BY MATTHEW W. HUTCHINSAND ELEANOR SIMON

At the end of 2009, in celebration of womenbecoming a majority of the workforce, thecover of the Economist featured J. HowardMiller's iconic Rosie the Riveter image, an-nouncing “We Did It!”. But according to theEconomist, women still occupy less than fivepercent of management at top companies, facea serious pay disparity, and bear a dispropor-tionate burden when raising children whilepursuing a career. With these challenges inmind, the HLS Women's Law Associationconvened its annual conference on Friday,February 19th, “Women for Women: Advo-cating for Change!”, bringing together womenwho are leaders in both the public and privatesectors to discuss the dual role of women asparticipants in a changing society and facili-tators of future change.

In addition to keynote addresses by topObama advisor Valerie Jarrett, whose daugh-ter Laura Jarrett ’10 was in the audience, andLisa Madigan, the Attorney General of Illi-nois, three panels were convened on the sub-jects of change in the courtroom, theworkplace, and the community. Cognizant ofthe pressures that the young women in the au-

dience will face after graduation, many of thespeakers offered common sense advice re-garding the selection of a future career path,the challenges of leadership, and the strugglefor work-life balance while raising a family.At the “Change in the Community” panel, dis-cussing the role of women in public service,former Amnesty International Secretary Gen-eral Irene Khan LL.M. ’79 cautioned that inher experience, “The glass ceiling is not anyweaker in the non-profit sector.” Silda WallSpitzer '84 said that students should take every

Harvard Law RecordFebruary 25, 2010 Vol. CXXX, No. 4www.hlrecord.org — twitter @hlrecord

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News• HRJ: Corporate Accountability• International Party 2010• Pollak Runs in District Nine

Opinion• Avoiding Critical Mass in Iran• Will Work For $160,000• Questions Left by Zinn

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WOMEN IN CHARGETop Obama Advisor, Illinois AG Lead the Way atWomen’s LawConference on theChangingWorkforce

ANIMALS’ DAYIN COURT?CONTROVERSIAL

SUNSTEIN THEORY MAYBECOME PRACTICE AFTER

SWISS REFERENDUM

Ralph Nader and Bruce Fein ComeTogether to Condemn Lapses in System,

Call for Citizen Participation

Buzz Off! 2L Takes Google toCourt Over Privacy Invasions

Left: Irene Khan ‘79 and Valerie Jarrett. Above: Illinois Attorney General Lisa MadiganPhoto: World Economic Forum

From Two Perspectives,Views on How to Keepan Eye on Government

What was once anobscure idea hiddenin the introduction toan edited volume ofscholarly work burstonto the politicalscene last fall, whenthe Senate held con-firmation hearingsfor Harvard Law School professor CassSunstein ’78, nominated to head the Of-fice of Information and Regulatory Af-fairs (OIRA). Opponents on both the leftand the right scoured the prolificscholar’s writing for ammunition, and theappointment was temporarily blocked bySen. Saxby Chambliss (R-GA) after hisdiscovery of a proposal by Sunstein andthen-partner Martha Nussbaum, the Uni-versity of Chicago philosopher, to giveanimals legal standing to appear in courtwhen humans could not formally do soon their behalf.

A variant of that idea has proven some-what less controversial in Switzerland,however, where a proposal to initiatecriminal prosecutions on behalf of animal

When Google unveiled its newBuzz social network for GMail userslast week, many were perturbed bythe fact that the service automaticallycreated networks out of their emailcontacts. In many cases, these ad hocnetworks exposed correspondencethat users would have rather kept pri-vate. Now, a Harvard Law Schoolstudent is bringing a massive classaction lawsuit against the internetcompany, claiming that it severelycompromised her and others' privacy.

On February 9th, the day Googlerolled out Buzz, 2L Eva Hibnick, 24,said she signed into Gmail withoutrealizing that, by doing so, she hadunwittingly also signed up to be partof the new network. After realizingsome of the people that were nowpart of her network were people shehadn't spoken to in months, Hibnickexpressed her frustration to class-mate Benjamin Osborn ’10, whohappened to be a research assistant to

ClassActionSuitAllegesPotentialHarm toOver30MillionUsers ofNewSocialNetwork

BY RECORD STAFF

The millennial generation hasbeen called self absorbed, butalso as deeply connected –thanks to new technology and arenewed willingness to trust itselders. But will those connec-tions – and that respect – trans-late into participation in andconcern for politics and thelaw? Former presidential candi-date and consumer advocateRalph Nader ’58 and formerDeputy Attorney General andFCC General Counsel BruceFein ’72 come from somewhat

different places ideologically –Nader has been identified withthe movement for consumersafety, while Fein thinks that anobsessive concern with safety atall levels hampers risk – butboth agree that lax oversight hasallowed government to runamok. Implicit in both theircomments Tuesday, during avisit to Harvard Law School or-ganized by the Harvard LawRecord and Harvard LawForum, was that the responsi-bility to change that rested onthe current generation’s shoul-

1

Sunstein, cont’d on pg. 2Google, cont’d on pg. 2

WLA, cont’d on pg. 3

Rule of Law, cont’d on pg. 2

Page 2 Harvard Law Record February 25, 2010

When Will We Stand Up?

Professor William Rubenstein ’86,who specializes in class actions. Os-born and Rubenstein discussed theidea of a lawsuit, theHarvard Crim-son later reported, and Rubensteineventually contacted attorney GaryE. Mason.

On Thursday, ABC News re-ported that Hibnick was bringing aclass action lawsuit against the in-ternet giant, alleging breaches ofseveral federal laws, including theFederal Electronic CommunicationsPrivacy Act, the Federal ComputerFraud and Abuse Act, and the Fed-eral Stored CommunicationsAct, aswell as California common andstatutory law. The complaint wasfiled by California and Washington,DC law firms in California's San

Jose federal court, and notes that theimplementation of Buzz potentiallyaffected the over 30 million userswith Google accounts.

One of her attorneys, Gary E.Mason, told ABC News that thegoal of the suit was "a commitmentfrom Google that they're not goingto do this again the next time theylaunch a product." He said thatGoogle's most recent changes to theprogram, meant to address privacyconcerns by ending its "auto-fol-low" feature, still leave the programas a whole opt-out.

News of the lawsuit comes twodays after the Electronic Privacy In-formation Center filed a complaintabout Google Buzz with the FederalTrade Commission.

victims is going before voters in areferendum on March 7, the Associ-ated Press reports. Brought by ani-mal rights group Swiss AnimalProtection, the referendum, ifpassed, would force each of Switzer-land’s cantons to appoint a publicprosecutor to go after human mis-treatment of animals.

The country has a history of put-ting contentious measures up forpublic votes. Several months ago,Swiss voters controversially ap-proved a ban on the construction ofminarets.

Currently, theAlpine nation boastsEurope’s only animal lawyer, An-toine F. Goetschal, who represents150-200 creatures a year as an em-ployee of the prosecutor’s office inZurich (for the privilege, he is paid200 Swiss francs, or $185, an hour).He told theAP that the new measurewould represent the next logical stepin the evolution of Switzerland’s an-

imal rights law, which recently pro-hibited keeping pigs in a single cage– what the lawyer calls “solitaryconfinement” – and which will pre-vent Swiss horse owners from tyingup their animals in stalls by 2013.Goetschal was famously involved ina recent case in which authorities ac-cused a fisherman of torturing a pikebecause he struggled for ten minutesto haul it out of the water (he con-cedes it is not the best example ofsuch prosecutions, and does not planan appeal the loss).

Potentially affected portions ofSwiss society appear divided overthe proposed law. The Swiss Farm-ingAssociation opposes it; the pres-ident of a dog breeding associationseemed supportive. One thing is cer-tain: no matter the outcome, the se-riousness with which Switzerland istreating the referendum means thatSunstein, who was confirmed ashead of OIRA, will have the lastlaugh on this issue.

ders.Fein, who is currently completing a

book on the American “mentality ofempire,” focused on the expansion ofthe executive branch and the creation ofthe “imperial presidency” – a forcewhich gained considerable strengthunder George W. Bush and shows fewsigns, according to him, of abatingunder Obama. He also addressed thelack of oversight of Congress, and saidthat he had created an organization,First Branch, devoted to citizen polic-

ing of the legislature.Nader, whose recent novel Only the

Super-Rich Can Save Us! appears torepresent a bitter and cynical turn to thenotion that politicsand civil societyare so broken thatbillionaires are theonly ones with thefortunes to makemeaningful change, took on the politi-cal apathy that still plagues the UnitedStates. Particularly lamenting the sparsecrowd that greeted the two prominent

public figures, Nader condemned the“generation that doesn’t show up”.

Nader also used the occasion to tearinto what he saw as the lack of com-

mitment to thepublic interest atHarvard LawSchool. Except-ing ElizabethWarren, who

leads Congress’ oversight of the federalbank bailouts, and a few other facultymembers, Nader excoriated the facultyfor shortsighted and stopgap solutions

to public problems. And although hepraised Dean Martha Minow for beingwhat he believed was the first head ofthe school to assert that its purpose was“justice,” Nader lamented its continuedcommitment to teaching students towork in the service of corporations.Saying it was training future “greasers,”Nader emphatically pointed to thewords of Minow and the content of thecurriculum and declared that “HarvardLaw School is a lie”.

A full video of the event will be avail-able soon at hlrecord.org.

“Harvard Law Schoolis a lie.”- Ralph Nader ’58

Left: Nader condemned the sparse audience,which he said showed a lack of concern for civic affairs. Right: Nader rails while Bruce Fein looks on.

BY MATTHEW W. HUTCHINS

As the twenty-first century waxes intoits second decade, clouds are gatheringover the American Republic. A falteringeconomy, stymied foreign policy, and ris-ing specter of corporate domination of lifeat home and authoritarian domination ofnations abroad has put the public in a stateof dissatisfied disillusionment. We needleaders to step forward with a straightfor-ward elaboration of the principles thatunite our interests across party lines, butthe collected inertia of the two-party oli-garchy and the sensationalistic mediamanages again and again to steamrollover the voice of the individual in favorof the talking head, the rehearsed andscripted speech, and the ten second sound-bite.

The Greatest Generation has been put tobed, and the Baby Boomer experimenthas once again overdosed on its own he-donistic excesses. Now we tread in a des-olate chasm while the next generationprepares to stand up and have its voicerise above the noise of the aging dema-gogues that have populated the medialandscape during the Clinton-Bush era.

But are we entering an even darkerchapter in America's degeneration intodemagoguery? Glenn Beck's recent ap-pearance at CPAC offers surprising evi-dence of the fervor excited by baseappeals to the anger and resentment of thecrowd. More disturbing yet is the shiftfrom a Republican ideology of veiled elit-ism toward overt anti-socialist fascism.Beck has begun an escalating revisionistcampaign against the core of progres-sivism and all of its historical proponents,including Roscoe Pound and the LegalRealists. In his mind and rhetoric, thegilded age of the 1920's provides a modelfor America's True Destiny, and ratherthan retreating from the seemingly dis-

credited Reganite philosophies, Beck el-evates them to mythical status.

Harvard Law School should be out-raged at this campaign, not because Beckhimself is a significant figure, but becausethe public is playing directly into thehands of this charismatic fool and turningagainst every concept that this institutionhas spent over a century developing anddeploying into the legal culture of the na-tion. And while we sit comfortably in thehalls of Langdell pondering with glee thecontrol of the White House by BarackObama ’91 and Cass Sunstein ’78, thepolicies so virulently condemned whenpracticed by Cheney-Bush are silently tol-erated under our chosen President.

The missing element in the Thunder-dome of present-day discourse is an over-arching conceptual framework withinwhich the course of the nation can be jus-tified according to a set of consistentguide posts. That is not to say that weneed to search through history like Beckto invent a lost gospel that will guide usinto the future. Rather, we must look atthe new circumstances of technology, eco-nomic reality, international relations, civilrights, human rights, and environmentalconcerns and assemble a vision of our fu-ture that is more than a grab bag of buzzwords to be exploited in talking points.And to do this we must step out of ouroverly intellectualized artificial domainand down into the hedge rows of the pub-lic discussion of government and the law.

Our nation needs genuine leaders whocan navigate the uncharted highway ofour future and lead us toward solutionsthat are based on logical argumentation,common sense, and the spirit of partici-patory democracy that has sustained ourRepublic during its darkest nights. We arethe ones to take up this responsibility. Itis our time to take up the torch and chargeforward.

Sunstein, cont’d from pg. 1

Google, cont’d from pg. 1

Rule of Law, cont’d from pg. 1

February 25, 2010 Harvard Law Record Page 3

“The greatest thing in this world is not so much wherewe are, but in which direction we are moving.”

- Oliver Wendell Holmes, Jr.

opportunity to lead, but to remember that with limited time in eachday it is important to sequence and prioritize one's efforts. Spitzerwarned that money is necessary to make anything happen, and that“sometimes you have to fake it” when trying to take on a new role,while trying to “keep a sense of being human and enjoy theprocess.”

In her keynote address, Illinois Attorney General Lisa Madigansaid that her career had drawn inspiration from her time as ateacher in South Africa during apartheid and from her early con-tact with Senator Paul Simon, who taught her that, “You not onlyhave the ability to change the world, but you have the obligationto try.” As Attorney General, Madigan has sought to curb domes-tic violence, ensure public safety from criminals and dangerousproducts, put pressure on predatory lenders, and has successfullyargued before the Supreme Court. She characterized the widerange of her duties as akin to being “managing partner of the state'slargest public interest law firm.”

Madigan's success asAttorney General has garnered her re-elec-tion to a second term in office by a large majority as well as na-tional attention as one of a small number of female headprosecutors and an open feminist. But in addition to being a legaland political hot shot, Madigan has set an example by having twochildren during her tenure as Attorney General, even arguing be-fore the Supreme Court once while eight months pregnant. Madi-gan says that parenthood has opened her eyes to a broaderperspective on life. “You shift from thinking about everything interms of me, and it becomes in terms of them, the kids and thenext generation.” She said she has also discovered that the double-standard of greater social pressure on women to concentrate onparenting is alive and well in the twenty-first century. “Men neverget the question of how you are going to raise your children andhave your office.” Madigan admitted that because of her husband'sflexible schedule as a cartoonist she has been lucky to be able torely on him for help while busy or traveling out of state, but shesaid that making time for family requires prioritization, concen-tration, energy, and a careful balance of responsibilities.

As Attorney General, Madigan has pushed to expand the state'sefforts to protect women from violence, and she spoke about theprogress being made with respect to stalking laws, orders for pro-tection, and the analysis of rape kit evidence. Prior to her enteringoffice, stalking laws in Illinois required that the victim be directlythreatened by the stalker before law enforcement could intervene,but this was a high bar that Madigan saw as insufficient protectionin light of the approximately 76% of female victims who arestalked prior to being murdered. Madigan initiated a dialogueaimed at examining the definition of stalking, with the result thatthe new Illinois law allows the threat posed by the stalker to beseen through the victim's eyes rather than by a bright-line rule.

But even when a threat had been identified and protective ac-tion taken, Madigan found that over 22% of protective orders werenot being served. “If we have laws on the books that are supposedto protect women, that are supposed to protect survivors, but theyaren't enforced, then they are useless.” When she investigated thereasons for this high rate, she found that ironically many of themen subject to the protective orders were already in the custody ofstate or local law enforcement. New procedures for service uponentry to or exit from state prison lowered non-served rates to 14%.

Madigan also said that there had been significant progress onexpediting the analysis of evidence gathered from rape victims inthe so called “rape kit” after being the victim of a crime. Whenhuman rights activists revealed that there were over 4,000 untestedkits, she began investigating the means of cutting down the back-log. “Not only is it another trauma for the victim [for there to beno test done], but it hurts the rest of society.” Now she has intro-duced a Bill in Illinois to require a test within ten days after the col-lection of evidence or else provide a reasonwhy there was no test,the first law of its kind in the nation.

The Illinois Attorney General said that one of her latest priori-ties is the creation of a way of protecting children from cyberbul-lying. Whether it is from peers or anonymous sources on theinternet, Madigan sees this as an emerging area of concern whichdemonstrates the hazards of increasing use of the internet by chil-dren. She also expressed serious concern over “sexting” and childpornography, especially given the naïve attitudes of many childrento the use of computers. “We have to let them know that every-thing is public, everything is permanent.” She believes that an ef-fective response to these problems will require programs thatfacilitate communication between children and responsible adultswho can help them deal with bullies and predators.

Madigan encouraged the conference attendees to look beyondthe career track that they believe they are expected to follow andseek out a course that will be personally fulfilling. “Take the timeto figure out what it is you were meant to do, and go and do it. Ipromise you that you will have a satisfying life, and I can onlyhope that part of what you find satisfying is helping other people.”

WILLWORKFOR$160,000&BENEFITSOn Being a 3L with No Offer

BY ANONYMOUS, JOBLESS 3L

I used to tell people that if they were everlacking in self-confidence, they should applyfor a tenure-track position in a philosophy de-partment somewhere. In return, you get whatamounts to a mail-away self-esteem kit: a let-ter praising your accomplishments, expressingastonishment at your charm and sophistication,and assuring you that you will be a great suc-cess wherever you ulti-mately gain employment.It’s extraordinarily fulfill-ing to hear your praisessung by people of suchpower and influence, inparticular if you have no in-terest in taking a crucialstep towards adulthood.Only, again, you know –they don’t want to actuallyhire you. It isn’t an experi-ence I expected to repeat when I enrolled atHarvard Law School.

It’s been a little over five months since Ifound out I did not get an offer. In those fivemonths, certain topics have been rehearsed withwearying regularity. Greater world, on behalfof the Harvard 3L’s with no offers, let me tellyou the things we know:

1. It’s not our fault. The economy changedunexpectedly, and things are tough allover.

2. In fact, as Harvard graduates, we havemore opportunities. Most people encoun-tering employment challenges in this econ-omy are in worse positions than we are.

3. The loss of Biglaw opportunities meanswe may find something else from whichwe derive immense satisfaction, and whichwe may never have otherwise pursued.

4. People with offers but no start dates arein a poor position as well. Even those withdeferrals of specified duration face thepossibility of an unexpected deferral ex-tension, or even an outright retraction oftheir offer. In fact, with things as bad asthey are, there’s really no guarantee thateven those who manage to start workwon’t find themselves laid off somewhatsoon. Biglaw right now simply doesn’toffer the degree of security it used to offer.Everybody is in the same boat.

Joined to this knowledge is the understand-ing that it is, to be fair, rather difficult as a Har-vard Law Student to abandon all self-awarenessand immerse oneself in self-pity. We remainconscious of the privileges we enjoy and the op-portunities that exist for us even in our darkestmoments. That isn’t to say we who were no-offered have no room at all for despair. But itfeels impolite. Those of us who had been hop-ing to become Biglaw associates have beendealt a real financial blow. Must we admit whatwe were told to leave out of admissions essaysand job interviews -- that we did come to lawschool with the hope of making money? Mustsome of us admit that we hoped to make quiteindecorous and undignified amounts of it? Or

are we to put on a brave face and tell the worldthat our goal all along was to achieve enlight-enment and live on an ashram, and for that pur-pose and that purpose alone did we depriveourselves of sleep and commit ourselves tolearning the Hand formula and the rule againstperpetuities?

But the rejection has greater bite than a reori-enting of our student loan repayment schedule.Not everyone who was a summer associate at a

Biglaw firm had partnerambitions. Whatever thereasons we may have hadfor spending the summer of2009 as a summer associ-ate, the summer ended byconfronting us with ourdeepest fear. Like manypeople praised for intelli-gence, talent, and disci-pline, Harvard LawStudents are prone to the

paranoia that we will one day be exposed as thefrauds we suspect ourselves to be. Then-DeanKagan alluded to these fears when we beganour time at Harvard. Addressing the Class of2010, she told us that our anxieties were ill-founded, and that we had all long since estab-lished ourselves as deserving of our reputationsand the opportunities they made possible. Sowe studied, and we subcited, and we net-worked, and we keycited, and we summer as-sociated. And employers looked at our grades,and our journals, and our work product, and ourwork ethic, and said, “We don’t want you.” Wecame from Harvard, and they were nonethelessunimpressed. Something about us was so un-appealing that it outweighed the appeal of hav-ing another Harvard graduate at the firm.

And so we wonder – what mark on our re-sume is so bad that it outweighs the CrimsonH? We know the market has shrunk, we knowthe client base has retreated, we know thateveryone is suffering, but we also know some-thing else: not every Harvard 3L got no-of-fered. We did. We didn’t measure up. Maybethe hiring process was arbitrary. Maybe we re-ally had almost no control over some crucialfactor. But most of us got here because we’vebeen on a long journey, with increasing mo-mentum. And that momentum just evaporated.

I’m confident we will all land on our feet.And I’m certain that the experience will be anopportunity for us to find strength we didn’tknow we had. I’ve met us. And we are, to befrank, pretty amazing. But the dream of Biglawis hard to let go. And after all, there isn’t nec-essarily any shame in wanting to make money.Some of the wealthiestAmericans have been itsgreatest philanthropists. Bill Gates has retiredfrom Microsoft and dedicated a large portion ofhis financial empire to addressing global warm-ing and poverty. And Tony Stark created hisIron Man suit to fight the spread of technolog-ical weaponry the sales of which, well, financedthe creation of his Iron Man suit. Fine, that oneisn’t very persuasive. Still, I don’t think weshould be judged for wanting to be Biglaw as-sociates with the money and power that wouldeventually have brought. Maybe we justwanted to be Iron Man. Think about it.

“Gah! I’m choking on my own rage here!” - Moe Szyslak

“Are we to put on abrave face and tell theworld that our goal allalong was to achieveenlightenment andlive on an ashram?”

WLA, cont’d from pg. 1

BY MOHAMED S. HELAL

Most people focus on Iran’s alleged ambition to jointhe exclusive club of nuclear weapons nations as agrave security threat. Whether or not Iran actually as-pires to acquire nuclear capability is debatable, butwhat is certain is that examining the nuclear programin isolation of the po-litical landscapewithin Iran and thebroader strategic envi-ronment in the MiddleEast is a fatal mistake.

The problem with Iranis more complex than aclandestine nuclear pro-gram or the enrichmentof uranium; the problem iswhat Iran stands for and repre-sents: a religious response tothe problem of governance in theMiddle East. This is a dangerousanswer, because a regime that legitimatesitself on the basis of religion will also pur-port to be the custodian of truth. It is a systemthat eliminates the marketplace of ideas and en-croaches on what is supposed to be a deeply personaland private relation between man (and woman) and hisGod. In the Middle East, where religions were born andcontinue to thrive, and where people are highly emo-tional, such a model threatens to retard the region backto the Dark Ages.

Worse still, as Iran feels increasingly threatened bywestern, particularlyAmerican, pressure, it has soughtto gather regional cards that it could use in its politicalpoker game with the West. To put it another way, Iran

has planted detonation charges throughout the regionthat it could use to ignite the Middle East if the needarises. Thus, the ominous shadow of Iran’s political andmilitary claw Hezbollah constantly hangs overLebanon, threwatening to replicate the events that pro-voked Israel’s disproportionate war on its small north-ern neighbor in August 2006. Iran also periodicallythreatens to annex Bahrain and already occupies threeU.A.E. islands in the Gulf of Hormuz, which is a mar-

itime strait critical for the global oil market.Tehran also holds many of the keys to

Baghdad, with obvious implica-tions for Iraq and the UnitedStates. Moreover, Iran funds andarms the Houthi rebels inYemen, which are one of manychallenges that are portendingthe division of the countryoverlooking the southern en-tryway to the Red Sea.The question then is, what

can be done about this,which is a question theObama administration isprobably considering

now. The first answer tothe complex problem of Iran

is simple: do not use force.The United States has, fortunately, jettisoned the dele-terious doctrine of regime change, and any surgicalmilitary strike will never eliminate Iran’s dispersed andwell-protected nuclear program. If anything, a militaryoperation against the Islamic Republic will unite Ira-nians, who will rally around the flag, and, more dan-gerously, compel Tehran to ignite the powder-keg that

Page 4 Harvard Law Record February 25, 2010

HarvardLawRecord

Letters and opinion columns will bepublished on a space-available basis.The editors reserve the right to editfor length and delay printing. Allletters must be signed. Deadline forsubmissions is 11:30 p.m. Tuesday.

The Harvard Law Record is a publicationof The Harvard Law School Record Cor-poration. All rights reserved. The HarvardLaw School name and shield are trade-marks of the President and Fellows ofHarvard College and are used with permis-sion from Harvard University.

EStabLiShEd MCMXLViEditors-in-Chief

Matthew W. HutchinsChris SzablaStaff Editors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

ContributorsAnonymous 3L

Mohammed S . HelalMatthias C. Kettemann

Amreeta MathaiRyan MitchellEleanor Simon

Submit Letters and Editorials to:record@law.harvard.edu

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

PersianProblem:NuanceNeededWith Iran

Clockwise: Italian Karate by Gabriele Mazzini, Irish music by An-drea Mulligan and Maeve O’Rourke; Singing by Anton Eriera

INTERNATIONAL SPIRIT, NATIONAL PRIDE

Iran, cont’d on pg. 7

February 25, 2010 Harvard Law Record Page 5

BY MATTHIAS C. KETTEMANN

You could call it an incrediblyfascinating event representing therichness of the LL.M. studentbody, the diversity of the world’scultures and the broad variety ofcultural and gastronomic tradi-tions. Or you could stick with theassessment of Richard Staeuber,LL.M. student from Switzerland:“It was really terrific!” The Inter-national Party which took placeon Saturday, February 13, in theRopes Gray Room lends itself toboth descriptions.

In what has been traditionallyone of the major annual socialevents at HLS, this year’s LL.M.class of 165 students from 62countries, presented a highly ap-pealing mix of cultural traditionsfrom all corners of the world. Stu-dents of each country organized atable at which they presented typ-ical national dishes (with a heavyleaning towards the sweet),showed off their country’s culturaland touristic highlights, and pro-vided information for the avidtraveler.

“Walking around the room waslike going on a voyage around theworld”, Martina Gerszt-Wernlifrom Switzerland said.At the Chi-nese table you could take part in aquiz and pinpoint famous sightson a map. At the Swiss table youcould answer rather tricky ques-tions and win a Swiss watch. TheAustralian table tried to entice stu-dents to try the famous vegemite,a salty and malty spread with aninteresting aftertaste. Studentsfrom Japan showed the basics ofcalligraphy and drew names inJapanese characters. At the Ger-man table, you could try wurst(though I missed the sauerkraut).The African tables focused on therich cultural heritage of the conti-nent.

The smells, sounds and sightsmade Ropes Gray room, for oneevening, into what America as awhole has always been said to be:a melting pot of nations. It wasgreat to see many members of theHLS community come in and visitthe LL.M. students they knowfrom classes, but about whose ori-gins and traditions they might notknow so much. The impressive di-versity served as a reminder ofhow fascinating the world is – andmade students change their travelplans again and again as they pro-gressed from table to table. In-deed, the students’ recounts ofhow fascinating their home coun-tries are rivaled any description inLonely Planet.

If the wonderful smells emanat-ing from the pots and dishes onthe country tables were notenough to bewitch the visitors,they could raise their head andenjoy the photos and videos thatLL.M. student Sajjad Nematollahifrom Iran had turned into an im-pressive presentation. From Aus-trian cows peacefully chewing ongrass inAlpine pastures to the oth-erworldly beauty of Thai beaches,

it was easy to be swept off yourfeet (also because somebodymight bump into you in thepacked Ropes Gray room).

While the food at some placeswas slowly running out (MattHutchins, Co-Editor-in-Chief ofthe Harvard Law Record, had toldcontributors earlier that “everyoneshould go and at least sample allthe delicious food” and they hadobviously taken him up on this –and brought their friends), the at-tention of the more than a thou-sand visitors from the HarvardLaw School community turned tothe evening’s highlights: the per-formances.

Students impressed the audi-ence with Greek and Chinesedances, a Karate show, beautifulsongs from members of the Aus-tralian and UK delegations andenriching shows, including fromSoutheastern Europe and South-East Asia. Jeanne Tai, AssistantDean for the Graduate Programand International Legal Studies,echoed the spirit of the cheeringaudience when she declared theperformances to have been “to-tally awesome”.

As the day of the InternationalParty was also the first day of theBrazilian carnival, the Brazilianstudents (in bright yellow soccerT-shirts reminiscent of Ronaldo)finished the International Party offwith a huge general carnival andlong congas. While not all dancerswere as much in sync with therhythms as the students with ex-perience of rocking the Copaca-bana, the energy and happinesswas palpable. Good thing theAus-trian table provided some “RedBull” (yes, folks, it is as Austrianas Arnold Schwarzeneegger).

Since Valentine’s Day came theday after the International Party,you could see pairs holding handsas the party wound down at mid-night: a great way to start a daydedicated to love with a party thatshowed the unity of human spiritunderlying the diversity of its ex-pression. Because in the end, thiswas what all students could seeand feel in the displays of art andculture, cuisine and traditions ofthe different countries: the love oflife, the power of hope and thepride in the history and unique-ness of cultural and culinary ex-pression.

In her address in September2009, Dean Martha Minow toldinternational students: “Wesearched the world for you!” Atthe International Party, the LL.M.Class of 2010 found hundreds ofdifferent ways to say thank youand allowed the HLS communitya glimpse of the diversity of theworld beyond the Charles. Andbest of all, for the rest of term, theLL.M. students are still here. Justgo talk to them. Most don’t bite.Just don’t ask the Australians tomake you a vegemite sandwich.

Matthias C. Kettemann is anLL.M. student from Austria.

Annual LL.M. Party Showcases Students’ Diverse Talents, Cultures

BY CHRIS SZABLA

The unfortunate passing of HowardZinn earlier this year was accompaniedby a greater number of panegyricsabout his work than probing explo-rations of its legacy. Zinn’s most fa-mous book, “A People’s History of theUnited States,” is an exposition ofAmerican history’s marginalized narra-tives: poorly-treated low-rank soldiersof the Revolutionary War, indebtedfarmers, slaves, freedom fighters forcivil rights, labor activists and organiz-ers, even Socialists – a list that givesone a sense of the political direction inwhich the book is often taken to lean.

Zinn worked on “APeople’s History”over the 1970s, when it would havebeen the perfect expression of the Zeit-geist, in which radical critiques of pre-vailing orthodoxies reigned. But by thetime it appeared, in 1980, conservatismwas staging a comeback, and RonaldReagan’s presidency ushered in a patri-otic renewal. Instead of being em-braced as part of the spirit of the times,Zinn’s book became a partisan light-ning rod, a rally point and target in theculture wars.

That made the reaction to “The Peo-ple Speak,” a documentary based onZinn’s work that aired on the HistoryChannel late last year, just before hispassing, fairly predictable. The HistoryChannel tends to play it safe ideologi-cally. When it actually runs historicalprogramming (much of its content isnow reality TV), it prefers to stick tostraightforward accounts of militarystrategy, leaving politics out of sightand mind. Its moniker, “the HitlerChannel,” is hardly undeserved.

But even the battlefield isn’t com-pletely apolitical: it turns out that manyfans of military history either prefertheir American story with a side of tri-umphalism (you don’t see many His-tory Channel programs about Vietnam).So it came as little surprise that thechannel’s decision to postpone its reg-ularly scheduled D-Day docudramasfor a film based on a controversially re-visionist work of American historycaused a bit of an uproar. Devotedviewers declared they would abandona channel they’d watched religiouslyfor years. In the context of a growingchorus in American political discoursethat labels any tendency it doesn’t ap-prove of with the conversation-stop-ping pejorative “socialist”, Zinn’sdocumentary went so far as to celebrateindividuals who wholeheartedly em-braced that label.

Indeed, much of Zinn’s work – re-flected in “The People Speak” – stillseems fresh. Labor history may con-tinue to thrive in the trenches of acade-mia, but it’s hardly scratched thesurface of the public discourse, even ata time when it might seem more rele-vant than ever. Nor does one hear muchtoday about the class resentment thatZinn shows was surprisingly prevalentagainst the ceaselessly veneratedFounding Fathers. And in the face ofthe Obama administration’s ploddingand hesitant response to the ongoing re-cession, Zinn’s claim that Franklin D.Roosevelt was cajoled into implement-

ing many New Deal reforms by popularprotest and labor action is a frighteningreminder of what happens when gov-ernment remains cautious and inatten-tive in the midst of crisis.

Other segments deliver a 21st cen-tury update on the themes that Zinnpiled into the original book, linking theongoing wars in Iraq and Afghanistanto previous episodes of American ex-pansionism. Especially necessary,

given the rest of the History Channel’sprogramming, is Zinn’s reminder thatthe Second World War – which, likeother wars inAmerican history, height-ened instances of segregation and classconflict, and which inflicted needlessdeaths on civilians – has been histori-cally sugarcoated, its memory ex-ploited to justify a seemingly ceaselessstream of further conflict.

But, thirty years after the publicationof “APeople’s History” many of Zinn’sstories have lost their radical edge – ifsimply because they have been so suc-cessfully incorporated into mainstreamthought. Few would dispute the histor-ical relevance of Frederick Douglass orMalcolm X.Anarchist Emma Goldmanand Socialist leader Eugene V. Debs arestaples of any decent U.S. history text-book. The ideas that slavery was acqui-esced to by its victims or that it couldbe thought of as a familial relationship(notions that still had currency in the1950s) are ridiculed. Many of the faces

and voices Zinn first pointed to thirtyyears ago are now firmly entrenched incurricula – if still not universally ac-claimed.

Where does that leave a contempo-rary reworking like “The PeopleSpeak”? Beyond being a nice capstoneto Zinn’s career, and illuminating someof his less popularized insights, thedocumentary itself comes off as a bitcounterproductive. Beyond standard

historical stock footage and voiceoversby Zinn, the star attractions are celebri-ties who give theatrical readings of pri-mary source documents, acting out theroles of the marginalized voices inZinn’s narrative. Some of the perform-ances are strong and arresting, but inother cases, the stars’ wattage distractsfrom the historical message.

Some of the choices are particularly

cringe-worthy. Zinn cites “Dear Mr.President,” an anti-Bush ballad bysinger-songwriter Pink, as a contempo-rary example of activists who decry theironies arising from a system of idealscompromised by a stark reality – andPink appears in the film to perform theentire piece. Pink’s message is legiti-mate, but her presence – and celebrity –diminishes the focus on the suppressedand subaltern. The same is true formany of the other stars’ involvement.It’s a little strange that the producersfelt that the travails of the underclasswere best expressed by the wealthy, su-

perficially-admired people to whomAmericans already wantonly turn overso much of their money and time. Ifthey were meant to grab viewers’ at-tention, they probably did not wind updoing so for the words they were se-lected to speak.

That does not necessarily impugn thecelebrities’ own motives for appearingin the film; some of them are informedfans of Zinn’s work – particularly MattDamon, who was inspired by Zinnwhile growing up near him in Cam-bridge (he famously championed “APeople’s History” in Good Will Hunt-ing, the breakout film he wrote andstarred in with Ben Affleck). Damononly plays a bit part on screen in “ThePeople Speak,” but was a major forcebehind the scenes: He spent nearly adecade trying to bring it to television.

Doubtless part of the opposition tothe film – and part of the fury that hasfrequently been leveled at Zinn – is thathis work appears to emphasize only thenegatives inAmerican history.A narra-tive that dwells on events like thedebtors’ rebellions of 1786, which mo-tivated the Constitution’s instantiationof a strong central government; theNew York Draft Riots, exposing theclass conflict simmering beneath thesurface of the Civil War; or the oppres-sion continuously endured by NativeAmericans does not seem to leavemany positive examples. But Zinncounters by asserting that there is a sil-ver lining to his narrative: it shows“people below behaving magnifi-cently”.

In fact, like any other positive ac-count of American history, Zinn cele-brates democracy, albeit a version ofAmerican democracy that deeply em-phasizes extraparliamentary and extra-constitutional movement as the engineof meaningful change. His stance raisesquestions about the extent to which hewould continue to embrace these ideastoday. The increasing noise made bythe Tea Party movement is a reminderthat plenty of “people’s movements”never made it into Zinn’s history –those that didn’t fit his ideological va-lence. Radical libertarians and religiousfundamentalists have also had a signif-icant – if sometimes frighteninglydestabilizing – influence on Americanhistory. As much justice resulted fromthe courageous acts of many individu-als Zinn celebrates, the rule of law canbe bent both ways.

Page 6 Harvard Law Record February 25, 2010

DissentingOpinion?

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Howard Zinn’s People Speak...Through CelebritiesHistorian’s Last Documentary Cements His Reputation – but Raises Provocative New Questions

“Plenty of ‘people’s movements’never made it into Zinn’s history.Radical libertarians and religiousfundamentalists have also had a sig-nificant – if sometimes frighten-ingly destabilizing – influence onAmerican history.”

www.hlrecord.org

February 25, 2010 Harvard Law Record Page 7

HRJ Symposium Examines Checks on Multinationals’ AbusesSEEKING CORPORATE ACCOUNTABILITY

BY AMREETA MATHAI AND RYAN MITCHELL

As globalization has transformed the way (and where, andwith whom) we do business, major steps have been taken toensure that corporations find it more difficult to exploit in-ternational tax loopholes. But loopholes that allow corporateactivities to benefit from and perhaps contribute to seriousinstances of widespread human suffering are comparativelyplentiful.

From IBM’s alleged sale of computers used to implementapartheid policies in South Africa, to Western technologyfirms’ alleged active role in tracking Chinese political andreligious dissidents, the field remains one that many see ascrying out for both litigation and policymaking. In an attemptto tackle the legal, political, andethical parameters of this evolv-ing issue, the Harvard HumanRights Journal hosted a sympo-sium on Thursday, February18th, on the subject of corporateaccountability for human rightsabuses in developing nations.

The keynote speaker for thefive hour event was ProfessorJohn Ruggie, Berthold Beitz Pro-fessor of International Affairs atthe Kennedy School of Govern-ment and an Affiliated Professorin International Legal Studies atHarvard Law School. Since2005, Professor Ruggie has beenserving as the UN Secretary-General’s Special Representativefor Business and Human Rights,and it’s in this position that hedeveloped his “Three Pillar”framework outlining responsiblecorporate involvement in nationswith compromised human rightsrecords.

Professor Ruggie’s 2009 Report to the UN laid out theprinciples as follows: “The framework rests on three pillars:the State duty to protect against human rights abuses by thirdparties, including business, through appropriate policies, reg-ulation, and adjudication; the corporate responsibility to re-spect human rights, which in essence means to act with duediligence to avoid infringing on the rights of others; andgreater access by victims to effective remedy, judicial andnon-judicial.”

An audience of about a hundred listened as Ruggie out-lined his framework, and explained the often fraught processof bringing human rights NGOs around to the point of viewthat this sort of “loose standard” based on general principlesof corporate involvement was preferable to the more specif-ically outlined UN standard that it had replaced. That systemcould be summarized as “if X is occurring, corporationsshould keep as far away as possible.” He also shared his own

initial skepticism that a systematic approach from the cor-porate side would bear any fruit. But in the end, he said, he’switnessed a partial transformation in the way that corporateinvestments in developing nations are discussed. This is inpart because his framework offers a lexicon for activist share-holders, PR departments, and other human rights-consciouselements of corporate decision making to frame their con-cerns in the universal dialect of commercial self-interest.

Following Professor Ruggie’s keynote presentation of theframework, two panels addressed practical aspects of imple-menting the ideas and encouraging their adoption by corpo-rations as a framework for country investment analyses. Thefirst, on corporate accountability litigation, drew connectionsbetween the state and corporate duties to protect and respect

human rights and some of thenotable failings of corporationsto do so. The panel of humanrights lawyers summarized thevarious forms of on-going liti-gation around the issue inwhich they were involved.These ranged from claimsagainst Western firms that hadassisted South Africa’sapartheid regime (as in thecase of IBM, mentionedabove), to those against inter-national lenders to and finan-cial supporters of Argentina’sformer military junta of the“Dirty War” years. Each of thelawyers expressed frustrationat the difficulties in tying stateabuses by collapsed regimes tothe actions of corporationsoften operating behind a dualveil of governmental and cor-porate secrecy. The role of themens rea standard for corpo-rate involvement in human

rights abuses was a particular point of focus – for U.S.-basedAlien Torts Statute claims in the 2nd Circuit, the standardappears to be purpose at the moment; but in the 9th Circuit,it’s still an easier-to-satisfy “knowing” standard.

There was even some speculation that upcoming decisionsmay exempt corporations from being susceptible to ATSclaims at all – not a thought that sits well with practitionersseeking to translate corporate accountability principles intoactual legal liability for injuries aided by corporate invest-ment overseas. Panel moderator Terri Marsh, senior litiga-tion partner with the NGO Human Rights Law Foundation inWashington DC, expressed her hope that the ATS litigationwould at least be able to continue, emphasizing the multiplepurposes of such lawyering; “Even in cases we lose, there’sa huge effect. I’ve had people in prison in China tell me thattheir treatment changed for the better when we were litigat-ing issues around the abuses that they’d suffered.”

to the voters. He wants to distinguish himself by beingaccessible to voters and by nationalizing the issues tomake the District Nine election a referendum on theincumbent. “The contrast you have to draw betweenyourself and the incumbent is, 'I'm nice, I'm here, I'llwork for you, and she doesn't.'”

He sees Schakowsky as vulnerable because of heropen defense of President Obama's policy agenda andthe lingering questions raised by her husband's con-viction for federal fraud charges. And apparently hisground-up campaign is stirring up attention. Not onlyhas he received the endorsement of the local Tea Partyorganization, he also has heard rumors thatSchakowsky has taken notice of his candidacy.

Of course, the support of the Tea Party has the po-tential to work as a double-edged sword, turning offmore moderate voters who would otherwise be inter-ested. Pollak noted that he had heard some peoplewonder, “How can a nice Jewish boy be endorsed bythe Tea Party?” Pollak maintains guarded respect forthe grassroots activism of the Tea Party organizers,

and he sees an alliance with them as important giventhe fractured nature of the Republican party, which heanalogized a scene from Monty Python's “Life ofBrian”. He believes there is a troubling lack of lead-ership in the GOP that is impeding the unification ofits various constituencies behind a platform. “It's notso much a question of what do we stand for, the ques-tion is where are the leaders who are going to drivethat.”

Pollak has cultivated his relationship with the TeaParty groups in part by flexing his legal education.When the Obama administration announced a plan tomove Guantanamo Bay detainees to Thomson Prisonin Illinois, Pollak helped draft a legal attack on theplan founded on the international law. “I helped themmake a case in international human rights law why itwas bad to move these guys here.” And though thestate commission voted 7-4 to approve the relocationplan, his efforts were much appreciated by concernedlocal citizens. “What was comforting to them wasthat someone in the political world was taking an in-terest in them and actually giving them a voice, help-ing them express their concerns in a way that didn't

just involve waving signs and showing up at rallies.”Whether or not Pollak succeeds in displacing

Schakowsky, he is enjoying the experience of runninga campaign and connecting with the voters. “The mostamazing thing about the process is learning what peo-ples' lives are like, learning how national issues affectthem and interacting with them when they ask youwhat you are going to do for them.” Priority numberone for Pollak is helping the residents deal with thedearth of jobs. But he also hears frequent complaintsabout the Democratic health reform plans, and hopesto see a viable alternative emerge. “Republicans haveyet to make the case why it is better to have individ-ual patients in charge of making healthcare deci-sions.” If he is elected, Pollak says his personal policyinterest would be the reform of the federal budgetaryprocess and the corruption tied to earmarks.

Joel Pollak is the author of The Kasrils Affair andDon't Tell Me Words Don't Matter: How Rhetoric Wonthe 2008 Presidential Election. He was a regularwriter for the Harvard Law Record during his time atHLS.

is the Middle East.What we need is a more sophisti-

cated strategy of talking softly andcarrying a big stick. For Iran the bigstick should be the threat and grad-ual application of tighter multilat-eral, U.S. and European economicand military sanctions that generateenough local pressure for the regimeto mend its ways. Tehran must placeall nuclear facilities under full IAEAinspection, withdraw its support ofsubversive elements in the regionand to refrain from intervening in theaffairs of its Arab neighbors. In re-turn, Iran should be promised therightful place of the glorious Persiancivilization at the table of nations,and it must receive assurances ofnon-belligerency from western pow-ers and from Israel. This strategymust also be coupled with a sincereeffort to free the Middle East of allweapons of mass destruction. His-tory has also taught us that all of theMiddle East dilemmas will be ame-liorated by peacefully settling theArab-Israeli question and by the es-tablishment of an independent andviable Palestinian state in the WestBank and Gaza.

This requires both a dialogue withand pressure on Iran, and continuousconsultations with regional playersto reach understandings that avoidpast mistakes. For too long the secu-rity of the Middle East and PersianGulf has been dictated by cursoryand shortsighted policies that havenot fully comprehended the com-plexities and subtleties of the region.We must move beyond strategieslike Reagan’s “Gulf containment”and Clinton’s “dual containment”that have perpetuated instability andinsecurity. Instead, we must initiate aserious dialogue with all the relevantand influential parties, includingRussia and China, to devise a sus-tainable policy that promises theweary people the Middle East peaceand prosperity.

Mohamed S. Helal studies at Har-vard Law School as a FulbrightScholar. He is an Egyptian diplo-matic officer, and served in the Cab-inet of the Minister of ForeignAffairs of Egypt from 2005 to 2009.The opinions expressed in this pieceare exclusively those of the author.

Prof. John Ruggie - photo: CBSR Vancouver

Iran, cont’d from pg. 4

District 9, cont’d from pg. 8

By Matthew W. Hutchins

Emboldened by the victory of ScottBrown, Republicans across the countryare preparing challenges against Dem-ocratic incumbents in the 2010 midtermelections. But before Ted Kennedy'spassing opened the field in Massachu-setts, recent HLS grad Joel Pollak '09had already thrown his hat in the ringin northern Illinois. Now that Pollak haswon the Republican nomination in theNinth District, he will be taking on in-cumbent Janice Schakowsky in the gen-eral election this year, and he sees it asthe first serious contest his home dis-trict has seen in a generation.

According to Pollak, the electoral de-mographics break down such that thereis approximately a three to one ratio ofconfirmed Democrats to Republicans,150,000 to 50,000. But the district alsohas a large independent middle of about150,000 voters. Pollak believes that in-dependents will turn away from Presi-dent Obama and the Democrats by aratio of close to two to one, and if thathappens, the district will be very muchin play. Pollak's next step is to embarkon a major fund-raising initiative toamass a war chest of at least a quartermillion dollars. If he can do this, he be-lieves he will catch the attention of the

GOP's Young Guns program and qual-ify for additional funding.

To drum up the enthusiasm of donors,Pollak says he is making aggressive

overtures toward journalists. He firstgained the spotlight on Sean Hannity'sshow on Fox News by vocally chal-lenging Barney Frank (D-MA) during

an appearance at theKennedy School, andnow he plans to parleythis exposure into thewider media attention heneeds to gather cam-paign funds. He re-cently appeared on theFox Business program“Happy Hour”, where hedeftly avoided beingcharacterized as a TeaParty candidate. His ul-timate aspiration: anspot on Bill O'Reilly.

The South African na-tive Pollak aspires torepresent Illinois districtnine because it is theseat of his youth homeof Skokie, a predomi-nantly Jewish town thatfought a legal battleagainst Neo-Nazi pro-testers all the way to theSupreme Court. Pollakplans to court the votersof Skokie and cities far-ther west to offset the

liberal bastion of Evanston closer to thewaterfront, and to do that on a shoe-string he will be making a direct appeal

STILL JOB HUNTING? WHAT’SYOUR NEXT STEP?

POLL NOWAT HLRECORD.ORG

Page 8 Harvard Law Record February 25, 2010

S. African Native Gives Voice to Dispossessed GOP Voters in Liberal Illinois District

District Nine, 2010: Pollak’s Plan For Recoloring the Map

Joel Pollak ‘09 outlines his plan to make his home district red. His strategy will concentrateon the suburban areas west of Evanston that have been neglected by the incumbent.

Top: Ethan Schiffres ‘10 and Elizabeth Steinfeld ‘11 in Sydney, Australia. Ethanworked on an urban revitalization project for the Arts Law Centre of Australia,drafting legal information sheets and license agreements for artists. Elizabethworked for the Commonwealth Director of Public Prosecutions, preparing for afederal narcotics trial. Below: Sherry William ‘10, far right, worked at the Egypt-ian Ministry of Trade and Industry helping revise the national corporations code.Sherry enjoyed working with top caliber, western educated colleagues, who helpedher get a taste of authentic Cairo cuisine! Mmmmmm.... Fiteer.

HLSParody2010Presents...District 9, cont’d on pg. 7