Harvard Law Record

The Independent Newspaper at Harvard Law School

November 19, 2009 www.hlrecord.org — twitter @hlrecord Vol. CXXIX, No. 6

In Mass. Senate ELIOT SPITZER’S ETHICS LESSON?

Race, Khazei Bets When Tarnished ex-N.Y. Governor Eliot Spitzer ’84 Came to
on Grassroots Harvard Last Week, the Headlines Missed What He Really Said
BY MATTHEW W. HUTCHINS

Has America lost its way during the tu-

Alan Khazei ’83 spoke alongside Steve Pagliuca
HBS ’82 in a discussion of their campaigns for the
Senate seat formerly occupied by Ted Kennedy.
The pace of the short race to get on the ballot for the
special election to Massachusetts’ vacant U.S. Senate
seat is accelerating to a full sprint. Two Harvard
alumni are running, Alan Khazei ’83 and Steve Pagli-
uca HBS ’82, and both came to HLS last Thursday to
discuss their campaigns and rally support. After the
event, the Harvard Law Record was able to meet
KHAZEI CAMPAIGN: MORE INFO AT
ALANFORSENATE.COM
briefly with Khazei to discuss his grassroots strategy
for getting on the ballot. Khazei, who founded the non-
profit community outreach organization City Year and
was instrumental in the enactment this year of the Ed-
ward M. Kennedy Serve America Act, shared insights
into the influence of Senator Kennedy on his strategy
and his purpose for participating in the election.
Interview with Alan Khazei - Page 5
mult of the financial crisis, driven to gov-
ernment excess by angry populism? Or
has the sobering effect of instability and
loss lifted a fog that had obscured the de-
bate on policy objectives? To former
New York Governor Eliot Spitzer ’84, the
crisis has revealed the fundamental ne-
cessity of government involvement in the
marketplace as an enforcer of trans-
parency, integrity, and competition, as a
regulator of externalities, and as a source
of core social values that will not be guar-
anteed by the market. “Only government
can force rules related to transparency
and integrity upon the market.” But
Spitzer sees the present moment as full
of both opportunity and hazard. “Angry
populism is no better guide for rational
intervention than is Ayn Rand libertari-
anism.”
Spitzer spoke at Harvard on Thursday,
November 12th on an invitation from the
Edmund J. Safra Foundation Center for
Ethics, an ironic twist which, in light of
his resignation from the governorship of Former N.Y. Governor Eliot Spitzer ‘84 delivered a lecture
New York in 2008, prompted heightened hosted by the Edmond J. Safra Center for Ethics.
media attention to his appearance. But
the central thrust of Spitzer’s remarks centered on his economic stability and social justice. Looking back
experience not as governor but as the Attorney Gen- on his experience investigating the conflicts of inter-
eral of New York. In that capacity, he conducted in- est in the investment banking industry, he said, “The
vestigations of Wall Street that led to the Global market was driving them to a standard of behavior
Settlement in 2003 to resolve conflicts of interest in that was the lowest common denominator and it was
the investment banking industry and fines of over unacceptable. It would destroy the integrity of the
$1.4 billion. market, and the only way to resuscitate the market
After a brief introduction by Professor Lawrence was for the government to come in and say some-
Lessig, the director of the Safra Center, Spitzer out- thing very simple. Tell the truth.” Because of the in-
lined the parameters within which government inter- herent pressures created by competition for market
vention in the markets is a necessary component of share, Spitzer believes that government involvement
Spitzer, cont’d on pg. 5

INSIDE
Israel’s Bedouin Villages Posner Affirms:
Struggle for Existence “Meat is Murder”
In the 1960s, the
Ames Finals: 7th Cir. Judge
The HL Record
Israeli government
began transferring Presides Over Vegan Victory News
the remaining
Negev Bedouins to • Students’ Immigration Victory
permanent, state- • Asking if Harvard is Corrupt
built townships. • Free Coffee Flows All Day
Though these • Swine Flu Emergency Prep
areas now have ap- • France’s School Symbols Ban
proximately • Alien Torts Suits: Originalist?
A Bedouin Village Goes Without Electricity 90,000 residents,
While Israeli Industry is Fed by Power Lines in an
the Background. Photo by Sandra Ashhab.
additional Opinion
80,000 Bedouins • Mumbai? Bring Back Bombay!
BY REBECCA AGULE continue to live in • Cross-Registration Woes
unrecognized villages. The gov- Photo: Phil Farnsworth
When the State of Israel was ernment views unrecognized
founded, in 1948, the new gov- villages as illegal settlements
BY MATTHEW W. HUTCHINS Features
ernment expelled approxi- and refuses to provide services The marketplace of ideas has hit the road. In a case • The 1L Who Doesn’t Sleep
mately 50,000 Bedouins, a such as running water, electric- which revolved around a proposed license plate bear- • Climenko’s “Wire” Spouse
semi-nomadic and pastoral ity, schools and hospitals. This ing the slogan, "Meat is Murder", the highest court in • “Arsenic” Kills (its Audience)
community, from their homes in illegal status leaves many the Ames competition has upheld limits on the dis-
the Negev Desert. Others fled Bedouins in constant fear that cretion of the State of Ames to reject the license plate
BEHOLD HLRECORD.ORG
into the surrounding countries. Bedouin, cont’d on pg. 3 Ames, continued on pg. 5

Page 2
Victory for Detained Legal
Immigrant Highlights
Difficulties Faced by Others
BY JESSICA CORSI
Thanks to the help of Harvard Law
School volunteers, an HLS alumna, and
a Stanford law grad, a U.S. citizen mis-
takenly detained by Immigration and
Customs Enforcement (ICE) and held
among regular prisoners at the Bristol
County House of Correction in North
Dartmouth, Mass. was released after a
monthlong detention.
Walther, 24, became a citizen as a
teenager. The Harvard Immigration
Project (HIP) helped him claim his cit-
izenship, leave jail, and avoid the
trauma of deportation to Peru, a country
he has not lived in since he was 13.
HIP is a student-run organization that
advocates for changes in U.S. immigra-
tion law that would protect immigrants’
rights. For the last year they have part-
nered with the PAIR (Political Asylum/
Immigration Representation) Project, a
Boston area pro-bono organization that
is often the only legal representation
available to persons detained by ICE.
For each of the estimated 1,000 ICE de-
tainees in Boston each day, there are
around seven legal professionals—four
full time PAIR staff and professors
from Suffolk University, Boston Col-
lege, and Roger Williams University
law schools—available to assist them
with their claims. The substantial dis-
crepancy between the need for legal
services and available practitioners
means that volunteers, fellows, and stu-
dents are essential to preventing wrong-
ful detentions and deportations and
protecting detainees’ rights.
Walther’s case hinged on precisely
such impermanent personnel—Paul
Sass ’11, an HIP volunteer; Andrea
Saenz ’08, an Equal Justice Works Fel-
low at PAIR, former HIP member, and
former Editor-in-Chief of the Harvard
Law Record; and Nick Stanley, a Stan-
ford Law alum and deferred law firm
associate who has been working at
PAIR for the last three months. Once a
month, a team of PAIR attorneys takes
HIP volunteers and other local law stu-
dents to ICE detention centers to speak
with detainees in advance of their de-
portation hearings. The volunteers in-
form the detainees of their rights,
taking down their information in case
they can make a claim that could enable
their release and prevent their deporta-
tion. Before HIP got involved, PAIR
staff were sometimes unable to hear
everyone’s claims. With HIP’s help,
everyone is heard within half a day.
It was Paul Sass’ first time meeting
detainees when he was introduced to
Walther on October 8th. Walther had
been arrested for the Massachusetts
equivalent of a DWI. While he was in
police custody, ICE put a detainer on
him, thinking that he was a Peruvian
citizen with Permanent Residency. ICE
describes its mission as “[s]trengthen-
ing the nation’s capacity to detain and
remove criminal and other deportable
aliens.” It is able to detain and deport
H L S
Harvard Law Record
even legal residents for what many
would consider minor offenses.
Unfortunately, Walther’s position is
not entirely unique. ICE is supposed
to screen for derivative citizenship,
but it doesn't always happen in prac-
tice, and every year there are many
people who find themselves behind
bars and fighting ICE's presumption
that because they were born in an-
other country, they aren't citizens. In
2007, Hector Veloz, the son of a Viet-
nam veteran and a U.S. citizen, was
locked up for 13 months in an Ari-
zona prison because ICE thought he
was an illegal alien.
ICE moved quickly to shuttle
Walther from police custody to immi-
gration detention. Local law enforce-
ment agencies agree to report
foreign-born individuals to ICE when
they arrest them or observe them in
court. Once reported, ICE runs a
computer check, and if they find a
visa overstay, lack of inspection at the
border, or other cause for ICE to think
that the person is here illegally, they
send a detainer to the local police, or-
dering them to hold the person for up
to 48 hours (not including weekends)
and giving ICE the ability to take cus-
tody when the local law enforcement
agency no longer wants to hold him
or her (sometimes even after a sen-
tence is completed). This is exactly
what happened to Walther. The
process happens so quickly that there
is often no time for the detained per-
son to make any phone calls to ask for
help or to let family and friends know
what is going on. Detainees are often
not fully informed of what is happen-
ing to them, and there are no attorneys
or others present during this process to
intercede on their behalf.
A derivative citizenship case like
Walther’s is particularly complicated;
given its vagaries and complexities, at-
torneys often liken immigration law to
tax codes. Walther thought that he
might have obtained citizenship from
his mother, who had arrived in the U.S.
from Peru ahead of him. He followed
her here as a Lawful Permanent Resi-
dent, or green card holder, and lived
with her as a child. While he was grow-
ing up in the U.S., his mother natural-
ized as a citizen, but nothing was done
to obtain full citizenship for Walther. In
2000, however, Congress passed the
Child Citizenship Act, a federal law that
automatically gives citizenship to chil-
dren such as Walther who were under
18 when at least one of their biological
parents naturalized. Walther’s family
did not know that this law applied to
him and he did not have the documents
on him to prove it, given that he had
been taken from police custody straight
to ICE detention. Due to prison phone
systems, it is extremely difficult for
people—whether family or counsel—
to call in, but Paul and PAIR had made
sure that Walther had PAIR’s phone
number so that he could follow-up with
November 19, 2009
Free Coffee Returns, Now for Whole Day Long
It was one of the most notable perks introduced to Harvard Law School by for-
mer Dean Elena Kagan '86, the current Solicitor General. But as many suspected
would happen, the free coffee that graced the school's hallowed hallways was cut
back following budget cuts early this year. Now, however, free coffee will flow
through the veins of HLS students more liberally than ever, thanks to a new pilot
program to provide it all day long.
According to an email from Dean of Students Ellen Cosgrove, sent to the HLS
community last week, the school will augment its current free coffee regime by
making the caffeinated drink available in Lewis Hall's Room 202. The new free
coffee station will supplement the morning coffee available in Pound and Austin
Halls until about 10:15am each day, as well as the evening free coffee available
in the library kitchen after 9pm on weekdays and all day on weekends.
Cosgrove's email indicated that the move came in response to complaints both
by students and by faculty and staff, whose own free coffee supplies were being
raided by students, resulting in noise in hallways near faculty offices.
Law School Ramps Up Swine Flu Preparations
An increasing number of Harvard Law School students are being infected with
the H1N1 (or swine flu) virus, according to an email to the HLS community by
Dean of Students Ellen Cosgrove, leading the school to take extraordinary steps
to deal with the situation. The measures come seven months after the first known
outbreak of the virus in Massachusetts took place at Harvard Dental School, and
three weeks after the university reported running out of regular flu vaccine (it has
since acquired more).
According to the email, Dean Minow has asked that all measures be taken to en-
sure that infected students do not miss any material covered in classes. Several op-
tions were apparently looked at to bring the classroom to the sick, including the
use of digital tools ranging from Skype to WebEx to Elluminate to iSite videos.
In the end, the law school settled on providing recordings of classes to students
whom University Health Services has reported to have contracted the illness – but
only in those rooms where it has the capability to do so. Recordings will be made
available for at least four days after each class has taken place. Infected students
with classes in other rooms will receive copies of notes from fellow students.
Meanwhile, the Law School's Local Emergency Management Team, or LEMT,
is looking into contingency plans if the school falls victim to a wider outbreak.
This may result in a revised plan for recording and distributing class materials.
The university currently has a limited quantity of H1N1 vaccine and it is only
being distributed on the basis of need. According to the University Health Serv-
ices website, the university is currently offering the vaccine to pregnant women
and pediatric patients. The next group to be innoculated will include those who are
under six years old, live with assisted care, household contacts of pregnant women
in their third trimester, and medical personnel.
Only following these priority patients will UHS be able to offer the vaccine to
university-age students up to 24 years old who are at risk of health problems, fol-
lowed by persons up to 64 years old under the same circumstances.
UHS has indicated that it will "probably not" receive the 15,000 doses it re-
quested due to slow production of the vaccine.
them. Walther called PAIR a week after neys, who are often reluctant to get in-
he gave his information to Paul, and volved, because of challenging barriers
Nick Stanley took up his case. put in place by ICE and the rapidity
Once Nick realized that Walther fell with which their clients are deported.
under the Child Citizenship Act, he Many people in Walther’s situation are
moved quickly to obtain the proof nec- deported without ever having had coun-
essary to ensure his release—his birth sel and with nothing more than a video
certificate, his Green Card, and the hearing before an immigration judge.
most important item: proof of his Because deportation is not considered a
mother’s naturalization. Nick then criminal punishment—despite the fact
called the Department of Homeland Se- that it is an extremely harsh “penalty,”
curity’s ICE Chief Counsel Office and particularly for infractions, like DWI,
spoke the Duty Attorney for the day. A that would not even have merited pro-
few hours later the attorney called back bation—the U.S. government has de-
to request the documents Nick had ob- cided that immigrant detainees facing
tained. Twenty minutes after Nick deportation do not have a right to coun-
faxed them, the attorney called to say sel. ICE is a large bureaucracy and, due
that Walther was going to be released. to federal law, the personnel working
His release happened so quickly that on immigration cases are often man-
there was no time even to let him know dated to take quick action to detain and
he would soon be free, and so Nick deport without any room for discretion.
called Walther’s family to make sure Walther’s story had a happy ending,
that someone was there to meet him thanks to the work of HIP and PAIR.
when ICE released him into the jail’s HIP intends to expand its programs and
parking lot on November 6th, just under become a student practice organization,
a month after Paul took down his infor- which will increase the power of PAIR
mation. Walther ws lucky: his release to assist ICE detainees and prevent
came relatively quickly. wrongful detention and deportation.
Inside the Bristol jail, detainees like Until then, the detainees in the Boston
Walther are entirely dependent on coun- area will continue to rely on the seven
sel working on the outside to assist attorneys and handful of volunteers
them. Most cannot afford private attor- who get in to see them once a month.
 W O R L D
November 19, 2009 Harvard Law Record Page 3

Bedouin, cont’d from pg. 1 homebuilding and set out the home registration lages to you. I will just tell you the story of al-Sira,”
their homes will be demolished or that they will be process, but the law provided no authority to give per- said Alumur. “But it isn’t a different story from the
forced to relocate. mission to Bedouins. others.”
On November 10th, Ahmad Amara, a Global Ad- Compounding these tensions, the Bedouin commu- In closing, Ranaan urged the audience to take ac-
vocacy Fellow with Harvard Law School’s Human nity has historically operated its own courts, previ- tion, reminding them that the issues at hand are hardly
Rights Program, moderated a panel on the Bedouin ously recognized under the British, and, given this unique to Israel.
entitled “Invisible Citizens”. Speakers Khalil Alumur parallel system, many saw registration as unnecessary. “Canada, the US, Australia, they are all dealing with
and Yeela Raanan outlined the plight of Israel’s “There was no reason to register,” Raanan said. this. The question is, how do you deal with indige-
Bedouin citizens. Alumur, an Israeli Bedouin, serves “They had their own system.” nous land rights in a western court? This is a political
as the representative of al-Sira, an unrecognized vil- Raanan continued that the government does allow question, not a judicial issue.”
lage in the Negev and home to his family for more for registration when a family decides to sell its home. Clinical Instructor Amara works on numerous ini-
than seven generations. Raanan works with the Re- “But you see the table of what the land is worth, and tiatives related to Israel and Palestine. More than a
gional Council for the Unrecognized Villages, a grass- its really just pennies.” dozen clinical students have joined Amara, undertak-
roots organization created to advocate for villages and Rejecting violence, Alumur does not consider ing a variety of projects related to the Bedouin popu-
communities, such as the one where Alumur currently breaking the law a viable advocacy tool. Instead, he lation. These efforts have included research in support
lives. organizes demonstrations and protests at Israel’s par- of cases heard before the Israeli Supreme Court, rec-
Underscoring the depth of the rift between liament, the Knesset, as well as working to draw ommendations to a task force focusing on Bedouin
Bedouins and the Israeli government, Alumur said, media coverage and the interest of politicians. “We land issues created by the Israeli government, and
that “this is something bigger than misunderstanding want to fight for rights peacefully, legally. We work submissions to the United States Department of State.
or mistrust. There is a crisis between the citizens and from the inside, not only from the outside,” Alumur The Middle East Initiative, the Outreach Center at
the government.” said. the Center for Middle Eastern Studies and the Human
Alumur described life in his village, which has es- Alumur explained the purpose of his trip to Har- Rights Program at Harvard Law School co-sponsored
tablished a daycare, built a mosque, paved the dirt vard, one of several speaking engagements. this event.
roads and laid water pipes. The residents of al-Sira, “I hope to bring the story of the unrecognized vil-

French Secularist Defends Country’s Ban on

located just south of Arad, often co-
operate to fill one another’s basic

Religious Symbols in Schools

needs.
Before we had any regular power,
my fridge was like a pharmacy for the
whole village,” Alumur said.
Seemingly small tactics often make
the difference between a home’s de-
struction and preservation. Alumur’s
own home remains grey and un-
painted, as he know that, were it
white, the chances of demolition
would increase. More permanent-
looking structures or those built
higher on the hills are also at greater
risk.
Each individual feels the impact of
life in an unrecognized village deeply
and differently. Ranaan described dire
health consequences, such as chronic
diabetes and widespread asthma.
Women living in Wadi al Na'am, a
village close to Ramat Hovav, suffer
the highest rate of miscarriages in the
country. Without schools, children
must be bused to out of the villages to
receive an education, a process that
results in the exclusion of many girls.
Unable to marry without homes,
young men also suffer.
“You don’t want to upset the young
men,” Raanan said.
Sometimes done to send a message,
bulldozing also carries strong sym-
bolism. Pushed by an audience mem-
ber for the reasoning behind home
demolition and the refusal to extend
recognition, Raanan admitted that the
answer would likely be unsatisfac-
tory.
“Recognition of the villages would
allow people to stay.” Raanan said.
“No government wants to make
something illegal legal.”
Raanan offered the audience a bit of
historical context. She described what
she termed “a process of concentra-
tion” by the Israeli government to re-
move Bedouins from the larger
Negev, originally to Jordan and then
into certain areas of the desert. The
1965 Planning and Building Law de-
termined the hows and wheres of
Next Record:
December 2
BY CHRIS SZABLA cuse, rather than suffer for making a personal choice. More-
over, those who could not stomach abandoning religious
“How is it that the terrible French, passing racist, sexist symbols could always avail themselves of France’s govern-
laws, are [also passing laws that are] working out better than ment-subsidized religious schools. Finally, France coupled
[those in] the rest of Europe?” This provocative question was the law with a new flexibility on religious holidays – citizens
raised by Patrick Weil, who, in 2003 and 2004, participated would have the option of taking a range of days off, de-
in a commission under former pending on their faith.
French President Jacques Chirac Gerald Neuman ’80, Har-
to determine how France should vard’s J. Sinclair Armstrong
respond to the harassment of Professor of International, For-
Muslim girls who went without eign, and Comparative Law,
hijabs, also known as head- criticized Weil’s characteriza-
scarves, in schools. tion of laïcité – and the ban on
Weil, a historian and sociol- religious symbols – as liberal.
ogist who is spending a semester Liberalism, Neumann asserted,
as a visiting professor at Yale should be thought of as respect
Law School, had traveled to for the autonomy of individu-
Cambridge to defend his com- als – which individuals should
mission’s response – a total ban be able to act on themselves.
on religious symbols in French Responsibility for their rights,
schools – before members of such as the choice not to wear
Harvard Law School’s Human Nice hijab, but don’t try wearing it to a French school. a headscarf, should not be
Rights Program. Human rights Photo by Flickr user davidChief. taken over by the state. He
groups have been critical of the asked how the state made
law, which they say is an impediment on the absolute right to choices to support one pressure or another on groups – in the
religious practice. But five years after the fateful ban, Weil case of Muslim women in France, toward or against assimi-
said, studies and data collected from other European coun- lation, and why religious symbols were banned when the
tries indicated that the law had made a positive impact. state could have taken on other practices that caused harass-
Just how he measured the impact of the law, Weil did not ment.
say. He wanted to focus, instead, on defending it against crit- Noting that it made more sense to ask government employ-
ics who insisted that a law scrubbing schools of religious ees, such as teachers, to not wear religious symbols, in order
symbols was illiberal. At the heart of the debate is the French that the government be perceived as neutral toward religion,
idea of laïcité, a form of secularism that mandates not only Neuman said it made less sense to impose a ban on the re-
the separation of church and state, but state guarantees that ceivers of a government service for the same reason. Finally,
any particular religion will not overrun the public sphere. he wondered whether the French law painted too broad a
The roots of laïcité go back to the anti-Catholicism of the stroke – were other religious groups, he asked, the “collateral
French Revolution, but its more modern manifestation was damage” of a law intended to focus on a Muslim problem?
evident in a 1905 law that formally separated religion and Weil, for his part, said that the state needed to protect in-
the French state. The 1905 law had said nothing about reli- dividuals because forces other than the state – such as reli-
gious practice in public settings, and Weil firmly defended gion – could be equally oppressive. Still, he took Neumann’s
the right to practice one’s religion “on the street”. But the point about other religious groups serving as collateral dam-
school, he argued, was a different environment. Since the ter- age, and said that compromises had been found for some
rorist attacks of September 11th, 2001, French school offi- groups, like Sikhs, who were particularly attached to their
cials had witnessed increasing pressure on Muslim girls to religiously mandated garments.
wear headscarves, although the majority did not. They con- But Weil’s specific solution appeared to boil down to the
sidered going after the harassers themselves, but had a diffi- fact that laïcité was simply the French way of doing things.
cult time obtaining testimonies. It demonstrated, he said, that France could not be reduced to
In 2004, the Stasi commission, appointed by Chirac to in- the stereotypes of authors such as Joan Scott or Christopher
vestigate a solution to the problem , recommended the ban on Caldwell, who had asserted that the French were racist or
religious symbols. Weil, who was a member of the group, that their liberalism would lead the country to be overrun by
outlined three ways he thinks that the ban managed to be con- Islam, respectively. “Laïcité,” Weil argued, noting that
sistent with religious freedom. First, the law allowed students French governments had come and gone, while the principle
facing harassment for their choice to wear or not to wear re- remained, “is [even] more important in France than the con-
ligious symbols like headscarves could use the law as an ex- stitution”.
 Harvard
Page 4 Harvard Law Record November 19, 2009

Wake Up, India, and Bring Back “Bombay”

Law
“Mumbai” is Terrorized by Linguistic Chauvanism

Record
BY KARAN TYAGI
On November 9th, Indian democracy plunged to its nadir.
Elected legislators of the Maharashtra Nav Nirman Sena
Party (MNS) rushed to the floor of Maharshtra state’s Leg-
EStabLiShEd MCMXLVi islative Assembly to stop the elected member of the Sama-
jwadi Party, Abu Asim Azmi, from taking oath in Hindi, the
country’s official and most widely-spoken language. They
Matthew W. Hutchins
Editors-in-Chief
demanded that he take the oath in Marathi, the language of
Chris Szabla the Marathi people of Maharashtra, whose cause the MNS
seeks to espouse. This was followed by MNS legislator Ravi
News: Rebecca Agule Kadam slapping Azmi in full view of the public gathering.
Staff Editors
multicultural character. It was built by the contribution of
Parsi and Gujarati entrepreneurs, Konkan mill laborers, Tel-
ugu and Tamil industrialists, Koli and Marathi fishermen,
and the North Indian-dominated film industry. “Bombay” is
the financial capital of India because of the contribution of
people from different parts of the country. The city epito-
mizes the “unity in diversity” characteristic of India. Chat-
trapati Shivaji Maharaj, the founder of the Maratha empire
and the hero of the people of Maharashtra, was known for
favoring inclusivity and tolerance of other religions. Thus,
the attack on Azmi is not only an attack on Bombay’s famed
pluralism, but also on the virtues and teachings of the

Opinion: Jessica Corsi This follows a similar incident that took place just a few
Sports: Mark Samburg weeks ago, when the same party threatened noted film pro-
ducer Karan Johar for using the word “Bombay” instead of
the Marathi “Mumbai” in his new movie, Wake up Sid.
Victoria Baranetsky This linguistic and regional chauvinism is not a new phe-
Contributing Writers
Marathi hero, Chattrapati Shivaji Maharaj.
The Maharshtra government has always turned a blind eye
to the threats issued by the MNS and the violence perpetrated
by its members. The government has brazenly succumbed to
the threats of the MNS, doling out the excuse that stricter ac-

Nicholas Joy
Karan Tyagi
record@law.harvard.edu
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nomenon. The MNS and its chief, Raj Thackeray, have been
making inflammatory and divisive comments since the
party’s formation. Last year, members of the MNS resorted
to arson and violence in different parts of Maharashtra in
protest against outsiders entering and working in the state.
But in assaulting an elected member of the House in the
Assembly, the MNS has sunk to its lowest depths. Apart from
taking immediate action against the members of the MNS in-
volved in this ruckus, the fact that there is no place for eth-
nic and linguistic chauvinism in a city like “Bombay” should
be driven home once and for all.
At the outset, I would like to point out that the Indian Con-
stitution that allows legislators the freedom to take oath in
any official language was written by Dr. Babasaheb Ambed-
kar, a low-caste native Maharashtrian himself. Further, as
was rightly pointed out by Abhinav Chandrachud LL.M. ’09
in the Indian Express, the oath prescribed for members of
state legislative assemblies was amended by the Constitution
Act of 1963 to include a promise to “uphold the sovereignty
and integrity of India”. By stopping Azmi from taking the
oath in Hindi, the members of the MNS have not only sub-
verted the Indian Constitution but have also flouted all forms
of parliamentary functioning.
The MNS fails to realize that “Bombay” has always had a
tion would lead to bigger “law and order” problems. The fact
that this time the Maharashtra Assembly has suspended the
members of the MNS involved in the incident for four years
is a heartening sign. But the authorities fear a backlash by
the MNS political activists, one that would lead to wide-
spread violence and destruction in “Bombay” and other parts
of Maharashtra. They need to display the courage exhibited
by U.S. President Dwight D. Eisenhower during the “Little
Rock Nine” incident of 1957.
At a time when “Bombay” and the state of Maharashtra
are overrun with such problems as terrorism, malnutrition,
poverty, and rising prices, it is shocking that some members
of the Legislative Assembly would engage in a dangerous
linguistic war. On some level, these elected representatives
are a reflection of society itself. They are in the Assembly
because the people have voted for them. For me, this fact is
more dangerous than any threat and any violence that can
ever be perpetrated by Raj Thackeray and his goons. As a
citizen of “Bombay”, it makes me hang my head in shame.
The citizens of Bombay cannot afford to let the city be gov-
erned by people who propagate fascism. The time has now
come public opinion to turn strongly against it.
Karan Tyagi is an LL.M. student from India.

EDITORIAL: CROSS-REGISTRATION WOES

Its Schools Operate Like Independent Fiefdoms. Does Harvard “University” Even Exist?
Another registration season has
passed at Harvard Law School, com-
plete with all the trials, tribulations, and
technical glitches of the MyPlan sys-
tem, the arbitrary course caps that will
have to be manually adjusted by the
Registrar next spring, and the frustra-
tion of students who have had to deal
with clinical, elective, and “multi-sec-
tion” course registration periods situ-
ated weeks apart. Pity the poor law
student who wishes to sign up for all
three types of class, for whom registra-
tion takes up more time than outlining,
and whose Google Calendar is littered
with the detritus of unfulfilled class-
room hopes and dreams.
HLS’ vast menu of courses is one of
the school’s main attractions, a stand-
out reason why many choose this
buzzing hive of over 2,000 students,
faculty, and affiliates over more inti-
mate law schools – in sunnier climes.
As Dean Elena Kagan ’86 never grew
tired of pointing out, the options also
extend to other schools of Harvard Uni-
versity, offering students the ability to
work outside the law school with
renowned members of the Harvard fac-
ulty as a whole. But sadly, the chal-
lenges of registering into law school
courses pale in comparison to the
daunting feat of cross-registration be-
tween Harvard schools.
Consider: to supplement one’s legal
education with a Graduate School of
Arts and Sciences course, a student
must first wait practically until the new
semester begins, when GSAS finally re-
leases its course schedules. Then, and
only then, can a law student begin to
plan when to take such a class, well
after he or she will have had to already
register for law school courses.
Students must then bring their signed
cross-registration form to the GSAS
Registrar’s Office. (One might expect it
to be an affair similar to the modest of-
fice suite that holds the law school’s
registrar staff. In reality, it is a palatial,
three story building complete with
columns and an expansive lobby.) After
finally locating the relevant line, and a
requisite wait, students are sent away to
fill out a bubble sheet similar to those
used to fill in answers on standardized
tests. Then they must get back in line to
submit the completed materials.
A rare example of administrative ef-
ficiency ensures students will not have
to traipse back to the law school’s reg-
istrar to gain approval from that office
as well. But such fixes beg the question:
if the university was able, recently, to
coordinate its exam schedule to facili-
tate cross-registration, why can’t it co-
ordinate the release of a course
schedule? And why can’t the whole
process – professors’ approvals in-
cluded – be moved online?
At least part of the problem seems
to be that Harvard’s various schools op-
erate less like organs of a single body
than as independent organisms that
hardly acknowledge one another’s ex-
istence. The schools’ individual ap-
proaches to professorial discretion on
registration are a case in point. At HLS,
professors complain that the system
makes it difficult to shepherd in stu-
dents who they think should be able to
take their courses. But at the Kennedy
School, professorial discretion reigns
supreme.
A shocking example emerged earlier
this fall in a Kennedy School class
taught by Rory Stewart. Stewart has
achieved some fame for trekking across
Afghanistan during the opening chap-
ters of the war against the Taliban, and
for later serving as governor of a
province in Iraq. It was understandable,
then, that the relatively small classroom
the school had allotted him for his
course on interventionism couldn’t ac-
commodate the number of interested
students, many of whom had also come
from schools with which Harvard has
cross registration agreements, such as
Tufts’ Fletcher School of Law and
Diplomacy.
Stewart’s solution was not to ask the
Kennedy School for a larger classroom,
but to make aspiring cross-registrants
apply for slots as auditors. Of these, he
would select only eight (out of the
dozens who were hoping to register)
who would not only have to give up any
seats to interested Kennedy School stu-
dents, but would not be allowed to par-
ticipate in class discussion at all.
The plan provoked outrage among
the Tufts students, who petitioned their
administration. One even emailed
Stewart – and the rest of the class – di-
rectly, with a strongly-worded message
asserting that Tufts would never treat a
Harvard cross-registrant as he had
treated the visitors from Tufts.
Whether the Stewart case was an il-
lustration of Harvard’s strained rela-
tions with other universities, a
demonstration that these schools could
stand up for their rights better than stu-
dents from other Harvard schools, or an
indication that other universities’ cross-
registrants might be taking up class
seats that ought to have gone to Har-
vard students, it is clear that Harvard
University as a whole needs to reevalu-
ate its cross-registration system – not
only because interdisciplinary studies
are the future of many fields, but be-
cause without the easy ability for stu-
dents and faculties to interact across
institutional lines, Harvard is no more
than a sum of its many parts – and the
idea of the “University” as an institu-
tion is rendered both hollow and mean-
ingless.
November 19, 2009
Spitzer, cont’d from pg. 1
in markets is crucial for the maintenance of trans-
parency, integrity, and competition. “Everyone in busi-
ness wants to be a monopolist . . . If we don’t have
government enforcing competition laws, then we as
consumers, we as an economy, will lose the vitality
and creativity that competition generates.” Indeed, the
consequences of market concentration in the financial
sector, combined with the implicit government guar-
antee of systemic security, has had the unintended
consequence, according to Spitzer, of socializing risk
and privatizing profit. “Too big to fail is too big, and
in fact, too big to fail is too big not to fail.”
Spitzer cited the regulation of harm caused to soci-
ety and third parties by legal market activities as an-
other crucial component of government activity in
private markets. As attorney general of New York he
brought suits against electric utilities located in Mid-
west states under the Clean Air Act for the harm
caused to New York by pollution carried along the jet
stream. Now he believes that debt itself has become a
system-wide externality that is harming the market.
“When you aggregate all of the excess leverage in our
economy that has accumulated over the last decade,
all of a sudden you have systemic risk.”
But beyond merely correcting for inefficient results
of market participants’ behavior, Spitzer recognized a
role of the government in molding the character of the
economy to accord with shared “core values” that are
identified through the political process. Pointing to
discriminatory practices, Spitzer noted that theorists
had written extensively about the rational dynamics
which should squeeze such behavior out of the mar-
ketplace. “The problem is … it just didn’t happen.
Discrimination continued because the social values
and social morays that drove discrimination based
upon race or gender or religion overpowered the ra-
tional activity of economic actors.” Likewise, in set-
ting a minimum wage, the marketplace will not by
itself set a lower limit on compensation that will allow
individuals to support themselves while working a
forty-hour week.
With respect to the current crisis, Spitzer believes it
was inevitable that “an enormous sum of money was
going to be spent creating both solvency and liquid-
ity.” Nonetheless, he advanced three primary ques-
tions: Who is going to pay for it? What reforms are
going to be made? How are you going to create jobs?
The implementation of the bail-out programs, says
Spitzer, has unfairly deleveraged private banks
through creation of government debt and unwisely
channeled taxpayer dollars to unregulated financial
counter-parties and failing businesses. “There was ab-
Alan Khazei ‘82: Citizen-Candidate Seeks to Carry Kennedy’s Torch
Founder of City Year Looked to Sen. Kennedy as a Mentor, Seeks to Mobilize Grassroots Support in Campaign
What is your strategy for challenging the leading con-
tenders in this race to become the next Senator from
Massachusetts?
I think it’s important for whoever takes over this
very big Senate seat to be connected to the grassroots.
Senator Kennedy did that extremely well. It’s the kind
of politics I believe in, and it’s also frankly a good
strategy to win the special election. As the Herald
pointed out today, 93% of the people don’t even know
that a special election will be happening. So, what I
am doing is organizing a grassroots movement of
young people, older people, anyone who’s willing to
give a weekend or two and go door to door. If this
were a yearlong campaign, I would go around and
meet people all across the state. It’s a very short cam-
paign, but I still think it’s important to connect to the
voters and the citizens. I’m asking for help because I
can’t do it all personally, but I’m going to be out there
too to ask citizens, “What do you care about? What
are your concerns?”
As I’ve been campaigning I know people have lost
their jobs, their homes, their savings, their dreams of
a college education. I want to send a message that I
understand that. Tell me what you care about, and I
will help you get it set up. And then I want to take that
message and then get my message out. I don’t have a
personal fortune, like other candidates that can rely
on that to get their message out.
I’m relying on citizens to get my message out.
Harvard Law Record
solutely no reason for [AIG’s] counterparties to get
100 cents on the dollar . . . Taxpayers were not a party
to that contract.” Spitzer questioned the reasons for
failure to renegotiate such contracts by the New York
Federal Reserve Bank and the Treasury, pointing in
particular to the $12.9 billion received by Goldman
Sachs as a counter-party to contracts with AIG. To put
this sum in perspective, he proposed the alternate pos-
sibility of spending $8 billion to fund high-speed rail
infrastructure, or instead of a bailout of GM a possible
government contract to purchase electric cars manu-
factured domestically from any willing producer. “The
taxpayer picked up the whole bill, and that was
wrong.”
Spitzer expressed dismay that despite his failure to
zealously advocate for taxpayer interests, New York
Fed Chief Timothy Geithner had been promoted into
the lead role at the Treasury. He called this an exam-
ple of the Peter Principle on steroids: an individual
been promoted upward until surpassing the point of
his competence, then his failure had been rewarded by
a higher promotion, for the purposes of cleaning up
the mess he created. Spitzer also scoffed at the pro-
posals by the White House to make the Federal Re-
serve the national systemic risk regulator. “I hate to
break it to you, but they already are and have been.
That’s what they were supposed to be doing for the
last twenty years. Where were they?” He character-
ized this as an example of the “regulatory charade”,
whereby agencies that had the power to act earlier but
shirked from responsibility clamor for greater author-
ity to respond once a crisis occurs. “This is one big
façade that should be shattered. They had the power;
they didn’t want to use it.” He pointed to the Office of
the Comptroller of the Currency’s regulation of mort-
gage-backed securities as a tragic example of this, stat-
ing that when he had sought to investigate the industry
as a prosecutor his inquiries had been blocked under
the exclusive regulatory authority of the OCC.
But despite his views on the role of government,
Spitzer accepts that it is the private sector that has to
take the reigns and lead the management of the econ-
omy. “The private sector creates wealth, not the gov-
ernment.” He indicated meaningful long-term change
will depend on reforms of corporate governance that
empower the private sector, such as the disentangle-
ment of institutional investors’ voting powers and their
jockeying for business as retirement asset managers.
“We have denied ourselves the dynamism that we
could get from the largest participants in the market-
place, the biggest repositories of equity ownership.”
“Here’s who Alan Khazei is, here’s why he’s different.
He’s been a public servant, not a career politician.
He’s not taken money from the special interests. He
has got a very bold agenda, that’s available on his
website.” And so anyone from Harvard Law School,
and we’ve got a great group already signed up, can
come for one weekend, November 21st and 22nd, and
join this movement with a thousand people to knock
on 50,000 doors. And I’m going to do it the weekend
after that and the weekend after that.
But all I’m saying is come for this one weekend.
It’s going to be a ball; we’re going to have fun. It’s
going to be part of a movement of grassroots politics
to show that a citizen candidate, with just citizen sup-
port, can be a citizen-senator. I have faith in the vot-
ers, and I have faith in volunteers.
Does your experience in community organizing give
you insight into the legacy of Senator Kennedy and
the issues you would be pressing in Washington?
Oh absolutely. I had a chance to work very closely
with Senator Kennedy for more than twenty years. He
was my mentor, he was my champion, he was my
friend, and he was an incredible leader. I learned so
much from him that I could write a book.
First of all, he believed in supporting people from
the grassroots. He believed that as his senator it was-
n’t just his job to cast a vote or give a speech; it was
about how do you empower people to achieve the
Page 5
Ames, cont’d from pg. 1
design proposed by the fictional vegan group Hu-
mans Against Consumption of Animals (HACA).
Judges Richard Posner '62 (7th Cir.), Diane Wood
(7th Cir.), and Barrington Daniels Parker, Jr. (2d
Cir.) presided before arguments by Kathryn Nielson
and Ray Seilie for the State of Ames, opposed by
arguments from Candyce Phoenix and Hagan Scot-
ten on behalf of HACA.
The briefs and arguments from the two compet-
ing teams laid out the tensions in the constitutional
jurisprudence of free speech in the context of a lim-
ited private forum. The recent case of Pleasant
Grove City v. Summum, 129 S.Ct. 1125 (2009), set
forth wide breadth for the government's exercise se-
lective discretion in accepting certain private mes-
sages for public display as government speech. The
respondents argued that this holding was inapplica-
ble to the case of a license plate program, especially
since the statute in question expressed an intent to
facilitate non-profit organizations' ability to com-
municate.
The judges, whom Dean Minow later character-
ized as a hot bench, challenged the oralists to ex-
plain the limits of their arguments by evaluating a
list of possible licence plate submissions ranging
from "Eat More Blueberries" to "Vegans are Com-
mies" and "Join the KKK." Hagan Scotten '10, who
was awarded Best Oralist, said that despite the pres-
sure he faced during the arguments, it paled in com-
parison to his Army Special Forces service on the
front lines of Iraq. "If the Iraqis could shoot as well
as Judge Posner can question, it would have been
even worse [in Iraq]." For Scotten, the pressure of
facing interrogation by three Federal Circuit Judges,
"was not nearly as bad, because Posner didn't have
bullets."
Although the Respondents took both the overall
prize and the prize for Best Oralist, the Petitioners
came away with the prize for Best Brief. "The mar-
gin for each of the calls we had to make was ex-
tremely narrow," said Judge Parker. The entire panel
praised the quality of the arguments presented, with
Judge Wood noting that the oralists all did a "much
better job giving a yes or no answer than counsel
normally do."
This year's Ames competition had the largest par-
ticipation in recent history, with 50 teams signing
up, forcing the organizers to conduct two prelimi-
nary rounds to select the teams that will go to the
semifinals in the spring. The finalists who com-
peted in this week's arguments were drawn from a
smaller pool of close to thirty participants.
American dream. I became who I am because he em-
powered me as a 26 year-old graduate of Harvard Law
School. You know he discovered City Year, and he put
his arm around me and said, “Alan, I’m going to help
you make this a national cause. I want to work with
you.”
And so I learned that you’ve got to get behind
movement leaders. I learned that you have to have
outstanding constituent servants. I learned that you
have to first of all listen to peoples’ stories. The in-
credible thing about Senator Kennedy is that he dined
with Presidents and Prime Ministers, kings and
queens, with CEO’s and rock stars, but the people he
cared about most, the people he kept in his heart and
in his mind every day, were the every day people he
met across Massachusetts from places like New Bed-
ford. You know, the factory workers, the entrepre-
neurs, the young people who were signing up in
droves to do City Year and then AmeriCorps, the peo-
ple working at community health centers providing
healthcare for people who can’t afford it, the people
who were doing legal aid, the people who were com-
ing off the boat as new immigrants, just as his grand-
parents did, trying to make it here in America.
What was so extraordinary about him, was that he
heard peoples’ stories and he never forgot them, and
that’s what I’m going to try and do. I’m not going to
be Senator Kennedy, but I do stand on his shoulders,
and I learned a lot from him.
Page 6 Harvard Law Record November 19, 2009

Pressures on Military Mean Rise in Extrajudicial Killings in Colombia

BY REBECCA AGULE
In March 2006, Martha Giraldo returned to her fa-
ther’s farm outside of Cali, Colombia, to find the
property surrounded by soldiers and her father dead.
Based on accusations he was involved with guerillas,
the military shot José Orlando Giraldo, and, standing
over his stripped and mutilated body, warned Martha
and her family members that they could share his fate.
“It was the gravest humiliation that one can feel, to
find your father assassinated. We saw his body com-
pletely destroyed,” Giraldo said. “In the middle of the
night, the national army comes and murders your fa-
ther.”
While horrific in many respects, José’s death is
hardly unique, nor are the numerous questions such
killings raise under international humanitarian law.
“This isn’t just the story of my family. The same
thing is happening to many Colombians, especially
marginalized members of Colombia communities,
like Afro-Colombians and indigenous peoples,” Gi-
raldo said.
Through a translator, Giraldo spoke about the im-
punity enjoyed by the government actors carrying out
extrajudicial killings of Colombian civilians, at an
event hosted by the Harvard Law School Advocates
for Human Rights. According to human rights organ-
izations, the Colombia military killed 535 civilians
between January 2007 and June 2008. Extrajudicial
killings have increased dramatically over the last few
years, a rise many attribute to the implementation of
a “democratic security policy” designed to fight
guerillas and insurgents. Intimidation and reporting
issues hinder the collection of accurate date regard-
ing extrajudicial killings. While 2,981 cases were
filed from 2002-2008, many suspect that number un-
derscores the true extent of the issue.
Now a human rights activist and community or-
ganizer, Giraldo traveled to Harvard Law School with
Witness for Peace, a “U.S.-based organization that
aims to inform the public about connections between
US foreign policy and human rights conditions in
Latin America.” Giraldo began working with the vic-
tims of state crimes program at Witness for Peace in
2007 on behalf of her father’s case.
“My work in human rights began when members of
Colombian army killed my father, a small scale
farmer,” Giraldo said. “He was loved by the commu-
nity here, but the battalion presented him as if he were
a narco-terrorist and part of the FARC.”
“The whole world knows that my father was not a
guerilla,” Giraldo continued.
Despite these efforts, three and a half years later,
none of the military officials involved in José’s death
have been punished. Giraldo believes that the military
killed her father, and others like him, to demonstrate
success in the war against the guerillas. Increasing Gi-
raldo’s pain has been the frustration of not getting a
proper response to inquiries regarding her father’s
death.
“Not one person in charge of human rights for the
military has answered my letter, or shown any con-
cern. So now it is the same ones who are killing our
family members, who do the investigations,” she con-
tinued. “How are we supposed to believe those same
people are capable of bringing justice for these cases?
This is contrary to what we, as victims, are demand-
ing.”
“The military is supposed to protect,” she said. “But
they are just killing innocent civilians.”
A United Nations investigation determined that mil-
itary officials often receive benefits, such as promo-
tions, time off and cash bonuses, for each successful
killing.
Building a network of informants and establishing
a family forest ranger program, the government blurs
the lines between civilians and the military, including
a network of informants, creating an environment of
fear and mistrust. Giraldo described some of the ad-
ditional tactics used by the government in covering
up the killings.

Alien Tort Statute: Did Founders Want U.S.

“They manipulate crime scenes,
like dressing up someone after they

Courts to Look Abroad for Monsters to Destroy?

have been killed,” she said. “For ex-
ample, sometimes the person will be
wearing fatigues. They have a bullet

Debate Over What Originalism Means for Human Rights Lawsuits

BY NICHOLAS JOY
A relatively new take on a centuries-
old statute has stirred up serious ques-
tions about how U.S. courts can be used
to litigate international human rights
abuses.
On Monday, October 26, Eugene
Kontorovich and Richard Hertz dis-
cussed the role of the Alien Tort Statute
in the 21st Century. The debate was
sponsored by the Federalist Society and
held in the John Chipman Gray Room.
Part of the Judiciary Act of 1789, the
Alien Tort Statute gives district courts
original jurisdiction over any civil ac-
tion by an alien for a tort committed in
violation of the law of nations or a
treaty of the United States. It was rela-
tively obscure until the Second Circuit
held in Filartiga v. Pena-Irala, 630 F.2d
876 (2d Cir. 1980) that violations of in-
ternational norms, including human
rights violations, could confer jurisdic-
tion in U.S. courts.
According to Kontorovich, a profes-
sor at Northwestern University School
of Law, Filartiga has given rise to a
sector of human rights litigation and
substantial controversy. He discerned
two main waves of cases that have
arisen in this vein: suits against foreign
officials under the statute and suits
against corporations alleged to have
helped countries commit human rights
abuses.
However, Kontorovich said that such
litigation was far removed from Con-
gress’ intent in passing the statute,
which was to prevent Americans who
violated international law from getting
the entire country in trouble.
The idea is that “we don’t want the
part to endanger the whole,” he said.
“They liked to beat up French ambas-
sadors back then. Times have changed.”
Kontorovich said that, while univer-
sal jurisdiction is properly applied to a
narrow set of crimes including piracy,
using the Alien Tort Statute to have es-
tablished a civil remedy for universal
jurisdiction would set the U.S. apart
from other nations.
“Europe has said they don’t under-
stand what the U.S. is doing with this
law,” he said. “U.S. courts have used
universal jurisdiction over offenses no
one has before.”
Hertz, a senior attorney for Earth-
Rights International, said that the orig-
inal purpose of the Alien Tort Statute
was much broader. The framers, he
said, were concerned about demon-
strating to the world that the fledgling
nation was committed to international
law. Given this purpose, Hertz did not
consider the use of the statute to enforce
international human rights to be a vio-
lation of its original purpose.
“The ATS is a shining example of
human rights and separation of pow-
ers,” he said. “I think what is driving
the hostility towards it is distaste for in-
ternational law and efforts to protect
U.S. corporations.”
For Hertz, using the Alien Tort
Statute to sue U.S. corporations is not a
major departure from long-established
legal principles, since “you can sue
Americans for the things they do
abroad” and “the only place universal
jurisdiction comes into effect is tag ju-
risdiction.”
“It is by statute the policy of the U.S.
to promote human rights,” he said.
“This is really about fundamental val-
ues shared across the spectrum.”
Kontorovich disagreed that the way
the Alien Tort Statute was applied in Fi-
lartiga conformed with original intent,
saying that “the majority wanted to
have originalism both ways – the
framers wanted one thing, but interna-
tional law changes.”
He expressed further concern that
these cases involve courts in sensitive
matters best left to the executive.
“It almost never ingratiates us to
other countries,” Kontorovich said.
Hertz believes that this line of rea-
soning conflicts with fundamental prin-
ciples of the American legal system.
“In all other aspects of U.S. law, we
don’t dismiss cases because other coun-
tries don’t like them,” he said. “The
idea that if the government says a case
should be dismissed it should be dis-
missed is against separation of powers.”
Another area of disagreement was the
degree to which the indeterminate na-
ture of international law was problem-
atic.
Kontorovich said that while some
crimes are universally cognizable and
some are not, “the universally cogniz-
able list is very short applying the law
of nations.”
“In the modern era, there is lots of
soft law,” he said. He paraphrased
James Madison as saying that “interna-
tional law is there but offers too vague
an answer.”
According to Hertz, any vagueness is
addressed by a standard maintaining
that norms have to be well defined in
international law. He added that the
framers “were very comfortable with
courts looking to international law to
figure out what international law is.”
Kontorovich also brought up addi-
tional practical and procedural concerns
regarding defendants without a U.S.
nexus.
He said that there is very little evi-
dence that there is any deterrence to
suing foreign officials in part because it
would be hard to enforce judgments
against such people. And, after all,
“genocidaires,” he said, are “people
who are clearly very risk accepting.
Finally, there were due process con-
cerns.
“We think being tried by people with
no stake is a due process or fairness
issue,” Kontorovich said. “There is no
reason innocent people from around the
world should be hailed into U.S.
courts.”
hole in the arm, but it doesn’t go
through the fatigues.”
Overhearing Giraldo’s presentation
was Colonel Juan Gomez of the
Colombian Air Force immediately
spoke. In the United States as an at-
taché to the Organization of American
States and as a visiting professor at
the National Defense University, and
at Harvard Law School on an unre-
lated engagement, Colonel Gomez
first extended his condolences to Gi-
raldo for her loss. He then explained
that the Colombian government has
not denied that many cases of illegal
killings of non-guerillas by the mili-
tary have occurred.
A dialogue between Giraldo and
Gomez, later recounted in English,
quickly developed. Giraldo reiterated
that her claims had been ignored and
then dismissed, heightening her sense
of disillusionment with the govern-
ment as a whole and, in particular,
with the Ministry of Defense. Cur-
rently undergoing a shift from an in-
quisitorial to an adversarial judicial
system and operating with a some-
what restricted scope, the Ministry of
Defense lacks the authority to over-
see many of the types of cases dis-
cussed. Sensing Giraldo’s
dissatisfaction with this explanation,
Gomez asked her for the details of her
father’s case and offered to provide
what assistance he could.
Eventually, Gomez had to depart
for his next appointment and, having
reached an impasse, extended his
hand to Giraldo. Taken aback, Gi-
raldo rejected the gesture.
Already threatened in Colombia,
Giraldo’s tour likely puts her at even
greater risk at home. To explain her
decision to speak, she simply said,
“For me it is very important to remind
people of who the victims of these
killings are.”
www.hlrecord.org
November 19, 2009 Harvard Law Record Page 7

CAMBRIDGE, USA: THE BOY Lessig’s Focus on Corruption

May Have Uncomfortable
WHO DOESN’T SLEEP
Implications for Harvard
After spending a relaxing year in the U.K., JESSICA CORSI thought she had re- BY VICTORIA BARANETSKY house asked her about the meltdown.
acclimatized herself to Harvard Law School’s culture of crazed workaholism – “In a school that relies so heavily on its
until she came upon a 1L who likes to trade the refreshment of sleep for more Professor Lawrence Lessig’s new endowment, we understand we now
reading. Is insomnia, she wonders, the secret to securing the Sears Prize? focus on institutional corruption is now need to save for rainy day.”
hitting home, as a Harvard Alumni As- Although her prepared response
sociation event last week demonstrated. seemed to assuage fears about Har-
HE EXISTS. I have met him. There sleep the next night…” Lessig, head of the new Institutional vard’s future, alumni were still curious
is at least one 1L at HLS who has at- “And what is tonight?” I wonder. I Corruption initiative within the Edward about the university’s past decisions
tempted to give up sleep. And it shows. hope it’s a sleep night; he’s already half Safra Foundation for Ethics, was ac- about its finances. “What about the
The night we met, at a bar review at there. companied by Linda Greenhouse, for- compensation?” an audience member
Grafton Street, he seemed to be fading “Tonight is a stay up night.” Wrong mer New York Times Supreme Court asked, referring to the Harvard Man-
in and out of conversation. His eyes again; this does not bode well. correspondent, who quesitoned Har- agement Corporation, the entity re-
were closing slightly, his eyelids heavy “No, come on.” “No, really.” “No.” vard President Drew Faust on the uni- sponsible for Harvard’s endowment. Its
even at his most alert and attentive. He “Yes!” versity’s own miscreant behavior. top six officials made a collective $26.8
looked…sleepy. Perhaps he didn’t want “But—have you been drinking Lessig, best known for his work in million in 2008. Faust replied that they
to talk to me—I should be kind and tonight?” I wondered, incredulous. law and technology, particularly copy- were “consistent with the other salaries
give him an “Yeah, but right issues (including the establish- in the market” in order to be “competi-
easy out. I stopped a ment of Creative Commons) returned to tive.” She did not address an issue at the
“You’re ei- while ago be- Harvard this past year to pursue his new heart of Lessig’s definition of corrup-
ther really cause I knew found field of study. Through the Safra tion, however: the loss of public trust.
tired or I’m I needed to Foundation’s Institutional Corruption But the driving need for such risky
boring you,” stay up.” Oh. initiative, Lessig reported that he hopes investing seems to be part of a much
I said. Right. Of to create a metric to determine “when greater problem. Faust claimed that “we
“No, I’m course. institutional corruption occurs” and find expect too much of our universities. We
not bored; I “So how a way to “produce remedies.” give them too many roles.” Universi-
am actually do you do Lessig defines institutional corrup- ties are expected to “supply our work-
really tired,” it—how do tion as “an economy of influences upon force, help our children with mental
he explained. you stay up an institution” that weaken both “the ef- health and socialization, be centers for
“You see, all night?” fectiveness of that institution” and “the art and culture and be scientific re-
I’ve given up He was public trust” within the system. He is search centers,” she said. “This is an
sleeping.” Photo by Flickr user ArneCoomans. warming to less concerned with traditional notions enormous array of tasks. We must ask
Genius! Insane! Insane genius? Typical the question. He looked almost awake of corruption, like favors traded for how universities are supposed to do all
1L? All of the above? I had to learn as he was answering. He had obviously “money in a brown paper bag,” than, as of these things and pay for it. Should
more. put thought and planning into his he has written on his wiki, “non-obvi- these roles be played elsewhere?”
“No, come on. You haven’t given up scheme, and he seemed happy that ous corruption where a decision is im- In her book University, Inc., Jennifer
sleeping,” I pressed. someone had finally uncovered his se- properly and/or subtly influenced by a Washburn explores the commercial
“No, really,” he went on, his head cret. “A lot of Red Bull! A lot of energy government actor's anticipation of some transformation of American higher ed-
nodding towards his chest. “I have.” drinks. I stock up on those. And I eat. sort of indirect economic gain or loss”. ucation over the last 30 years. She ar-
“WHY?” I demanded. I’m going to eat right after we leave this Lobbying Congress is a gues that universities have made money
“Because I had to,” he replied. “I bar.” “Like— what?” I ask. “Chicken “paradigm[atic] example,” said Lessig, by contracting with pharmaceuticals
didn’t do any reading the first part of wings?” I’m a vegetarian. according to whom lobbyists have be- and other medical institutions as their
the semester. So in order to catch up “Yeah, chicken wings would be come “pushers or suppliers,” affecting private researchers and therefore been
and not fail I need to stay up all night.” good.” Ew. Congressional votes. Wealthy lobbyists bent by their influences. Washburn’s
I wasn’t following. “But—wait— “So what else do you do to stay up?” like Gerald Cassidy have accumulated book suggests that universities have be-
but—but we’re having this conversa- “I take smoke breaks—I’m a hundreds of millions of dollars to throw come like corrupt Congressmen, de-
tion in a bar. At 11:30pm. Why can’t smoker.” He nods as he says this, like at Congress. With their coffers open to pendent on and influenced by the
you just—I don’t know, not go to bars “Only smokers take smoke breaks.” I lobbyists, Congressmen decide economic pressures of pharmaceuticals,
instead?” It seemed like a fair question. nod in response, of course. “So that wrongly on “nutrition, healthcare and which behave like the lobbyists. Unfor-
“That’s the thing,” he replied. “I just helps; the smoke breaks help. And I global warming policies,” explained tunately, that leaves students to play the
seem to waste time during the day. So have to go to my common room. I have Lessig. “And these are the easy public role of the shafted American public.
I need to stay up all night.” to change locations and move around. policy questions,” he guffawed. Another way to pay for this structure
I began to revise my notion that he If I sit on my bed I’ll sleep.” A “weakened public trust in the insti- is by increasing tuition, an issue Faust
was an insane genius, replacing it with “That’s BECAUSE YOU’RE tution,” also defines corruption, ac- has addressed since assuming her role
the notion that he was just a person with TIRED.” cording to Lessig. In essence, the in 2007. Faust made financial aid a pri-
poor time management who doesn’t un- “Yeah—exactly. So I move around. concern is not whether Representatives ority after she realized the “cost of
derstand the impact of sleep deprivation Yeah. I move around and take smoke were bought. Instead, the problem is higher education had risen so much that
on information retention. “Well, okay,” breaks outside in the cold. It wakes you that “the American public thinks they many intelligent individuals could no
I said. “So, could you try and do things up.” were bought. That is what is impor- longer attend,” she said. But with the
during the day?” “And you actually think you’re learn- tant,” he explained. Lessig once again economic downturn Harvard has had
“But I don’t.” ing things? I mean, you know that you pointed to Congress. “Only 22% of the trouble committing to its financial aid.
“Okay. So—really? You’re actually learn best when you’re well-rested, U.S. has a positive view of Congress,” Either way, people like disgraced for-
not sleeping at all?” right?” he stated, “And 88% of California be- mer Illinois Governor Rod Blagojevich
“I tried the no sleep thing two weeks “Yeah, yeah,” comes the reply. I lieves money buys results.” are not to blame, said Lessig. “We are
ago. I stayed up for about three days. don’t know which part he’s agreeing to. Linda Greenhouse never explicitly they, the problem [is] in society,” he
And then as I was sitting there study- I have finished my drink. We both asked President Faust whether Harvard continued. “Institutional corruption is
ing, I spontaneously fell asleep. I slept want to go home, me to sleep, he was corrupt, though her interview cir- primed and permitted by the passivity
for 14 hours. And then I figured out that to...not. We walk back to our apart- cled the question. Like Congress, Har- of the most privileged.” Lessig’s clos-
I couldn’t stay up indefinitely.” ments, which are coincidentally across vard seems to be a money making ing remarks go back to the roots of the
Progress—he has discovered that it is the street from each other. “I’m over machine, illustrated by its recent en- Safra Foundation, which almost three
impossible to stay up indefinitely and there,” I tell him. “I’m going home.” dowment plunge: a 30% drop, from decades ago began a national move-
that insomnia is not an actual study “I’m going to my motorcycle,” he $36.9 billion to a still-phenomenal ment to institute professional codes of
strategy. “Oh,” I nod, “So you’re actu- replies. “I’m driving to Porter Square $26.0 billion as of June this year. Like ethical conduct. “These serious prob-
ally sleeping now.” to get a sandwich.” Of course he is. I Congress, moreover, Harvard seems to lems need serious attention,” said
“Yes. I’m on an every other day walked up the steps of my apartment have lost the trust of its constituents. Lessig, “and we are the ones who need
schedule.” and shook my head in confusion and Harvard’s alumni magazine recently to speak up.” If there are problems
“What?” amusement as he peeled away down highlighted the university’s losses, in an within Harvard, within this country, he
“I’m on an every other day schedule. Mass Ave. The things we do to outline article entitled “$11 Billion Less”. implied, alumni, students, faculty and
I sleep one night, stay up another night, Torts. God bless 1L Fall. “We have a new understanding of others should speak up and not just sit
what risk is,” Faust said, when Green- and wait for the panel to be over.
Arsenic
Page 8 Harvard Law Record
and Old Lace
Drama Society’s Fall Farce Serves
Insanity Spiked with Homicide
Left: Jonathan Brewster, played by Randall Adams '10, hatches a diabolical plot. Above: Annie
Smith ‘12 and Brienne Letourneau '10 watch as one of their hapless victims imbibes a poisoned drink.
BY MATTHEW W. HUTCHINS
A cup of tea. Some finger sandwiches. A plate of roast beef with a glass of el-
derberry wine. Sweet merciful wine. Joseph Kesserling's Arsenic and Old Lace
takes the simple pleasures of American family life and transmogrifies them into
the absurd veneer of a family of homicidal psychotics. This combination of ba-
nality and madness proved to be an excellent choice for the HLS Drama Society’s
fall show, produced by Greg LeSaint ’11 and directed by Kristin Kramer ’10.
While HLS students may sometimes feel trapped within a fiction that is simulta-
neously hum-drum and permeated by paranoia, it sometimes takes a well-written
drama to put things in perspective.
Mortimer Brewster is a rising theater critic for a New York newspaper. He and
his girlfriend, Elaine Harper, are passionately in love and decide to get married.
While Elaine runs off to tell her father, the pastor, that she will be out with Mor-
timer that night, Aunt Abby and Aunt Martha prepare tea and sandwiches to cel-
ebrate the young couple's engagement. Ensconsced in such banal circumstances,
the shrewd Mortimer swaggers with assurance that he has charted out his life's
plan.
But like a 1L who gets cold-called on the first day to explain the policy behind
Dudley and Stephens, Mortimer, played by Stephen Cha-Kim ’11, soon finds him-
self clammy and stammering as he struggles to refute the rationalization of homi-
cide. While his aunties are in the kitchen, Mortimer discoveres the body of a man,
hidden in the window-seat cabinet. No worries, say Aunt Abby and Aunt Martha.
President Roosevelt will go to Panama and dig another set of canal locks, and
we'll take the body down tonight for a proper Christian funeral. There's already
eleven more bodies down in the basement.
Left to right: Emily Murphy, La-Toya Franklyn, Tina Huang, and Robert Haferd, all 3Ls
Employing Advocacy
A team representing HLS recently won First Place at ABA Section of Labor and
Employment Law’s Trial Advocacy Competition for the Boston Region. The team
will be representing Harvard and the Boston Region in the National Finals com-
petition in Washington, D.C., January 30th and 31st.
Has President Obama been too deferential to a
rising China? Vote now at hlrecord.org!
November 19, 2009
Annie Smith ’12 and Brienne Letourneau ’10, playing the saccharine aunties
Abby and Martha, carried the absurdity of the play magnificently through their re-
production of all the familiar mannerisms of kind spinsters. Later, Mortimer's
long-lost brother, the psychotic killer Jonathan Brewster, played by Randall Adams
'10, returns home along with his side-kick, Dr. Einstein, planning to take over the
house and establish an underground plastic surgery clinic to do face-changes for
criminals. For the aunties, this rude intrusion becomes downright unbearable when
they discover a second dead body, brought by brother Jonathan, hidden in the win-
dow seat. How can they give a proper funeral to a complete stranger?
In a semester filled with employment anxieties and uncertainty about the fu-
ture, Arsenic offers a few farcical glimpses of cause for hope. As we see the plight
of Mortimer go from bad to worse during the course of the play, it serves as a re-
minder to appreciate the little things, like home cooked meals that aren't laced
with poison and the certainty that when we go to sleep at night we aren't resting
mere inches away from a corpse. Running around looking for a job should seem
like a piece of cake after seeing Mortimer frantically try to get his brother Teddy
committed so that he can pin the dozen bodies in the cellar on the hapless loony.
And the occasional disagreement over Thanksgiving dinner should seem like noth-
ing compared to the "Melbourne" treatment Jonathan devised to torture Mortimer
after being asked to get out of town. Yes, we have plenty of characters around
campus that are devious or detestable, irritating or insecure, superficial or self-
important. But as the Drama Society periodically reminds us, the special com-
munity we live in is full of talented people who are genuinely funny, sometimes
because of the shows they produce on a stage in Pound Hall, and sometimes be-
cause they deserve to be portrayed there.
Students Protest Stupak
Pro-Choice Rally Againast Anti-Abortion Amendment to
Health Bill Hits Harvard Square
A coalition of activists from across Harvard University and beyond came together
in Harvard Square on Wednesday, November 18th to protest the Stupak Amend-
ment to the House of Representatives’ health care legislation, which the body
passed nearly two weeks ago. The students used coat hangers to symbolize what
abortions would look like without financial support for proper procedures.
Support Jeremy Haber ’13 in his bid to become a
columnist for
Vote at views.washingtonpost.com/pundits