in Areeda Hall. His
News around the globe. Unger’s task, re- former position will not be disbanded –
• War Crimes Prosecutor Winds marked the New York Times, was no despite political and legal challenges to
Down Yugoslav Tribual
Fabio Pozzebom - Agencia Brasil

Opinion
• The G-Force in World Politics
• Army’s Afghan Advice Flawed
• Who Was Behind Lockerbie?
Features
• Prof’s First Year Survival Tips
• 1L Cup Madness
more expansive than to plot a long-term
strategy for the country as a whole. The
Economist, which ran a profile on the
longtime member of the Harvard Law
School faculty, seemed intrigued by the
appointment’s novelty.
Unger was, after all, considered a
consummate academic. After complet-
ing the written requirements of his
LL.M. degree within days of his arrival,
he was named one of the youngest pro-
it that dogged him since the day of his
fessors in Harvard Law School history.
appointment – and one of his students,
His subsequent scholarship was broad
who is still earning an S.J.D., has pro-
enough to be termed philosophical. Yet
visionally replaced him.
none of this, alone, made Unger’s ap-
pointment surprising – he has been di-
Given his vague portfolio, and his
barbed words about the President, who
rectly or indirectly involved with
is often referred to as Lula, it was prob-
Brazilian politics, in some way, since
ably not surprising that Unger’s time in
the 70s. What made the announcement
government caused a stir. Beyond for-
more astonishing was that Unger had Unger, continued on pg. 3
 Is 1L One Hell? Prof. Einer Elhauge’s Survival Tips
Page 2 Harvard Law Record October 8, 2009

10. Don’t Wait for the Ball
Many students complain that law professors are just
hiding the ball, asking a series of questions without
just telling students the answer. For my own first two
months as a law school student, my notebook was
largely blank because I kept waiting for the answer,
which like Godot never came, just more and more
questions. I wrote this limerick to express my mis-
taken attitude.
His friends used to tell Socrates
Now really, don't be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze
But obviously you shouldn’t wait for the ball or the
answer. Instead, what you need to understand is the
analytical structure of questions relevant to an issue,
the range of valid positions, arguments made for and
against them, and the process of thinking through
them. Because, unfortunately, thinking isn’t such a
breeze, and there is no simple ball that is hidden, but
rather an array of balls that you need to learn how to
juggle.
9. Don’t be boring
We are a polite people, but one can take that too far.
A British professor once told me, “Americans are too
damn polite, so that a conversation between them con-
sists of each person trying to say what the other per-
son would have said had it been their turn to speak.
And that isn’t a real conversation at all.” Don’t be
afraid to disagree or be provocative, or even to try on
positions you aren’t quite sure about. And don’t close
your minds to those who disagree with you. You may
find that they are more convincing than you thought,
or that discussion with them deepens your under-
standing of just why they are so wrong.
8. Don’t Ignore What Other Students Say in
Class
Now, I don’t say this out of any painfully polite sen-
timent that everything your classmates say is sound
and interesting. It isn’t. And I just told you not to be
too polite. The reason to listen to fellow students in
class is that, through student comments, professors
often teach important lines of arguments or limits with
those arguments. Even if you wanted to focus only on
what the professor thinks, that may be hard to discern
from what they actually say, because
professors often just take the opposite position of
whatever the student happens to say, to make sure that
both sides are developed. So professors may be en-
thusiastically pushing a position they don’t actually
hold. Even if the professor has a position that is re-
vealed during the class, that doesn’t mean it is the
gospel or the only thing you should learn, because
we’re all trying to prepare you for a world where
many judges don’t agree with us – as perplexing as
that is – and where the laws, issues, or jurisdictions
may differ from the ones we are discussing.
7. Focus on the Forest, Not the Trees
Students often spend huge amounts of times me-
thodically briefing details about case facts, procedural
history, and holdings, and memorizing them all.
Don’t. It’s a waste of time. As a student, I didn’t cite
a single case in any first year exam I took. Professors
use case facts and variations to develop doctrinal
points, issues, principles, and broader theories. The
point is not to know the cases themselves, but to un-
derstand the larger points made from them. The cases
are only illustrations of the general issues and posi-
tions, and a means to the end of understanding them.
So brief those larger points, and subordinate cases to
what's really important -- the issues, valid positions,
arguments, and reasoning about them.
6. Read Before and After Class
I once had a student who all semester complained
that he couldn’t follow the class discussion – it was
too confusing. Then, at the end of the class, during
exam period, he came into my office said, "You know,
the class actually makes a lot more sense, now that
I've done the reading." So reading is certainly impor-
tant. But I think people often fixate too much on try-
ing to understand everything when reading the
assignments before class. Often the biggest payoff
comes to re-reading the material right after the class,
when you can incorporate what you have learned dur-
ing the discussion.
5. Don’t Just Settle for Blackletter Law
There is a lot of blackletter law and it resolves a lot
of cases. So not surprisingly, students often take com-
fort in just memorizing it. But professors don’t spend
a lot of time on it in classes. Why? Is it because law
professors are evil and enjoy torturing students with
the confusing parts? Well, sure, that’s part of it. But
mainly it is because we figure that after 17 years of
schooling with top grades, most of you already know
how to read. To the extent just reading the rule re-
solves the issue, we kind of think you got that cov-
ered on your own. We may spend some time at the
beginning of classes summarizing the basic structure
of the blackletter law, but that doesn’t mean that is the
main thing to focus on and that you can just snooze
through the following question and answer period. It
is comforting to focus on the blackletter law because
it is the clearest, but the debated issues are what you
really need to focus on.
4. Law Is Not Distinct from Policy
Students often act like there are two subjects being
taught – law and policy – the law part which they
apply in figuring
Tips, continued on pg. 3

WarCrimesProsecutorWindsDownWork
ofYugoslavTribunal,AssessesChallenges
BY REBECCA AGULE
On October 5, 2009, Serge Bram-
mertz, Chief Prosecutor of the Interna-
tional Criminal Tribunal for the former
Yugoslavia (ICTY), joined Professor
Alex Whiting and a standing room only
audience for a discussion entitled, “In-
ternational Criminal Justice: Chal-
lenges of Investigating and Prosecuting
War Crimes.”
As a former Professor of Law at the
University of Liège, Brammertz clearly
felt comfortable in front of the student
audience, noting his own appreciation
for the interaction between the judicial
world and the academic one.
Brammertz’s fluency in four lan-
guages served him well as a Belgian
federal prosecutor, where he focused on
organized crime, terrorism and interna-
tional humanitarian law. In 2003,
Brammertz moved to the International
Criminal Court (ICC), where – as a
member of the Investigations Division
of the Office of the Prosecutor (OTP) –
he conducted the inaugural investiga-
tions of crimes in Uganda, the Demo-
cratic Republic of the Congo and
Darfur, Sudan. Following the 2005 as-
sassination of former Lebanese Prime
Minister Rafik Hariri, the United Na-
tions Secretary General appointed
Brammertz to the UN Independent In-
vestigation Commission.
Charged with closing out the ICTY,
Brammertz must finish current trials
and locate remaining fugitives. Thus
far, the ICTY has indicted 161 persons,
with seven cases still to be completed.
Brammertz enumerated some of the
Tribunal’s difficulties, including the
balancing of victims’ needs against
keeping each case manageable. Recall-
ing how former Yugoslav President Slo-
bodan Milošević died before the
completion of his trial after five years
in The Hague War Criminal Prison,
Brammertz said, “We must formulate
the indictment to represent the magni-
tude of the crimes, but we must also be
able to present it in a reasonable time.”
Speaking of the ICTY, he said, “No
one expected it to last for 15, 20 years.”
The recent arrest of Radovan
Karadžić, after thirteen years in hiding,
highlights many of the challenges fac-
ing the ICTY. Brammertz noted the
heightened significance of the Karadžić
trial, especially as it may be one of the
Tribunal’s last important cases. Even
with the scope of the indictment still
pending, Karadžić has begun contesting
the Tribunal’s competency, while at-
tempting to claim immunity from pros-
ecution per an agreement with United
States Ambassador Richard Holbrooke.
The indictment itself, which charges
Karadžić with, among other things,
genocide and crimes against humanity
stemming from his participation in the
Bosnian War, including the 1995 Sre-
brenica massacre, has also given rise to
tensions. With only 300 hours to make
its case, the Office of the Prosecutor
must make difficult decisions regarding
which charges to pursue. The OTP cur-
rently refuses to make additional cuts to
meet these limits, as Brammertz ex-
ICTY, continued on pg. 8
October 8, 2009 Harvard Law Record
Tips, continued from pg. 2 out how the law resolves particular cases,
and the policy part which they apply to answer the question of what the law should
be. Don’t make this mistake. Policy is the just continuation of law by other means.
After all, what do we mean by “policy” in law other than arguments about what
legal outcomes we should deem best? If you don’t have arguments on that topic,
judges will be influenced by your opponent who does, so your opponent will win
any area where blackletter law does not provide a clean answer as applied to your
case. It can also be hard to understand what the blackletter law means or when it
should apply, unless one understands the policies it furthers.
3. Ask What Future Parties Would Want
In addressing policy questions, one gets relatively little out of asking what the
best outcome is for the two parties to the litigation, because they are in court pre-
cisely because they disagree about that. Instead, generally the best approach is to
ask: “What Would Future Parties Want?” Often the answer is clearer before vested
interests are acquired, when benefits to one party can be traded off against harms
to the other. Or one might want a rule that is more likely to flag the issue to future
parties, and elicit what they would want.
2. Go Meta
It won’t surprise you to learn that legal policy analysis often leads to unclear or
conflicting conclusions. In these sorts of situations, it is often useful to switch to
the meta-question of framing issues around who best is placed to decide the ques-
tion. Every time one side argues that X is the best outcome, the response can be
not only that Y is a better outcome, but also the meta-argument that judges are not
the best placed to decide whether X or Y is best, so judges should defer to some
other set of actors, such as legislators, agencies, or contracting parties who have
chosen (or would choose) Y. Just remember the old saying, “Anything you can do
I can do meta.”
Page 3
1. Realize the Difference Between Being Confused and Understand-
ing the Confusion
Often students have the following the experience. They read the materials and
thought the law seemed pretty clear. Then they went to class. And now the issues
seem confusing. So they wrongly conclude that class is actually lessening their un-
derstanding. What this reaction misses is that often the correct understanding is
that the laws and issues are unclear. There is conflict about what the doctrine
means, when it applies, when it trumps other doctrines, and what justifies it, and
the same set of issues can be framed in multiple ways. Realizing this doesn’t mean
you are confused; it means you understand the confusion.
Others leap to the opposite conclusion that all legal issues are confused. But
that doesn’t follow. Some things are resolved, and there is a structure to thinking
about the unresolved issues. Unfortunately, sometimes students get so focused on
spotting ambiguities and conflicts that they begin to jump at shadows, straining to
find ambiguities and conflicts everywhere, even when they don’t exist. You have
to understand the confusion that exists without seeing nothing but confusion.
Perhaps I can best explain this with a saying from Zen. So here it is, quite liter-
ally, your moment of Zen.
Before I studied Zen, mountains were just mountains and rivers were just
rivers.
When I first took up the study of Zen, mountains were no longer moun-
tains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and
rivers once again rivers.
There will come a time for you this year when legal mountains no longer seem like
mountains and legal rivers no longer seems like rivers. But have some faith that
when the year ends, and you are a law master, that saying will actually make sense.

Unger, continued from pg. 1
eign trade and food security, Unger ad-
vised Lula on energy and the environ-
ment, clashing repeatedly with Brazil’s
former environment minister, Marina
Silva, over development in the Amazon
rain forest.
Unger argued that the country could
expand its agricultural output without
clearing more land in the forest – but
then advocated energy projects and
other forms of development in the
Amazon. He also said that Brazil’s mil-
itary outlay needed to be expanded to
protect offshore oil reserves. His pro-
development push appeared to clash
with his responsibility to chair the Pres-
ident’s “Sustainable Amazon” project,
and contributed to Silva’s resignation in
September 2008. She is now being
touted as a potential challenger to Lula
in the 2010 Brazilian elections.
Earlier in his tenure, Unger also faced
uncertainty about the direction he
would take the country’s Institute of
Applied Economic Research. Many
feared it would be politicized. What-
ever the direction in which the institute
moved, Unger certainly left a mark – 5
of its 6 directors were replaced since
Unger’s appointee for its head took of-
fice. The institute now faces allegations
that its research is more “in line” with
the government line than previously.
Unger’s return from political practice
hardly signals his retreat from the field
– he is the author of a multivolume
work that takes the expansive title Pol-
itics as its name. If that sounds Aris-
totelian, so, too, do Unger’s ideas. In
his first major lecture since returning to
Harvard this fall, Unger lambasted the
“dictatorship of no alternatives” preva-
lent in the culture of legal thought, and
called instead for a principle of social
organization that would “divinize hu-
manity”.
Specifically, Unger called for politi-
cal solutions that would broaden access
to elite, “post-Fordist modes of produc-
tion,” such as information technology,
and for states that focused on “equip-
ping and monitoring” civil society
rather than trying to provide social serv-
ices itself. He also advocated the weak-
ening of strong executives by making
branches of government mutually ac-
countable to one another – the reduc-
tion in executive power, he said, would
desirably “heighten the temperature of
politics”.
Unger portrayed his address as a
means to move beyond tired clichés
that have dominated law and politics
for half a century, particularly what he
called “the social democratic compro-
mise,” which is popular in much of the
world beyond the United States. Sev-
eral in the audience who had long stud-
ied Unger’s ideas, however, said that
they thought the themes in his speech
were a rehash of ideas the scholar was
already well-known for.
Nevertheless, Unger’s thoughts have
always prompted spirited debate, in
both practice and theory. Former stu-
dents recall vocal disagreements be-
tween him and President Barack
Obama ’91, when the latter was study-
ing at the law school and when Unger,
according to the Chronicle of Higher
Education, was at the high point in his
career, with many of his most influen-
tial books hot off the presses.
Despite the one time disagreements
between Unger and his one time stu-
dent, the professor says that the two still
stay in touch. What’s more, Unger’s in-
fluence may have rubbed off on other
parts of the Obama administration. The
new regulatory czar, Cass Sunstein ’78
– who himself engaged with Unger’s
ideas in the late 80s – is now known for
ideas that similarly bridge the ideolog-
ical chasm between left and right by
proposing state support for the condi-
tions that lead to self-expression.
And in further evidence he has won
influence, Unger’s provisional replace-
ment in the Secretariat for Strategic Af-
fairs, Daniel Barcelos Vargas – a
current Harvard S.J.D. student – will
likely fill his mentor’s shoes capably.
He calls the professor “the best I had”
and worked as his chief of staff in
Brasilia. More importantly, the obstacle
that brought his former boss back to
Cambridge has been cleared – HLS’
graduate program will allow Vargas to
remain at the post, without having to
worry about abandoning his progress
toward a doctoral degree.
Senate, continued from pg. 1
chusetts in the Senate in the interim.
With health care legislation pending
in Congress, few Democrats were will-
ing to lose their party’s legislative su-
permajority. Armed with a personal
appeal from Kennedy, and the argument
that the state ought not lose representa-
tion, advocates of an interim appoint-
ment engaged naysayers who claimed
it was hypocritical for the state legisla-
ture to overturn a law it had passed in
2004 to ensure that Republican Gover-
nor Mitt Romney ’75 could not appoint
his choice of replacement Senator had
John Kerry won the presidency.
Eventually, advocates of an interim
seat prevailed. At the Kennedy family’s
suggestion, Patrick appointed Paul G.
Kirk ’64 to fill the seat until January.
Kirk, who was, until then, head of the
Kennedy Presidential Library in
Boston, had been a trusted confidant of
the former Senator Kennedy for
decades. His ascension to the Senate, if
only for a few months, brings the num-
ber of U.S. Senators who graduated
from Harvard Law School to seven.
In the meantime, the field of candi-
dates running in the 2010 special elec-
tion has only grown more crowded.
State Republicans have fielded, mostly
prominently, Scott Brown, a State Sen-
ator from Wrentham. Despite the over-
whelmingly Democratic character of
the state, its Republican Party is not
moribund – three of the state’s last four
governors were affiliated with the GOP.
Still, Massachusetts voters have pre-
ferred Democrats represent them on the
national level. A mid-September poll
indicates that Coakley would likely
beat Brown even without the support of
then-undecided voters.
That means the most likely future
Senator will be decided on December
8, the date of the Democratic primary.
Beyond Coakley and Khazei, Mike Ca-
puano, who represents the state’s 8th
District in the House of Representa-
tives, and Stephen Pagliuca, the owner
of the Boston Celtics, have official can-
didacies. The same September polling
data indicates a commanding lead for
Coakley, who has benefitted from her
early leap into the race, and the fact that
she is the only one of the candidates to
be elected to statewide office thus far.
Capuano was thought to benefit from
his experience on the national level, but
trails. The polling did not take into ac-
count Pagliuca’s impact on the race.
While Coakley is largely considered
a safe choice – her most controversial
action as Attorney General has been
prosecuting individuals promoting the
Aqua Teen Hunger Force movie with
guerilla art installations that shut down
the city of Boston after they were
thought to be bombs – Khazei, whose
background is both Irish and Iranian,
has positioned himself as an outsider.
The founder of a number of public
service initiatives, most notably City
Year, a youth service program affiliated
with AmeriCorps, Khazei was a major
supporter of the Edward M. Kennedy
National Service Act, which dramati-
cally expanded federal commitment to
similar programs. On Wednesday,
Khazei’s campaign announced that he
was being endorsed by a scion of the
Kennedy family, Max Kennedy, the son
of former Attorney General and presi-
dential candidate Robert Kennedy. HLS
Professor Lawrence Lessig also an-
nounced – via Twitter – that he was
supporting Khazei.
Pagliuca, who graduated from Har-
vard Business School and made his for-
tune in consulting, has campaigned as
someone who can use his business acu-
men to improve the national economy.
Democratic voters may balk at some
of Pagliuca’s beliefs, however – while
he stands with members of the party
who support the option of a public in-
surer as part of health care reform and
supports same-sex marriage, he has said
he is pro-choice, and backed a run by
Romney against Kennedy in 1994, as
well as the gubernatorial candidacy of
Republican William Weld ’70 and, in
2000, George W. Bush.
Capuano is a five-term Representa-
tive who is best known for a committed
stand against the Patriot Act and a com-
mitment to international development
aid initiatives. Other members of the
Massachusetts House delegation de-
clined runs, saying they were in more
powerful positions in their committees
in the House than they would be in the
Senate.
 The G-Force in World Politics
Page 4 Harvard Law Record October 8, 2009

As the G20 replaces the G8, MATTHIAS C. KETTEMANN
revisits the nomenclature of “G” in world politics.
At the Pittsburgh meeting of the Group of 20, or G20, Pres-
ident Obama announced that the more legitimate informal
of South American debtors that have teamed up forces to ease
their burden by negotiating for common solutions. The G12,
again, is a forum for central bank representatives of 13 in-
dustrialized nations.
The G13 is a group of states which are uniting their forces

Harvard
gathering of 20 states would replace the smaller, and more to reform the United Nations (Since their efforts have not
elite, the G8 as the world’s premier forum for discussion on been spectacularly successful to date, they might profit from

Law
issues such as climate change, global financial stability and some inspiration from their namesake: G13, a marijuana
finding responses to systemic imbalances. While accepting strain of “American Beauty” fame). But here there’s “clean”
the G8’s effectivity, international relations scholars and most fun, too: the G14 is a group of 18 Europe’s soccer clubs, in-

Record
states not included in this exclusive circle have criticized the
role of ‘club governance’ for some time and should welcome
the trend to this (slightly) more representative forum. But the
G-force experienced by politicians in an interconnected, in-
terdependent world which requires policy
responses to keep up with the pace of
change does not stop there. In fact, G is
EStabLiShEd MCMXLVi
probably the most important letter in inter-
Matthew W. Hutchins
Editors-in-Chief
national relations, as it is used to describe a
Chris Szabla rich variety of unofficial political constella-
tions with political clout disproportionate to
their legitimacy – if measured in traditional
News: Rebecca Agule
Staff Editors
terms. Here’s why:
Opinion: Jessica Corsi
Whether the G2, a proposal suggesting
Sports: Mark Samburg closer ties between the US and China is a “G1,” or a “good
one,” is open to question. The G3 is both a grouping of
Matthias C. Kettemann
Contributing Writers
Colombia, Mexico and Venezuela and of the three biggest
Kate Spencer European countries, Germany, France and the United King-
Andru E. Wall dom. The G4 serves to designate both, a group of China,
Nicholas Joy India, Brazil and South Africa as the leaders of the WTO sub-
Oramel H. Skinner group G20 and a coalition of Brazil, Germany, India and
Japan that is campaigning for seats on the Security Council.
Since the last G7 meeting, the G4 has become shorthand for
RECORD@law.harvard.edu
Submit Letters and Editorials to:
cluding big names as Ajax Amsterdam, Bayern München,
Manchester United und Real Madrid.
Now, back to international relations: the G15 is a group of
17 non-aligned states founded in 1989, which promotes ide-
ological independence in international af-
fairs and has, in the past, proved anything
but ideologically independent. In trade ne-
gotiations, the G20 developing countries in-
cludes a growing number of developing
countries from Argentine to Zimbabwe that
represent 65% of the world’s population.
Better known, of course, is the other G20:
the informal gathering of the 20 biggest eco-
nomic powers and the European Union,
which is now destined to become the world’s most impor-
tant governance club.
The G24 is a sub-group of the G77 (of 132 developing
nations). Both represent the interests of developing nations in
international financial institutions and global trade talks. In
the framework of the G90, meetings of African, Caribbean
and Pacific island states are held.
Even when flying to and from group meetings, the politi-
cians cannot quite avoid the force of the G: neither the g-

or
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marks of the President and Fellows of
Harvard College and are used with permis-
an ‘elite’ group of US, Japan, China, and the EU which Pres-
ident Obama pushed to supplant the G7 (a proposal, which
seems to be somewhat at odds with his G20 proposal pro-
moting more international legitimacy).
The G5 was used to designate the world’s largest
economies (US, Germany, Japan, France, UK) until the
group was expanded. Another G5, referring to a group of na-
tions consulting on matters of European security policy, is
still in existence (though has been largely inactive lately).
The G6, the former G5 plus Italy, now meets as the G7 (plus
Canada), the G8 (plus Russia) or the G9 (plus the European
Commission).
But let’s talk business: in international financial institu-
tions, where effectivity counts for a lot, the G7 has an im-
portant role, as well. The finance ministers and central bank
heads of the eleven biggest OECD countries meet, surpris-
ingly enough, as the G10. Perhaps they wished to avoid con-
fusion with the actual G11, the “Cartagena Group”, a group
force (during acceleration and deceleration), nor the
gravitational constant G (when staying in air) – nor, inci-
dentally, the G100, G150, G400, G500 or G550, all airplanes
manufactured by Gulfstream and used as business jets that
transport the G-groups’ VIPs.
What does this brief survey tell us about the role of the G
in world politics? First, that you can never trust numbers;
second, that ‘club governance’ is on the rise and that infor-
mal gatherings producing Gentlemen’s Agreements play an
increasing normative role; and third, that teaming up to pur-
sue common interests is the best way forward in an increas-
ingly complex and interconnected world.
The G-force in international affairs can also inform the
stalled process of UN reform. Isn’t the debate missing the
obvious way forward: simply renaming the 192-member
states organization. G192, anyone?
Matthias C. Kettemann is an LL.M. student from Austria.

Obama Should be Wary of Military Re-Examining Lockerbie

sion from Harvard University.

Advice on Afghanistan Who Really Committed the Bombing? Why was

al-Megrahi Really Released?
BY ANDRU E. WALL BY KATE SPENCER

In the coming days President Obama will answer this critical question: what is
the US strategy in Afghanistan? As he weights the options, burdened by eight
years of strategic blunders, no shortage of advice is being offered by his national
security team and the Washington chattering class. If you listen closely, you’ll
recognize two familiar refrains: the military can win this war if only it is given the
necessary resources, or, alternatively, the struggle for freedom in Afghanistan is
not (or should not be) a predominately military struggle.
This debate, which closely parallels debates over Vietnam, appropriately arouses
passions on both sides. What is not helpful are contentions that one position is
more patriotic or “pro-military” than the other. Rubber-stamping General Mc-
Chrystal’s request for more troops does not prove the President’s commitment to
national defense any more than supplying unlimited financial aid to Afghanistan
proves his commitment to democracy there. Strategy and leadership require
difficult choices between competing and complementing interests.
History is replete with examples where civilian leaders correctly overruled gen-
erals in the field (Lincoln, Churchill and BenGurion to name but three) providing
decisive leadership that led to victory. Military experience or perspective do not
guarantee successful strategy. Let us embrace a shared vision of security for Amer-
ica and self- determinism for the Afghan people. Invective and personal attacks
from pundits and retired officers do not move us closer to this vision.
Andru E. Wall is one of the three American LL.M. students at HLS. From 2007 to
2009 he was the senior legal adviser for U.S. special operations forces in Central
and Southwest Asia.
Creating headlines since December 1988, the Lockerbie saga just won’t go
away. The most recent media coverage has revolved around the release of the con-
victed al-Megrahi and his return to Libya. His release and the hero’s welcome he
received provoked international outrage, most vocally from the U.S. Was it really
a straightforward case of the Scottish Justice Minster experiencing a tug on his
heart strings after meeting al-Megrahi, terminally ill with cancer?
On December 21, 1988 at about 7:20pm, over a small town in the Scottish Bor-
ders, Pan Am 103, heading from Heathrow to New York’s JFK Airport and car-
rying primarily American passengers, fell from the sky . A bomb exploded from
within the hold, tearing a hole into the side of the plane, which then snapped into
pieces in the air. There was no time for the cabin crew to make a distress signal,
no emergency procedures were initiated – all on board fell to the ground from
31,000 ft. The explosion killed 11 people on the ground Lockerbie. No passengers
or crew on board the plane survived. Fatalities totalled 270.
Theories abound as to the perpetrators and motives of the attack. Books, films
and countless documentaries have publicised the inconsistencies surrounding the
case (notably few have been screened on U.S. television). Initial blame focused
on three countries: Iran, Syria and Libya. Following the erroneous shooting down
of an Iranian passenger plane by the USS Vincennes 5 months earlier, Iran had
likely motive. The U.S. Defence Intelligence Agency indicated that the Palestine
Front for the Liberation of Palestine in conjunction with elements of the Iranian
government and Hezbollah were planning to attack a U.S. target. 8 weeks before
the bombing a PFLP cell was arrested in West Germany and bombs similar to that
Lockerbie, continued on pg. 7
October 8, 2009
CRUISE CONTROLS! ACTOR INVADES HLS
Hollywood Star Appears with Hollywood Attorney Bertram Fields ‘52 in Entertainment Law Class
BY JESSICA CORSI
On Monday, October 5, Prof. Bruce Hay's Enter-
tainment Law class began with a slight twist:
renowned lawyer to the stars Bertram Fields '52 was
there to discuss his experiences in Hollywood. But
the real buzz began when, a little over 30 minutes
later, Fields' client Tom Cruise surreptitiously entered
the classroom. Immediately met by nervous giggles
and huge goofy grins, he flashed his megawatt smile
in return, waved, and announced that he was there to
see Bert speak; after all, he'd never had a chance to
hear him lecture before.
Making his way to the very back row of the class-
room, Cruise quietly took a seat amongst students,
and assumed an attentive posture. After quick, smiley
glances in his direction, students resumed their nor-
mal classroom activities--they raised their hands and
asked questions; they GChatted; they took notes; they
browsed Net-a-Porter and Bergdorf Goodman. From
time to time they would steal a sidelong look at the
glowing actor. Listening intently to Fields' lecture, he
would occasionally lean over and share a quiet joke
with the student sitting next to him, who, except for
these moments, kept her eyes politely trained on her
computer.
Throughout his discussion, Fields would refer ques-
tions back to Tom, and Cruise would also interject his
own experiences. He spoke about tabloid magazines
Harvard Law Record
and issues concerning the propriety of celebrity im-
ages, working with directors such as the late Stanley
Kubrick, and the business of how the rating on movies
gets set in the U.S. as compared to how it works in
Europe.
When Fields responded to a student's question by
constructing a hypothetical scenario in which Tom de-
manded that his cat be shipped to Boston as part of a
contract, Tom jokingly quipped, "I don't actually have
a cat." Throughout the two hours of class, there was
a natural and comfortable exchange between Fields,
Prof. Hay, Cruise, and the students. Cruise kept stu-
dents laughing with his jokes and intrigued with the
unique opportunity for insight into doing business in
Hollywood.
At one point, Cruise referenced some of the char-
acters he had played who had gone to Harvard Law
School, notably Mitch McDeere, his role in the 1993
adaptation of John Grisham's novel, "The Firm." He
joked that, once while jogging, someone had stopped
him and asked him if he had gone to Harvard Law.
He listened and responded to all student questions
and comments, nodding in agreement many times,
laughing at jokes at others. Twice during the class,
Fields paused to remember the name of a movie and
a particular line, and students helped him out by
yelling, "A Few Good Men!" and "You can't handle
the truth!"
But things really got fun when class ended, and
Page 5
Photos: Jessica Corsi
Cruise--waving and smiling--made his way to the
front of the class to embrace Fields warmly. By then,
a bush fire of text messages, emails, and IMs had
alerted the school that *TOM CRUISE!!!* was sitting
nonchalantly in the back row of Langdell South, and
the room was crowded with students who did not reg-
ularly attend this class.
Despite this, Cruise was gracious and charming,
staying for an hour after class to speak intimately with
the students. He answered questions such as, "Is there
a role you regret not taking?" (short answer: no) and
explained the interaction between paparazzi and his
three children.
As he put it, he does not want his children to be
afraid of anything, and so he downplays the intrusion
of paparrazi. As young children often do, his daugh-
ter Suri has, according to Cruise, some comical re-
sponses. For example, she will sometimes throw
down her arms and say "Why is this person following
me?" and has responded to encroachments on her pri-
vacy by raising a hand and declaring, "Personal
space!"
Cruise probably gave more time to HLS students
than many professors are able to after class. Sharing
advice, stories, high fives, handshakes, hugs, and even
at one point an impromptu dance, he made this early
autumn evening at HLS an especially entertaining one
for all students lucky enough to greet him in person.
Page 6 Harvard Law Record October 8, 2009
on their books, the stress test has become obsolete due by forces.” She argues that, looking backwards, there
Crisis, continued from pg. 1 to unemployment that has grown faster than pro- is evidence that Greenspan’s policies were designed to
ernment conservatorship, giving the United States a jected, the financial stimulus programs have basically shift systemic risk from financial institutions to fam-
79.9% stake in each entity. One week later, Lehman run their course, and the commercial real estate mar- ilies by encouraging variable rate mortgages and the
Brothers failed and entered bankruptcy, Merrill Lynch ket threatens to drop another bomb shell. extraction of equity from homes for investment and
was ushered into an acquisition by Bank of America, So, who is to blame for the calamity we continue to consumption. Now she believes that families have
and AIG was bailed out, with the government again face? Prof. Miller says that a short list might include been put in a double bind, burdened by an over-
taking 79.9% ownership. By the end of the month, the names of figures like Bill Clinton, George Bush, whelming amount of debt and at the same time held
the Reserve Primary Fund “broke the buck”, precipi- bankers, homeowners, Barney Frank and others, but responsible as taxpayers for the public debt being as-
tating a Federal Reserve plan to guarantee the fund’s the central focus of blame should land on three peo- sumed by the government in order to support the fi-
assets, Wachovia was being acquired by Wells Fargo, ple in particular: “Alan Greenspan, Alan Greenspan, nancial system.
the stock market was in free fall, the TARP bailout and Alan Greenspan.” According to Prof. Miller, the Worst of all to Prof. Warren is the moral turpitude of
had failed a key vote in the House, and the short-term growth of the financial bubble, which inflated real es- the business model adopted by financial system. She
credit market or “Repo” market had frozen, causing tate markets and precipitated an unsustainable model sees the predominant shift in the industry over the last
credit-default swap spreads to skyrocket. The pre- of finance, was largely due to the unjustified policy decade as being from the transparent pricing of risk to
vailing atmosphere of hopelessness led to the TARP of the Federal Reserve to maintain low interest rates. the adoption of a set of “tricks and traps” designed to
program being authorized on a second vote, begin- “It rained credit for 40 days and 40 nights, and when lure in consumers and then punish them arbitrarily
ning a process of government support that would ul- you get that much credit it’s going to find its way to with fees and penalty interest rates. “A business
timately bring relative stability. Prof. Hal Scott, who the sea. It just happened to find its way there through model that is built on fooling people about what credit
laid out the timeline of the crisis for the audience, the river of subprime mortgages, but if it hadn’t been costs is a bad business model for families and ulti-
noted that the macro-level stability today must be con- that it would have been commercial real estate or mately for businesses too, because good products get
sidered in light of the dire circum- lost in the shuffle.” Furthermore,
stances. “If the alternative was that the executives and experts who
banks fail and precipitate an eco- profited off the implementation of
nomic collapse, then we had no alter- the present system have largely
native.” been rewarded not for value-pro-
But Prof. Miller pointed out that ducing innovation but rather for
the impossibility of proving the coun- the repackaging and aggregation
terfactual scenario will prove to be of risk in opaque instruments.
the source of imponderable riddles as “We have built a pricing model
we look back in history. “What that encourages deception and
would have happened if we didn’t fraud in the name of the next,
rescue Bear Stearns? What would fancier thing.”
have happened if we had rescued The future of the financial sys-
Lehman?” Prof. Miller sees a mixed tem remains cloudy, with the
result from the government interven- shape of future reforms obscured
tions that stabilized financial mar- by the failures of the current reg-
kets. Positive consequences include ulatory framework to avert a
the stabilization of financial mar- major catastrophe. According to
kets, the restoration of functioning Left to Right: Howell Jackson, Geoff Miller, Allen Ferrell, Elizabeth Warren, and Hal Scott Prof. Scott, capital requirements
credit markets, the signs that “green shoots” are something else.” will be one of the crucial tools used by regulators to
emerging and foretelling of economic recovery, and Professors Ferrell and Scott were less critical of Mr. construct a more stable foundation for core institu-
the potential for positive regulatory reforms. On the Greenspan in their assessment of central bank policy tions. “We’ve got to get capital regulation right, and
other hand, the US, UK, and Euro zone have together and the causes of the bubble. Prof. Ferrell noted that this is very very hard. To expect regulators to set the
spent more than one sixth of their collective GDP on loose monetary policy in the United States was a func- price for risk is daunting.” One of the key problems is
financial rescue packages, there is a possibility of in- tion of very large capital inflows that had been caused that the pricing of risk, a function which has largely
flation if liquidity is restored, moral hazard is a major by fixed exchange rate systems around the world, and been entrusted to analysts in the market, has not been
concern as financial institutions take risks with pub- that the only tool the Fed had to maintain full em- matched by the projection of what capital require-
lic funds, and further financial problems linger on the ployment in the face of such capital inflows was to ments to hold against such risk. Prof. Ferrell sees both
horizon as commercial real estate seems poised to un- lower interest rates. Prof. Scott expressed doubts the SEC, with its lack of financial savvy, and the Fed,
dergo the same collapse which occurred in subprime about Prof. Miller’s revisionism, asking, “What with its myopic reliance on markets, as too special-
housing finance. would have happened to Alan Greenspan if he had ized to handle the task of reform. Prof. Miller is con-
Professor Warren is skeptical and warns that there is said, ‘Hey, this is a bubble, I’m going to crush this vinced that the debates spawned by the crisis will
an alternative view of the present situation, that “The thing.’ It’s always easier after the fact to say it was a result in a new architecture being developed for fi-
green shoots have been glued onto a dead plant.” She bubble than to actually stop a bubble in progress, be- nance. “Life, in the form of legislation and regula-
looks back to the financial crisis and the “too big to cause people will not necessarily agree that it’s a bub- tion, is going to take shape from this cosmic soup of
fail phenomenon” and sees a sector today which has ble.” the financial crisis, and we are not completely sure
become even more consolidated and more vulnerable But Prof. Warren agreed with Prof. Miller that what form it is going to take. But five years from now
to systemic risks. Under the surface, the toxic assets Greenspan’s policies were indeed a precipitating the regulation of financial institutions is going to be
damaged balance sheets at major institutions remain cause. “I don’t see Alan Greenspan as a man pushed significantly different than it has been.”

Changing Court: FedSoc Panel Debates the Sotomayor Factor

BY ORAMEL H. SKINNER
The Supreme Court began a new term
this Fall featuring a new member, Jus-
tice Sonia Sotomayor. With any change
in the composition of the highest court
comes a flood of commentary on the fu-
ture of the judicial confirmation
process, and so the Harvard Federalist
Society invited judicial commentator
Ed Whelan to discuss the Sotomayor
confirmation process and Supreme
Court confirmations with Visiting Pro-
fessor Sanford Levinson.
Each agreed that the Sotomayor
process represented a victory for con-
servative legal principles and left many
progressives frustrated. Whelan noted
that Justice Sotomayor did not present a
strong argument for any sort of pro-
gressive judicial philosophy during her
entire hearing. Despite the existence of
a nearly filibuster proof majority in the
Senate in support of the President, she
pointedly rejected President Obama’s
empathy standard of judging and of-
fered very conservative sounding an-
swers to basic questions of judicial
philosophy. According to Whelan, Jus-
tice Sotomayor “sounded much like a
conservative, or a caricature of a judi-
cial conservative, in much of her testi-
mony.” Whelan saw this approach as
evidence that “conservatives have suc-
ceeded in coming up with language
which is persuasive and accurate” in
portraying conservative judicial beliefs
convincingly. Prof. Levinson agreed
that in the confirmation process “there
was a triumph of a certain type of lan-
guage” regarding the court, though he
noted that he thought this language so
extreme and binary that no one actually
believed it in practice.
Looking into the future beyond the
most recent confirmation process both
men also agreed that, in the words of
Whelan, the “era of Republican disar-
mament on the Supreme Court is over.”
Unlike the confirmations of Justices
Ginsburg and Breyer, Republican Sen-
ators engaged on substantive issues of
legal approach and philosophy during
the most recent confirmation battle, and
thirty-one Senators voted against the
confirmation of Justice Sotomayor de-
spite her clear path to confirmation. To
both Professor Levinson and Mr. Whe-
lan this marked a new era of Supreme
Court confirmation battles.
To both commentators this movement
toward a more pointed discussion of ju-
dicial philosophy a good. Whelan
thought that it was a “healthy thing” to
have a “debate about judicial philoso-
phy.” Levinson bemoaned the fact that
Democrats and the President had shown
a lack of backbone and leveled criti-
cism at the handling of those nominated
for the Supreme Court.
Professor Levinson also criticized the
practice of employing nominee han-
dlers. “I would be interested to know
how much Justice Sotomayor was af-
fected by handlers.” He noted his de-
sire to see more nominees be open and
honest in the process like Judge Bork,
but he admitted that post-Bork the best
strategy is to “clam up or deceive.” Ac-
cording to Professor Levinson an ex-
ample of handlers having too much of
an impact on a nominee was Justice
Thomas. “Justice Thomas did himself
a disservice by listening to his handlers,
and as a result many have dismissed
him intellectually.”
October 8, 2009 Harvard Law Record Page 7

Race and the Law:

Lockerbie, continued from pg. 4
used on Pan Am 103 were confiscated. However, in 2001 a Libyan intelligence of-

How Often is it Profiling?

ficer, Abelbaset Ali Mohmed al-Megrahi, was convicted of involvement in the
bombing and sentenced to life imprisonment, amid extreme doubts over the cir-
cumstantial evidence that secured the conviction.
The trial was conducted under Scottish criminal law, before three judges and BY NICHOLAS JOY “It is open air drug dealing in cities
no jury at Camp Zeist in the Netherlands. The entire investigation, trial and after- that causes people to be in fear,” Mac-
math has been immensely complex, and al-Megrahi’s release has only served to If police data show racial disparities, Donald said. “Outside drug dealing is
fan the flames of conspiracy theorists and add to the international controversy. it’s not because of racial profiling, ac- very dangerous. That’s what the crack
Skepticism of some of many of the emerging theories is important. cording to Manhattan Institute Fellow wars were about.” She added that po-
Potentially significant evidence was either not followed up or not presented at Heather MacDonald. “It’s not police- lice respond to incidents involving drug
trial. It is alleged that quantities of heroin, large sums of U.S. dollars and a T-shirt driven,” she said. “The fact is this is use on the streets rather than in invest-
bearing Hezbollah insignia were found at the crash site in Lockerbie, claims that victim-driven.” ment banks like the now-defunct
were never investigated. American agents were present at the crash scene and a re- On Tuesday, September 29, Mac- Lehman Brothers both because that is
cent documentary film has suggested a fragment of the explosive device left the Donald and Professor Ronald Sullivan where calls come from and that is
U.K. and was examined in the U.S.: an allegation which, if true, could have re- debated the extent to which racial pro- where drug dealing is most dangerous.
sulted in a claim of contamination of evidence. Further facts that raise questions filing is and should be involved in “When you have open air dealing, you
are: the party of American intelligence officers on board the flight returning to the policing. The debate was held in the have turf,” MacDonald said.
U.S. after an aborted hostage-rescue mission in Lebanon, the anonymous warning Ropes Gray Room and co-sponsored by “It’s like a blood bath.” Sullivan
made to the U.S. Embassy in Finland in early December 1988, warning that a Pan the Federalist Society and the American pointed out the differences in treatment
Am flight from Frankfurt would be blown up by Palestinian terrorists in the next Constitution Society. Sullivan is a clin- he would expect upper-class drug users
two weeks. Still, politically and logistically, bringing an Iranian sponsored Pales- ical professor of law and the director of and dealers to receive if the police were
tinian terrorist cell to justice would have been nigh on impossible. Undoubtedly the Harvard Criminal Justice Institute. called to investigate them. “I reject the
Libya was a more convenient accused. He has written extensively on issues of notion that if the police got calls at
The prosecution maintained that the bomb was placed in luggage in Malta. By criminal justice and race. MacDonald is Lehman Brothers, they would go in as
the end of the trial the defense was suggesting the possibility of it being planted a contributing editor to City Journal and heavy-handed as they would in pre-
in Heathrow, a theory supported by Robert Baer, a former CIA agent (played by the author of the book Are Cops Racist? dominantly black neighborhoods,” he
George Clooney in Syriana!) He suggests that it makes no sense for the bomb to Beyond the workings of the police and said.
be put on the plane at Malta and having to make two stops before it exploded on the anti-profiling lobby, she has studied MacDonald responded with a quip. “I
its way to the U.S. Much more likely, he maintains, that the bomb had been planted homelessness, educational policy, and agree,” she said. “But dealers at
at Heathrow. Months after the conviction of al-Megrahi, a former security guard business improvement districts. Lehman Brothers are not armed.” Be-
at Heathrow revealed he had discovered a break in at the Pan Am luggage facil- According to MacDonald, the notion yond crime statistics, Sullivan de-
ity on the day of the attack. The prosecution case relied on the premise that a bag that policing is racially-biased is scribed the effects of racial profiling by
was checked on a plane from Malta, not Heathrow, without a corresponding pas- flawed, and this notion hurts law-abid- highlighting elements of police conduct
senger. In a civil action brought by Air Malta over a “libellous” documentary that ing minorities most of all. She pointed that minorities are subject to which
showed the “bomb bag” being loaded onto the plane at Malta, the airline produced to data from New York, where she said never get written down. “I have been
evidence proving all bags had been accounted for and accompanied by passengers. that 98 percent of shootings are com- spread-eagled on a police car more
The action settled out of court. mitted by blacks or Hispanics, to show times than most people here,” he said.
Also key to the prosecution case was the witness evidence of Tony Gauci, a that violent crime perpetrators are inor- “I have also never committed a crime
Maltese shopkeeper and tailor, who claimed to have sold the clothes found in the dinately likely to be minorities. “The to my knowledge.” Sullivan called at-
suitcase containing the bomb to al-Megrahi. Considerable doubt arose from police cannot respond to crime without tention to potential constitutional viola-
Gauci’s evidence, particularly in light of allegations of a $2 million pay-off. Gauci disproportionate involvement in minor- tions that using racial profiling in
was non-committal as to whether al-Megrahi was the man who purchased the ity neighborhoods,” she said. “This is policing could raise. “Far too many are
clothes from his shop. The closest he got to a positive identification was to state not their choice. They are responding to willing to violate the Constitution on
that there was a “resemblance”. He was uncertain of the date he sold the clothes crime.” MacDonald said that concern the backs of others,” he said. “I think
and was memorably described by the man who indicted al-Megrahi, Lord Fraser about racial profiling is actually detri- that is something you should think
(Scotland’s most senior law officer at the time) as “not quite the full shilling”. mental to minorities, since many vic- about, what a certain type of policing
The UN appointed external arbiter stated after the trial: “there is not one single tims of crime are minorities themselves. does to the Constitution.”
piece of material evidence linking [Megrahi] to the crime… the guilty verdict ap- “It is the activists who impose a racial The type of policing that Sullivan ad-
pears to be arbitrary, even irrational.” He has also said that the split decision, where sense on policing, and they are danger- vocates is stops based on a particular-
one accused was found guilty and the other not guilty is highly questionable and ously wrong to do so,” she said. ized suspicion. “If you police well
further, that it is impossible to believe that a lone intelligence officer could have Sullivan sought to avoid the “wrong- based on individual suspicion, you do
masterminded and organised the attack. While the Libyans did eventually (in a headed syllogism” that people who en- better policing,” he said.
roundabout way) accept responsibility for the attack and paid out billions in com- gage in racial profiling are racist. MacDonald said that she was in
pensation to Lockerbie victims’ families, Libyan government officials label this Instead, he painted racial profiling as agreement with Sullivan over the value
move as purely pragmatic: “ [it was] easier for us to buy peace and this is why we the result of “race thinking.” “Race of individualized suspicion and consid-
agreed to compensation.” A Scottish Criminal Cases Review Commission (a body thinking is an interpretive phenome- eration for constitutional rights in po-
established to investigate alleged miscarriages of justice) inquiry was launched non,” Sullivan said. “We reduce indi- lice work. “I argue that is
and a recommendation given that there should be a new appeal. This second ap- viduals to stereotypes. Police are not overwhelmingly how policing is done,”
peal was conveniently dropped before Al Megrahi’s release. Why? Was a deal immune to this phenomenon.” she said. According to MacDonald, the
done? Was Al Megrahi persuaded to drop his appeal so he could go home to die? He supported his position with data vast majority of police use locational or
Therein lies the true injustice – and the only assumption that can be drawn is it of his own. Sullivan said that blacks behavioral cues, not race, to determine
wouldn’t be in the interests of any government concerned to pursue the appeal. represent 12 percent of the population whom to investigate. “The real cop
So, unanswered questions engulf the Lockerbie affair. An official inquiry, so and 13 percent of drug users, but make problem is not racism but bad man-
desired by the families of the Scottish victims and the general public, has been re- up 57 percent of inmates convicted at ners,” she said. “Cops get street-hard-
peatedly refused; the UN is now being called on to conduct an international in- the state level for drug crimes. “Blacks ened and cynical, but that is no excuse
quiry. The evidential issues have never been resolved. Factor in the British are so over-policed that they are dis- for failing to behave with manners.”
commercial presence in Libya (oil and arms trade), the Blair government’s fa- proportionately investigated, convicted Ultimately, Sullivan was skeptical of
vorable attitude toward Gaddafi and Gaddafi’s volte-face desire to ingratiate him- and sentenced,” he said. Sullivan sug- the extent to which police use valid
self into the international community. Add to this the extraordinary prisoner gested that if the police investigated techniques rather than racial profiling
extradition agreement in 2007 (that the Scots refused to carry out) aimed solely at drug use on local college campuses, the to conduct their business. “People want
returning al-Megrahi to Libya and the picture of emerges is one that appears to numbers might become more balanced. to live in safety. Heather and I differ in
leave the U.K. government with much explaining to do. MacDonald called the drug figures how we get there,” he said. “I say
Whether the conspiracy theories have anything to do with al-Megrahi’s release “highly misleading.” She said that it is through good policing, not stereotypi-
is an entirely separate issue. What all these conspiracy theorists (who see the re- not who is using drugs that is important, cal policing.”
lease as the latest development in a series of unorthodox goings-on) ignore is the but who is dealing them.
“Scottish” issue. Scotland has a distinct legal system, an entirely independent
criminal justice system and, since 1998, a devolved Scottish Parliament with the
power to legislate on most “domestic” matters. The most recent Scottish election land for the release of al-Megrahi; perhaps as a result of the cynicism surround-
resulted in an Scottish Nationalist majority coalition, with a clear autonomist ing his conviction and the outspokenness of those advocating for his release, or at
agenda. Relations between the Scottish Government and Westminster are frosty to least re-trial. However the American reaction to the decision and the quagmire of
say the least. The idea that the Nationalist administration would risk international controversy surrounding it negate any political expediency it may have achieved.
censure by releasing al-Megrahi on the orders of Gordon Brown to further Currently, al-Megrahi is releasing documents he would have used in his latest
“British” business interests is, to my mind, absurd. Release on compassionate appeal on the internet, documents which he says prove his innocence. But despite
grounds is a genuine tradition in Scots criminal law and some suggest this was an his release he will die guilty in the eyes of the law. Without a public inquiry the
example of the Scottish Government, keen to prove itself as an international actor, unanswered questions will never be answered and the alleged miscarriage of jus-
doing something uniquely “Scottish”. There was widespread support within Scot- tice remains just that — alleged.
 1Ls Go Crazy For Cup
Page 8
LEGAL MARKET IN FLUX, JOB HUNTERS NEED CREATIVITY
BY MATTHEW W. HUTCHINS
As the leaves change and October ripens, the job
hunting season has entered full force. But in the last
year, the legal world, much like the rest of the econ-
omy, has undergone a major upheaval. Frozen credit
markets halted the flow of the commercial transactions
that have been the lifeblood of many large firms, and
the result has been a tight contraction in their work-
load and hiring needs. Combined with the acceleration
of the interview process affected by the introduction of
the Early Interview Program, the dearth of available
jobs has put HLS students in an unexpected position of
entering this October uncertain of their job prospects.
With as much as 20% fewer interviews conducted on
campus and call-back results that are rumored to have
been unsatisfying, many are being forced to construct
back-up plans on the fly.
The first group affected was the rising 3L class,
many of whom entered the summer confident of their
position having already been hired at a law firm or
public interest organization where they would accept
employment after graduation. To the shock of many,
highly qualified students returned from the summer
with no offer of future employment, not because of
their own failure to perform, but as a consequence of
a general aversion by firms to a further backlog of in-
coming labor. Many of these outcasts from the pri-
vate sector have turned to government service as an
alternative career path. For those who remain dedi-
cated to work at a law firm, changes in the nature of
the legal profession promise to make the job market
extremely challenging.
According to Prof. David Wilkins, Director of the
Program on the Legal Profession, hiring at law firms
is a lagging indicator of the economy and will likely
Harvard Law Record
Section II had a secret
weapon at last week’s 1L
Cup: A Cookie Monster. But
one victory was not enough.
Ultimately, Section VI came
away with this year’s 1L
Cup, followed by a second
place “Team America” Sec-
tion IV.
Top: Evan Simpson rallies
the troops with a bullhorn;
Left: Jared Rinehimer plows
his way through a carton of
Chips Ahoy! cookies; Right:
Section 2 celebrates their
champion’s victory in the
cookie-eating contest.
remain depressed until associates at firms are pressed
to capacity. But even once macro-level growth presses
the legal market out of its slump, hiring practices will
likely change to reflect the growing trends of out-
sourcing and the use of contract attorneys to complete
routine tasks. “As companies and firms disaggregate
legal tasks and send commodity work to other
providers, that will reduce the need for Harvard Law
School graduates,” Wilkins said, adding that the pay
structure at firms will likely shift away from lockstep
compensation of associates toward a competency-
based system. He says that this will be a response both
to the internal pressure at firms to reduce salary costs
and the external pressure from clients to provide the
lowest possible billable rate for a job.
In the short-term, job seekers will be under pressure
to develop a creative strategy and to enter the next
stage of the process free from doubts and negativity.
The Office of Career Services advises students to look
beyond the major markets and traditional private sec-
tor track and to pay attention to every application and
every opportunity for networking. Mark Weber, As-
sistant Dean for Career Services, has warned that the
bar for applicants has been raised this year, and firms
will be looking to understand how each prospective
hire can bring value to their organization. The OCS
website has been bolstered with numerous webcast
programs aimed at specifically addressing the needs
of students that are changing their employment strat-
egy in mid-course, but OCS advisor Jennifer Perrigo
encourages students to come into the office and talk
to the staff. Overconfidence in one’s state of pre-
paredness or negativity about the course of the job
search process can ruin an applicant’s opportunity to
make a good impression with a prospective employer.
October 8, 2009
ICTY, continued from pg. 2
plained, in doing so, “the case would no longer be
representative of the crimes committed.”
Even as the ICTY nears its end, the Chief Prose-
cutor must maintain pressure to find and arrest the
remaining fugitives. “We must wait and see what the
future will show us in this regard,” Brammertz said.
“We have a tendency to forget what happened 15
years ago, but we must remember how awful the
crimes have been that were committed.”
As part of his current visit to the US, Brammertz
will meet with UN officials in New York to discuss
the ICTY’s completion strategy. Now set to end in
2012, with appeals lasting through 2013, the Tribu-
nal must maintain the pace of trials, even while fac-
ing a 60% downsizing of human resources. In
addition, residual mechanisms must be developed to
deal with on-going and future issues, such as the re-
maining fugitives and witness protection. The ICTY
aims to send a strong message from the international
community that the closure of the Tribunal does not
equate to immunity for those not yet charged. A per-
manent working group, as well as increased engage-
ment with local and regional prosecutions, will likely
fill this gap.
“The success of the ICTY depends on how local
prosecutors continue,” Brammertz said.
While his presentation focused on the ICTY,
Brammertz touched briefly upon other international
tribunals and special courts, using each to underline
the variety of tests facing the international justice
system. He connected each back to the International
Criminal Court and other possible regional courts,
saying, “The way those challenges are resolved will
have direct impact on the future of all tribunals.”
Brammertz further compared the ICTY’s resources
to those of the International Criminal Tribunal for
Rwanda (ICTR), which faces many of the same
struggles, even while it cannot call on local col-
leagues to continue prosecutions in the same man-
ner. The reality of limited resources impedes several
international courts, including the Special Court for
Sierra Leone must continue its case against former
Liberian President Charles Taylor despite financial
hurdles.
Throughout the evening, Brammertz connected
and distinguished his range of domestic and interna-
tional experiences. Where national trials may focus
on convictions, international tribunals must account
for a broader range issues regarding victims, scope
and legitimacy. In addition, each system faces dif-
ferent practical problems in terms of political obsta-
cles and prosecutorial decisions, as well as access to
crimes scenes, intelligence information and wit-
nesses. To illustrate his point, Brammertz noted that,
in the first years of the ICTY, the continued power
of Milošević made evidence collection nearly im-
possible, even while Serbian authorities further com-
plicated investigations by removing bodies from
mass graves.
Before opening the floor to questions, Brammertz
outlined some of the credibility problems facing the
international community. One of the questions has
become, he explained, how to establish a more ho-
mogeneous system. “We are reinventing the wheel
every time,” Brammertz said. Other possible options
include the establishment of a standing task force to
collect evidence whenever a crisis arises and in-
creased reliance upon the international community.
As the ICC can only process a limited number of
cases, there can still be support of prosecutions at the
local level, even in areas lacking a strong judiciary.
“A more objective system will increase the credi-
bility of these mechanisms,” Brammertz said.
Whiting’s War Crimes Clinical, along with the
Human Rights Program and the Bernard Koteen Of-
fice of Public Interest Advising (OPIA), hosted the
event.
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