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December 3, 2009 Vol. CXXIX, No. 7
D E AD L Y E N DG A ME I N
AFGHANISTAN the Wire
HLS CLASS OF ‘97 SUFFERS MULTIPLE DEATHS IN WAR
MASS. SENATE RACE
NARROWS IN FINAL WEEK
?
Obama Orders New Strategy: 18 Months and 30,000 Troops
Needed to Fulfill U.S. Mission, Fight Afghan Corruption Coakley Retains Slim Lead –
BY CHRIS SZABLA along with additional contribu-
But Dukakis Backs Capuano
tions from the U.S.’ NATO allies. and Globe Endorses Khazei
After eight years of exhausting But he also outlined additional
war in Afghanistan, President steps to be taken in the country, in- BY CHRIS SZABLA
Barack Obama ’91 outlined his plan cluding program to turn some Tal-
Tuesday to achieve what he deemed iban away from the movement, a Polling data over the last several months made
the U.S. primary goals there and to “civilian surge” to shore up trust it seem as if Massachusetts Attorney General
bring the country’s involvement to in the government, training of Martha Coakley was a shoe-in for the Democratic
an end. Stressing the national secu- Afghanistan’s police and military, Party’s candidate to fill the late Ted Kennedy’s
rity threat still posed by Al-Qaeda, Top: Alpha Company, 2nd Battalion, 508th Parachute In- and a closer partnership with Pak- U.S. Senate seat. But new numbers show other
President Obama said that 30,000
fantry Regiment support Afghan police during a cordon and
istan. Despite the apparent open- Democratic candidates challenging her lead – and
picking up a number of high profile endorse-
search of Pana, Afghanistan, June 9, 2007. U.S. Army photo
new troops would be deployed to the by Staff Sgt. Michael Casteel. Above: Pres. Obama and U.S.
endedness of these goals, Obama
battle-scarred Central Asian country,
Army generals salute the remains of soldiers, including
Michael Weston ’97, during a ceremony at Dover Air Force declared that the U.S. withdrawal ments. With the primary for primary for the state’s
Base, Oct. 29, 2009. U.S. Air Force photo by Jason Minto. special Senate election set to be held December
Afghan, cont’d on pg. 3
8th – less than a week away – the
chances that another candidate may
Dukakis to Dems:
INCREASED LIPP, SPIF MAKE UP FOR
h a r v a r d a n d t h e c r i s i s pull off a surprise victory are now
Knock on Doors!
higher than ever.
The good news for Coakley’s chal-
INSIDE
PUBLIC SERVICE INITIATIVE CUT
Senate, cont’d on pg. 3
Grasroots Campaigning
Critical to Success Financial Aid Reform: $5.2 Million Increase in
Grant Funding Despite Endowment Costs
BY MATTHEW W. HUTCHINS school's vision of the future, Dean
Martha Minow announced this week
The HL Record
The very visible decline of the Har- that the university's financial woes had
vard endowment has had notable im- forced the school's administration to News
pacts in all sectors discontinue the • Judge Sinks Piracy Defense
of the university, recently launched • Check Here for Labor Unions
and the law Public Service
school has been Initiative (PSI) tu- Opinion
no exception. ition forgiveness • End Blocked Ballot Access
From the unfortu- program and limit • Obama to Earth: Drop Dead
nate layoffs of the amount of • Harvard to Poor: Drop Dead
staff to the uncer- summer public in-
• Swiss Miss on Minarets?
BY MATTHEW W. HUTCHINS tainty regarding terest funding
• After the Mumbai Massacre
free coffee, HLS (SPIF) available
students have had to current stu- • Genocide Denial in Rwanda
The most important lesson of the Photo: Siyuan Chen, LL.M. ‘10
Obama presidential campaign, accord- the woes created dents.
ing to former Governor Michael by the frigid job market compounded But despite the changes announced, Features
Dukakis ‘60, is that successful cam- by a sense that the economic crisis was representatives of the school's adminis- • Figuring Out Feminism
paigns are founded upon organizations permeating all corners of academic life. tration say students should have no • Climenko’s “Wire” Spouse
that employ the grassroots power of di- Indeed, not long after the installation of doubt that HLS has retained its strong • Harvard-Yale Hate
rect person-to-person contact. Dukakis the highest steel of the Northwest Cor- commitment to providing public inter-
says his own political career as a mem- ner project seemed to have dispelled est funding to all its students and grad-
Dukakis, cont’d on pg. 3 any doubt as to the solidity of the law Funding, cont’d on pg. 4 BEHOLD HLRECORD.ORG
Page 2 Harvard Law Record December 3, 2009
Law
Record
The World Was Shocked When Switzerland Voted to Ban New Minarets,
But the Decision was About More Than Just Blind Xenophobia
EStabLiShEd MCMXLVi
Matthew W. Hutchins
Editors-in-Chief
Chris Szabla
Craig Altemose
Contributing Writers
Theresa Amato
Philipp Fischer
Nicholas Joy
Patrick Karuretwa
Konstantinous Stylianou The controversial poster displayed around Switzerland in support of a ban on new minarets. Photo by Flickr user rytc.
Karan Singh Tyagi
Maria van Wagenberg BY PHILIPP FISCHER initiative for the interfaith relationship despite the fact that this decision casts a
Stephanie Young in Swiss society. All the polls published shadow on Switzerland’s image as an
Switzerland’s vote to ban the con- in the weeks preceding the vote sug- open and tolerant country. This vote
struction of minarets, the prayer towers gested that the initiative would be rather reflects a sentiment of fear and
record@law.harvard.edu
Submit Letters and Editorials to:
of mosques, was greeted with a mixture solidly rejected. Sunday’s result there- uncertainty that recently grasped this
or of astonishment and disbelief around fore came as a colossal surprise for the country. In the past months, some of the
Harvard Law Record
Harvard Law School the world. The impact of this decision country and for the entire world. fundamental pillars that defined the
Cambridge, MA 02138-9984 was certainly magnified by the fact that Against this background, it is worth Swiss society over the past century
– coincidentally – it occurred on the last noting that the initiative does not ban were shaken to the core, particularly
day of the “Festival of Sacrifice” (Eid the construction of mosques or the ex- following the disclosure of the dire fi-
Letters and opinion columns will be al-Adha), a holiday celebrated by Mus- ercise of the Muslim religion as such, nancial situation of its flagship banks
published on a space-available basis. lims worldwide. Some commentators but only the construction of minarets on and the relentless attacks on the Swiss
The editors reserve the right to edit have already suggested that the vote mosques. The four minarets that cur- banking secrecy. Furthermore, an on-
for length and delay printing. All will spark a backlash similar to the one rently exist in Switzerland are not af- going diplomatic row with Libya fol-
letters must be signed. Deadline for triggered in 2005 by the publication in fected by the vote, nor are the lowing an incident involving the
submissions is 11:30 p.m. Tuesday. a Danish newspaper of cartoons repre- approximately 400,000 Muslims living Libyan leader’s son in Geneva may also
The Harvard Law Record is a publication senting the Prophet Muhammad. That in Switzerland restricted in any way have been on voters’ minds when they
of The Harvard Law School Record Cor- makes it critical to shed light on the from practicing their faith in their cast their ballots.
poration. All rights reserved. The Harvard legal and political process that led to places of worship. That being said, this But it is also worth pointing out that ,
Law School name and shield are trade- this vote. until recently, the Swiss Constitu-
marks of the President and Fellows of Switzerland takes pride in a tion contained a provision whereby
Harvard College and are used with permis- century-old political system the creation of a new Catholic dio-
sion from Harvard University. which allows its citizens to have cese was subject to the approval of
the last word on almost any im- the federal government. Given the
portant issue regarding their coun- Protestant alignment of the Swiss
try. The Swiss Constitution grants government at the time this provi-
SUNSTEIN NAMED each citizen the right of initiative, sion was introduced in 1874, the re-
TOP THINKER i.e. the right to propose a consti- quirement for a prior approval was
tutional amendment which, if tantamount to an outright ban. In
Foreign Pol- signed by at least 100,000 citi- 2001, Swiss voters decided, again
icy magazine zens, is then submitted to a popu- in a popular vote, to remove this
recently named lar vote. discriminatory legal provision.
Prof. Cass Sun- A Turkish mosque in Wangen bei Olten, Switzer-
In July 2008, a minor conserva- Sadly, the blank line left in the text
stein ’78, who land sports one of the country’s four minarets.
tive political party announced that of the Constitution by the 2001 vote
is on leave it had collected the required number of formalistic approach to the scope of the will now be filled with the new provi-
from Harvard signatures to force a vote on the prohi- initiative fails to reflect the symbolic sion banning the construction of
Law School to bition of the construction of minarets in power of the message sent by a major- minarets.
serve as head of Switzerland. This proposal was imme- ity of Swiss voters this Sunday. Sunday’s vote will probably be seen
the Office of Information and Regu- diately opposed by three of the four Some commentators have argued that around the world as a step backwards
latory Affairs, the #7 thinker of the main political parties that share power this initiative might be contrary to the on the road towards the peaceful co-
year in its list of the top 100 most in- within the Swiss government. The liberty of religion, as guaranteed by the habitation of religions. This notwith-
fluential intellectuals of 2009. Sun- fourth main political force endorsed the European Convention on Human standing, this decision – which was
stein was cited for his book Nudge, initiative, but only half-heartedly. At the Rights, to which Switzerland has been a taken democratically in a sovereign
co-written with economist Richard outset of the political campaign, a num- party since 1974. But the practical con- country and therefore ought to be re-
Thaler; he had taken the #3 slot on ber of Swiss cities, citing concerns sequences deriving from the conflict spected – must be considered as a
the Prospect/Foreign Policy ranking under Swiss anti-racism laws, an- between Switzerland’s duties under an unique opportunity to initiate a pro-
of the world’s most prominent public nounced their intent to ban from their international treaty and a constitutional found dialogue with the Muslim com-
intellectuals of 2008. streets the posters the proponents of the amendment ratified by an overwhelm- munities, both in Switzerland and
With his spouse, the Kennedy initiative printed, showing missile- ing majority of Swiss voters are un- elsewhere in the Western world, in
School’s Samantha Power ’99, who shaped minarets piercing a Swiss flag. clear, and are currently the subject of a order to define the necessary precondi-
is working with the National Secu- This proved to be a costly strategic mis- heated debate among Swiss law profes- tions of a peaceful and harmonious co-
rity Council, ranked #80, the D.C. take by the initiative’s adversaries. sors and politicians. existence.
duo were the only married couple to From then on, the public debate focused More importantly, this vote cannot
both be named to the list. We look essentially on the limits of freedom of and should not be seen as the ultimate Philipp Fischer LL.M. ’09 is currently a
forward to the debut of their son, De- expression and touched only very su- proof of a predominantly anti-Muslim researcher at the University of Geneva.
clan, on the list around 2045. perficially on the significance of this sentiment within the Swiss population,
December 3, 2009 Harvard Law Record Page 7
“D Y W
mary trials, but delays like this don’t translate into jus-
G P F ?”
tice. It is especially distressing to see such problems
continue to emerge after the discomforting maze of O OU ANT TO ET UNCHED IN THE ACE
the Indian judicial system was so badly exposed to the
whole world when the Trial Court took thirteen years BY JESSICA CORSI psyched to go.
to bring down curtains to the 1993 Bombay Bomb We arrived late. We had
Blast case. The time had come in ambitiously promised a
In the immediate wake of the attacks, there was a my HLS career to show friend that we would drive
change in guard at the Ministry of Home Affairs, with some school spirit: I was down at dawn to catch the
the appointment of P. Chidambaram, a lawyer and a going to Harvard-Yale. traditional 9am Harvard-
Harvard Business School graduate, as Home Minister. I’m not normally a school Yale Law Review game of
Regional hubs of the country’s elite anti-terrorist spirit person, and even (flag) football. We were
force, the National Security Guard (NSG), were also growing up in Texas had obviously hallucinating
established. A National Investigation Agency was set not made me interested in when we said this. We hit
up by him to probe and pre-empt any terrorist attempt. socializing around foot- the road around ten, and
But, the fact is that Mr. Chidambaram needs to rec- ball. But my year at began seeing signs for
ognize is that India has never lacked agencies–in fact, Cambridge University New Haven around kick-
it is the multitude of intelligence agencies, and their had changed me into a off time. No problem, we
lack of cooperation, that has been the reason for the person who enjoyed en- said to ourselves. We’ll
failure to prevent terrorist attacks like those of No- gaging in petty rivalries still see plenty of action, if
vember 26, 2008. The lack of co-ordination between alongside hordes of affil- there was any action to be
the Intelligence Agencies, the Naval Agencies, the iated University revelers. seen; after all, Harvard and
So, I decided that there was Yale are not the country’s
Photo: flickr user Kaptain Kobold
Coast Guard Agencies and the local police was what
enabled the terrorists to slip through and land on no time like my last semester to engage in this sup- premier football schools. But whatever happened, we
Bombay’s beaches that day. posedly quintessential Harvard experience. And with were going to be there, screaming and chanting while
It is the Indian local police that are entrusted with that, we were off to New Haven, dressed in Crimson juggling our funnel cake and beer.
the duty to implement strategies to prevent terrorist and ready to wave our white and red pompoms. I did- There is something inherently hilarious about a
attacks at the ground level. The Maharashtra state n’t even have to feign excitement; I was genuinely Yale, cont’d on pg. 11
Page 8 Harvard Law Record December 3, 2009
BY MATTHEW HUTCHINS Napster, you really didn't know what was happening shouldn't put its weight behind an inferior product.
on the Net,” said Nesson. “The idea that a whole gen- When you have an alternative that is ubiquitous, that
The outcome of the trial was predictable if tragic. eration was guilty seemed wrong to me.” Indeed, Hi- the industry has been responsible for making so [be-
An industry dominated by corporate titans, seeking to lary Rosen, the chairperson of the RIAA, recognized cause CD's were not encrypted], if the law enforces
make an example of an individual who had infringed Napster as, “the most efficient method of distributing copyright based on the encrypted product, which is
on their intellectual property, brought suit in federal music ever invented.” inferior to the available product [which is unen-
court with the expectation of settling Despite the doubts crypted], then it's acting in a way which is counter to
their claims for a substantial monetary of colleagues, Nesson innovation.”
penalty which would deter the public at believed that the ex- The rejection of this argument by the trial court left
large. Joel Tenenbaum had done no ception to statutory Tenenbaum's fate in the hands of a jury, but the evi-
more than many thousands of other copyright infringe- dence presented by the RIAA, which made it look like
young computer-savvy music listeners ment for “fair use” Tenenbaum blamed others and lied, interfered with
by installing and using Napster, but it might be applied to his effort to appear credible and sympathetic. The
was his unfortunate fate to be selected Tenenbaum's case. RIAA was thus able to convince the jury that his con-
as a target of opportunity for his copy- The doctrine was orig- duct was basically, in Justice Breyer's words in the
right infringement. When his case came inally developed to Grokster case, “garden variety theft.”
before Judge Nancy Gertner in the Dis- provide freedom for Upon the entry of judgment, Nesson plans to take
trict of Massachusetts, she suggested to creative production of the case to the First Circuit on appeal, hoping for a
Professor Charles Nesson ’63 that he derivative works, and reevaluation of the legal theories presented and an in-
consider taking the Case. But even a though Tenenbaum's validation of the damages as unconstitutionally ex-
brilliant professor from Harvard Law use of the music did cessive. But in the meantime, there has been an
School couldn't win against the stacked not have a creative extended delay in the entry of judgment and an ex-
deck of legal authority favoring the component, Nesson change of motions that have led to Judge Gertner tak-
recording industry. believed that the ing the matter under advisement. Nesson believes
To Nesson, the final judgment at the Supreme Court's pro- there may be reversible error due to the exclusion
trial, awarding $675,000 to the Record- tection of VCR home under Rule 408 of certain parts of a settlement letter
ing Industry Association of America recording might pro- offered as evidence by Tenenbaum, since that rule is
(RIAA), was both disappointing and ab- vide a basis for view- intended to protect the party that makes a settlement
surdly excessive. “I got my ass kicked ing copyright law as offer and the letter should have been admissible, and
pretty well in this trial.” But Nesson is protecting the public that Judge Gertner may hold that the jury's calcula-
confident that the long-shot case was a interest of consumers, tion of damages was incorrect and should be reduced
good opportunity to make a stand. a category which fit to the statutory minimum of $750 for non-willful vi-
“What Joel did in downloading and Tenenbaum. But olation.
sharing songs was what just about every precedent was He believes now, in retrospect, that he should have
kid in his generation did and which I bet a great many strongly against this theory. Courts had already re- treated the case as a criminal case, pleading the Fifth
of you did.” jected Napster's fair use arguments based on preview Amendment and demanding a bill of particulars, and
Addressing a room full of HLS students, Nesson ex- of music for later purchase as well as MP3.com's that future defendants should treat such cases like
plained his motivations and methods in the defense of “space-shifting” argument that the internet could act criminal trials. But despite the rejection of his theory
Tenenbaum for the innocuous downloading of thirty as a jukebox for owners of licensed CD's. by the trial court, Nesson believes that statutory dam-
mp3's. When the case first came to his attention, Nes- In fact, Judge Gertner accepted Nesson's theory of ages were never intended by Congress to be imposed
son knew that there was little chance of victory on the fair use, but only for the “interregnum” period from against individuals.
merits, with the only truly viable strategy at trial being Napster's creation in 1999 until the recording industry Furthermore, he believes that the statutory fair use
the minimization of damages. Nonetheless, Nesson began to offer a legal alternative for purchase of its defense supports Tenenbaum's case on each of the fac-
pressed forward with a defense on the merits to the music online. But by 2004, when Tenenbaum down- tors of amount of the work taken, the effect of the
validity of the charges, arguing that the behavior as- loaded the music in his case, the music industry al- market, nature of the work, and nature of the use. In-
serted by the RIAA as violating the law was a ubiq- ready provided online access to music. Nesson deed, to Nesson, sharing music has had a net positive
uitous and socially acceptable activity which should argued, however, that until 2007, when fully trans- effect on the music market by offsetting the harm to
not be considered infringement. ferrable, unencrypted music was available online, large record producers with a huge stimulus to inde-
Young computer users like Tenenbaum, called “dig- there was no full technological substitute that would pendent music production, and Judge Gertner's own
ital natives” by Nesson, grew up in a world where the rule out a fair use argument. recognition of the “interregnum” following the advent
explosion of music sharing was a widespread cultural “The fair use argument then, to a Court, becomes, a of Napster makes the policy arguments in the case
phenomenon. “In a way, if you didn't participate in policy argument, in effect, of saying that the law eminently cognizable to a judge and jury.
The Wire Meets The Streets Climenko Fellow and “Mr. Prezbo”
Explore Intersection of TV and Reality
BY REBECCA AGULE cult-like following for its portrayal of Baltimore’s the law, and now her academic research as a Cli-
streets and citizens. Jim’s work has included numer- menko Fellow concentrates on case studies in family,
When Cora True-Frost asked the audience how ous programs centered on the criminal justice sys- trade and criminal law as a means of understanding
many had seen The Wire, nearly all hands were tem. In addition to The Wire, he appeared on several the fragmentation of norms at the international level.
raised. It was obvious that no one had come for ad- editions of Law & Order, CSI: Miami and Crime After completing her JD-MPA at the Syracuse Uni-
vice on their Legal Research and Writing homework. Story, as well as Homicide: Life on the Street, based versity College of Law and the Maxwell School of
Everyone was much more interested in learning on the book of the same name by The Wire executive Wire, cont’d on pg. 10
about Cora’s husband, Jim True-Frost, and his expe- producer and head writer
rience working as a television actor. But while Jim’s David Simon. Jim now
success came from portraying a cop working the serves as an adjunct fac-
streets and schools of Baltimore, Cora’s inspiration ulty member with the
came from hands-on experience in the real class- American Repertory The-
rooms of Baltimore, where she saw the grim conse- ater’s Institute for Ad-
quences of life on the street during her service for vanced Theater Training.
Teach for America. “For three years I didn’t
On The Wire, Jim portrayed Roland “Prez” know that I would be any-
Pryzbylewski, a police officer known for his incom- thing but this misfit cop,”
petence on the street who shines due to an aptitude he explained. “Then, late
for cracking codes and utilizing wiretaps. His char- in the 3rd season I got a
acter later becomes a middle school teacher at a hint that something seri-
blighted Baltimore middle school. To provide con- ous was going to happen
text for the event, Jim played several clips from the to my character. I thought
show, depicting Pryzbylewski’s interactions with stu- I was going to get killed
dents. “It’s amazing when we meet people on the off. Then they told me,
street,” said Jim. “They are so touched by the inter- you are going to play a
actions between Prez and the kids. But when I try to teacher, and it was bizarre
redirect the conversation to Cora, who actually has and wonderful.”
experience in those schools, they aren’t interested.” Cora went from her own
Running on HBO from 2002 until 2008, The Wire Wire experience serving Cora True-Frost LL.M. ‘06 and her husband Jim True-Frost. Cora was a teacher in a
Fall of 1L Year
garnered critical acclaim and developed an almost for Teach for America into Baltimore school; Jim played one on television in The Wire.
You can't contract your way into happiness, but, shhh, no one
tell the 1Ls - at least until after exams. For these eager young
lawlings, implied warranties of liability begin more friendships
than break them up. As fall frosts turn to winter chills, examtide
camaraderie breeds bizarre rituals around campus, like the dor-
mmates at left, who got comfortable enough with one another to
begin coordinating clothes.
For the upperclassmen among us, it's either heartening to see
first-year students, whose heads are more often found wedged
inside casebook pages, out and about – before submitting, again,
to the confinement of the library. Take heart, young ones: your
lives will probably be waiting for you on the other side of Win-
ter Break, or at least that newfangled problem-solving course.
Oh, and don't worry: 10% of you will get low passes, no matter
what. Thanks to Sandra Ray for the great photos!
Top: The 1Ls of Ames 3rd floor only wear navy blue: Jeremy Troxel,
Ben Watson, Sam Kuhn, Big Mike, and Danny McEntee; Bottom, left:
1L Brian Wood being very pensive outside the Hark; Bottom, cen-
ter: 1Ls Sandra Ray and Greer Libbey at the Head of the Charles;
Far right, top: Greer Libbey walking in Harvard Square; Bottom,
right: 1Ls Samantha Kuhn and Greer Libbey waiting to board the
bus to The Harvard-Yale Game in the B-school parking lot at 6:30am
What will be the result of Obama’s Afghan Plan? Vote now at hlrecord.org!