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WOMEN IN CHARGE
February 25, 2010 Vol. CXXX, No. 4

From Two Perspectives,

1

Views on How to Keep Top Obama Advisor, Illinois AG Lead the Way at
an Eye on Government Women’s Law Conference on the Changing Workforce
Ralph Nader and Bruce Fein Come
Together to Condemn Lapses in System,
Call for Citizen Participation

Photo: World Economic Forum

BY RECORD STAFF
The millennial generation has
been called self absorbed, but
different places ideologically –
Nader has been identified with
the movement for consumer
safety, while Fein thinks that an
Left: Irene Khan ‘79 and Valerie Jarrett. Above: Illinois Attorney General Lisa Madigan
BY MATTHEW W. HUTCHINS
AND ELEANOR SIMON
At the end of 2009, in celebration of women
becoming a majority of the workforce, the
cover of the Economist featured J. Howard
Miller's iconic Rosie the Riveter image, an-
nouncing “We Did It!”. But according to the
Economist, women still occupy less than five
percent of management at top companies, face
a serious pay disparity, and bear a dispropor-
tionate burden when raising children while
pursuing a career. With these challenges in
mind, the HLS Women's Law Association
convened its annual conference on Friday,
dience will face after graduation, many of the
speakers offered common sense advice re-
garding the selection of a future career path,
the challenges of leadership, and the struggle
for 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 in
her experience, “The glass ceiling is not any
weaker in the non-profit sector.” Silda Wall
Spitzer '84 said that students should take every
WLA, cont’d on pg. 3
ANIMALS’ DAY

also as deeply connected –
thanks to new technology and a
renewed willingness to trust its
elders. But will those connec-
tions – and that respect – trans-
late into participation in and
concern for politics and the
law? Former presidential candi-
date and consumer advocate
Ralph Nader ’58 and former
Deputy Attorney General and
FCC General Counsel Bruce
obsessive concern with safety at
all levels hampers risk – but
both agree that lax oversight has
allowed government to run
amok. Implicit in both their
comments Tuesday, during a
visit to Harvard Law School or-
ganized by the Harvard Law
Record and Harvard Law
Forum, was that the responsi-
bility to change that rested on
the current generation’s shoul-
IN COURT?
February 19th, “Women for Women: Advo-
cating for Change!”, bringing together women
who are leaders in both the public and private
sectors to discuss the dual role of women as CONTROVERSIAL
participants in a changing society and facili- SUNSTEIN THEORY MAY
tators of future change. BECOME PRACTICE AFTER
In addition to keynote addresses by top
Obama advisor Valerie Jarrett, whose daugh- SWISS REFERENDUM
ter Laura Jarrett ’10 was in the audience, and What was once an
Lisa Madigan, the Attorney General of Illi- obscure idea hidden
nois, three panels were convened on the sub- in the introduction to
jects of change in the courtroom, the an edited volume of
workplace, and the community. Cognizant of

INSIDE
Fein ’72 come from somewhat Rule of Law, cont’d on pg. 2 scholarly work burst
the pressures that the young women in the au- onto the political

Buzz Off! 2L Takes Google to

scene last fall, when
the Senate held con-

The HL Record Court Over Privacy Invasions

firmation hearings
for Harvard Law School professor Cass
Sunstein ’78, nominated to head the Of-

Class Action Suit Alleges Potential Harm to Over

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
TIRED OF SUBCITING?
NEWS EDITORS WANTED!
E-MAIL RECORD@LAW
30 Million Users of New Social Network
When Google unveiled its new
Buzz social network for GMail users
last week, many were perturbed by
the fact that the service automatically
created networks out of their email
contacts. In many cases, these ad hoc
networks exposed correspondence
that users would have rather kept pri-
vate. Now, a Harvard Law School
student is bringing a massive class
action lawsuit against the internet
company, claiming that it severely
compromised her and others' privacy.
On February 9th, the day Google
rolled out Buzz, 2L Eva Hibnick, 24,
said she signed into Gmail without
realizing that, by doing so, she had
unwittingly also signed up to be part
of the new network. After realizing
some of the people that were now
part of her network were people she
hadn't spoken to in months, Hibnick
expressed her frustration to class-
mate Benjamin Osborn ’10, who
happened to be a research assistant to
Google, cont’d on pg. 2
fice of Information and Regulatory Af-
fairs (OIRA). Opponents on both the left
and the right scoured the prolific
scholar’s writing for ammunition, and the
appointment was temporarily blocked by
Sen. Saxby Chambliss (R-GA) after his
discovery of a proposal by Sunstein and
then-partner Martha Nussbaum, the Uni-
versity of Chicago philosopher, to give
animals legal standing to appear in court
when humans could not formally do so
on their behalf.
A variant of that idea has proven some-
what less controversial in Switzerland,
however, where a proposal to initiate
criminal prosecutions on behalf of animal
Sunstein, cont’d on pg. 2
Page 2 Harvard Law Record February 25, 2010
Rule of Law, cont’d from pg. 1 ing of the legislature. public figures, Nader condemned the to public problems. And although he
Nader, whose recent novel Only the “generation that doesn’t show up”. praised Dean Martha Minow for being
ders. Super-Rich Can Save Us! appears to Nader also used the occasion to tear what he believed was the first head of
Fein, who is currently completing a represent a bitter and cynical turn to the into what he saw as the lack of com- the school to assert that its purpose was

“Harvard Law School

book on the American “mentality of notion that politics
empire,” focused on the expansion of and civil society
the executive branch and the creation of
the “imperial presidency” – a force
are so broken that
billionaires are the
is a lie.”
which gained considerable strength only ones with the - Ralph Nader ’58
under George W. Bush and shows few fortunes to make
signs, according to him, of abating meaningful change, took on the politi-
under Obama. He also addressed the cal apathy that still plagues the United
lack of oversight of Congress, and said States. Particularly lamenting the sparse
that he had created an organization, crowd that greeted the two prominent
First Branch, devoted to citizen polic-
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.
mitment to the “justice,” Nader lamented its continued
public interest at commitment to teaching students to
Harvard Law
School. Except-
work in the service of corporations.
Saying it was training future “greasers,”
ing Elizabeth Nader emphatically pointed to the
Warren, who words of Minow and the content of the
leads Congress’ oversight of the federal curriculum and declared that “Harvard
bank bailouts, and a few other faculty Law School is a lie”.
members, Nader excoriated the faculty A full video of the event will be avail-
for shortsighted and stopgap solutions able soon at hlrecord.org.

When Will We Stand Up?

Sunstein, cont’d from pg. 1
victims is going before voters in a
referendum on March 7, the Associ-
ated Press reports. Brought by ani-
mal rights group Swiss Animal
Protection, the referendum, if
passed, would force each of Switzer-
land’s cantons to appoint a public
prosecutor to go after human mis-
treatment of animals.
The country has a history of put-
ting contentious measures up for
public votes. Several months ago,
Swiss voters controversially ap-
proved a ban on the construction of
minarets.
Currently, the Alpine nation boasts
Europe’s only animal lawyer, An-
toine F. Goetschal, who represents
150-200 creatures a year as an em-
ployee of the prosecutor’s office in
Zurich (for the privilege, he is paid
200 Swiss francs, or $185, an hour).
He told the AP that the new measure
would represent the next logical step
in the evolution of Switzerland’s an-
Google, cont’d from pg. 1
Professor William Rubenstein ’86,
who specializes in class actions. Os-
born and Rubenstein discussed the
idea of a lawsuit, the Harvard Crim-
son later reported, and Rubenstein
eventually contacted attorney Gary
E. Mason.
On Thursday, ABC News re-
ported that Hibnick was bringing a
class action lawsuit against the in-
ternet giant, alleging breaches of
several federal laws, including the
Federal Electronic Communications
Privacy Act, the Federal Computer
Fraud and Abuse Act, and the Fed-
eral Stored Communications Act, as
well as California common and
statutory law. The complaint was
filed by California and Washington,
DC law firms in California's San
imal rights law, which recently pro-
hibited keeping pigs in a single cage
– what the lawyer calls “solitary
confinement” – and which will pre-
vent Swiss horse owners from tying
up their animals in stalls by 2013.
Goetschal was famously involved in
a recent case in which authorities ac-
cused a fisherman of torturing a pike
because he struggled for ten minutes
to haul it out of the water (he con-
cedes it is not the best example of
such prosecutions, and does not plan
an appeal the loss).
Potentially affected portions of
Swiss society appear divided over
the proposed law. The Swiss Farm-
ing Association opposes it; the pres-
ident of a dog breeding association
seemed supportive. One thing is cer-
tain: no matter the outcome, the se-
riousness with which Switzerland is
treating the referendum means that
Sunstein, who was confirmed as
head of OIRA, will have the last
laugh on this issue.
Jose federal court, and notes that the
implementation of Buzz potentially
affected the over 30 million users
with Google accounts.
One of her attorneys, Gary E.
Mason, told ABC News that the
goal of the suit was "a commitment
from Google that they're not going
to do this again the next time they
launch a product." He said that
Google's most recent changes to the
program, meant to address privacy
concerns by ending its "auto-fol-
low" feature, still leave the program
as a whole opt-out.
News of the lawsuit comes two
days after the Electronic Privacy In-
formation Center filed a complaint
about Google Buzz with the Federal
Trade Commission.
BY MATTHEW W. HUTCHINS
As the twenty-first century waxes into
its second decade, clouds are gathering
over the American Republic. A faltering
economy, stymied foreign policy, and ris-
ing specter of corporate domination of life
at home and authoritarian domination of
nations abroad has put the public in a state
of dissatisfied disillusionment. We need
leaders to step forward with a straightfor-
ward elaboration of the principles that
unite our interests across party lines, but
the collected inertia of the two-party oli-
garchy and the sensationalistic media
manages again and again to steamroll
over the voice of the individual in favor
of the talking head, the rehearsed and
scripted speech, and the ten second sound-
bite.
The Greatest Generation has been put to
bed, and the Baby Boomer experiment
has once again overdosed on its own he-
donistic excesses. Now we tread in a des-
olate chasm while the next generation
prepares to stand up and have its voice
rise above the noise of the aging dema-
gogues that have populated the media
landscape during the Clinton-Bush era.
But are we entering an even darker
chapter in America's degeneration into
demagoguery? Glenn Beck's recent ap-
pearance at CPAC offers surprising evi-
dence of the fervor excited by base
appeals to the anger and resentment of the
crowd. More disturbing yet is the shift
from a Republican ideology of veiled elit-
ism toward overt anti-socialist fascism.
Beck has begun an escalating revisionist
campaign against the core of progres-
sivism and all of its historical proponents,
including Roscoe Pound and the Legal
Realists. In his mind and rhetoric, the
gilded age of the 1920's provides a model
for America's True Destiny, and rather
than 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 Beck
himself is a significant figure, but because
the public is playing directly into the
hands of this charismatic fool and turning
against every concept that this institution
has spent over a century developing and
deploying into the legal culture of the na-
tion. And while we sit comfortably in the
halls of Langdell pondering with glee the
control of the White House by Barack
Obama ’91 and Cass Sunstein ’78, the
policies so virulently condemned when
practiced 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 within
which the course of the nation can be jus-
tified according to a set of consistent
guide posts. That is not to say that we
need to search through history like Beck
to invent a lost gospel that will guide us
into the future. Rather, we must look at
the new circumstances of technology, eco-
nomic reality, international relations, civil
rights, human rights, and environmental
concerns and assemble a vision of our fu-
ture that is more than a grab bag of buzz
words to be exploited in talking points.
And to do this we must step out of our
overly intellectualized artificial domain
and down into the hedge rows of the pub-
lic discussion of government and the law.
Our nation needs genuine leaders who
can navigate the uncharted highway of
our future and lead us toward solutions
that are based on logical argumentation,
common sense, and the spirit of partici-
patory democracy that has sustained our
Republic during its darkest nights. We are
the ones to take up this responsibility. It
is our time to take up the torch and charge
forward.
February 25, 2010
WILL WORK FOR $160,000 & BENEFITS
On Being a 3L with No Offer
“The greatest thing in this world is not so much where
we are, but in which direction we are moving.”
- Oliver Wendell Holmes, Jr.
“Gah! I’m choking on my own rage here!” - Moe Szyslak
BY ANONYMOUS, JOBLESS 3L
I used to tell people that if they were ever
lacking in self-confidence, they should apply
for a tenure-track position in a philosophy de-
partment somewhere. In return, you get what
amounts to a mail-away self-esteem kit: a let-
ter praising your accomplishments, expressing
astonishment at your charm and sophistication,
and assuring you that you will be a great suc-
cess wherever you ulti-
mately gain employment. “Are we to put on a
brave face and tell the
It’s extraordinarily fulfill-
ing to hear your praises
world that our goal all
sung by people of such
power and influence, in
particular if you have no in- along was to achieve
enlightenment and
terest in taking a crucial
step towards adulthood.
live on an ashram?”
Only, again, you know –
they don’t want to actually
hire you. It isn’t an experi-
ence I expected to repeat when I enrolled at
Harvard Law School.
It’s been a little over five months since I
found out I did not get an offer. In those five
months, certain topics have been rehearsed with
wearying regularity. Greater world, on behalf
of the Harvard 3L’s with no offers, let me tell
you the things we know:
1. It’s not our fault. The economy changed
unexpectedly, and things are tough all
over.
2. In fact, as Harvard graduates, we have
more opportunities. Most people encoun-
tering employment challenges in this econ-
omy are in worse positions than we are.
3. The loss of Biglaw opportunities means
we may find something else from which
we derive immense satisfaction, and which
we may never have otherwise pursued.
4. People with offers but no start dates are
in a poor position as well. Even those with
deferrals of specified duration face the
possibility of an unexpected deferral ex-
tension, or even an outright retraction of
their offer. In fact, with things as bad as
they are, there’s really no guarantee that
even those who manage to start work
won’t find themselves laid off somewhat
soon. Biglaw right now simply doesn’t
offer 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-awareness
and immerse oneself in self-pity. We remain
conscious of the privileges we enjoy and the op-
portunities that exist for us even in our darkest
moments. That isn’t to say we who were no-
offered have no room at all for despair. But it
feels impolite. Those of us who had been hop-
ing to become Biglaw associates have been
dealt a real financial blow. Must we admit what
we were told to leave out of admissions essays
and job interviews -- that we did come to law
school with the hope of making money? Must
some of us admit that we hoped to make quite
indecorous and undignified amounts of it? Or
Harvard Law Record
are we to put on a brave face and tell the world
that 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 deprive
ourselves of sleep and commit ourselves to
learning the Hand formula and the rule against
perpetuities?
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 partner
ambitions. Whatever the
reasons we may have had
for spending the summer of
2009 as a summer associ-
ate, the summer ended by
confronting us with our
deepest fear. Like many
people praised for intelli-
gence, talent, and disci-
pline, Harvard Law
Students are prone to the
paranoia that we will one day be exposed as the
frauds we suspect ourselves to be. Then-Dean
Kagan alluded to these fears when we began
our time at Harvard. Addressing the Class of
2010, she told us that our anxieties were ill-
founded, and that we had all long since estab-
lished ourselves as deserving of our reputations
and the opportunities they made possible. So
we 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 our
work ethic, and said, “We don’t want you.” We
came from Harvard, and they were nonetheless
unimpressed. 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 Crimson
H? We know the market has shrunk, we know
the client base has retreated, we know that
everyone is suffering, but we also know some-
thing else: not every Harvard 3L got no-of-
fered. We did. We didn’t measure up. Maybe
the hiring process was arbitrary. Maybe we re-
ally had almost no control over some crucial
factor. But most of us got here because we’ve
been 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 an
opportunity for us to find strength we didn’t
know we had. I’ve met us. And we are, to be
frank, pretty amazing. But the dream of Biglaw
is hard to let go. And after all, there isn’t nec-
essarily any shame in wanting to make money.
Some of the wealthiest Americans have been its
greatest philanthropists. Bill Gates has retired
from Microsoft and dedicated a large portion of
his financial empire to addressing global warm-
ing and poverty. And Tony Stark created his
Iron Man suit to fight the spread of technolog-
ical weaponry the sales of which, well, financed
the creation of his Iron Man suit. Fine, that one
isn’t very persuasive. Still, I don’t think we
should be judged for wanting to be Biglaw as-
sociates with the money and power that would
eventually have brought. Maybe we just
wanted to be Iron Man. Think about it.
Page 3
WLA, cont’d from pg. 1
opportunity to lead, but to remember that with limited time in each
day it is important to sequence and prioritize one's efforts. Spitzer
warned 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 the
process.”
In her keynote address, Illinois Attorney General Lisa Madigan
said that her career had drawn inspiration from her time as a
teacher in South Africa during apartheid and from her early con-
tact with Senator Paul Simon, who taught her that, “You not only
have the ability to change the world, but you have the obligation
to try.” As Attorney General, Madigan has sought to curb domes-
tic violence, ensure public safety from criminals and dangerous
products, put pressure on predatory lenders, and has successfully
argued before the Supreme Court. She characterized the wide
range of her duties as akin to being “managing partner of the state's
largest public interest law firm.”
Madigan's success as Attorney 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 head
prosecutors and an open feminist. But in addition to being a legal
and political hot shot, Madigan has set an example by having two
children 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 broader
perspective on life. “You shift from thinking about everything in
terms of me, and it becomes in terms of them, the kids and the
next generation.” She said she has also discovered that the double-
standard of greater social pressure on women to concentrate on
parenting is alive and well in the twenty-first century. “Men never
get the question of how you are going to raise your children and
have your office.” Madigan admitted that because of her husband's
flexible schedule as a cartoonist she has been lucky to be able to
rely on him for help while busy or traveling out of state, but she
said 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's
efforts to protect women from violence, and she spoke about the
progress being made with respect to stalking laws, orders for pro-
tection, and the analysis of rape kit evidence. Prior to her entering
office, stalking laws in Illinois required that the victim be directly
threatened by the stalker before law enforcement could intervene,
but this was a high bar that Madigan saw as insufficient protection
in light of the approximately 76% of female victims who are
stalked prior to being murdered. Madigan initiated a dialogue
aimed at examining the definition of stalking, with the result that
the new Illinois law allows the threat posed by the stalker to be
seen 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 were
not being served. “If we have laws on the books that are supposed
to protect women, that are supposed to protect survivors, but they
aren't enforced, then they are useless.” When she investigated the
reasons for this high rate, she found that ironically many of the
men subject to the protective orders were already in the custody of
state or local law enforcement. New procedures for service upon
entry to or exit from state prison lowered non-served rates to 14%.
Madigan also said that there had been significant progress on
expediting the analysis of evidence gathered from rape victims in
the so called “rape kit” after being the victim of a crime. When
human rights activists revealed that there were over 4,000 untested
kits, she began investigating the means of cutting down the back-
log. “Not only is it another trauma for the victim [for there to be
no 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 the
internet, Madigan sees this as an emerging area of concern which
demonstrates the hazards of increasing use of the internet by chil-
dren. She also expressed serious concern over “sexting” and child
pornography, especially given the naïve attitudes of many children
to 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 that
facilitate communication between children and responsible adults
who can help them deal with bullies and predators.
Madigan encouraged the conference attendees to look beyond
the career track that they believe they are expected to follow and
seek out a course that will be personally fulfilling. “Take the time
to figure out what it is you were meant to do, and go and do it. I
promise you that you will have a satisfying life, and I can only
hope that part of what you find satisfying is helping other people.”
 Harvard
Page 4 Harvard Law Record February 25, 2010

INTERNATIONAL SPIRIT, NATIONAL PRIDE

Law
Record
EStabLiShEd MCMXLVi

Matthew W. Hutchins
Editors-in-Chief

Chris Szabla

News: Rebecca Agule

Staff Editors

Opinion: Jessica Corsi

Sports: Mark Samburg

Anonymous 3L
Contributors

Mohammed S . Helal
Matthias C. Kettemann
Amreeta Mathai
Ryan Mitchell
Eleanor Simon

record@law.harvard.edu
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sion from Harvard University.

Persian Problem: Nuance Needed With Iran

BY MOHAMED S. HELAL
Most people focus on Iran’s alleged ambition to join
the exclusive club of nuclear weapons nations as a
grave security threat. Whether or not Iran actually as-
pires to acquire nuclear capability is debatable, but
what is certain is that examining the nuclear program
in isolation of the po-
litical landscape
within Iran and the
broader strategic envi-
ronment in the Middle
East is a fatal mistake.
The problem with Iran
is more complex than a
clandestine nuclear pro-
gram or the enrichment
of uranium; the problem is
what Iran stands for and repre-
sents: a religious response to
the problem of governance in the
Middle East. This is a dangerous
answer, because a regime that legitimates
itself on the basis of religion will also pur-
port to be the custodian of truth. It is a system
that eliminates the marketplace of ideas and en-
croaches on what is supposed to be a deeply personal
and private relation between man (and woman) and his
God. In the Middle East, where religions were born and
continue to thrive, and where people are highly emo-
tional, such a model threatens to retard the region back
to the Dark Ages.
Worse still, as Iran feels increasingly threatened by
western, particularly American, pressure, it has sought
to gather regional cards that it could use in its political
poker game with the West. To put it another way, Iran
has planted detonation charges throughout the region
that it could use to ignite the Middle East if the need
arises. Thus, the ominous shadow of Iran’s political and
military claw Hezbollah constantly hangs over
Lebanon, threwatening to replicate the events that pro-
voked Israel’s disproportionate war on its small north-
ern neighbor in August 2006. Iran also periodically
threatens to annex Bahrain and already occupies three
U.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 United
States. Moreover, Iran funds and
arms the Houthi rebels in
Yemen, which are one of many
challenges that are portending
the division of the country
overlooking the southern en-
tryway to the Red Sea.
The question then is, what
can be done about this,
which is a question the
Obama administration is
probably considering
now. The first answer to
the 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 surgical
military strike will never eliminate Iran’s dispersed and
well-protected nuclear program. If anything, a military
operation 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
Iran, cont’d on pg. 7
February 25, 2010
Annual LL.M. Party Showcases Students’ Diverse Talents, Cultures
Harvard Law Record
BY MATTHIAS C. KETTEMANN
You could call it an incredibly
fascinating event representing the
richness of the LL.M. student
body, the diversity of the world’s
cultures and the broad variety of
cultural and gastronomic tradi-
tions. Or you could stick with the
assessment of Richard Staeuber,
LL.M. student from Switzerland:
“It was really terrific!” The Inter-
national Party which took place
on Saturday, February 13, in the
Ropes Gray Room lends itself to
both descriptions.
In what has been traditionally
one of the major annual social
events at HLS, this year’s LL.M.
class of 165 students from 62
countries, presented a highly ap-
pealing mix of cultural traditions
from all corners of the world. Stu-
dents of each country organized a
table at which they presented typ-
ical national dishes (with a heavy
leaning towards the sweet),
showed off their country’s cultural
and touristic highlights, and pro-
vided information for the avid
traveler.
“Walking around the room was
like going on a voyage around the
world”, Martina Gerszt-Wernli
from Switzerland said. At the Chi-
nese table you could take part in a
quiz and pinpoint famous sights
on a map. At the Swiss table you
could answer rather tricky ques-
tions and win a Swiss watch. The
Australian table tried to entice stu-
dents to try the famous vegemite,
a salty and malty spread with an
interesting aftertaste. Students
from Japan showed the basics of
calligraphy and drew names in
Japanese characters. At the Ger-
man table, you could try wurst
(though I missed the sauerkraut).
The African tables focused on the
rich cultural heritage of the conti-
nent.
The smells, sounds and sights
made Ropes Gray room, for one
evening, into what America as a
whole has always been said to be:
a melting pot of nations. It was
great to see many members of the
HLS community come in and visit
the LL.M. students they know
from classes, but about whose ori-
gins and traditions they might not
know so much. The impressive di-
versity served as a reminder of
how fascinating the world is – and
made students change their travel
plans again and again as they pro-
gressed from table to table. In-
deed, the students’ recounts of
how fascinating their home coun-
tries are rivaled any description in
Lonely Planet.
If the wonderful smells emanat-
ing from the pots and dishes on
the country tables were not
enough to bewitch the visitors,
they could raise their head and
enjoy the photos and videos that
LL.M. student Sajjad Nematollahi
from Iran had turned into an im-
pressive presentation. From Aus-
trian cows peacefully chewing on
grass in Alpine pastures to the oth-
erworldly beauty of Thai beaches,
Page 5
it was easy to be swept off your
feet (also because somebody
might bump into you in the
packed Ropes Gray room).
While the food at some places
was slowly running out (Matt
Hutchins, Co-Editor-in-Chief of
the Harvard Law Record, had told
contributors earlier that “everyone
should go and at least sample all
the delicious food” and they had
obviously taken him up on this –
and brought their friends), the at-
tention of the more than a thou-
sand visitors from the Harvard
Law School community turned to
the evening’s highlights: the per-
formances.
Students impressed the audi-
ence with Greek and Chinese
dances, a Karate show, beautiful
songs from members of the Aus-
tralian and UK delegations and
enriching shows, including from
Southeastern Europe and South-
East Asia. Jeanne Tai, Assistant
Dean for the Graduate Program
and International Legal Studies,
echoed the spirit of the cheering
audience when she declared the
performances to have been “to-
tally awesome”.
As the day of the International
Party was also the first day of the
Brazilian carnival, the Brazilian
students (in bright yellow soccer
T-shirts reminiscent of Ronaldo)
finished the International Party off
with a huge general carnival and
long congas. While not all dancers
were as much in sync with the
rhythms as the students with ex-
perience of rocking the Copaca-
bana, the energy and happiness
was palpable. Good thing the Aus-
trian table provided some “Red
Bull” (yes, folks, it is as Austrian
as Arnold Schwarzeneegger).
Since Valentine’s Day came the
day after the International Party,
you could see pairs holding hands
as the party wound down at mid-
night: a great way to start a day
dedicated to love with a party that
showed the unity of human spirit
underlying the diversity of its ex-
pression. Because in the end, this
was what all students could see
and feel in the displays of art and
culture, cuisine and traditions of
the different countries: the love of
life, the power of hope and the
pride in the history and unique-
ness of cultural and culinary ex-
pression.
In her address in September
2009, Dean Martha Minow told
international students: “We
searched the world for you!” At
the International Party, the LL.M.
Class of 2010 found hundreds of
different ways to say thank you
and allowed the HLS community
a glimpse of the diversity of the
world beyond the Charles. And
best of all, for the rest of term, the
LL.M. students are still here. Just
go talk to them. Most don’t bite.
Just don’t ask the Australians to
make you a vegemite sandwich.
Matthias C. Kettemann is an
LL.M. student from Austria.
Page 6
Howard Zinn’s People Speak...Through Celebrities
Historian’s Last Documentary Cements His Reputation – but Raises Provocative New Questions
BY CHRIS SZABLA
The unfortunate passing of Howard
Zinn earlier this year was accompanied
by a greater number of panegyrics
about his work than probing explo-
rations of its legacy. Zinn’s most fa-
mous book, “A People’s History of the
United States,” is an exposition of
American history’s marginalized narra-
tives: poorly-treated low-rank soldiers
of the Revolutionary War, indebted
farmers, slaves, freedom fighters for
civil rights, labor activists and organiz-
ers, even Socialists – a list that gives
one a sense of the political direction in
which the book is often taken to lean.
Zinn worked on “A People’s History”
over the 1970s, when it would have
been the perfect expression of the Zeit-
geist, in which radical critiques of pre-
vailing orthodoxies reigned. But by the
time it appeared, in 1980, conservatism
was staging a comeback, and Ronald
Reagan’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 the
culture wars.
That made the reaction to “The Peo-
ple Speak,” a documentary based on
Zinn’s work that aired on the History
Channel late last year, just before his
passing, fairly predictable. The History
Channel tends to play it safe ideologi-
cally. When it actually runs historical
programming (much of its content is
now reality TV), it prefers to stick to
straightforward accounts of military
strategy, leaving politics out of sight
and mind. Its moniker, “the Hitler
Channel,” is hardly undeserved.
But even the battlefield isn’t com-
pletely apolitical: it turns out that many
fans of military history either prefer
their 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 the
channel’s decision to postpone its reg-
ularly scheduled D-Day docudramas
for a film based on a controversially re-
visionist work of American history
caused a bit of an uproar. Devoted
viewers declared they would abandon
a channel they’d watched religiously
for years. In the context of a growing
chorus in American political discourse
that labels any tendency it doesn’t ap-
prove of with the conversation-stop-
ping pejorative “socialist”, Zinn’s
documentary went so far as to celebrate
individuals who wholeheartedly em-
braced that label.
Indeed, much of Zinn’s work – re-
flected in “The People Speak” – still
seems fresh. Labor history may con-
tinue to thrive in the trenches of acade-
mia, but it’s hardly scratched the
surface of the public discourse, even at
a time when it might seem more rele-
vant than ever. Nor does one hear much
today about the class resentment that
Zinn shows was surprisingly prevalent
against the ceaselessly venerated
Founding Fathers. And in the face of
the Obama administration’s plodding
and hesitant response to the ongoing re-
cession, Zinn’s claim that Franklin D.
Roosevelt was cajoled into implement-
Harvard Law Record
ing many New Deal reforms by popular
protest and labor action is a frightening
reminder 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 Zinn
piled into the original book, linking the
ongoing wars in Iraq and Afghanistan
to previous episodes of American ex-
pansionism. Especially necessary,
given the rest of the History Channel’s
programming, is Zinn’s reminder that
the Second World War – which, like
other wars in American history, height-
ened instances of segregation and class
conflict, and which inflicted needless
deaths on civilians – has been histori-
cally sugarcoated, its memory ex-
ploited to justify a seemingly ceaseless
stream of further conflict.
“Plenty of ‘people’s movements’
never made it into Zinn’s history.
Radical libertarians and religious
fundamentalists have also had a sig-
nificant – if sometimes frighten-
ingly destabilizing – influence on
American history.”
But, thirty years after the publication
of “A People’s History” many of Zinn’s
stories have lost their radical edge – if
simply because they have been so suc-
cessfully incorporated into mainstream
thought. Few would dispute the histor-
ical relevance of Frederick Douglass or
Malcolm X. Anarchist Emma Goldman
and Socialist leader Eugene V. Debs are
staples of any decent U.S. history text-
book. The ideas that slavery was acqui-
esced to by its victims or that it could
be thought of as a familial relationship
(notions that still had currency in the
1950s) are ridiculed. Many of the faces
and voices Zinn first pointed to thirty
years ago are now firmly entrenched in
curricula – if still not universally ac-
claimed.
Where does that leave a contempo-
rary reworking like “The People
Speak”? Beyond being a nice capstone
to Zinn’s career, and illuminating some
of his less popularized insights, the
documentary itself comes off as a bit
counterproductive. Beyond standard
historical stock footage and voiceovers
by Zinn, the star attractions are celebri-
ties who give theatrical readings of pri-
mary source documents, acting out the
roles of the marginalized voices in
Zinn’s narrative. Some of the perform-
ances are strong and arresting, but in
other cases, the stars’ wattage distracts
from the historical message.
Some of the choices are particularly
cringe-worthy. Zinn cites “Dear Mr.
President,” an anti-Bush ballad by
singer-songwriter Pink, as a contempo-
rary example of activists who decry the
ironies arising from a system of ideals
compromised by a stark reality – and
Pink appears in the film to perform the
entire piece. Pink’s message is legiti-
mate, but her presence – and celebrity –
diminishes the focus on the suppressed
and subaltern. The same is true for
many of the other stars’ involvement.
It’s a little strange that the producers
felt that the travails of the underclass
were best expressed by the wealthy, su-
February 25, 2010
perficially-admired people to whom
Americans already wantonly turn over
so much of their money and time. If
they were meant to grab viewers’ at-
tention, they probably did not wind up
doing so for the words they were se-
lected to speak.
That does not necessarily impugn the
celebrities’ own motives for appearing
in the film; some of them are informed
fans of Zinn’s work – particularly Matt
Damon, who was inspired by Zinn
while growing up near him in Cam-
bridge (he famously championed “A
People’s History” in Good Will Hunt-
ing, the breakout film he wrote and
starred in with Ben Affleck). Damon
only plays a bit part on screen in “The
People Speak,” but was a major force
behind the scenes: He spent nearly a
decade trying to bring it to television.
Doubtless part of the opposition to
the film – and part of the fury that has
frequently been leveled at Zinn – is that
his work appears to emphasize only the
negatives in American history. A narra-
tive that dwells on events like the
debtors’ rebellions of 1786, which mo-
tivated the Constitution’s instantiation
of a strong central government; the
New York Draft Riots, exposing the
class conflict simmering beneath the
surface of the Civil War; or the oppres-
sion continuously endured by Native
Americans does not seem to leave
many positive examples. But Zinn
counters 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 of
American democracy that deeply em-
phasizes extraparliamentary and extra-
constitutional movement as the engine
of meaningful change. His stance raises
questions about the extent to which he
would continue to embrace these ideas
today. The increasing noise made by
the Tea Party movement is a reminder
that plenty of “people’s movements”
never made it into Zinn’s history –
those that didn’t fit his ideological va-
lence. Radical libertarians and religious
fundamentalists have also had a signif-
icant – if sometimes frighteningly
destabilizing – influence on American
history. As much justice resulted from
the courageous acts of many individu-
als Zinn celebrates, the rule of law can
be bent both ways.
Dissenting
Opinion?
EMAIL
RECORD@LAW
www.hlrecord.org
February 25, 2010 Harvard Law Record Page 7

SEEKING CORPORATE ACCOUNTABILITY

Iran, cont’d from pg. 4
is the Middle East.
What we need is a more sophisti-
HRJ Symposium Examines Checks on Multinationals’ Abuses cated strategy of talking softly and
carrying a big stick. For Iran the big
BY AMREETA MATHAI AND RYAN MITCHELL initial skepticism that a systematic approach from the cor- stick should be the threat and grad-
porate side would bear any fruit. But in the end, he said, he’s ual application of tighter multilat-
As globalization has transformed the way (and where, and witnessed a partial transformation in the way that corporate eral, U.S. and European economic
with whom) we do business, major steps have been taken to investments in developing nations are discussed. This is in and military sanctions that generate
ensure that corporations find it more difficult to exploit in- part because his framework offers a lexicon for activist share- enough local pressure for the regime
ternational tax loopholes. But loopholes that allow corporate holders, PR departments, and other human rights-conscious to mend its ways. Tehran must place
activities to benefit from and perhaps contribute to serious elements of corporate decision making to frame their con- all nuclear facilities under full IAEA
instances of widespread human suffering are comparatively cerns in the universal dialect of commercial self-interest. inspection, withdraw its support of
plentiful. Following Professor Ruggie’s keynote presentation of the subversive elements in the region
From IBM’s alleged sale of computers used to implement framework, two panels addressed practical aspects of imple- and to refrain from intervening in the
apartheid policies in South Africa, to Western technology menting the ideas and encouraging their adoption by corpo- affairs of its Arab neighbors. In re-
firms’ alleged active role in tracking Chinese political and rations as a framework for country investment analyses. The turn, Iran should be promised the
religious dissidents, the field remains one that many see as first, on corporate accountability litigation, drew connections rightful place of the glorious Persian
crying out for both litigation and policymaking. In an attempt between the state and corporate duties to protect and respect civilization at the table of nations,
to tackle the legal, political, and human rights and some of the and it must receive assurances of
ethical parameters of this evolv- notable failings of corporations non-belligerency from western pow-
ing issue, the Harvard Human to do so. The panel of human ers and from Israel. This strategy
Rights Journal hosted a sympo- rights lawyers summarized the must also be coupled with a sincere
sium on Thursday, February various forms of on-going liti- effort to free the Middle East of all
18th, on the subject of corporate gation around the issue in weapons of mass destruction. His-
accountability for human rights which they were involved. tory has also taught us that all of the
abuses in developing nations. These ranged from claims Middle East dilemmas will be ame-
The keynote speaker for the against Western firms that had liorated by peacefully settling the
five hour event was Professor assisted South Africa’s Arab-Israeli question and by the es-
John Ruggie, Berthold Beitz Pro- apartheid regime (as in the tablishment of an independent and
fessor of International Affairs at case of IBM, mentioned viable Palestinian state in the West
the Kennedy School of Govern- above), to those against inter- Bank and Gaza.
ment and an Affiliated Professor national lenders to and finan- This requires both a dialogue with
in International Legal Studies at cial supporters of Argentina’s and pressure on Iran, and continuous
Harvard Law School. Since former military junta of the consultations with regional players
2005, Professor Ruggie has been “Dirty War” years. Each of the to reach understandings that avoid
serving as the UN Secretary- lawyers expressed frustration past mistakes. For too long the secu-
General’s Special Representative at the difficulties in tying state rity of the Middle East and Persian
for Business and Human Rights, abuses by collapsed regimes to Gulf has been dictated by cursory
and it’s in this position that he the actions of corporations and shortsighted policies that have
developed his “Three Pillar” often operating behind a dual not fully comprehended the com-
framework outlining responsible veil of governmental and cor- plexities and subtleties of the region.
corporate involvement in nations porate secrecy. The role of the We must move beyond strategies
with compromised human rights mens rea standard for corpo- like Reagan’s “Gulf containment”
Prof. John Ruggie - photo: CBSR Vancouver and Clinton’s “dual containment”
records. rate involvement in human
Professor Ruggie’s 2009 Report to the UN laid out the rights abuses was a particular point of focus – for U.S.-based that have perpetuated instability and
principles as follows: “The framework rests on three pillars: Alien Torts Statute claims in the 2nd Circuit, the standard insecurity. Instead, we must initiate a
the State duty to protect against human rights abuses by third appears to be purpose at the moment; but in the 9th Circuit, serious dialogue with all the relevant
parties, including business, through appropriate policies, reg- it’s still an easier-to-satisfy “knowing” standard. and influential parties, including
ulation, and adjudication; the corporate responsibility to re- There was even some speculation that upcoming decisions Russia and China, to devise a sus-
spect human rights, which in essence means to act with due may exempt corporations from being susceptible to ATS tainable policy that promises the
diligence to avoid infringing on the rights of others; and claims at all – not a thought that sits well with practitioners weary people the Middle East peace
greater access by victims to effective remedy, judicial and seeking to translate corporate accountability principles into and prosperity.
non-judicial.” actual legal liability for injuries aided by corporate invest-
An audience of about a hundred listened as Ruggie out- ment overseas. Panel moderator Terri Marsh, senior litiga- Mohamed S. Helal studies at Har-
lined his framework, and explained the often fraught process tion partner with the NGO Human Rights Law Foundation in vard Law School as a Fulbright
of bringing human rights NGOs around to the point of view Washington DC, expressed her hope that the ATS litigation Scholar. He is an Egyptian diplo-
that this sort of “loose standard” based on general principles would at least be able to continue, emphasizing the multiple matic officer, and served in the Cab-
of corporate involvement was preferable to the more specif- purposes of such lawyering; “Even in cases we lose, there’s inet of the Minister of Foreign
ically outlined UN standard that it had replaced. That system a huge effect. I’ve had people in prison in China tell me that Affairs of Egypt from 2005 to 2009.
could be summarized as “if X is occurring, corporations their treatment changed for the better when we were litigat- The opinions expressed in this piece
should keep as far away as possible.” He also shared his own ing issues around the abuses that they’d suffered.” are exclusively those of the author.

District 9, cont’d from pg. 8
to the voters. He wants to distinguish himself by being
accessible to voters and by nationalizing the issues to
make the District Nine election a referendum on the
incumbent. “The contrast you have to draw between
yourself and the incumbent is, 'I'm nice, I'm here, I'll
work for you, and she doesn't.'”
He sees Schakowsky as vulnerable because of her
open defense of President Obama's policy agenda and
the lingering questions raised by her husband's con-
viction for federal fraud charges. And apparently his
ground-up campaign is stirring up attention. Not only
has he received the endorsement of the local Tea Party
organization, he also has heard rumors that
Schakowsky 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 off
more moderate voters who would otherwise be inter-
ested. Pollak noted that he had heard some people
wonder, “How can a nice Jewish boy be endorsed by
the Tea Party?” Pollak maintains guarded respect for
the grassroots activism of the Tea Party organizers,
and he sees an alliance with them as important given
the fractured nature of the Republican party, which he
analogized a scene from Monty Python's “Life of
Brian”. He believes there is a troubling lack of lead-
ership in the GOP that is impeding the unification of
its various constituencies behind a platform. “It's not
so much a question of what do we stand for, the ques-
tion is where are the leaders who are going to drive
that.”
Pollak has cultivated his relationship with the Tea
Party groups in part by flexing his legal education.
When the Obama administration announced a plan to
move Guantanamo Bay detainees to Thomson Prison
in Illinois, Pollak helped draft a legal attack on the
plan founded on the international law. “I helped them
make a case in international human rights law why it
was bad to move these guys here.” And though the
state commission voted 7-4 to approve the relocation
plan, his efforts were much appreciated by concerned
local citizens. “What was comforting to them was
that 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 running
a campaign and connecting with the voters. “The most
amazing thing about the process is learning what peo-
ples' lives are like, learning how national issues affect
them and interacting with them when they ask you
what you are going to do for them.” Priority number
one for Pollak is helping the residents deal with the
dearth of jobs. But he also hears frequent complaints
about the Democratic health reform plans, and hopes
to see a viable alternative emerge. “Republicans have
yet 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 policy
interest would be the reform of the federal budgetary
process and the corruption tied to earmarks.
Joel Pollak is the author of The Kasrils Affair and
Don't Tell Me Words Don't Matter: How Rhetoric Won
the 2008 Presidential Election. He was a regular
writer for the Harvard Law Record during his time at
HLS.
Page 8 Harvard Law Record February 25, 2010

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

S. African Native Gives Voice to Dispossessed GOP Voters in Liberal Illinois District
By Matthew W. Hutchins an appearance at the
Kennedy School, and
Emboldened by the victory of Scott now he plans to parley
Brown, Republicans across the country this exposure into the
are preparing challenges against Dem- wider media attention he
ocratic incumbents in the 2010 midterm needs to gather cam-
elections. But before Ted Kennedy's paign funds. He re-
passing opened the field in Massachu- cently appeared on the
setts, recent HLS grad Joel Pollak '09 Fox Business program
had already thrown his hat in the ring “Happy Hour”, where he
in northern Illinois. Now that Pollak has deftly avoided being
won the Republican nomination in the characterized as a Tea
Ninth District, he will be taking on in- Party candidate. His ul-
cumbent Janice Schakowsky in the gen- timate aspiration: an
eral election this year, and he sees it as spot on Bill O'Reilly.
the first serious contest his home dis- The South African na-
trict has seen in a generation. tive Pollak aspires to
According to Pollak, the electoral de- represent Illinois district
mographics break down such that there nine because it is the
is approximately a three to one ratio of seat of his youth home
confirmed Democrats to Republicans, of Skokie, a predomi-
150,000 to 50,000. But the district also nantly Jewish town that
has a large independent middle of about fought a legal battle
150,000 voters. Pollak believes that in- against Neo-Nazi pro-
dependents will turn away from Presi- testers all the way to the
dent Obama and the Democrats by a Supreme Court. Pollak
ratio of close to two to one, and if that Joel Pollak ‘09 outlines his plan to make his home district red. His strategy will concentrate plans to court the voters
happens, the district will be very much on the suburban areas west of Evanston that have been neglected by the incumbent. of Skokie and cities far-
in play. Pollak's next step is to embark ther west to offset the
on a major fund-raising initiative to GOP's Young Guns program and qual- overtures toward journalists. He first liberal bastion of Evanston closer to the
amass a war chest of at least a quarter ify for additional funding. gained the spotlight on Sean Hannity's waterfront, and to do that on a shoe-
million dollars. If he can do this, he be- To drum up the enthusiasm of donors, show on Fox News by vocally chal- string he will be making a direct appeal
lieves he will catch the attention of the Pollak says he is making aggressive lenging Barney Frank (D-MA) during District 9, cont’d on pg. 7

HLS Parody 2010 Presents...

Top: Ethan Schiffres ‘10 and Elizabeth Steinfeld ‘11 in Sydney, Australia. Ethan

STILL JOB HUNTING? WHAT’S

worked on an urban revitalization project for the Arts Law Centre of Australia,
drafting legal information sheets and license agreements for artists. Elizabeth

YOUR NEXT STEP?

worked for the Commonwealth Director of Public Prosecutions, preparing for a
federal narcotics trial. Below: Sherry William ‘10, far right, worked at the Egypt-

POLL NOW AT HLRECORD.ORG

ian Ministry of Trade and Industry helping revise the national corporations code.
Sherry enjoyed working with top caliber, western educated colleagues, who helped
her get a taste of authentic Cairo cuisine! Mmmmmm.... Fiteer.