Harvard Law Record
The Independent Newspaper
November 5, 2009
Counterterrorism Chief:
Secrecy Vital to Nat’l Security
Nat’l Counterterror Director Argues Terror
Fight Oversight is Best Pursued Behind Scenes
BY CHRIS SZABLA
Michael Leiter ’00 breezed into
Hauser Hall after spending the last two
hours at the Kennedy School. “I’m in
need of serious intellectual stimula-
tion,” he joked, invoking Harvard Law
School’s longstanding derision of its
public policy-oriented counterpart
across Harvard Square.
Yet Leiter’s cross-campus trek at
Harvard mirrors the evolution in his
own life: from the apogee of the world
of legal academia, as president of the
Harvard Law Review, to the National
Counterterrorism Center, where he
spends far more time analyzing foreign
intelligence than legal opinions. When
he first met Barack Obama ’91, the cur-
rent U.S. president spun around upon
hearing that Leiter, like him, had led the
prestigious Review. “What are you
doing briefing me on counterterror-
Stop Fooling Yourself!
Psychologist Searches for Source of Fear
BY ANUSH EMELIANOVA
AND GUSTAVO RIBEIRO
Why does the brain scare itself? On
Monday, October 19, Professor Dan
Gilbert confronted this question in an
event sponsored by first-year Section
VI. Professor Gilbert, who wrote the
bestselling book Stumbling on Happi-
ness, is a Professor of Psychology at
Harvard University and the Director
of Harvard’s Hedonic Psychology
Laboratory. He opened his remarks by
stating that the power of the mind to
automatically make predictions by
simulating outcomes is the key feature
that distinguishes humans from other
animals. Because the brain is made
up of semi-independent systems, it
can talk to itself or even “scare itself”.
Gilbert, cont’d on pg. 7
at Harvard Law School
www.hlrecord.org — twitter @hlrecord
ism?” Obama wondered.
The National Counterterrorism Cen-
ter was created in the wake of Septem-
ber 11th to collect and synchronize data
from the U.S.’ various intelligence
agencies, and to make corresponding
recommendations for counterterrorism
policy, which Leiter delivers to person-
nel ranging from the President to indi-
vidual policemen and firefighters. He
was appointed in 2008, after a career
that included a clerkship with Justice
Stephen Breyer ’64, a stint as a federal
prosecutor, and time spent serving in
the U.S. navy during campaigns in Yu-
goslavia and Iraq. It was his military
service that gave him his shot at work-
ing in counterterrorism.
Leiter’s current role puts him in a po-
sition to know quite a bit about the
world, and during his visit to HLS –
sponsored by the National Security and
Law Association – he led a discussion
on the security situations in areas rang-
ing from Afghanistan and Pakistan to
Yemen and even to the potential for do-
mestic Islamist terrorism in the U.S.
Afghanistan and Pakistan, Leiter
noted, was “in flux” more than at any
time since Pakistan’s independence in
the wake of Partition from India in
1947. The border area between the two
countries was home to “core elements”
of Al Qaeda, which are forming new li-
aisons with Pakistani militant groups
such as Lashkar-e-Taiba, enabling the
group, just a few weeks ago, to mount a
direct attack on Pakistan’s military
headquarters.
Pakistan, Leiter said, had traditionally
Leiter, cont’d on pg. 3
ALL NEW: HLRECORD.ORG
Vol. CXXIX, No. 5
NADER as NOVELIST:
“ONLY THE SUPER-RICH CAN SAVE US!”
Presidential Candidate Ralph Nader ‘58
Answers Ayn Rand in Latest Book
BY MATTHEW W. HUTCHINS reer as a public advocate while a stu-
dent at HLS half a century ago. His ar-
Would the United States become a po- ticles in the Harvard Law Record
lice state if there were another major examined America’s corporations and
terrorist attack on our country? Why political parties with a critical eye, and
did law professors, deans, and lawyers when he graduated he drew on his work
not stand up to the at the Record to
constitutional viola- NADER’S SPEECH: VIDEO write the book
tions of Bush and Unsafe at Any
@HLRECORD.ORG
Cheney? What de- Speed (1965),
termines the cur- which brought to
riculum of Harvard Law School? Why light the need for federal regulation of
do contracts professors minimize the auto industry titans like General Mo-
importance of adhesion contracts, they tors. The result was the enactment of
constitute 99% of what we sign? Is it mandatory safety standards that have
true that 80% of the lawyers represent saved millions of lives and improved
20% of the people? vehicle efficiency. “That came out of
In his visit to HLS on Friday, October the Harvard Law Record. It would not
30th, Ralph Nader ‘58, implored stu- have come out of the Harvard Law Re-
dents in the audience to ask these ques- view,” said Nader.
tions of the government and the Over his decades of public advocacy,
school’s administration. “You don’t Nader has been instrumental in the cre-
have any idea how you are respected ation of numerous public interest or-
when you speak out collectively as law ganizations and the enactment of
INSIDE
students,” he said. Nader began his ca- Nader, cont’d on pg. 5
Alum Arrested for
9/11 Chapel Arson
The HL Record
Recent Harvard Law School alumnus
Brian Schroeder ’09 allegedly set fire
to a chapel in Manhattan on the morn-
ing of October 31st, according to vari- News
• Cyberterrorism Eludes Experts
ous New York media outlets, including
the New York Times. The chapel, lo- • Psychologist’s Sources of Fear
cated in Memorial Park, at First Ave.
and 30th St., houses the remains of Opinion
unidentified victims of the September • More Democracy for Europe
11, 2001 terrorist attacks on the World • U.S. Assassinations in Somalia
Trade Center. Media that reached the
scene have indicated that the remains,
which are housed in a climate-con-
Features
• MacKinnon and Social Change
trolled vault while they await DNA
• Travel: Ski Austria’s Alps
identification, were not affected, but
• A.R.T.’s Sexy “Sleep”
that cards, flowers, and other memen-
Arson, cont’d on pg. 4
Page 2 Harvard Law Record November 5, 2009
 WA R ON TERROR
November 5, 2009 Harvard Law Record Page 3

Leiter, cont’d from pg. 1
used such groups as proxies through which to conduct its foreign policy. He hoped
that the headquarters attack would compel the Pakistani military to decisively
move away from its defensive stance toward India and to engage militant groups
instead. He expressed optimism, however, that Pakistan’s nuclear weapons would
not “fall into the wrong hands,” saying that the weapons had been secured, and that
he worried about the use of cruder, more improvised weapons instead.
Leiter also highlighted the security risk emanating from Yemen. Recently, a
Yemeni national trained by Al Qaeda had tried to assassinate a member of the
Saudi royal family, he said. According to Leiter, Afghanistan, Yemen, and Soma-
lia were symptomatic cases, illustrating a larger trend: ex-
tremist groups taking over sparsely-governed states or areas
within states and using them as training grounds to export
terrorism.
While the U.S. has not faced as challenging a security
threat from its domestic Muslim population as the U.K.,
Leiter noted, the Somali immigrant population in the coun-
try was posing an increasing challenge. 18-25 year old So-
malis have been traveling in increasing numbers back to
Somalia, attracted by the desire to defend the country
against intervention from the African Union and other
forces, which are sporadically present in unstable regions of
the country. While Americans have always traveled abroad to fight for foreign
causes, such as during the Spanish Civil War, Leiter observed, this was the first in-
stance in which the U.S. was producing home-grown suicide bombers.
While they existed in lesser numbers, Leiter also pointed out that Afghan-Amer-
icans have traveled to Pakistan to gain training from Al Qaeda, and have attempted
to set off improvised explosive devices in the group’s name in the U.S.
Leiter said that it would be difficult for domestic agencies to form a single pol-
icy for engagement with the U.S. Muslim community, which he said was too het-
erogeneous for such a scheme, although he also noted that the government could
do more to earn the trust of poorer, less-educated U.S. Muslims, particularly the
Somali community.
Still, Leiter emphasized that instances of “home-grown terror” were not cause
for any more alarm than traditional domestic security issues faced by the U.S.,
such as school shootings. In such a big country, he observed, there were always
bound to be new and creative forms of violence. This illustrated, he said, that such
terror should be dealt with as domestic law enforcement agencies deal with other
threats – they should be prevented and stopped as often as possible, but could not
be eliminated entirely.
Leiter said he had divined at least four major lessons from his time at the NCTC.
The first was to not over-learn lessons from the past – an enemy could always
react in a different way to a given tactic or policy. The second was that “the coun-
terterrorism tail should not wag the policy dog” – that counterterrorism should
not be the basis for foreign policy. He noticed that in Afghanistan, pursuing coun-
terterrorism at the expense of other priorities had left the U.S. supporting literally
any group that would act against Al Qaeda, with potentially dangerous conse-
quences. Still, in some cases, as in Yemen, he acknowledged, the U.S. has few in-
terests to attend to other than counterterrorism.
Third, Leiter opined, formulating policy was easy, but – and here was where he
was most skeptical of the Kennedy School’s public policy perspective – forming
a cohesive process to ensure accountability when something happens as a byprod-
uct of that policy, work, he said, better suited to lawyers, was the hard part.
Finally, and most controversially, Leiter said that everything counterterrorism
did would require a large degree of public trust. He believed
transparency would undermine such trust, making it diffi-
cult for counterterrorism policymakers to operate. Much
needed to happen behind the scenes, he said, citing the use
of provisions of the Patriot Act to foil a recent bomb plot
against New York City subways, and noting that, in terms of
international operations, there “was no altruism in interna-
tional affairs,” and that difficult and delicate trade-offs were
often made in the pursuit of security.
Returning to his third major lesson, Leiter said that, in the
absence of public oversight, lawyers ought to play a greater
role ensuring that there is accountability for any action taken
behind the scenes. A breakdown of the internal channels set up by the Church and
Pike Commissions in the 1970s – specifically, a lack of trust in the House and
Senate Intelligence Committees and the special courts set up to monitor use of
the Foreign Intelligence Security Act (FISA) is what has led members of Con-
gress to leak vital information to the press, rather than deal with problems within
the system. “Everything now plays out on the front page of the New York Times
and the Washington Post,” Leiter said, making it difficult for the NCTC and other
national security agencies to pursue effective policies.
Leiter’s position on secrecy may reflect the fact that he is a legacy of the Bush
administration, which first appointed him to his position in 2008. Still, he insists,
his job has not changed much since Obama took office. 98% of his work, Leiter
said, was “apolitical;” it was just that “the discourse” in the media focused on the
hard cases that were not. “In the New York Times counterterrorism is Guantanamo,
torture, and assassinations,” Leiter said. What had truly shifted between adminis-
trations, Leiter observed, was the weight given to the needs and desires of differ-
ent departments – Defense, in particular, had received more attention under Bush
than Obama.
And while Leiter’s stance in favor of secrecy and internal oversight both rankled
and invited skepticism, he insisted that the approach would and should not sacri-
fice its commitment to values. “The idea of not protecting civil liberties while
doing this job,” he said, “is losing the war in a different way.”

What Is Cyberterrorism? Even Experts Can’t Agree

BY VICTORIA BARANETSKY
Cyberterrorism is a buzzword that has been thriving
in President Barack Obama ’91’s administration, but
it has such a nebulous meaning that it managed to
eluded three expert panelists last Wednesday.
Leonard Bailey was transferred from the Depart-
ment of Justice’s (DOJ) Computer Crimes and Intel-
lectual Property Division to the administration’s new
National Security Division (NSD), in September 2009
to spearhead the team’s cybercrime efforts.
According the NSD’s press release, “Mr. Bailey is
widely respected within the Justice Department and
the Intelligence Community for his knowledge of
cyber issues.” However, even he admitted he is at a
loss for words on the subject. The area suffers from a
“limited lexicon,” he explained, “we even lack a uni-
fied definition of cyberterrorism and that makes dis-
course on the subject difficult.”
The government has failed to convene its various
departments to forge a single definition. The FBI
alone has published three distinct definitions of cyber-
terrorism: “Terrorism that initiates…attack[s] on in-
formation” in 1999, to “the use of Cyber tools” in
2000 and “a criminal act perpetrated by the use of
computers” in 2004. Other government agencies re-
sponsible for responding to cyberattacks, such as the
Department of Defense, Federal Emergency Manage-
ment Agency, National Infrastructure Protection Cen-
ter, Drug Enforcement Agency, National Homeland
Security Agency, and the Department of Justice have
each created their own definitions.
Bailey’s explanation for the limited and conflicting
vocabulary is twofold. First, “the interest in cyber is-
sues only started in the nineties so the terms are still
nascent.” Secondly, the departments have fragmented
the definition because the meaning depends on their
differing interests. “Look at the response to Twitter,”
he observed. “The Department of State lauded its use
in Iran, while other departments heavily criticized it.”
Unlike Bailey, Kim Taipale, founder and executive
director for the Stilwell Center for Advanced Studies
in Science and Technology Policy believes “cyberter-
rorism, whatever it is, is a useless term.” Taipale be-
lieves that, “terrorists will use any strategic tool they
can” so “cyber” terrorism is no more important then
other forms. Rather the problem is that there is no
“unified legal regime,” creating a “gap between law-
makers and authorities,” he stated. “Whether the mil-
itary or police should respond, whether it is domestic
or foreign is not fully determined,” said Taipale.
These separate entities are “incompatible and incon-
sistent, making us more vulnerable to terrorism.”
Taipale explained that having such a fragmented
legal structure means that we are “not equipped to
deal with an array of a whole host of new problems”
that cyber issues present. And this is truly troublesome
because the line between “safe society and chaos is a
thin one,” said Taipale, “We are in line for some seri-
ous cyber-Katrinas that we are not ready to deal with.”
Like Bailey, however, Taipale believes that the “ob-
solete security infrastructure” exists because different
entities have differing concerns. After cyber-threats
were made to Slobodan Milosevic’s bank accounts
during the 1999 Kosovo crisis, for example, the cy-
berterrorism discussion was raised in the U.N., and
although Russia expressed interest in the problem, the
U.S. stalled the discussion. “What is and isn’t per-
missible was never decided because of the U.S.’ in-
terest in its own international liability,” said Taipale.
“Now there are no rules,” he continued. “Now we are
reaping the problems.”
Taipale’s fear that the line between safe society and
chaos is fragile is compounded by the problem of
trust, highlighted by Dr. Andrew Colarik, an infor-
mation security consultant. Colarik stressed the term’s
etymology, saying that “there is no cyberterrorism
without terrorism.” In essence, the goal of terrorism is
to cause severe disruption through widespread fear in
society, meaning “our dependency on digital mate-
rial,” is the problem, he said. “The majority of our
currency is not paper, it’s digital. And like money, if
we loose confidence in the underlying system, we will
have insolvency.” Colarik argues that we should limit
the amount of information we store digitally.
Taipale echoed the doomsday concern, “the U.S. is
a real target because of our dependency on the online
system.” These attacks are about “exploitation.”
“Non-peer” countries don’t depend on the digital sys-
tem and so they have an opportunity to attack without
the risk of suffering from similar counterattacks.
But Bailey believes the problems Taipale and Co-
larik raise cannot be solved without some basic agree-
ment over terminology. “These are conversations that
cannot take place because there is no common lan-
guage to discuss this,” he said. He suggests as a first
step “that we as a government have to consider what
we think about these issues first.” The hesitation is
that “whatever you decide you have to live with.”
While it is possible that trying to divine a definition of
cyberterrorism is a fools’ errand, “it is a way of
achieving an end.”
 Harvard
Page 4
Law
Record
EStabLiShEd MCMXLVi
Matthew W. Hutchins
Editors-in-Chief
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News: Rebecca Agule
Staff Editors
Opinion: Jessica Corsi
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Contributing Writers
Anush Emelianova
Matthias C. Kettemann
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Kan Yan
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Submit Letters and Editorials to:
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sion from Harvard University.
Letter to the
Editor
Obama’s Nobel is the
Pride of Africa
When Barack Obama ’91 cam-
paigned for and won the U.S. presiden-
tial election, he was supported not only
by Americans, but by millions of peo-
ple across the globe who believe in his
message of “hope”. For us in Africa,
Obama symbolizes the renewal of hope
for global peace and security. We see
this honor as an encouragement and ac-
knowledgement of his good vision and
excellent leadership in making the
world a safe and better place, for us and
the generations yet unborn. The elec-
tion of President Obama marks a new
era in international relations.
Many young people across the world
see Obama as a role model. Undoubt-
edly, the award which identifies him as
an Ambassador of Peace will not only
encourage him, as an individual, but
also others that look up to him. His
ability to reach out to other countries
across political, ethnic, religious and
cultural divides, within his short period
in office, surely made him a hero that
merits this award.
Congratulations President Obama.
More grease to your elbows. We are
proud of you!
Aminu Gamawa is an LL.M. student
from Nigeria.
WE, THE PEOPLE OF EUROPE
Harvard Law Record November 5, 2009
How the Lisbon Treaty Will Make the EU More Democratic
BY MATTHIAS C. KETTEMANN ensure that the lawmaking process will result less clearly in
"laws made in Brussels", but, instead, in legislation that
On Wednesday, after the Czech Republic's highest court emerges from a process based on a dialogue between the
failed to find any grounds on which it was unconstitutional, Commission, national parliaments, national governments on
Czech President Václav Klaus finally signed the Lisbon both the national and the Union levels, the Council, and, im-
Treaty . The treaty's reforms will now enter into force on De- portantly, the European Parliament.
cember 1, 2010. The debate on its contents, however, is far The Lisbon Treaty also bolsters the significance of the na-
from over. Reacting to my article on the Treaty in the previ- tional parliaments' European counterpart. Article 14 (2) of
ous issue of the Harvard Law Record, a number of com- the amended EU treaty states that the European Parliament is
menters criticized the undemocratic character of the new composed of “representatives of the Union’s citizens”. This
treaty and argued that it would may seem obvious, but it repre-
make the EU less democratic (or sents a real change: Article 189 of
no more democratic) than it was the old EC Treaty still referred to
before. These arguments are mis- “representatives of the peoples of
leading: they are based on a the States brought together in the
wrong conceptual approach to Community”. Inn the new “com-
democracy in the EU's unique munity”, the European citizenry
post- and transnational context. may plays a direct role, rather than
Article 2 of the Treaty on Euro- one mediated by the states.
pean Union as amended by the Beyond institutional reforms,
Treaty of Lisbon emphasizes that the Lisbon Treaty actively en-
the Union is founded “on the val- courages citizen participation: by
ues of respect for human dignity, embracing civil and political
freedom, democracy, equality, the rights, and by further integrating
rule of law and respect for human civil society and representative as-
rights” (emphasis added). This sociations into the lawmaking
principle of democracy, which ex- process.
tends its reach vertically (towards Such support will increase the
Member States) and horizontally EU Parliament. Photo by Pietro Naj-Oleari quality of deliberative democracy
(towards EU institutions), is corrob- in Europe, allowing for the creation
orated in the EU's different codifications of human rights, of a European public discourse. Beyond the treaty's new legal
such as Article 3 of the First Additional Protocol to the Eu- framework, however, far-reaching structural changes in cit-
ropean Convention on Human Rights, the common constitu- izens' socio-political approaches to European topics and their
tional traditions of Member States, community practice, and (under)representation in the media, need to be discussed.
the other democratic principles in the amended treaty. This will take years.
Despite this, it is true that the commitment to democracy, Indeed, arguments over the shape of democracy have been
which had already been made in Article 6(1) of the Treaty a consistent feature of European intellectual history,. It stands
on European Union as it existed prior to Lisbon, has not pre- to reason that the European Union should be able to shape a
vented the emergence of the "democratic deficit". new geometry of democracy that fits its current state. A re-
But the Lisbon Treaty's attempts at reform have at least led alistic conception of democracy has to be developed for the
to a partial mitigation of portions of EU law that create a gap Union. The multinational model, in which the member states
between the expectation of democracy and its fulfillment. are the (only) relevant actors, seems anchored in the tradi-
Some problems remain, namely the gap between the tional, nation state-oriented model of democracy. It is essen-
amended treaty's Article 9, which enshrines the principle of tial to realize that the transfer of powers to regulatory entities
equality for all EU citizens, and the voting procedures in the beyond the nation state needs to coincide with new models
Council, which offer less favourable population-to-voting for the legitimation of their decisions.
power ratios to citizens of bigger states. A functional model of democratic legitimacy is needed that
But the Lisbon Treaty truly mitigates the democratic deficit combines participative, representative and deliberative ele-
by increasing the legitimacy of European decision-making ments, in a setting where actors can translate needs into po-
processes. First, national governments, responsible to na- litical postulates and develop, propose and pass suitable
tional parliaments, are united in the European Council. Sec- remedies. This model must make it possible to trace back the
ond, there are direct lines of legitimacy from the citizen to the exercise of this authority directly – and in an uninterrupted
EU Parliament, though they are not yet widely perceived. chain of legitimation – to the citizens of the European polity,
When Article 10 (2) of the Lisbon-amended EU treaty lays who need to participate, to the greatest extent feasible, in the
down the democratic accountability of heads of state or gov- process of developing laws and norms.
ernments in the European Council and of the governments Now that the Lisbon Treaty will enter into force, it is upon
in the Council to their national parliaments, or to their citi- the citizens of the European Union to fill the letter of the law
zens, it relies on the powers of national parliaments to influ- with life and to dispel the myth of the democratic deficit.
ence EU decision-making procedures at an early stage by
parliamentary control. Using this control more actively will Matthias C. Kettemann is an LL.M. student from Austria.
Arson, cont’d from pg. 1
toes both inside the chapel and posted to a wooden bench in his lawyer has claimed he was drugged while the incident
the park, which was damaged, were either stolen or burned. took place, perhaps because something had slipped into his
Schroeder, 26, is originally from Texas. The valedictorian drink. There have also been allegations that the fire was set
of his high school, he received his undergraduate degree from as part of a drunken dare. Still, Schroeder's motives remain
Duke, where he majored in theatre studies. He was co-pres- unclear. He says he cannot remember what took place that
ident of HLS Lambda and served on a task force to assess night.
how to limit the impact of military recruiting on the campus "Anyone who would set fire to the inviolable Memorial
gay community. He also edited the Harvard Latino Law Re- Park chapel is craven and contemptible," New York City
view and acted in the Parody, a satirical comedy stage show Mayor Michael Bloomberg said in a statement. The New
about life at the school. After graduation, Schroeder moved York Daily News labeled him "New York's newest Public
to New York, where he had been a summer associate in 2008 Enemy #1". Speaking to the newspaper about the incident, a
for the law firm Sidley Austin. Having accepted the firm's woman whose son was a firefighter killed in the attacks,
deferral package, he was due to start as an associate there in asked "why are the good people gone and the losers still with
2011, after spending a year working at a pro bono organiza- us?" The city's deputy fire chief said he didn't "know what
tion with a stipend provided by the firm. Schroder was plan- they teach those kids at Harvard". Schroeder's mother called
ning to use the time to work in human rights law in his actions "dumb" but said her son had committed an iso-
Switzerland. On Monday, Sidley Austin officially revoked lated incident that did not reflect his general character.
his job offer. Schroeder was released the night of his arrest on bail.
He turned himself in to the police on November 1st, and Charges for arson, mischief, and burglary are pending.
November 5, 2009
Nader, cont’d from pg. 1
several landmark pieces of legislation aimed at pro-
tecting citizens, including the Safe Drinking Water
Act and the authorizing statutes for the Occupational
Safety and Health Administration, the Environmental
Protection Agency, and the Consumer Product Safety
Commission. More recently, he has waged three
major, national campaigns for President, in 2000 as
the candidate of the Green party and in 2004 and 2008
as an independent candidate.
Author of over thirty books, Nader’s latest work is
a “practical utopian fiction” that lays out a blueprint
of how to change America from both the top-down
and bottom-up. Only the Super-Rich Can Save Us!
begins with an incensed Warren Buffett responding to
the Hurricane Katrina disaster by organizing an im-
promptu relief effort to assist New Orleans survivors.
Inspired by his ability to help the most vulnerable
through forceful application of his wealth, Buffett or-
ganizes a convention of fellow billionaires and media
moguls to devise a plan for reversing the degenera-
tion of American civil society. “The missing element
of the equation for public interest and progressive
groups is that they don’t have enough money,” said
Nader. The book, Nader’s “answer to Ayn Rand”,
chronicles the Super-Rich crusaders’ quest as they
mobilize community organizers in every congres-
sional district around the country and push against the
corporate control of Washington politics. “The con-
versation is very acute, very provocative, fresh, but I
didn’t want any magic wands. The detail is to show
it could happen if the money is there, because the tal-
ent is out there. The solutions are on the shelf.”
But Nader expressed serious concern about the abil-
ity of the next generation of HLS alumni to apply their
efforts and their imaginations to the problems facing
our country. “Without elevated imagination, we don’t
go anywhere. If your imagination is not elevated, you
CAMBRIDGE, USA: LAW AS COURAGE,
EMOTION, AND SOCIAL CHANGE
BY JESSICA CORSI
When Catharine MacKinnon said goodbye to us
at the end of her Sex Equality class on Wednesday
October 28, she choked up, and we all choked up
with her. The emotion was evident in her voice as
she read us a passage from Virginia Woolf’s A Room
of One’s Own that can be found in the center of
MacKinnon’s Sex Equality textbook. The passage
entreats us to work: it reminds us of why we work
at all, and describes vividly the people for whom
we work when we work on sex equality:
“I told you in the course of this paper that Shake-
speare had a sister; but do not look for her in Sir
Sidney Lee's life of the poet. She died young - alas,
she never wrote a word . . . . Now my belief is that
this poet who never wrote a word and was buried
at the crossroads still lives. She lives in you and in
me, and in many other women who are not here
tonight, for they are washing up the dishes and put-
ting the children to bed. But she lives; for great
poets do not die . . . they need only the opportunity
to walk among us in the flesh.
This opportunity, as I think, it is now coming
within your power to give her. For my belief is that
if we live another century or so—I am talking of the
common life which is the real life and not of the lit-
tle separate lives which we live as individuals—and
have five hundred a year each of us and rooms of
our own; if we have the habit of freedom and the
courage to write exactly what we think; if we escape
a little from the common sitting–room and see
human beings not always in their relation to each
other but in relation to reality . . . then the oppor-
tunity will come and the dead poet who was Shake-
speare’s sister will put on the body which she has
so often laid down.
. . . As for her coming without that preparation,
without that effort on our part, without that deter-
mination that when she is born again she shall find
it possible to live and write her poetry, that we can-
Harvard Law Record
don’t have a vision of possibilities. If you don’t have
vision of possibilities, you don’t have reach. If you
don’t have reach, you don’t have a grasp. And let’s
face it, we grow up in cultures that set our imagina-
tions at a certain level.” During his time at HLS,
Nader found the culture of the school to be an op-
pressive series of measures designed to cow students
into submission to a legal order dominated by corpo-
rate firms. “I gravitated to the Harvard Law Record
because that was the law writ large. That’s where I
found elbow room to ask the questions of justice and
injustice, and what are lawyers for, and what’s the dif-
ference between lawyers and attorneys?” Whereas at-
torneys are the partisan advocates of their clients’
interests, Nader believes a lawyer is someone who
asks the bigger questions about justice and the pur-
poses of the law. The process of inquiry, said Nader,
should begin for law students while they still have the
freedom to write about subjects they would enjoy pur-
suing after graduation. “It’s very important for law
students, while you are free to do it, before you are
out working 100 hours a week in these pressure
not expect, for that would be impossible. But I main-
tain that she would come if we worked for her, and
that so to work, even in poverty and obscurity, is
worth while."
Why do we study law? Why do we study Sex
Equality and why do we put ourselves through the
process of qualifying at the bar and why do we go
to work every day? We do all of these things be-
cause Shakespeare’s sister is dead and she never
wrote a word, despite all she could have shown us
and despite how much she could have enriched our
lives and fulfilled the purpose of her own. And
when we sat in our Sex Equality class, we came into
contact with all of the girls and women—and boys
and men, too; but mostly women and girls—who
are dead or too sick or hurt or too poor or too shut
out of education or work to write, to share their
gifts, to live their lives and to contribute to ours. In
Sex Equality, we engaged in something that often
falls by the wayside in legal education: the reality
of the lives of those living under and touched by the
law.
Legal discourse is theoretically and intentionally
rational, but Sex Equality was an emotional class.
Contrary to the need to suppress emotion, it was in-
vited into the classroom to inform processes of rea-
son and applications and evaluations of law and
legal opinion. Does the current state of rape law
make you angry? Well, it should; and that anger is
an indication that the law in both the black letter and
in its implementation should be modified. Do the
horrifying realities of prostitution and legal deci-
sions that blame the victims of these horrors and not
the perpetrators of them make you sick? They
should.
And instead of throwing your hands up and join-
ing the ranks of the complacent, consider instead
what your unique position as a person with elite
legal training could contribute to eradicating hor-
rors, and to eradicating all of the other forms of dis-
Cambridge, cont’d on pg. 7
Page 5
cooker, corporate law factories, to raise that imagina-
tion level.”
Beyond just imagination, Nader urged students to
take up the tools of normative analysis with zeal and
work for justice in the relationship of individuals to
institutions. “If you don’t have fire in your belly, it
doesn’t matter what you do in the area of reform.”
Nader pointed to Rosa Parks and the sit-down strikers
who formed the United Auto Workers as examples of
the power of having resolute conviction in demanding
justice from society.
Students should not, he said, adopt the skepticism of
the academy with respect to normative thinking, be-
cause conceptions of justice and injustice are ques-
tions that require examination through normative
dimensions. Analytical champions like 7th Circuit
Judge Richard Posner ’62 are, according to Nader,
empirically starved and intellectually arrogant. Quot-
ing from an article he wrote for The New Republic in
1968, Nader characterized his time in law school as “a
process of engineering the law student into corridor
thinking and largely non-normative evaluation. It was
a three-year excursus into legal minutiae embraced by
wooden logic and impervious to what Oliver Wendell
Holmes once called the felt necessities of our times.”
Another pitfall of academic myopia, Nader said, is
the fetishistic reverence of pure intellect. But the fal-
lacy of this blind adherence to intellectual ability lies
in its failure to yield actual improvements in the lives
of individuals. “Would you rather have someone who
is dim but right or smart but wrong?” he asked. Nader
pointed to former President of Harvard University
Larry Summers, who was instrumental in the deregu-
lation of the financial industry through the Gramm-
Leach-Bliley Act of 1999, as the epitome of the fetish
of brilliance. Financial deregulation led to the forma-
tion of a $600 trillion dollar derivatives industry and
the excessive risk-taking that weakened the Harvard
endowment and imperiled mega-banks like Citigroup.
But despite his role in financial deregulation, Sum-
mers has risen higher yet, now serving as President
Barack Obama ’91’s chief economic advisor.
Above all, Nader expressed criticism of the steady
degradation of the status of individuals compared to
institutions in America and the decay of constitutional
order. He pointed to the power that corporations have
gained through adhesion contracts, tort reform, un-
fettered lobbying power, opaque government pro-
curement contracts, and trillions of dollars in bailouts
to Wall Street firms. Equally distressing to Nader is
the inability of citizens to challenge abuses of the con-
stitution by actors at the highest level of government.
He said that the Obama administration had only con-
tributed to the problem by failing to open a full in-
quiry into the Bush administration’s war in Iraq,
waterboarding interrogation, and unchecked snoop-
ing by the NSA and CIA. “Every time there is a major
violation pattern and it is not called out and enforced
on, it becomes part of the fiber of a deteriorating sys-
tem which will eventually end up with death squads
and rampant homicidal activity.”
Nader expressed doubt that President Obama will be
successful in dealing with all the challenges his ad-
ministration faces. “His problem is he’s conflict
averse, especially when it comes to corporate power
and being accused of benig soft on terror. He’s been
dealt a tough hand . . . However he has a lot of com-
petent people working under him.” Among the most
daunting tasks at hand are the reversal of the damage
done to the Department of Justice under Attorneys
General John Ashcroft and Alberto Gonzalez ’82 and
the extrication of the United States from the Afghan
quagmire. “We should have never toppled the whole
regime . . . We will never defeat [the Taliban] because
they view us as a foreign occupation force.”
With a grim demeanor of stark gravity, Nader en-
couraged law students to remember the words of
Daniel Webster: that “justice is the greatest work of
man on Earth.” He cautioned the idealistic youth to
appreciate the difficulty of maintaining resolve in the
fight for social justice. “The system devours you all,
equal opportunity, unless you have a strong-willed de-
termination to make a difference and can challenge
the invisible, institutional chains that wrap around
you.”
 Somalia Assassination Undermines Case for Obama Nobel
Page 6
BY JESSICA CORSI
Many claim that President Barack Obama '91 was
awarded the Nobel Peace Prize to express interna-
tional support for the U.S.’ reengagement with multi-
lateral peace efforts, including efforts to bring an end
to wars in Iraq and elsewhere. This new U.S. foreign
policy stands in contrast to the U.S. Special Forces'
recent targeted assassination of a highly wanted Al
Qaeda member in Somalia. On September 14th, U.S.
helicopters opened fire on a convoy of trucks in south-
ern Somalia and shot and killed Saleh Ali Saleh Nba-
han, who is said to be responsible for the bombing of
an Israeli hotel on the coast of Kenya in 2002, and is
suspected to have played a role in two 1998 attacks
upon American embassies in East Africa. Targeted
assassinations in the territory of a country whose gov-
ernment is both recognized and supported by the U.S.
is a counterproductive way to reengage factions that
the U.S. had previously alienated.
We could start by asking the question of whether or
not this attack was legal under international humani-
tarian law, but this is neither the most interesting nor
f the
the most pressing question. Instead of debating
ns o
whether the war on terror is in fact a war, whether
the people shot and killed were enemy com-
ptio
r ce
pe
batants, and whether the U.S. had just
ge
cause to fly over Somalia and
chan
shoot these people
to
ant
dead, we should
w
instead
w e ask: was this a
“If
good idea? The legality
of the issue is fuzzy and doubt-
ful, but more importantly, this type of
military operation is bad policy: we want to
change the world’s opinion about the U.S., and in par-
ticular ideas about the U.S.' use of force, and who is
or is not its “enemy”. If President Obama wants to
move away from George W. Bush’s aggressive mili-
tary posture, a targeted assassination that sends the
message “if you cross us, we will take you out” is not
a change in tune but simply more of the same.
There are several other messages the U.S. could
send that would fit with the underlying assumptions
that prompted the award of the Nobel Peace Prize. If
we want to reengage international institutions, rein-
vigorate the idea that the U.S. is a team player, and
Travel: As Winter Approaches, Austria’s Alps Beckon
BY MATTHIAS C. KETTEMANN
True, after a long and dreary December some sun-
worshipping law students might prefer to opt for a
warm and ‘beachy’
location for their
winter holidays.
But selecting on the
basis of the quality
of sun, sand and
sangria is a much
too easy way out of
the difficult ques-
tion how to best
spend your winter
holidays (apart
from preparing for
winter term, that
is).
If the financial
crisis has taught us one thing, it is that we should
sometimes consider more conservative investment
options. Applying this approach to holiday choices,
what better to look for that the choices of retirees.
Forbes magazine has just published a list of the 10
best retirement havens, including Thailand, Italy,
Panama, Ireland, Australia, France, Malaysia, Spain
and Canada. Not all the standards applied will help
students make their choice, as they include decent and
affordable medical care. But the number one retire-
ment haven on Forbes’ list, Austria, does offer some
additional benefits for law students looking for a re-
Harvard Law Record
promote the notion of an international rule of law, we
could begin with a message that if you break the law,
we will do everything in our power to deal with this
disagreement through the law. It is not clear whether
the Obama administration has considered this ap-
proach. We have not heard any talk of, for example,
capturing Saleh Ali Saleh Nbahan and bringing him to
his native Kenya, or to the International Criminal
Court, for trial (and now, it's too late). It is discom-
fiting to learn of the assassination after the fact with-
out being assured that alternative international legal
strategies designed to strengthen global systems and
global security were considered.
Perhaps the most important message that the
Obama administration could have chosen to send in-
stead would have been that, if there are some funda-
mental differences at issue between the U.S. and
eas
people set on attacking the U.S., the country
t l
da
will do everything in our power to un-
oul
derstand and better meet the in-
e sh
terests of the other side.
Commentators
., w internationally recognized government. Since Black
U .S
support-
ing Obama's
Nobel Peace Prize have
emphasized the President’s un-
precedented engagement with the Mus-
lim world. But swooping in and shooting
suspected terrorists dead undermnines such efforts,
which would better ensure the U.S.’ long term na-
tional security. In the process, the U.S. fails to learn
where terrorists are coming from, why they are fight-
ing, for what they are fighting for, how it is they have
come to believe so strongly that the U.S. is an enemy
to be attacked, and why it is that terrorist groups are
not running out of converts. It is both too easy and too
flimsy of an explanation to think that all terrorists are
madmen that can’t be reasoned with. The story can be
written from another angle, and that story is one of an
oppressive U.S. that wages war in Afghanistan and
Iraq; abducts, tortures, and kills innocent people be-
cause they are of Arab descent or are Muslim; and
gets away with flouting international human rights
standards in torture prisons like Abu Ghraib and
Guantanamo Bay. This story continues to gain
strength, as evinced with such recent developments
as Wednesday’s Italian conviction of 23 Americans
involved in CIA renditions – a conviction that sends
laxing winter time. Here are five reasons why should
you consider choosing mountains over beaches, Eu-
rope over the Caribbean, and – once you’ve decided
to hit the slopes – the Alps over the Rockies:
1. Europeans love you
(again): Now that Barack
Obama is US president,
go make the most of it
and enjoy the love of the
world. Just tell your holi-
day hosts that you went to
the same law school as he
did and they might throw
in a free night (or a free
Zirberl, a famed pine
schnapps).
2. Global warming is a re-
ality: Enjoy the Alps with
their glaciers and snow as long as you can. Boston
will offer some Caribbean feeling soon enough.
3. It’s good for your wallet: There are a number of
very affordable European
skiing packages The Aus-
trian tourism portal, Aus-
tria.info, writes that “for
someone on or close to
the East Coast, a trip to an
Austrian ski resort could
be between US$ 100 and
November 5, 2009
a strong message that the world has not forgotten nor
is it willing to let the U.S. off the hook for its violence
and illegal war on terror strategies. If we want to
change the perception that the U.S. gets to run around
the world shooting whoever it wants because it has
the biggest guns, we should at least stop sending spe-
cial forces to assassinate suspects as they drive
through remote deserts.
What is even more eerie is that this represents a sig-
nificant shift in U.S. foreign policy towards
ts.”
Somalia. Not since the 1993 “Battle of
ec
usp
Black Hawk Down” has the
gs
U.S. launched a helicop-
tin
na
ter attack there.
The attack
as s i
as s came at a time
top
ts
when Somalia is consid-
ered increasingly lawless, and
the local Islamist insurgent group, Al-
Shabab, which has links to Al Qaeda, contin-
ues its attempts to overthrow Somalia’s
Hawk Down, the U.S. has limited its strikes on the
country to the use of long-range missiles. In this at-
tack, we see the capability and willingness of the
Obama administration to gather precise intelligence
as to the location of wanted terrorist suspects, and to
then strike quickly to assassinate them. As this is the
first military action of this sort since Obama took of-
fice, it could be an indication that we should expect
more targeted attacks in the future, especially as U.S.
troops are withdrawn from the ground, in Iraq and
elsewhere. Unlike a prolonged ground war, this at-
tack communicates that the Obama administration in-
tends to attack Al Qaeda officials wherever they are
found.
Knee jerk reactions to this news are often that we
can claim victory and a smart strategy. “We got the
guy! He deserved it!” people cry. It is smarter to fight
them where we find them than to keep our troops
under fire in any one country, others think. But this is
neither a strategic nor a victorious approach. It is not
peaceful and its not smart, because it doesn’t address
the underlying issues that have led us into a fight
against terrorists and extremism in the first place.
Here’s hoping the Nobel Peace Prize is enough of a
motivational tool to effectuate this much-needed re-
orientation.
US$ 300 less than
a trip in a West-
ern ski resort.
With lift tickets,
transfers, food,
taxes and tips fac-
tored in, a skier
who lives on the
West Coast will
find that a one-
week ski vacation
in Austria costs
about the same as
an equivalent ski
trip to a resort in
the Rockies.”
4. The Alps are neither too hot nor too cold: Day-
time temps in the Alps in winter are around 20 de-
grees F and make for excellent outdoor conditions.
The Alps offer snow for every kind of endeavor,
from packed powder snow on the groomed runs to
fluffy powder snow off-piste.
5. Harvard on the Alps: For those of you who just
can’t get enough of learning, Austrian skiing
schools are renowned for their quality of instruction
and, as I’m reliably informed by female friends, the
attractiveness of the instructors.
For more information on skiing in Austria, visit
www.austria.info.
November 5, 2009
Gilbert, cont’d from pg. 1
But Prof. Gilbert believes that the lim-
ited mental capacities of humans im-
pose limits on the accuracy of
predictions about the emotional impact
of future events.
He demonstrated this by identifying-
four limitations of the brain’s ability to
simulate the future: unrepresentative-
ness, essentialization, truncation, and
presentism.
According to Prof. Gilbert, humans’
mental simulations are unrepresenta-
tively based on the individual’s best or
worst memories, failing to correspond
to the average experience. When the
mind produces imaginary scenarios, the
images tend to be essentialized, that is,
distilled to a simplified image with the
details cut out. Remembered experi-
ences also interfere with accurate pre-
diction because they are truncated and
fail to incorporate the ability to adapt to
different situations over time. Further-
more, Prof. Gilbert believes the human
mind has a “presentist” bias, accepting
in most circumstances the fiction that
tomorrow will be exactly like today and
that the feelings at the moment of mak-
ing a decision will persist until the out-
come of that decision arises. As an
example, Professor Gilbert demon-
strated a photograph of a 16-year-old
who had tattooed Pac-Man on her head,
suggesting that the excitement of the
moment would eventually give way to
regret.
Professor Gilbert does not believe hu-
mans have the capacity to systemati-
cally prevent errors in mental
Harvard Law Record
simulations. “As I marinate you in the
bloopers and foibles, the mistakes and
biases of the human mind, you must be
thinking, is there anything we can do
about this? I’m happy to tell you the an-
swer is no,” he said.
Despite the failure of predictions to
account for dynamic circumstances, hu-
mans tend to adapt or rationalize out-
comes to make themselves feel better.
Prof. Gilbert illustrated this tendency
with the satisfied attitude of Pete Best,
the original drummer for the Beatles.
Despite missing out on being part of
one of the most successful bands ever,
Best said in a 1994 interview that, “I’m
happier than I would have been with the
Beatles.” Professor Gilbert argued that
this was a striking example of rational-
ization.
Prof. Gilbert also indicated that there
may be techniques available to mini-
mize some types of cognitive error.
“Surrogation,” or asking others about
their experience of a similar situation,
can act as a more reliable guide than
one’s own expectations. In fact, ac-
cording to Prof. Gilbert, any random
person’s actual experience of a given
situation is likely to be much more pre-
dictive of our future enjoyment than our
imaginary simulation of that same ex-
perience.
“Human beings are all basically the
same.”
Video of the presentation will be
available at the Project on Law and
Mind Sciences website in November.
Page 7
Cambridge, cont’d from pg. 5
crimination we face in our daily lives. Why just study the law and obey the law?
If the law makes you unhappy, if the law is grossly disconnected from the reali-
ties in which we live, if the law perpetuates rather than alleviates the harms of sex
discrimination—do something. You are more than equipped. What is a Harvard
Law School education good for if not this?
When Professor MacKinnon finished reading from Virginia Woolf, we gave her
a standing ovation. Afterwards, I thought about why. I thought about why every
day her class was full of people auditing—not just other students but other pro-
fessors, Harvard staff members, and people from the community. I had received
emails from friends of friends who wanted to take off work and come to see her
speak. What attracted these people so strongly to her class, I think, is her courage.
But not just any courage—courage to speak truth not only to the power of our
gendered hierarchies but to the power of the law.
Legal education can make us cowed. We fall into the habit of repeating the law
as it is already applied. We are not innovators, and if we are, we innovate on be-
half of clients who have no particular reason to be deserving of legal change other
than that they have paid for our services. But Sex Equality class was about
courage to face down and modify the existing legal structure on behalf of vulner-
able and marginalized people—women—who do not have billions of dollars to
throw down for our services and for whom legal innovation is not a matter of a bet-
ter and more efficient merger or a more profitable contract but rather a matter of
life and death.
And with this move we return a deeper meaning to the legal profession. Perhaps
some of our law school class pursued a law degree for the sole purpose of ob-
taining a steady, high status job that promises heaps of money. But other people
came to law school because they see the law as a tool and they connect emotion-
ally to people that they would like to help through the law. They want to see so-
cial change that eliminates discrimination and gives voice to those on the margins
of society. Sex Equality gives that back. It reconnects law to emotion and law to
courage and law to social change.
We all choked up along with Professor MacKinnon as she read, because we
know from our own experiences that what she read is true: we know that Shake-
speare’s sister is dead and that she won’t rise up unless we work. We know that
Virginia Woolf wouldn’t have been allowed to enter Harvard Law School because
it did not admit women at that time. We know it to be true that if we sit here and
do nothing women will not advance. And so we tear up and we jump to our feet
and we clap our hands, because we’ve made it inside these hallowed institutions
that Woolf dreamed of entering, and so now we have the power to resurrect the
poet, to let her be born in great numbers in the next generation. We felt our own

UN High Commissioner:
privilege in that moment, but it was not the usual privilege and arrogance regard-
ing Harvard’s rank in the world and our rank along with it; it was privilege with
meaning and power to affect change. It is the privilege to use our law degrees to
Diplomacy Key to Securing Human Rights improve the lives of those who are truly depending on the law for help.

BY JESSICA CORSI privatized—conflicts were no longer

In commemoration of the 25th an-
niversary of its Human Rights Program,
the UN’s highest human rights official,
Navanethem Pillay, LL.M. ’82 S.J.D.
’88, graced Harvard Law School. Pil-
lay, the UN High Commissioner for
Human Rights, discussed her current
position as a human rights diplomat,
and how it differered from her previous
roles as a judge and an impassioned ac-
tivist.
Pillay aimed to show how diplomacy
works behind the scenes to secure
human rights, noting that it played an
oft overlooked role in finding the com-
mon ground needed to sustain funda-
mental human rights agreements.
Today, she continued, we see the role of
human rights diplomacy in the interna-
tional law that states commit to and that
the UN monitors, and in the larger in-
ternational human rights movement that
utilizes advocacy to press governments
to embrace human rights law.
Her talk charted the rise of human
rights as an international movement and
a field of practice, including the cre-
ation of her own post in 1993, the ex-
pansion of the Office of the High
Commissioner for Human Rights,
which now spans the globe, and the
mainstreaming of human rights within
the UN system. Her timeline high-
lighted that the ascendancy of human
rights seemed concurrent with and on
the heels of the mass atrocities and wars
the world witnessed in the former Yu-
goslavia, Rwanda, and Somalia in the
early 1990s. She discussed how war
was transformed in the 90s, becoming
between states, but internal rebellions
or fights between militias in the service
of non-state actors who controlled
“large swaths of territory, natural re-
sources and weapons.” Fueling the
atrocities, “[t]he suppliers of weapons
and the beneficiaries of profits from
natural resources . . . were callously un-
concerned with the human rights record
and the rapacity of their customers.”
From all this, she noted, we have come
a very long way in establishing a work-
ing human rights regime.
Pillay candidly admitted how hard it
was to work on behalf of human rights,
noting that she is “often astonished at
the resistance to and fear of human
rights” that permeates even the UN.
After highlighting some of the most
useful tools for mainstreaming human
rights within the UN system, such as
the Human Rights Council and their
progress regarding the Universal Peri-
odic Review of human rights conditions
in all member states, she reminded the
audience that while “it is easy to get
caught up in the world of the United
Nations,” the focus must always remain
on the conditions on the ground, such
as conflict and poverty.
Following her speech, Pillay fielded
questions from audience members on
everything from Darfur to global warm-
ing, explaining how her office was in-
volved in each of these issues. She
addressed critical comments and sensi-
tive topics, such as Sri Lanka’s refusal
to accept an OHCHR office in country
and her efforts to increase the amount
of non-Western staff OHCHR em-
ployed.
Page 8
Victory in Puerto Rico for HLS Mock Trial Team
This past weekend, a team of Har-
vard Law students won first place at
the Fourth National Puerto Rico Trial
Advocacy Competition in San Juan.
The “invitation only” competition
was sponsored by the Inter-American
University of Puerto Rico School of
Law and held at the Old San Juan
District Courthouse.
The HLS team, which advanced
undefeated, consisted of 3Ls John
Quinn, Julian Thompson, and Do-
minique Winters and 2L Nneka
Ukpai. In addition to the overall win,
Thompson won Best Cross-Exami-
nation and Best Closing Argument.
Quinn earned a perfect score in the
semi-final round.
The team owes a debt of gratitude
to its esteemed coaches, Criminal
Justice Institute (CJI) Deputy Direc-
tor J. Soffiyah Elijah, and CJI Clini-
cal Instructor Dehlia Umunna.
The fact pattern involved charges Left to Right: Clinical Instructor Dehlia Umunna, Julian Thompson ‘10, Nneka Ukpai ‘11,
of bribery and perjury against a sitting Dominique Winters ‘10, John Quinn ‘10, and Deputy Director for the CJI, J. Soffiyah Elijah outstanding legacy of winning na-
judge. Ukpai and Winters represented
the prosecution; Quinn and Thompson represented the defendant. The team began victorious team included Professor Ronald Sullivan Jr. ’94, and Lecturer of Law
practicing in late September and met several times a week, including Saturdays Stephanie Robinson ’94. HLS last won the ABA competition in 2004 when team
and sessions that went past midnight.
Only teams that have won titles in past national competitions are invited to com-
pete in the San Juan tournament. All eight teams participate in the initial rounds pete in the ABA tournament in Chicago this spring.
Theatre: A.R.T.’s “Sleep No
More” is Surreal, Sexy, Violent
“Sleep No More,” a coproduction of the
British theater troupe Punchdrunk and the
American Repertory Theater, is part Macbeth
and part Hitchcock, but one needn’t need to be
familiar with either to be taken by the experi-
ence, as KAN YAN found when he joined the
audience, wearing white masks and following
actors through the halls and classrooms of the
Old Lincoln School in Brookline. “Sleep No
More” runs almost every night except
Monday, through January 3rd.
We arrive thirty minutes late and are imme-
diately ushered into a narrow, pitch-black tun-
nel. I feel my way further into the darkness
until it opens into a velvet-lined bar bursting
with jazz-era people. Boylston Street leads
into dark elementary school into pitch-black
hallway into anachronistic jazz club into dark
elementary school full of people wearing
creepy white masks. I shoot past the white
masks, reading books, and lounging in a par-
lor impeccably matched to the time period of
the club. In the dark hallways of the school, a
faraway, longing music plays, Victorian lamps
rest on desks kept at a distance saturated with
potential action, and bodies each topped off
with identically long masks wander about
slowly and silently.
A maskless woman touches my chest and
breaks the wordlessness, “Come! … Come!”
We’re in an elegant bedroom with her maid.
She’s kicking and flailing. The maid keeps her
baby from her. I don’t know why. Around
them a crowd of white masks silently gathers,
sometimes watching intently, sometimes look-
ing about the room. The maid drags her into
the next room. She has undressed and is
What do the elections in NJ, VA, and NY mean?
Vote now at hlrecord.org!
Harvard Law Record November 5, 2009
of trials. Judges and attorneys from
around the country evaluate and
score the competitors. The four teams
with the highest scores advance to the
semi-finals. Harvard defeated Stetson
University in the semi-final round
and went on to defeat defending
champion, Barry University, in the
six hour final round.
The team members are no strangers
to national trial competitions. Last
year, Thompson, Ukpai and Winters,
along with David Knight ’09, won
the national Black Law Students As-
sociation competition. In that same
year Knight, Ukpai and Winters,
along with Eli Schlam ’09, took sec-
ond place in the national American
Bar Association Criminal Justice
Section’s trial competition in
Chicago. All four team members
earned perfect scores. These teams
were also coached by Elijah and
Umunna. The HLS trial team has an
tional trial competitions. The first
member Laura Ferry ’04 won Best Advocate.
The HLS trial team has been invited to return to San Juan next fall and to com-
TOWNIE TERROR REIGNS IN SALEM
naked, beautiful and frightening, with mad-
ness in her eyes. She looks about her, seeing
white-masked ghosts the maid cannot. She
looks through my mask into me, her eyes wild
with fear. She crawls into the bathtub, curls up,
waiting for a feeling of safety that never
comes. She slits her wrists. The water reddens.
She flails onto the floor shaking, naked, alone
among the masks looking down at her.
I walk through a forest. The smell of pine is
overpowering. How is there grass in this
school? Each room is era-perfect, down to the
odors and sounds. From behind a mask, with
blackened edges of vision, there is a distinct
feeling that one has entered a film. There are
dozens of rooms, each holding at least a mask
or two silently wandering. I wonder whether
being alone in a room is more frightening or
less. What a perfect place for a murder.
A woman is on top of a bookcase. She’s
shaking and licking her hand, then she wipes
something off a statue of the virgin. She is ob-
sessed with its impurity. A shirtless man in
suspenders launches up onto the bookcase and
the two dance in a beautifully choreographed
struggle atop the case before falling to the
floor among the masks. They fly around each
other’s bodies silently. Only the mad speak,
and they speak to masks they only half believe
exist.
Time slows on occasion and we are totally
enrapt. We lost our reality somewhere in the
dark before the jazz took us, so we are totally
here with them in the madness of their frantic
paranoia. They are not alone. They are with
us. Yet we are alone. We, behind the masks, Sunny Lee, LL.M. ’10, dressed as Scarlett O’Hara, is seen here
the unreal, the imagined. with two Townies in Salem on Halloween. The LL.Ms went to
Salem looking for witches and demons; Sunny found Dracula!
Support Jeremy Haber ’12 in his bid to become a
columnist for
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