Harvard Law Record

The Independent Newspaper at Harvard Law School

March 11, 2010 www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 5

Archbishop Tutu
DRONE WARS Praises Harvard-
UNICEF Research
Cooperation
Experts Ponder Implications of Remote, Robotic Warfare New Book Probes Role of Children
Photo: U.S. Air Force Lt. Col. Leslie Pratt

BY MATTHEW W. HUTCHINS
They are watching you. Thou-
sands of feet above, circling end-
lessly with cameras that record
your every move. They are quiet,
they are deadly, and you cannot
stop them. They are Predators,
drones sent into areas where the
U.S. Army needs surveillance,
where the Air Force needs to exe-
cute precision strikes, and where
the CIA seeks to conduct covert
operations. The revolution in un-
manned aerial vehicle (UAV) tech-
nology that has swept the U.S.
military over the last decade has
generated massive amounts of re-
connaissance data and increased
the cost efficiency and safety of
precision aerial combat missions,
dramatically altering the psycho-
logical landscape of war.
“My entire career was removing
or displacing the cockpit pilot
from the battlefield,” said Lt. Gen.
Tad Oelstrom, speaking at the
symposium of the National Secu-
rity Journal and National Security
Law Association on March 5th.
From his time guiding the AGM-
12 Bullpup missile as an F-4 pilot
to the later introduction of the F-
15 Eagle, Oelstrom, who is the
head of the National Security Pro-
gram at Harvard's Kennedy
School, saw the engagement of pi-
lots with the enemy move progres-
sively farther from the location of
the target. The greatest challenge
created by recent change, says
Oelstrom, is that doctrine has not
kept apace with innovation. The in Post-Conflict Justice Processes
three elements of strategy, doc-
trine, and vision, he says, are each
essential to maintain a proper bal-
ance between robotics and the
other tools of modern warfare.
Gen. Oelstrom's greatest fear is
that we will fall down the slippery
slope of unpredictable implica-
tions of technology that we put
into action before it is fully under- BY CHRIS SZABLA
stood. “How is the U.S. looked
upon by the rest of the world in Speaking at the launch of a joint Harvard-UNICEF
terms of the way we go to war? publication on the role of children in international jus-
What would we look like as a na- tice, South Africa’s Archbishop Desmond Tutu con-
tion if we showed up and all our demned the world’s failure to care for children, but
robots got off the back of the C- offered praise for Harvard and UNICEF’s work,
17?” Oelstrom believes that as the which includes research the archbishop believes might
cost of warfare in lives and money improve the fate of children in post-conflict societies.
falls due to innovation, strategies “We have turned the world into a hostile place for
Drones, cont’d on pg. 3 UNICEF, cont’d on pg. 5

Sunstein: We Can Humanize, Probing the Mysteries of Faith

Democratize Regulation Mormon Elder Clarifies LDS Beliefs
BY STEPHANIE YOUNG BY MATTHEW W. HUTCHINS

Widespread public participation and ad- Mormons, often misunderstood by popular

ministrative cost-benefit analysis are not al- culture and viewed with some suspicion by
ways considered to be compatible concepts. many Americans, occupy a strange place in con-
But on March 1, when Cass Sunstein ’78 temporary America. In a culture that often side-
spoke on “Humanizing Cost-Benefit Analy- steps the important questions of faith and
sis” to a room packed with students, pro- spirituality, the followers of the Church of Jesus
fessors, and community members, he Christ of Latter Day Saints, or LDS, often stand
demonstrated a commitment to linking out because of the important ways their beliefs
these two ideas. Dean Martha Minow in- differ from the main stream of Christians and the
troduced Sunstein, HLS professor and Ad- zeal with which they proselytize. Because of the
ministrator of the Office of Information and questions lingering on the minds of many out-
Regulatory Affairs, as the head of “the sin- siders to the religion, the LDS student group at
gle most powerful office most people have HLS has for the last five years convened an an-

INSIDE
Sunstein, cont’d on pg. 5 Mormonism, cont’d on pg. 6

C HOMSKY: WAR M ENTALITY IS

R OOT OF M ORE C ONFLICT
The HL Record BY MATTHEW W. HUTCHINS

News Even the most radical

• Law Review’s New President
• Exploring Asian Identity
• Profs Come, Go From DC
Opinion
• Green Light for .xxx Domain?
• Genocide on Harvard’s Name?
conservative can agree with
Noam Chomsky on at least
one thing. “No one in their
right mind wants Iran to de-
velop nuclear weapons.”
But to Chomsky, nonprolif-
eration requires reciprocal
action, rather than interna-
Photo: J. Parks

• 9/11 Trial: Holder’s Last Stand tional condemnation.

• Support Immigration Courts Chomsky's reputation as a
prolific author of books on
subjects including linguistics, philos-
ophy, cognitive science, political sci-
ence, and media might lead one to
AUCTION - APRIL 8TH believe that his views stem from eso-
Photo: Haris Sair
teric theoretical arguments, but
Chomsky takes a pragmatic view of
international relations. His conclu-
sion is that Iran is developing nuclear
Chomsky, cont’d on pg. 5
A RIGHT BRAIN
STIMULUS PACKAGE
All logic games and no fun ones make for a
dull life. That’s why the Record sought out
three emerging alums in the world of arts and
letters: to show that, for the creative mind
there is light at the end of the law school tun-
nel. See pages 7-9.
Page 2 Harvard Law Record March 11, 2010

New Law Review President: No Threats, Only Opportunities Online

Following in the footsteps of President Barack
Obama ’91 and many before him, Zachary Schauf ’11
was elected President of the Harvard Law Review on
January 30. The Harvard Law Record made its way to
Gannett House to discuss all things law review, past
and future, with the new editor.
1) California, England, D.C., and now Cambridge.
What brought you to Harvard Law School?
I’ve been all over the place, it’s true. To make a long
story short, I decided to go to law school because I
wanted a career that would be both intellectually chal-
lenging and focused on solving concrete problems,
and the law seemed like the best fit. As for why HLS,
I came because I don’t think there’s a better place to
get a legal education. Although people debate the
merits of big schools and small schools, I love HLS’
size. The faculty has leading experts in just about
every field you can think of, and the students here
have done so many impressive things.
2) Rumor has it that you were voted your Section's
'Most Likely to be Law Review President.' That
Delphic pronouncement aside, what ultimately en-
couraged you to run for Review President?
First off, I should say that I was very surprised by that
humbling vote of confidence from Section 7, though
I was fairly sure that it would jinx me during the
write-on competition. In the end, I decided to run be-
cause I had such a fantastic experience during my first
semester on the Review. We have a very special com-
munity, and we have the chance work on the cutting
edge of legal scholarship. After getting to know the
organization, the choice to get more deeply involved
was an easy one.
3) What are your goals as Review President? /
What lessons did you learn from your predecessor,
Joanna Huey ’10?
We’re about to enter our 124th volume, and our
biggest goal is to uphold the Review’s commitment to
publishing high-quality, well-edited scholarship. Be-
yond that, we set our priorities democratically during
implement the goals we’ve identified as a class. This
year, one of our main goals is to continue to build our
online Forum.
Joanna has been a fantastic leader, and incredibly
helpful as I’ve been learning the ropes. Joanna —
along with the other members of the outgoing leader-
ship team, Colleen Roh ’10 and Chris Bates ’10 —
have made the Review a wonderfully welcoming and
inclusive community, and I hope that Luke McCloud
’11, Christina Hoffman ’11, and I can build on their
success.
4) What have you enjoyed most about your time
on the Review?
The Review is a close-knit and supportive group, and
it helped ease the transition from 1L year, when al-
most all your classes are with the same 80 people, to
2L year, when the school becomes a much bigger
place. I hadn’t anticipated what a fun place the Re-
view would be. Sure, we do our share of work, but we
also have monthly issue parties, heated Wii tourna-
ments, and lots of long conversations over bagels and
coffee — sometimes about the law, sometimes about
the latest episode of Mad Men.
5) In light of websites like SSRN, academic blogs
touting new and interesting research, and faculty
work-shopping trends, much has been said in re-
cent years about the continued relevance of law re-
views. What, if anything, can the Review do to stay
relevant in the legal community?
I’m confident that the Review will remain an impor-
tant institution in the legal community for a long time.
We sort through thousands of submissions each year
to pick 15 or so of the strongest articles, and our track
record shows that many of these articles will end up
changing the way people think about the law. We also
put enormous energy and care into our editing
process; I think that our authors would agree that this
process makes already strong articles even stronger.
And our generalist focus can promote conversations
among different specialties that might not happen oth-
erwise. In light of these roles, I think the Review and
the trends you mention are complementary rather than
technology create new challenges and new opportu-
nities. That’s one reason that our online Forum will
be a focus over the coming year.
6) What does the Forum entail? Are digital jour-
nals, like the new Harvard National Security Jour-
nal, the future?
The Forum is principally a way to continue the con-
versations that begin in the printed journal. We don’t
envision it as standing alone. Its focus is on short
commentaries that build on the articles we publish in
the printed journal, and our hope is to solicit several
responses to one article in each issue, and for the re-
sponses to come out as close as possible to the article.
Because we see the Forum as tightly connected to our
regular articles, our commitment to the printed jour-
nal remains as strong as ever. Our Forum Chair, An-
drew Moshirnia ’10, is working hard to bring these
ideas to fruition.
Of course, we’re excited about the growth of stu-
dent-edited journals, like the Harvard National Secu-
rity Journal, and it’s great that the digital format
lowers the startup costs. They enrich legal scholar-
ship, and they’re great for the HLS community. I think
there’s plenty of room for both models to thrive.
7) Last year Joanna noted that the best part of the
Review, resume aside, was the Community. What
else appeals to you about the organization?
The work we get to do here is really fantastic. On our
articles, we get to work with authors who are at the
top of their fields. And on our student writing, we’ve
got a fantastic group of talented editors with interests
that span a huge range of topics. It’s a lot of fun to
work with each other to help make our writing better.
8) What should interested 1Ls do to find out more
about the Review?
We’ve held a few info sessions so far, and after Spring
Break we’ll be holding tip sessions for our write-on
competition, which takes place the week after spring
exams. If anyone has questions in the meantime, I
hope they’ll email me or our Outreach Editor, Beth

Dinner for
our transition process, and my role is principally to conflicting. Of course, we recognize that changes in Newton ’11.

For Profs, Revolving Door Between

HLS and DC

Darfur Jody Freeman Returns as Larry Tribe Heads to Capital

and Haiti
Nearly a year and a half since Barack
Obama ’91’s election as President of the
United States, at least one Harvard Law
School faculty member he recruited to
serve on his administration is returning
to Cambridge, while another is departing
to serve in Washington.
Wed., April 21, 2010 Jody Freeman LL.M. ’91 S.J.D. ’95
Two Seatings worked in the White House as Counselor
for Energy and Climate Change, but will
5:30 - 7:30 now take up a formal appointment to an
7:30 - 9:00 HLS chair named for former Solicitor
General and Watergate prosecutor
Archibald Cox ’37. She will also return
100% of Proceeds For: to her post as Director of the Environ-
American Refugee Committee, Darfur Project mental Law Program. She is scheduled
to begin teaching again in Fall 2010. At
Meds & Food for Kids, Haiti the same time, famed constitutional law
professor Laurence Tribe ’66 has joined
Tickets $15 in advance, $20 at the door a program that facilitates legal represen-
Enjoy an all-you-can-eat buffet featuring tation for the poor run out of the Depart-
ment of Justice.
food from local restaurants, plus beer! A considerable number of Harvard fac-
ulty members – many of whom were
More information: from HLS – left Cambridge in 2008 and
2009 to work for President Obama’s
ddixon@jd11.law.harvard.edu or transition team or administrative posi-
sdorenbosch@jd11.law.harvard.edu tions. At the time, this newspaper edito-
rialized the loss with headlines including
“HL Exodus” and “Obama’s gain is Har-
vard’s drain”.
The most notable departures were
those of Dean Elena Kagan ’86, who left
to become Solicitor General, and Cass
Sunstein ’78, who became head of the
Office of Information and Regulatory Af-
fairs (OIRA). Faculty members at HLS
may take up to two years’ leave before
facing a loss of tenure.
Freeman had always only planned to
serve in the White House for about a
year. She left an impressive record, hav-
ing led the push for greater motor vehicle
emissions standards. Georgetown Law
Prof. Richard Lazarus ’79 told the Har-
vard Crimson he thought it was likely
she would serve in a higher position –
perhaps as administrator of the EPA – if
Obama won a second term in office. As
an academic, he said, Freeman faced
fewer potential conflicts of interest than
a private sector recruit.
Tribe, who employed Obama as a re-
search assistant when the latter was at
HLS, and who called the President the
best student he’d ever had, is serving as
counselor to the access to justice initia-
tive while in Washington, a position he
took up on March 1.
March 11, 2010
What Does it Mean to be Asian?
Conference Explores Identity
BY TITUS LIN
What does it mean to be Asian Amer-
ican? Are racial and ethnic distinctions
to be endured or celebrated? What role
can identity politics play in responding
to such events as Texas Rep. Betty
Brown’s statement that Asian Ameri-
cans should adopt names “easier for
Americans to deal with?”
With those questions in mind, Har-
vard Law School’s Asian Pacific Amer-
ican Law Students Association
convened its annual conference on Sat-
urday, February 27th. The 16th Annual
National Asian Pacific American Con-
ference was titled “What Identity?
Whose Politics?” and brought together
hundreds of law students from across
the country to discuss the effectiveness
and legitimacy of identity politics as a
mechanism for positive social change
in the Asian American community. The
Conference was organized by Jenny
Lee ’11 and Helen Lu ’11, leading a
team of more than fifty volunteers.
"The Conference is not only a forum
for discussion of important issues fac-
ing Asian Americans today, but the
year-long process of putting it together
is also a key community builder for
Harvard APALSA," said Helen Lu.
In addition to keynote addresses de-
livered by James C. Ho, Solicitor Gen-
eral of Texas, and Yul Kwon, Deputy
Chief of the Consumer and Govern-
mental Affairs Bureau for the Federal
Communications Commission and win-
ner of Survivor: Cook Islands, the Con-
ference featured seven substantive
panels, a networking luncheon and ca-
reer fair, and an evening banquet at the
Harvard Faculty Club.
To start the day off, Phil Lee ’00 de-
livered a short presentation on the his-
tory of discrimination against Asian
Americans, guiding the audience
through key Supreme Court jurispru-
dence that affected the status of Asian
Americans. Solicitor General Ho, who
gave the morning keynote address, took
up the question of what it means to be
Asian American. He urged the atten-
dees to be aware of the real struggles
that Asian Americans face, but also to
be wary of self-pigeonholing and inad-
vertently reinforcing divisive labels.
The audience appreciated his speech for
being simultaneously uplifting and cau-
tionary—striking a balance between
celebrating how far the Asian American
community has come and how far it
must go toward achieving racial and
cultural equality.
The seven substantive panels covered
a broad swath of topics ranging from
the role of Asian Americans in acade-
mia to making partner at a large law
firm as an Asian American. On "Find-
ing Our Place in the Academy," Asian
American law professors from around
the nation talked about their personal
experiences and contributions and gave
attendees an inside look at what it takes
to land an academic job in today's
teaching market. At “Steering the Dis-
course on Asian American Issues: Blog-
ging and Social Change,” Phil Yu, the
creator of AngryAsianMan.com, spoke
about militating against stereotypes of
Asian Americans in media. “Thinking
Outside the Bamboo Box: Innovators in
Harvard Law Record Page 3
Drones, cont’d from pg. 1
like those employed by Gen. Stanley McChrystal in Afghanistan – reducing civil-
ian casualties, even at the cost of greater risk to one's own troops – will be an im-
portant part of maintaining the support of the local population in future military
Activism” featured a full panel of com- engagements.
munity activists and leaders in the pub- Speaking in a later panel, Afsheen John Radsan ’87, a professor at William
lic interest sector. "I really enjoyed Mitchell College of Law, questioned the legality of the Predator operations cur-
hearing about the panelists' experiences rently being conducted by the CIA. “If we are going to have a symbol of Obama’s
and personal inspiration for public in- war, it is the Predator. This is Obama's tool.” Prof. Radsan, who worked in the of-
terest work," said Katy Yang ’12. "And fice of the general counsel of the CIA from 2002 to 2004, pointed to the
while the panelists' diverse back- weaponization of the Predator drones as an example of the CIA's unique legal sta-
grounds and careers made it clear that tus having made it an attractive candidate for Bush-era programs of questionable
everyone has a different approach to so- legality. “Should the CIA be involved in the Predator program? Should the CIA
cial change, I thought it was particularly be running secret prisons? Should the CIA be involved in rendition?” The key, he
interesting to see common insights - noted, is that as a non-military agency, the CIA is accustomed to conducting covert
such as the importance of political en- operations and espionage activities outside the view of the public. Because of the
gagement - emerge across different sensitivity of national security issues, Prof. Radsan believes that Congress and the
issue areas." courts are less effective checks on legality than internal review boards and the in-
On "Toward an Asian American Ju- spector general, but the most effective check is the scrutiny of the public. “What
risprudence," Professors Neil Gotanda, is the CIA most worried about? It's not Congress, it's not the courts. It may be
John Park, and Rick Su ’04 explored the internal agencies, but mainly it is the media.”
the meaning of Asian American Ju- While legal norms and military doctrine evolve in response to new applications
risprudence, its motivation, history, and of technology, the success of UAV technology on the battlefield has only served
future. Professor Gotanda, one of the to further stimulate innovation. But according to Missy Cummings, Director of
foundational figures in critical race the- the Humans and Automation Lab at MIT, unmanned systems are less interesting
ory, delivered a short lecture on mean- as weapons systems than they are due to the novel challenges they create in the or-
ing and scope of the field. John S.W. ganization of the command structure and work load of flight missions. “There is
Park, professor of Asian American functionally no difference between firing a hellfire missile from a UAV and re-
Studies and Dean of the College of Let- programming a Tomahawk [cruise missile] mid-flight.” Under the traditional
ters and Science at UC Santa Barbara, model of Air Force combat missions, officers were in the cockpit to pull the trig-
and Rick Su of the University of Buf- ger for authorized weapons release. But with UAVs being increasingly controlled
falo spoke on the history of immigra- by automated systems and operated from the comfort of a command center, the de-
tion law and its implications on the cision to release weapons can be made by an entire team, usually including a
status of minority groups. lawyer. “The pilot is a mere voting member in the system that decides how to
The Conference also featured two control the vehicle.” While the Air Force has held to the old model and employed
practice-oriented panels. Asian Ameri- officers with two years of special training as unmanned mission pilots, the Army
can partners from Choate, Gibson has successfully run the same missions using enlisted personnel with ten weeks of
Dunn, Hogan & Hartson, Kirkland & training. Soon, she predicts that the increasing automation will make it possible
Ellis, Sullivan & Cromwell, and for each pilot to command multiple UAVs at a time. The result will be that the pi-
Wachtell shared their insights on what it lots of the future will be more like video game players than the Chuck Yeager
takes to make partner at a large law firm daredevils of the past.
today and offered students candid ad- Cummings also foresees UAVs having a dramatic impact on personal privacy,
vice for this always challenging path. since as they become easier to fly and cheaper to build they will be used more
And Asian American and Asian part- frequently for civilian and police purposes. Gen. Oelstrom also pointed out the se-
ners from Davis Polk, Jones Day, Mil- rious security implications UAVs will present once they are employed by terror-
bank, and Ropes & Gray spoke about ists as weapons. “You could imagine 30 simultaneous attacks occurring around
the globalization of the practice of law New York City with WMDs.” Regardless of these dangers, Oelstrom was bullish
and trends in international business. about innovation, expressing fear that the enemy is “one step behind us.” “We
Deputy Chief Kwon, who delivered need to press technology as hard as we can, as long as we have the framework
the evening keynote address at the Fac- around it that gives us the strategy, the doctrine, the vision that comes with it.”
ulty Club banquet, spoke about his ex-
periences in law, business, government,
and television. His speech mixed light-
hearted anecdotes with more serious in-
sights. He shared with the audience that
his decision to audition for Survivor
was motivated by a desire to shatter
racial stereotypes about Asian Ameri-
cans, since there were and still are very
few positive Asian American figures in
television or film. Jeremy Tran ’12 re-
flects, “Yul challenged me to really
think of how I want to create change for
our community. Law school easily
identifies the traditional means of social
change—community organizing, aca-
demia, or even diversity at firms—but I
never thought of entertainment, let
alone reality-television, as a means of
initiating change.”
“Deputy Chief Kwon’s keynote
speech was the most inspiring portion
of the conference for me," recalled
Robin Achen ’12. "It was clear he was
speaking candidly and from the heart as
he told stories about his life as an Asian
American that resonated throughout the
crowded banquet room. One of the
things that impressed me most was that
he seems to be a perfect example of ex-
actly what he was calling all of us to be-
-Asian Americans willing to work to
break the mold society imposes and
willing to support one another in the en-
deavor.”
Page 4 Harvard Law Record March 11, 2010

CAMBRIDGE, USA: STORMY WEATHERHEAD

Genocide in Gaza? Not in Harvard’s Name. The Weatherhead Center Needs to Stop Supporting Martin Kramer.
BY JESSICA CORSI within a specific ethnic, racial, or reli- trolling the populations of several Mus- opinion, denying the broader impact
gious group. The heart of what Kramer lim countries, more generally. The con- such opinions have. The influence of
Martin Kramer is using the mantle of said is excerpted below, and can be text in which Kramer's Gaza statements such statements is particularly en-
Harvard University to promote racism found on his personal website in both were made undermine the notion that hanced when made by someone with
and genocidal birth prevention policies, text and video format: his primary focus is the actions of the clout of the Harvard name behind
and Harvard’s Weatherhead Center for refugee agencies, as opposed to birth him and who has self-reported on the
Afghanistan and Yemen will al-
International Affairs is letting him get rates, period. Center’s website that his research inter-
most double their populations be-
away with it. The Weatherhead Center These statements are not where the ests are “U.S. policy options in the Mid-
tween now and 2030. What will 28
is also striking back at critics, aiming to problem ends; things got worse when, dle East.” Neither Kramer nor the
million more Afghans and 20 million
freeze them out by claiming that asking instead of condemning the content of Weatherhead Center “speak” or “think”
more Yemenis do? What about the
the Center to condemn Kramer’s state- this speech as racist, anti-Muslim, anti- into a vacuum. The dialogue in ques-
nearly 80 million more Pakistanis
ments flies in the face of academic de- child, and anti-refugee, the Weather- tion aims at deliberate outcomes.
who will be added by 2030? This ex-
bate and freedom of speech. head Center began to cloak it in the How are we to take seriously the idea
plosive growth will drive radical-
But the Center has forgotten some- legitimacy of academic dialogue. In that Kramer’s statements, combined
ization through another generation
thing crucial in taking this tack: sup- the Center’s February 23rd statement, with his affiliation with the Weather-
at least, and push it into Europe and
porting speech can never absolve which Kramer has made use of by pub- head Center and the Center’s support of
America through emigration.
Universities of the responsibility they lishing on his website, the Director and his freedom to make them, pose no
Second, there is
have for the repercus- Acting Directors of the Center claimed problem; are simply ideas; are only dis-
sions that flow from “Kramer called for popula-
hope. By 2030,
that “it would be inappropriate for the cussion and words; when the Center ex-
these societies
this support. Univer- tion control as a way to Weatherhead Center to pass judgment ists and Kramer works not only to
will have passed
sities don’t exist to ‘break’ the cycle of martyr- on the personal political views of any promote “controversy” and debate but
through the youth
promote any speech of its affiliates”—something that the to shape the actions of governments?
at all. Universities are dom and radicalism in sev-
bulge. Fertility is
Center surely does each time it consid- We are not that naïve, and the Weather-
special and powerful eral Islamic countries.”
already falling, in
ers whether to accept persons as affili- head Center should cease to offer such
some places
actors in the realm of ates—and sheltered Kramer’s a disingenuous excuse. The Center is
steeply. . . .
ideas and policies, and the Weatherhead statements in “fundamental academic hiding behind the position of freedom
Now eventually, this will happen
Center—self-described on its website freedom.” The Director and Acting Di- of speech, when it has created the Cen-
among the Palestinians too, but it
as “the largest international research rectors have erred greatly in issuing this ter’s dialogue not simply to generate
will happen faster if the West stops
center within Harvard University’s Fac- letter of support. We are all called upon more speech but in order to have a
providing pro-natal subsidies for
ulty of Arts and Sciences”—is uniquely to “pass judgment” on views that ex- larger influence on the world of foreign
Palestinians with refugee status.
influential and therefore uniquely liable press racism, and particularly views affairs. It must take responsibility for
Those subsidies are one reason why,
for the “debate” that it fosters and the that call for reducing the population of the ideas it helps generate and support.
in the ten years from 1997 to 2007,
scholars to whom it lends its name and any one group, and suggest specific It cannot lead and duck at the same
Gaza’s population grew by an as-
credibility. means of how to do so. And, crucially, time.
tonishing 40 percent. At that rate,
But we need to start with who Martin there is no such thing as “fundamental” Kramer’s statements and the Weath-
Gaza’s population will double by
Kramer is, what he said, and where and academic freedom—academic freedom erhead Center’s support of them raise
2030, to three million.
when he said it. According to the is a qualified concept, constructed for the question of the point at which an in-
Israel’s present sanctions on Gaza
Weatherhead Center’s website, Kramer the purpose of promoting the role of stitution must distance itself from the
have a political aim—undermine the
is a visiting scholar in the Center’s Na- Universities as influential sources of “personal” viewpoints of its affiliates.
Hamas regime—but if they also
tional Security Studies Program ideas and policies that shape the world. Certainly Kramer has a right to write
break Gaza’s runaway population
(NSSP.) This program aims to be Academic freedom does not exist sep- and say such things. But let’s not forget
growth—and there is some evidence
highly influential, claiming a practical arate from the ethos of a University or who he is and where he was speaking.
that they have—that might begin to
and far reaching impact on the world’s its institutions. As fonts of social Kramer’s “personal” viewpoint was ex-
crack the culture of martyrdom
most critical issues: “The central pur- mores, Universities have a particular re- pressed at a large, international, influ-
which demands a constant supply of
poses of NSSP are to conduct basic, sponsibility to condemn egregious and ential conference, in his capacity as a
superfluous young men. That is ris-
policy-relevant research on critical top- inhumane ideas. Weatherhead scholar. The Weatherhead
ing to the real challenge of radical
ics of national security and strategy and The ethos of the Weatherhead Center Center has come to his defense, and
indoctrination, and treating it at its
to educate and prepare scholars in strat- belies the statements they have issued their statements of support have been
root.
egy and national security for positions in acceptance of broadcast to the en-
in colleges, universities, research insti- On February 22, Kramer clarified Kramer’s racism. Its “As fonts of social mores, tire world. At this
tutes, and government.” what he meant by “pro-natal” by stat- website states that Universities have a particular point, we need to
Kramer spoke at the 10th annual Her- ing on his website that “UNWRA [the “[t]he Center was stop pretending
zliya Conference in Israel on February United Nations Relief and Works created [in 1958] as responsibility to condemn these are only the
3—a conference that, like Harvard Uni- Agency for Palestinian Refugees in the a means of con- egregious and inhumane personal statements
versity and the Weatherhead Center Near East] assures that every child with fronting the world's ideas.” of an individual, for
within it, attempt to assert their influ- ‘refugee’ status will be fed and condition,” a condi- they have taken on
ence on Middle East policies and global schooled regardless of the parents’ own tion characterized at least in part by the the character of Harvard University
politics generally (the Conference resources . . . .” So, in short, Kramer idea that “[f]oreign affairs in our era sanctioned speech and have been lent
website states that “the Herzliya Con- supported removing programs that feed pose unprecedented tasks…Today no all of the legitimacy that this carries.
ference is Israel‘s primary global pol- and educate children of Palestinian region is isolated; none can be ignored; Let us take such support seriously, and
icy annual gathering, drawing together refugees, and he lauded Israel’s sanc- actions and events even in remote to call upon the Center to behave more
Israeli and international participants tions on Gaza as “break[ing] Gaza’s places may have immediate worldwide responsibly in the ideas that it pro-
from the highest levels of government, runaway population growth.” We impact . . . .” For a Center founded on motes. It is no small thing to denounce
business, and academia to address should laugh at any attempt to repack- the interconnectedness of ideas and the feeding of refugee children, and it
pressing national, regional and world age these statements—such as the their relevance and impact on the is no small thing to pretend that the con-
strategic issues.”) In his remarks, Weatherhead Center’s subsequent Feb- world, it is perplexing to say the least cept of academic freedom can be
Kramer called for population control as ruary 23 spin on them as “express[ing] that they would take the position that stretched far enough to protect such
a way to “break” the cycle of martyr- dismay with the policy of agencies that Kramer’s statements were merely an calls.
dom and radicalism in several Islamic provide aid to Palestinian refugees, and
countries, and more specifically, in that tie aid entitlements to the size of
Gaza. As other people writing before refugee families.” Anyone who can
me have pointed out, his words encour- read can see them for what they are—a
age action that matches the (narrowly statement not merely of "dismay," but
A suggestion for a paper,
defined) definition of genocide from one that advocates curbing births within
the 1948 UN Convention on Genocide, Gaza’s Palestinian population, and that
a term paper or a thesis. Go to:
because he promotes “breaking Gaza’s declining births in countries such as
runaway population growth” as a Pakistan are a very good thing. The
means to “ris[e] to the challenge” of Center's letter and Kramer's rejoinder
radicalism against the state of Israel. focuses on Kramer's statements about
These statements seem to fall within the Gaza, but as the excerpt above shows,
pacfre.com
realm of calling for genocidal policies Kramer himself is concerned with con-
by advocating the prevention of birth PAID FOR BY PACFRE.COM
March 11, 2010 Harvard Law Record
UNICEF, cont’d from pg. 1 chil- progress that’s been made over the last
dren,” said Tutu, a Nobel Peace Prize winner decade in establishing a framework for in-
who is known for his role as an anti- ternational justice for children,” she said, ac-
apartheid activist and who appeared at the knowledging that serious difficulties remain.
Harvard Law School launch from UNICEF “There are so many children living in areas
headquarters in New York via videoconfer- in conflict who continue to be abducted [and]
ence. “Children die from waterborne dis- mained,” she continued, phenomena that she
eases, from easily preventable illnesses just had recently witnessed in the northern part of
because they can’t afford the immunizations, the Democratic Republic of the Congo,
the inoculations. When children should have where children have been terrorized by the
been going to school, we have employed Ugandan Lord’s Resistance Army. Still, she
them as laborers, exploit them as sex slaves, offered hope that children could play integral
make them helpless victims of the wars of roles in bringing perpetrators of crimes to
adults, recruit them as soldiers, force them to justice, pointing out that in Sierra Leone,
commit abominable atrocities against their children walked 17 miles to testify at a war
own family members. Children are raped, crimes tribunal when their other transporta-
often infected with AIDS, and children give tion options were compromised.
birth to other children. Children [could] help Following remarks by Tutu and Veneman,
us heal the wounds in our soul, but they be- Harvard Law School Dean Martha Minow
come, themselves, abusers. We should be lead a panel discussion that explored the ten-
hanging our heads in shame.” sions which have emerged
According to a UNICEF
press release, the joint publi-
“Children are raped, from attempts to integrate
children into the processes of
cation, Children and Transi- often infected with attaining justice and achiev-
tional Justice: Truth Telling, AIDS, and... give ing reconciliation in post-
Accountability, and Recon- conflict societies. Asked
ciliation, “analyzes practical birth to other chil- whether truth telling or social
experiences to determine dren. [They could] rehabilitation was a greater
Page 5
Chomsky, cont’d from pg. 1
weapons out of a rational fear for its national safety because of the sys-
tematically threatening posture of the United States and Israel.
Speaking at Harvard's Memorial Church on Saturday, March 6th,
Chomsky critiqued the foreign policy of President Obama '91 and ex-
plained the historical reasons that Iran would perceive a need to de-
velop nuclear weapons. “If they're not developing a nuclear deterrent,
they are crazy.” The problem, said Chomsky, is the defiant and hypo-
critical insistence of the United States on holding the constant threat of
military action over Iran as a punishment for its noncompliance with
United Nations mandates. “Hostile actions of the United States and its
Israeli client are a major factor in Iran's decisions of whether or not to
develop a nuclear deterrent.”
In Chomsky's eyes, Security Council Resolution 1887, which was
strongly endorsed by President Obama, calls upon all nations to peace-
fully participate in the international regimes for nonproliferation. The
resolution encourages nations to develop civilian nuclear technology,
while stressing the need for conformity to the IAEA's inspection sys-
tem, and Chomsky said that the inclusion of language about peaceful ac-
tion was primarily directed at the United States and its veiled threats
that, “We must keep all options open.” Indeed, with its nuclear missile
submarines positioned within striking distance of Iran, Chomsky esti-
mates that there is effectively no chance that Iran would ever use a fu-
ture nuclear weapon for offensive purposes. But he warned, “The
threats do have the effect of inducing Iran to develop a deterrent.”
The escalation of tensions between Iran and the United States is en-
tirely absurd to Chomsky in light of the widespread acceptance of the
rights of Iranians to develop civilian nuclear technology. He sees the

tional courts, truth commis- help us heal the Tutu demurred, saying both
how the range of interna- priority in such contexts, cult of American Empire in the government's condemnations of Iran for
refusing to follow the demands of the international community, because
sions and traditional wounds in our soul, were important. But the dif- the definition of “international community” used in such rhetoric

both to improve accountabil- but they become... dren into communities rife
processes can be applied, ficulty of reintegrating chil- amounts to little more than the opinion in Washington, D.C. and among
its allies. He cited to the hypocrisy of the U.S. position in its historical
ity for crimes perpetrated abusers. We should with distrust soon emerged relationships with the three nations that did not ratify the Nuclear Non-
against children and to pro-
tect the rights of children in-
be hanging our as a significant problem, as
was the complexity of post-
proliferation Treaty: Israel, India, and Pakistan. These three nations,
said Chomsky, have all received nuclear technology from the United
volved. The book also makes heads in shame.” conflict situations, in which States in violation of security council resolutions, but most Americans
clear that for a truth commis- children may have been vic- would not realize this, given the pro-government bias of the media.
sion to have a lasting impact, - Archbishop Tutu tims of war crimes, their per- Essentially, Chomsky believes that President Obama's foreign policy
people need to see the tangi- petrators – or both. has embodied a continuation of the policies of George W. Bush's sec-
ble difference in their lives after its work has Several experts said the new research ond term in office. But he believes we are fortunate to be living in a
finished. Education, vocational training and demonstrated the need for greater empirical time when the anti-war movement is much stronger than it was during
school reconstruction were all noted by chil- evidence for some of the claims being made. the 1960's. He recalled a demonstration he was involved in during
dren as ways to make up for lost years.” Jens Meierhenrich, a Harvard Government 1965, when state police violently dispersed a crowd from Boston Com-
Harvard Law School provided key re- professor, said that the book emphasized de- mon. The next day, the Boston Globe, one of the most liberal newspa-
search and case studies to the volume, which scription over data, and that some of the pers in the country, denounced the protesters. Just three years later,
explores situations from Liberia and Sierra methods it advocated could lead to unin- following the Tet Offensive, public sentiment had moved enough that
Leone to South Africa and El Salvador. Edi- tended consequences, such as child partici- protests became common, but he ascribed this to a growing sentiment
tors included former HLS lecturer Sharanjeet pants in transitional justice processes being on Wall Street that the country had paid too high a price in Vietnam.
Parmar, now of the NGO Global Rights, and marked off as targets. But Theo Sowa, who Looking back at the lessons of that war, Chomsky said that the United
Mindy Roseman, director of HLS’ Human collaborated on the publication, said that States had essentially achieved its goal of “innoculating” the region
Rights Program. while such targeting was inevitable regard- from the domino-theory chain reaction by 1970 by installing dictators
Tutu offered hope that the study could pro- less of children’s involvement in transitional in neighboring countries and helping Suharto come to power in In-
duce tangible benefits. “HLS and UNICEF justice, ignoring them would make the prob- donesia.
should be commended highly for their semi- lem worse. Prize-winning journalist Amy Goodman noted in her introduction of
nal work,” he said. “I pray that [their] splen- All the participants agreed that more fund- Chomsky that he had played a crucial role in bringing the attention of
did cooperation will blaze a new trail in ing for and political will was necessary for the world to the oppression of the people of East Timor by Indonesia.
dealing with post-conflict situations.” the international community to tackle chil- She recounted the beatings and massacres she witnessed while travel-
Ann Veneman, Executive Director of dren’s problems. “Transitional justice tools ing there as a journalist, as well as the elation when the nation achieved
UNICEF and former U.S. Secretary of Agri- have paid very little attention to children’s independence. “This nation of survivors had prevailed. They had re-
culture, appeared via videoconference along- experiences,” Minow said, but it seemed sisted, and they had won.” Chomsky, when speaking about activism
side Tutu, and took the opportunity to clear that the new report might help to and civil disobedience, stressed the need for determined persistence.
highlight her organization’s initiatives. “The change that. “You're not going to win tomorrow. You are going to have a lot of de-
report being launched today depicts the feats, but you have to keep at it.”
Sunstein, cont’d from pg. 1 vided examples of OIRA’s successes in collaborating The traditional notice and comment style of rule-
never heard of.” Sunstein spoke broadly about his with various agencies, including simplifying the Fed- making can expand through the use of Internet tools,
goals for OIRA and President Barack Obama ’91’s vi- eral Application for Student Aid, working to harmo- and OIRA is coordinating multiple agencies’ efforts
sion for changes within the agency. nize international occupational safety and health to put more and more of their activities online. Each
Cost-benefit analysis has a reputation as a cold and warning systems, and focusing on distracted driving. agency is in the process of creating a new website
mechanical test, but Sunstein believes it is an impor- Sunstein mentioned the role of cognitive biases in with the suffix “/open” attached to its web address.
tant tool for dividing resources while extending and human behavior, and the importance of considering These sites are intended to provide information about
improving people’s lives through regulation. “Hu- these idiosyncrasies when conducting cost-benefit current agency initiatives in a clear public format.
manizing” cost benefit analysis, he said, takes place analysis. Rather than conducting cost-benefit analy- OIRA also has a “dashboard” website,
along three directions: examining actual human be- sis based on “Homo economicus,” Sunstein argued www.reginfo.gov, with aggregate data about agency
havior and not the decisions of a theoretical “rational that research should include phenomena such as “in- activities.
actor;” gathering accurate data that reach beyond formation cascades,” such as music downloads with Sunstein also expressed a deep personal excitement
monetary measures; and democratizing data by tap- popularity ratings, in which statistics about others’ de- about his position with OIRA, mentioning that he
ping “the dispersed knowledge of the American peo- cisions become criteria for an individual’s decision- named his current position as his dream job during
ple.” making process. one of his first dates with his now-wife, Samantha
OIRA’s authority comes from the Paperwork Re- With a nod to social networking, Sunstein described Power ’99.
duction Act of 1980, and its main function is to re- the vast knowledge of the American public, the value Sunstein’s humanized cost benefit analysis still in-
view the actions of all other federal regulatory of transparent government, and the importance of cludes the cost element, but tries to find accuracy
agencies. Sunstein described the agency’s functions public participation. In the spirit of civic engagement through a new emphasis on increasing public partici-
as a mixture of facilitating collaboration between and and democracy, the Obama administration has prior- pation. Involving more human commenters, sources,
across agencies, ensuring an open process, and ana- itized a policy of encouraging openness and public and fact checkers in the process, he argues, will cre-
lyzing the impact of potential regulations. He pro- participation, called the Open Government Initiative. ate a more humane result in regulation.
 Harvard
Page 6 Harvard Law Record March 11, 2010

GREEN LIGHT FOR AN ONLINE

Law RED LIGHT DISTRICT?
Record
Judges Have Approved the .xxx Domain. What Does That Mean For Online Porn?
BY MATTHIAS C. KETTEMANN adding websites ending with .xxx. On Having presented itself as a technical
its website, ICM Registry prides itself regulator and not as guarantor of the In-
It is not as if there weren’t enough with providing, with the new .xxx TLD, ternet morals, ICANN had always in-
pornography on the web. Exact figures a “greater degree of confidence and cer- sisted that it would only apply technical
EStabLiShEd MCMXLVi
are difficult to come by, but estimates tainty to [the] online experience” of standards in assessing applications for
Matthew W. Hutchins
Editors-in-Chief
of the number of websites dedicated to “willing adult consumers of adult en- new Top Level Domains. But after hav-
Chris Szabla pornographic material range from 1 to tertainment”. The creation of .xxx ing first decided, in 2005, that the ap-
25 percent. And soon there will be would lead to a “credible, self-regulated plication by ICM Registry for the new
more. In fact, a whole Top Level Do- forum for all stakeholders to discuss Top Level Domain met all required cri-
News: Rebecca Agule
Staff Editors
main or TLD (the letters after the last and actively respond to concerns about teria, the Governmental Advisory Com-
Opinion: Jessica Corsi dot in an address, such as .com or .biz) online adult entertainment.” Discussing mittee uniting a number of states and
Sports: Mark Samburg will soon be ded- advising the
icated to “adult ICANN Board in its
entertainment”: decision intervened.
Alexander Boldizar
Contributors
the new TLD dot The Board recon-
Andrew Kalloch triple x, or sidered its decision
Matthias C. Kettemann “.xxx”. and ultimately de-
Titus Lin In a decision nied ICM Registry
Andrea Saenz published on the new address
Scott Andrew Selby February 19, a space.
Alfred “Dave” Steiner top-notch three The Independent
Stephanie Young judge panel ruled Review Panel now
in favor of an as- found that this “re-
record@law.harvard.edu sociation of adult consideration …
Submit Letters and Editorials to:

or entertainment Photo: flickr - estherase was not consistent

Harvard Law Record companies, rep- with the application
Harvard Law School resented by ICM Registry, and declared and actively responding to such con- of neutral, objective and fair docu-
Cambridge, MA 02138-9984 that the private corporation responsible cerns was probably not chiefly on the mented policy.” Harvard Law School
for assigning new Top-Level Domains, mind of ICM Registry when it applied Professor Jack Goldsmith, who pro-
Letters and opinion columns will be the Internet Corporation for Assigned for the TLD. Rather, as domain names vided an expert report on which ICM
published on a space-available basis. Names and Numbers, or ICANN, was such as sex.xxx could be sold for a lot Registry relied, used even stronger
The editors reserve the right to edit wrong to deny ICM Registry their ap- of money, considerable financial inter- words, saying that “the clearly fictitious
for length and delay printing. All plication for the new “voluntary adult ests were at stake. basis ICANN gave for denying ICM’s
letters must be signed. Deadline for TLD” .xxx. As Lisa LaMotta of Forbes.com re- application” is “most obvious”.
submissions is 11:30 p.m. Tuesday. The history of the conflict, which has ported, the first two most valuable do- As the Panel pointed out, the change
The Harvard Law Record is a publication serious legal implications for the devel- main names are related to pornography. in opinion of ICANN could be traced
of The Harvard Law School Record Cor- opment of the international domain Sex.com was the first domain to break back to an outcry of governments that
poration. All rights reserved. The Harvard name systems, started when ICANN eight-figured barriers in 2005 by chang- started with an August 11, 2005, letter
Law School name and shield are trade- opened the address space to allow new ing owners for $12 million. Porn.com of Michael D. Gallagher, Assistant Sec-
marks of the President and Fellows of industry-sponsored, generic (that is, was sold in 2007 for $9.5 million. But retary for Communications and Infor-
Harvard College and are used with permis- not-country related) Top Level Do- financial concerns were not chiefly mation of the U.S. Department of
sion from Harvard University. mains. The sex industry soon saw the among those with which regulator Commerce, evidencing a “volte face in
potential to generate more revenue by ICANN had to grapple. Red Light, cont’d on pg. 11
Mormonism, cont’d from pg. 1 The tripartite structure of the Godhead is one of the
nual lecture entitled “Mormonism 101” in order to ed- central aspects of LDS theology that Elder Oaks
stressed as critical to LDS beliefs. “We maintain that
THE 9/11 TRIALS:
HOLDER’S LAST STAND
ucate the community about their beliefs. This year's
guest speaker was Elder Dallin H. Oaks, an esteemed … God the Father is not a spirit but a glorified Being
member of the LDS Quorum of the Twelve Apostles with a tangible body, as is his resurrected Son, Jesus
and a former justice of the Supreme Court of Utah. Christ. Though separate in identity, they are one in BY ANDREW L. KALLOCH
Elder Oaks, who graduated from the University of purpose.” In addition, the purpose of existence in this
Chicago Law School in 1957 and then clerked for reality has a definite purpose in LDS: “to qualify for Last year, Attorney General Eric H. Holder de-
Chief Justice Earl Warren, served as the President of the glorified celestial condition and relationships that clared that America was a “nation of cowards” in
Brigham Young University from 1971-1980, Chair- are called exaltation or eternal life.” The means of the area of race relations. Predictably, pundits and
man of the Public Broadcasting Service (PBS) from achieving this state are defined according to a religious politicians hollered Holder down; members on each
1979-1984, and became an apostle of the LDS Church plan for one's life, a plan that, “can only be accom- side of the political aisle spouting sanctimonious
in 1984. He noted that the widespread confusion plished through an eternal marriage between a man verbiage about “how far we’ve come,” believing
about LDS has led to frequent parodies and misun- and a woman.” that the presence of a black president in the White
derstandings, giving as an example Conan O'Brien's Perhaps the most essential distinction between the House meant that the struggle for civil rights was at
song, “Oh Mormons, Mormons, Mormons / we LDS faith and other forms of Christianity is its epis- or near an end.
haven't got a clue / of what you folks believe in / or temology regarding the sources of knowledge of the Less than ten months after the “nation of cow-
think or drink or do.” Yet despite the suspicion fre- divine. “Most Christians believe that the scriptural ards” flap, Holder triumphantly announced his de-
quently confronted by followers, Mormons also are canon—the authoritative collection of sacred books cision to try alleged 9/11 mastermind Khalid Sheikh
sought after for community organizations and have a used as scriptures—is closed because God closed it Mohammed in Federal Court in Manhattan, steps
tremendous humanitarian impact through their out- shortly after the death of Christ and there have been no from the former World Trade Center.
reach programs around the world. comparable revelations since that time. Joseph Smith Little did Holder know how prescient his Febru-
Although he noted that the academic interest in re- taught and demonstrated that the scriptural canon is ary words about America’s cowardice would be-
ligion may have been rekindled by the need to under- open.” The continuing possibility of direct revelations come, as slowly, but steadily, members from all
stand extremism around the world, Elder Oaks said he from God gives believers of the LDS Church two au- parts of the political spectrum conspired to keep
accepts that “It seems unrealistic to expect higher ed- thoritative sources for spiritual truth: the continually KSM and other 9/11 plotters out of civilian court.
ucation as a whole to resume a major role in teaching growing canon of religious scripture and the personal Some of the arguments in favor of military com-
values.” Indeed, he fears that university faculties and discovery of spiritual truth through communion with missions stemmed from true intellectual disagree-
administrators have played a role in marginalizing re- the Holy Ghost. “As a source of sacred teaching, the ment—the belief that terrorists caught on foreign
ligion in America, and that colleges have become scriptures are not the ultimate but the penultimate. The soil were not entitled to the rights provided to crim-
value-neutral places. To Mormons, this represents a ultimate knowledge comes by personal revelation inal defendants in civilian courts. While I strongly
degeneration of cultural norms. “We reject the moral through the Holy Ghost.” disagree with that position, there is nothing inher-
relativism that is becoming the unofficial creed of Elder Oaks' full remarks, delivered at HLS on Feb- ently cowardly about the belief that the Constitution
much of American culture. For us, the truth about the ruary 26, 2010, are available online at applies to certain individuals and not others.
nature of God and our relationship to Him is the key newsroom.lds.org.
to everything else.” Holder, cont’d on pg. 8
R I GH T BRAIN STIMULUS
March 11, 2010 Harvard Law Record Page 7

INTRODUCTION
Though people are rarely the reasonable men of
classical legal thought, the law – and law school, en-
meshed as it is in high and abstract theory – is over-
run by the cold rigidity of logic. Viewed from this
perspective, the rules of life might appear to take over
its content, and existence becomes a bleak equation
burdened by the seesaw of incentives and mazes of
opportunity and transaction costs.
It can seem astounding that individuals survive law
school with any of their creative faculties intact, but
the Record managed to find not one, but three rela-
tively unsung names among Harvard Law School’s
artistic alumni. With their help, we aim to demonstrate
that there is hope for a right brain perspective in, or
upon exiting, the world of interminable text and code,
of cases and statutes.
We asked each of our creative spirits to provide
both samples of their work and insights on their jour-
neys through and away from law. Over the next three
pages, a visual
artist, a nonfic-
tion writer, and a novelist will share their experiences,
and, we hope, lift the confidence of our readers that
artistic lives and careers can be forged out of law
school. Because even the most hardened doctrinalist
ought to appreciate the need for an occasional inter-
vention in the legal market to ensure the free flow of
healthy self-expression. Call it a right brain stimulus
package.
- The Editors

THE ARTIST
A l f r e d “ D av e ” S t e i n e r
Alfred “Dave” Steiner ’98 didn’t put aside his interest in art while he was
a law student, participating in studios elsewhere at Harvard. Another outlet
was the Record, for which Steiner drew Reasonableman, a comic about a
law student who was anything but what his title implied. The generosity of
his firm allowed him the time to develop his art, some tamer samples of which
can be seen here. Connections in the art world were hard to come by among
fellow JDs, so Steiner relied on assistance from alumni of the Design School,

M
eventually landing shows in New York and elsewhere – and a favorable re-
view in The New Yorker. Below, Steiner explains how he found success in art.
Reasonableman, originally published in the Harvard Law Record, Oct. 4, 1996

y path from the law to artist started well
before law school. I began college as a
fine art major, but my first studio course
took more time than all of my other classes combined.
Although I enjoyed it, I didn't take another studio
course the following semester. I ended up majoring
in math and philosophy, and filled what was left of my
schedule with art history and studio courses. During
the summer before my senior year, a friend and I took
a canoe trip from Cincinnati to New Orleans. Though
it had never even occurred to me, he suggested that I
apply to law school. At the suggestion of another
friend, I went to the library and picked up a Nutshell
book on intellectual property law. It sounded inter-
esting enough, so I applied to law school. Harvard
was the only school that accepted me.
While at Harvard, I drew a cartoon for the Harvard
Law Record called Reasonableman, whose title char-
acter was perhaps not entirely rational. I also cross-
registered for an art class at the College with Ellen
Phelan, where I had my first sustained exposure to oil
painting.
After graduating from law school in 1998, I moved
to Dallas and worked for two years as a trademark at-
torney at Baker Botts. I continued to paint and draw
in what little spare time full-time legal practice af-
forded me. In May 2000, I moved to New York with
my fiancee (Elizabeth Roff, ’99), where I started work-
ing in Morrison & Foerster's Technology Transaction
Group.
In New York, I got an art studio with another Har-
vard alumnus (Simon Aldridge, GSD ’99; Simon
signed the lease because the landlord's form asked if
the lessee was an attorney). Simon had more success
showing his work than I did mine. So in 2004, he in-
vited me to show with him at a gallery in Brooklyn run
by a fellow Harvard alum, in which a group of artists
invited by the dealer each invited another artist to par-
ticipate. I spoke with the dealer over the phone and
scheduled a studio visit. During the call, I had to admit
that I practiced law and did not have a Master of Fine
Arts. The studio visit never happened, and I missed
out on the show.
Under the pressure of mounting artistic frustration,
in March 2005, I approached my law firm, still Mor-
rison & Foerster, to request a part-time arrangement
so that I could focus more on my artwork. They were
surprisingly receptive, so I reduced my law practice to
two or three days a week. This extra time allowed me
to develop a modest body of work.
In 2006, I visited Louise Bourgeois at her Sunday
salon and met an artist there (Angelo Filomeno) who
helped me get my drawings into my first proper group
show, at BravinLee Programs in Chelsea. Since then,
I've shown my work in a few group shows each year,
most recently at The Brucennial 2010 (350 West
Broadway, New York, NY; ongoing through April 12),
an unofficial sister show to this year's Whitney Bien-
nial, organized by one of the Biennial artists, the col-
lective known as The Bruce High Quality Foundation. Quetico Safari, 2008
Working part time as a lawyer to support a develop-
ing art career has its challenges, primarily the unpre-
dictable hours. But most artists I know have to work
some day job, and they usually spend a lot more time
than I do at it. My path may not follow the traditional
legal or artistic route, but it may make sense for
lawyers who would prefer not to bill 2,000 or more
hours a year or artists who need money to underwrite
high production costs or just want more financial se-
curity.

And the Magicians Brought up Frogs upon the Land of Egypt, 2000 Jonah Prayed Out of the Fish's Belly, 2001 Alfred, 1998
R I GH T BRAIN STIMULUS
Page 8 Harvard Law Record March 11, 2010

THE NONFICTION WRITER

Scott Andrew Selby
Writing about a spectacular crime may not seem that far a leap from law school,
but getting there required a bit of a detour for Scott Andrew Selby ’98. After leav-
ing HLS, which he credits for giving him the research skills he’s used as a nonfic-
tion writer, Selby acquired a hybrid degree in human rights and IP law from
Sweden’s Lund University, where he became interested in blood diamonds. His the-
sis research took him to Antwerp, Belgium, the world center of the diamond trade,

T
where he first became interested in the heist that’s at the center of his book, Flaw-
less: Inside the Largest Diamond Heist in History, co-written with journalist Greg
Campbell. The prologue is excerpted below.

he white-tiled a key and a three-letter combination known only to

floor of the its owner, yet more than half of them now stood open
vault was lit- and empty. The room itself was secured with a foot-
tered with diamonds, thick, double-locked, bombproof steel door armed
pearls, emeralds, rubies, gold, and silver. Empty vel- with a magnetic alarm, as well as a locked, gated inner
vet-lined jewelry cases, cardboard cigar boxes, and door that could only be opened with a buzzer from the
tin-clasped metal containers lay amid sparkling gem- control booth on the main floor. Both of those doors
stones of every imaginable cut, color, clarity, and stood wide open that morning, undamaged.
carat. There were ancient heirlooms, gilded bond These physical barriers were only the capstone of
notes, a Rolex watch, and a brick of solid gold heavy the vault’s security. Over the weekend, when the
enough to stub toes. Loose stones rolled and bounced crime occurred, the building had been sealed with ated the contents of their safe deposit boxes to police
like marbles as the detectives picked through the de- heavy, rolling metal barriers that covered locked plate officers and insurance investigators. One dealer lost a
bris, their low gasps and whistles of amazement echo- glass doors at the main entrance and heavy mechani- million dollars in cash alone. A woman who had in-
ing softly in the bright underground chamber. cal vehicle arms at the garage entrance. Closed-cir- herited her husband’s box and its contents upon his
Detective Patrick Peys thought cuit television cameras monitored death found herself suddenly destitute; the large gem-
that if he were to shovel it all up, “Someone had overcome all the building’s entrances, corridors, stones and irreplaceable heirlooms left to her by her
pour it into any one of the empty and elevators as well as the an-
and discarded containers scat-
of those security measures techamber to the vault, the small
husband were meant to finance her remaining years,
and now they were gone.
tered about, he would have and made off with an untold foyer that the elevators opened Peys looked down at the piles of wealth and debris
enough wealth to finance a deca- fortune of diamonds... with- into. The building itself was situ- scattered across the floor. What was rolling under his
dent retirement not only for him- out tripping a single alarm or ated in the heart of one of the most feet — those gems and jewels, those scattered and dis-
self but also for the five other secure square miles on Earth,
detectives in his unit of special-
injuring anyone.” within what insurance investiga-
carded riches, the individual treasures of the build-
ing’s tenants who had stored them in the vault under
ized diamond-crime investigators. tors called the Secure Antwerp Di- the reasonable assumption that they would be safer
Like everyone else who descended to the bottom amond Area, a three-block canyon of gray here than in any bank — were the items the thieves
floor of the Antwerp Diamond Center that day — glass-and-concrete buildings as well defended against had left behind. They had robbed and ransacked more
Monday, February 17, 2003 — Peys needed some thieves as Fort Knox. The district was protected with than they could carry.
time to process the enormity of what he saw. He was retractable vehicle barriers at either end to prevent The detective was momentarily overwhelmed by
no stranger to audacious crimes committed — or at cars from entering — or leaving — and was blanketed the scale of the heist. Someone had overcome all of
least attempted — in Antwerp’s high-security Dia- from every possible angle by a multitude of video these security measures and made off with an untold
mond District, but he’d never seen anything like this. cameras. Those cameras were monitored around the fortune of diamonds, jewelry, precious metals, and
By almost any measure, the safe room two floors clock by a dedicated, heavily armed police force cash without tripping a single alarm or injuring any-
underground was as impenetrable a fortress as any to whose sole job was to prevent theft. In fact, there was one. Peys didn’t say it out loud — not at the moment,
be found in the tightly protected Diamond District. Its a police security booth only forty yards from the Di- anyway — but he couldn’t help but be awed by the
walls of brushed-metal safe deposit boxes, which amond Center’s front entrance and, in the other di- skill required for such a heist.
stood pillaged of an amount of treasure yet to be cal- rection, a full-service police station just around the That thought was quickly followed by another,
culated, were inside a room equipped with a light sen- corner. darker realization: whoever had pulled off this seem-
sor, a motion detector, and an infrared heat detector. In the Diamond Center’s main corridor two stories ingly perfect crime would be impossible to find.
Each of the safe deposit boxes had been locked with above the vault, panic gripped tenants who enumer-

Holder, cont’d from pg. 6
However, much of the vitriol hurled Holder’s way
was fear-mongering about the nation’s ability to ade-
quately defend itself, the courts’ capacity to protect
classified information, and, most spinelessly of all,
concern about the fact that terrorists would have a
platform for their own cowardly ideology.
Indeed, it did not take long for politicians to whine
about the alleged risks the trial brought to New York
City. Rep. Peter King, a Long Island Republican, said
that hosting the trial in Lower Manhattan would move
New York City “to the top of Al Qaeda’s target list.”
King must be the only New Yorker who doesn’t al-
ready know that New York is Al-Qaeda’s #1 target.
Holding KSM’s trial in Lower Manhattan would not
make the city a more attractive target for terrorists.
The New York City Police Department has the most
capable intelligence and counterterrorism units of any
police department in the world. Moreover, were the
trial to be held in New York, KSM and his co-con-
spirators would likely be housed in Unit 10 South of
the Special Housing Unit in the Metropolitan Correc-
tional Center in Lower Manhattan, a maximum-secu-
rity unit specifically designed to house terrorism
suspects and other offenders who pose a proven dan-
ger to other inmates or prison guards.
Others who criticized Holder’s decision expressed
concern about the nation’s ability to control classified
information. In the Wall Street Journal, former Jus-
tice Department lawyer John Yoo wrote that trying
KSM in civilian court would provide an “intelligence
bonanza” for Al-Qaeda. While we shouldn’t be sur-
prised by now of Yoo’s unparalleled ability to look
the other way when the law repudiates his personal
beliefs, it is worth noting that military commissions
use the same law to protect sensitive national security
evidence as the federal courts, the Classified Infor-
mation Procedures Act (“CIPA”).
CIPA was successfully implemented during
Zacharias Moussaui’s trial in 2006, a trial that then-
Senate Majority Leader Bill Frist (R-Tenn.) hailed as
“a small but important piece of justice” that provided
“proof that our society is grounded in the liberating
power of justice and the rule of law, which are our
most valuable weapons in the war on terror.” The
Moussaoui court even took the extraordinary step of
creating a special website where the public could view
nearly 1200 trial documents.
Independent of the concern about classified infor-
mation, abandoning the civilian courts would prevent
the U.S. from bringing some of its most wanted ter-
rorists to justice. As the New York Times reported this
week, a commissions-only policy would prevent
some nations from extraditing terrorism suspects, in-
cluding two men suspected of plotting the 1998 East
African embassy bombings and a Somali citizen ac-
cused of recruiting American citizens to fight for al-
Shabaab.
As pitiful and uninformed as King and Yoo are,
Rep. Pete Hoekstra’s (R-Mich) pathetic fear monger-
ing is unparalleled. Hoekstra told CBS’ Face the Na-
tion that terrorists should not be tried in civilian court
because it would “allow them to use it as a platform
to push their ideology.”
If Al-Qaeda wants to pit their murderous ideology
against the values of liberty, equality, democracy, and
the rule of law, I say bring it on. We may not win over
“Jihad Jane,” but we will show billions of peace-lov-
ing people that our nation’s strength is not in its arms,
but in its fundamental principles.
If President Obama intervenes to send KSM’s trial
back to a military commission at Guantanamo Bay,
Eric Holder has a clear choice: join the cadre of cow-
ardly politicians and professors who view the rule of
law and the values of our nation as insufficient bul-
warks against a murderous, radical ideology, or resign
his office in protest. The Attorney General was right
to call out America on its cowardly approach to race
relations. Now, it is time for Holder’s Last Stand.
Andrew L. Kalloch ’09 was Editor-in-Chief of the
Harvard Law Record from 2008 to 2009. He now lives
in New York.
R I GH T BRAIN STIMULUS
March 11, 2010 Harvard Law Record Page 9

I
f time flies like an arrow and fruit flies like a banana then my writing career by whatever measure, will always co-opt the dissent, bevel the humour. Like the
has flown somewhat like that NASA rocket, the Mars Climate Orbiter, where policeman who would pour concrete on a flower in order to preserve it forever,
half the equipment thought in metric and the other half in imperial. The thing they’ll take Duchamp’s urinal, Warhol’s Slovak humour, and catalogue them,
flew, but not in the direction I expected. It’s out determning the planet rights of smear them with a faux-seriousness that is the essence of humourless kitsch, until
Pluto now instead of studying Martian carbon dioxide. you look at [Jeff] Koons’ giant lobsters and really can’t tell whether he’s serious
At McGill, my undergrad, I avoided the softer subjects, though they suited me or ironic of funny, except that you see a hundred assistants scrubbing a giant bal-
better. Largely because I wanted to get into Harvard. I was an awkward mix of loon poodle for a six months with 2000-grit sandpaper, crawling over the thing like
hyper-competitive nerd and rebellious freak. I wanted to win—whatever the ants, functional little nano-scrubbing machines, and you think the war is lost.
game—but also wanted fairness and honor in the contest while deconstructing all There’s a reason prisoners become writers but prison guards never do. Both are
the rules and distrusting all judges. I chose economics as an undergrad major for constrained by rules and regulations on a daily basis. For the prisoners the rules
the simple reason that it was one of the few relatively math-free subjects that still come from the outside, their daily lives are absurd and they know it. The East Eu-
had objectively right and wrong an- ropean humour I grew up with is es-
swers (if you accept the givens, like sentially prisoner humour. But for the
assuming that the world is flat, all THE NOVELIST guards, the constraints become part of
trees are elephants, etc.), and I didn’t who they are – they are the grim, they
trust my professors the way I would are the ones enforcing the absurdity,
have had to if I’d majored in, say,
Alexander Boldizar and so they die inside.
English. I read on my own time. Alexander Boldizar ’99 became recog- The danger in our post 9/11 world
It was all very goal oriented and nized by Slovakia’s president as the “first (and long before) is not that we are all
simultaneously blind. I had never Slovak citizen to graduate from Harvard becoming prisoners, though we are. It’s
met a single person who’d been to Law School” when, as he puts it, “small that we’ve been taught to also become
Harvard, knew nothing about it be- country nepotism” got him back the citi- the prison guards. Watch, ride, and re-
yond the name, and had this utopian zenship he’d abandoned in 1989 (he port. If you see something, say some-
idea that once there I’d be in an thought it would be unsafe to keep it during thing. Harvard has always been the
eclectic community of intellectual a visit to the crumbling Berlin Wall). Since vanguard, a place where the smallest
weirdoes, all different, all smart. then, he has managed an art gallery in deviance became gossip worthy, a mi-
That was probably the last utopian Bali, established a flourishing career in ed- crocosm pointing to our shrinking fu-
idea I ever bought into. Not that it iting and freelance writing, and has con- ture.
was all wrong. There was a subset of tinued to seek publication of his magnum For someone in law school, this is a
the HLS population that were there opus, The Ugly, a satirical novel about a pivotal moment. But a very strange
largely for the thinking of it rather dispossessed Siberian tribe that sends one one. On the whole, during my time,
than the trade-school aspects, of its members, Muzhduk, to learn the ways anyway, I found that most of the pro-
mostly among S.J.D.s and LL.M.s, of lawyers from HLS, a plotline which helps fessors at HLS were far more rebel-
but also some of the JDs. Not many, express Boldizar’s frustrations with law lious, more free-thinking and radical,
unfortunately, but enough. and legal reasoning.
Still, the degree of calculation Boldizar, cont’d on pg. 10
among my cohort—optimizing at three comments
every five classes, that sort of thing—the carefulness An excerpt from Alexander Boldizar’s in your mountain analogy, it took you downwards? I
and artificiality of much of our social interaction, the The Ugly: could expel you for talking about your penis in class.
neuroticism, swan-like pretence (beautiful on the sur- Or for not being Muzhduk the Ugli. The real Muzh-
face, paddling furiously underneath, biting anything duk the Ugli, the female painter from Tennessee. As
Sclera straightened his back to make himself taller
that came too close), and the lack of primal fire started far as I can tell, the other Ugli, the chief wannabe
while still sitting on Muzhduk’s bed. “In your opin-
to turn me off law school, and with it abstracted ana- from Siberia, never sent in his transcript.”
ion, then, is Harvard a trade school? Or an ivory
lytic thinking in general. I started missing flesh and Muzhduk frowned and pulled on his beard with a
tower of intellect? Hmm?” He skirled the end of his
rock and the gaps between logical steps. There was al- fisted hand. Sclera was right. The two eyes ― the
question, like misplayed bagpipes. In the tiny room
together too much Gropius and not enough Dionysus objective and subjective components ― are blurred
it was awful.
for me—not just the dorms, but we as students were here...“My comment didn’t take me downwards,”
“Trade school, mostly.” He could have refused to
going “form follows function.” Like specialized ants. Muzhduk said, wary. “It was just a different path. Or
answer; this was his room.
I was good at logic, respected logic, but frustrated that are you challenging me?”
“Hmm. ‘Mostly.’ Except the undergrad, which is
too many of my fellow students equated logic with Suddenly Sclera smiled. It was a very odd thing on
about coming from the right prep school, which, in
thinking. his face, a lipless cracking and crinkling all over that
turn, is about wealth. But then…how far did you
Writing for the Harvard Law Record became a sort showed him to be far older than he looked. “No chal-
walk, Mr. Ugli, to get here?”
of defense. I could write in a nonlinear way, and I could lenge, though it has been an unexpected pleasure.
Sclera waited a few beats to let his question sink in,
dissent. People are driven to write by all sorts of private No, this is just a proposition. For you and your 22-
then answered it himself: “It’s all in the name, Mr.
reasons, noble, selfish, naïve, reasons that are often pole penis that recognises no truths, not even your
Ugli. Absurdly obvious, trite even, but important. A
very different from the ones that we articulate to oth- own goals. Think of me as your old-man guide, here
name like Harvard is not a label for the truth. No-
ers. In my case, the original impulse was extraordinar- to tell you where your path is.” He paused, because
body comes here for the buildings or the professors
ily abstract. I wanted to understand “What is he knew he had Muzhduk’s attention. “I want you to
or the books or the other students or any other reason
thinking?” That was my meaning-of-life question, one destroy the library. The first student we chose to burn
except the name that sits on top of all this.” He ges-
that played out for me over three years of columns. it down did it for his grades, and so he failed. We
tured around at the concrete-slab walls, the hanging
The answers that I was coming up with clashed with need you to destroy it. Particularly the old books.”
bicycle, the mini-fridge. “Truths are the illusions that
what I was seeing at HLS. I have a lot of flaws that Sclera had set Cloaco to burn the library. “Why?”
we have forgotten are illusions. Harvard, the word, is
have interfered with my becoming a great writer,and “Confucius. Confucius had a prescription for re-
a Truth. Isn’t that why you came? So much energy
one of the joys of being a writer is that you get paid to pairing a corrupt empire. The first and most impor-
devoted to getting here. For one word.”
manifest, become painfully aware of, and work to tant step was the Rectification of Names. As empires
“So what?” Muzhduk said, then yawned, irritated.
shrink your flaws. But I also have one gift: the upside- rot, the names stay the same while the ground shifts
He covered his mouth with a vague feeling that
down eye. until it is the opposite of the name, and periodically
Sclera was contagious. “I don’t know what you
Good writing is anarchic. It feeds off tension, con- these need to be re-aligned. The Ministry of Educa-
know, or how you know it. Maybe everybody walks
flict, and it cuts through the crusty bullshit that we are tion slowly shifts from educating children - as you
here. My father and grandfather climbed mountains
all continuously building around us, the masks that we said, pulling out what’s special within each - to en-
instead. Nobody cared how steep or how many
all create and put on because if we don’t, someone else suring that they don’t have a single creative thought;
ridges the mountain had. The only thing that mat-
will create them for us, put them on our heads, give us hospitals save the man with the heart attack and give
tered was how many meters. We all agree on one
a chair, and tell us to sit there. Our world depends on a deadly virus to two who came in with sprained an-
goal and we all compete for it and only one wins.
lies in order to function, they are absolutely indispen- kles, in the end killing more people than they save;
The rest doesn’t matter.”
sable, and so to look at anyone, any thing, in our soci- the police destroy more lives than they protect; that
“Is that how you see it, Mr. Ugli? But didn’t you
ety and see it as it is and call it such is already an act sort of thing. But Confucius assumed that the Sub-
say your penis was longer than 22-hooked poles?
of dissent, of rebellion. stance was real and the Name an illusion, a simple
That it could master even Law?”
At HLS I once received a note in my pigeon hole label. So he would have renamed the Ministry of Ed-
“Like I said, that was a reaction. I was fighting on
stating that my admission devalued the Harvard name ucation as the Ministry of Stupidity, and he believed
your terms.”
for everyone else. It was signed, “Your Section 4 that sort of ‘truth in advertising’ would create the
“Yes, it was pure reaction. Pure opposition. Like an
Friends.” pressure for a new Ministry of Education, and so on.
immune system response, without thought, but cor-
There’s a continual war on here. The establishment,
rect in every way. Though you realize, don’t you, that The Ugly, cont’d on pg. 11
Page 10 Harvard Law Record March 11, 2010
Boldizar, cont’d from pg. 9 Now I’m an art critic and an editor of C-Arts, a Singapore-based art magazine.
than the students. If they’re teaching Corporations, you might not see it, but get Three fringe benefits of being a writer: you have to continue to grow as a human
them in a seminar and you start to see their own frustrations. Yet, despite this fact, being in order for your writing to improve, you can live anywhere, and you can
there’s a prisoner element to the three years we spend there as students. Yet the incorporate anything into your career. One fringe negative: poverty. After gradu-
whole socialization of the place is guard training. When I was a student, anyway, ating from law school, I practiced international trade law for Baker & McKenzie,
it was we who were doing it to ourselves. Perhaps because individually we each San Francisco office. Eleven months of 512-page addenda on ball-bearing classi-
felt that we were smaller than the word “Harvard.” fications (millions of dollars riding on whether a ball bearing was classified as a
If you can get a bit of distance, live off campus, look at the place with upside- cylindrical roller bearing or a spherical pin bearing or one of a dozen other ball-
down eyes, HLS is the most fascinating human ecosystem I’ve ever experienced. bearing types that cost me a lot of money in alcohol to forget), working as one of
I’ve lived in a dozen countries, and nothing comes close. Perhaps a few of the 120 lawyers on the Palm spin-off from 3Com. Etc. I found myself going home and
crazier art schools. melting candles, spending 20 minutes each day after work watching shifting col-
Back to the path. My intention at HLS was to become a law professor. I pub- ors and shapes, which I later discovered was actually a very effective method for
lished two law review articles while still a student, but I started to question this as nourishing the right side of my brain. Which was starving.
I gradually become alienated from the type of analytic thinking at which I ex- Unlike a responsible person, I quit with no job waiting, with only about $30,000
celled. Would it be ethical for me to teach law if I was fundamentally against the in savings and no other assets . I moved to a trailer in the backwoods of Ten-
whole idea of law? I postponed my third year to go to Africa with a National Ge- nessee—because of a girl, why else?—thirty minutes from the town of Big Sandy,
ographic expedition to dig for dinosaur bones in the Sahara, to use my hands and population 500, on the map mostly because they lynched a black man in the 1960s.
feel a bit of reality. I dug with a toothbrush in hot sand for three months. I still oc- I had a canoe and everything.
casionally see my face on the Discovery Channel. From Tennessee I intended to move to Ladakh (Kashmir) India, write and eat
Like many things that seem romantic from a distance, most of the Africa I saw apricots. But a detour to Nepal turned into a six-month stay as the king was killed,
was brutal and desperate close up. I came back to the U.S. to finish my law degree, the Maoists got excited, and I found myself selling articles as quickly as I could
but still with an agenda. I would write an opus that would tear apart law, logic, and string words in a row and stick “Nepal” into the email subject line. From Nepal I
analytic thinking itself. To do so, I’d have to write it from outside the “nomolog- moved to Bali, where I spent three years, ran out of money completely, and started
ical circle.” The method was the message, and if I were doing things that would have seemed unusual to a
Harvard lawyer, like trading text for seafood linguine
going to attack the analytic foundations of law, I could-
n’t very well do that in a legal thesis. I’d write a novel,
“If you can get a bit of distance, live off (The gallery, Gaya Art Space, happened to have a
set half at HLS, half in Africa, juxtaposing two differ- campus, look at the place with upside- gourmet Italian restaurant attached to it.) Text turned
ent ways of thinking, showing how neither was com- down eyes, HLS is the most fascinating to managing the place. And just when everything
seemed back on track, I took a four-year detour to
plete.
And I did. I had to go all the way to MIT to get into
human ecosystem I’ve ever experi- New York City, again because of a girl.
a writing class, an advanced writing workshop full of enced. I’ve lived in a dozen countries, I applied for a green card, but didn’t get it. The girl,
budding sci-fi authors, but I eventually put the pieces and nothing comes close. Perhaps a few my wife by this point, was from Paris, Tenn., and
together and out came a dramatized, ontologically when the immigration agent saw “Paris” she assumed
complex attack on nonsituational, abstract thinking, of the crazier art schools.” “France” which meant, to her, that it was a non-
written on at least thirty-two different interpretive lev- American sponsoring me, which meant I didn’t qual-
els that bounced off each other to form a hermeneutic circle. As a thesis it did ify. It took four years to figure out the bureaucratic error caused by the simple
well. But it wasn’t exactly a novel. word Paris—not to fix it, that was impossible, but simply to figure it out. Did I
My opus became my monkey. It took me nine years and I can’t count how many mention Kafka was my favorite writer?
rewrites to turn that phenomenological monster into The Ugly, “the story of Muzh- Instead of continuing to try and get into the castle, we went back to Bali. I started
duk the Ugli the Fourth, a member of a lost tribe of boulder-throwing Slovaks liv- managing the gallery again, which turned into writing marketing text turned into
ing in the mountains of Siberia whose land is stolen by American lawyers. He is writing catalogues turned into writing art criticism turned into editing C-Arts. By
sent on a quest to Harvard Law School to learn how to defeat the lawyers.” last year I was interviewing artists like Damien Hirst and Ashley Bickerton, pass-
There were a few people who loved the book in its early version. Students of ing up publication in the New Yorker because Damien had enough North Ameri-
Heidegger and such. But it was a book that would never have found an agent if I can exposure and wanted the interview in C-Arts. And in what is perhaps the
hadn’t revised and revised and revised. Slowly it improved. The first chapter was greatest marker of nonfiction success, of the distance I’ve covered since law
nominated by Bread Loaf for the Best New American Writers anthology, three school, if you Google “suck my cock vomit” (in quotes) the first seven hits are all
different chapters were published as individual short stories. me. And, no, I don’t write porn.
The sad thing, the happy thing, the thing I had to learn, was that every one of So here I am, my nonfiction doing great, my fiction stuck, without despair. Be-
those revisions was slowed down by my own personality. I couldn’t fix the book cause if I’ve learned about writing, all art really, it’s that it never travels a straight
until I fixed myself. To some extent, I suspect this is the ugly truth in every first line. This is neither good nor bad—though a decade now spent with artists has
novel. But correcting that is not a fast process. Neither is publishing. I had a cou- made me miss the rationality and logic of lawyers—it’s just a fact of life.
ple of deals for The Ugly fall through when the financial markets collapsed and A law career has a fairly tight correlation between how much you put into it and
nearly took several publishing houses with them. As of this writing, it’s still being how much you get out in terms of money, career advancement, etc. In art it’s all
considered by four houses. subjective, nearly irrational. And the further out you are—culturally, aesthetically,
And so I scratch my head and publish short stories, which I don’t actually write, funnybonely—the more this is an issue. As with everything else in our society,
which are all simply excerpts of my novels. Short stories and nonfiction. Oh, and there are people trying to rationalize it. MFA programs pumping out professors of
art criticism. If I had to choose one field that I know absolutely nothing about, it purple prose, and such. But I don’t think an MFA approach to writing will ever
would be baseball. Just after baseball would be art. Or, that was the case some lead to great literature. The clarity and critical eye of law school—the anarchist
years ago, when I found myself running a large international art gallery in Bali. lawyer—just might. That’s my dream, anyway.

Immigration, cont’d from pg. 12
her complicated asylum claim. The
judge, sympathetic to my pleas, still had
to call the regional assistant chief im-
migration judge just to get permission
to deviate from his case completion
deadlines, because the clients with
ankle bracelets were being heavily ex-
pedited, regardless of the merits of their
cases.
Immigration judges experience
burnout, high stresses, and “compas-
sion fatigue,” causing one crying asy-
lum seeker to sound just like another. In
their offices, they are given little staff
support, often having to share one law
clerk among four or five judges. (New
job opportunities for unemployed law
grads, anyone?) The understaffing at
EOIR is not news: former Attorney
General Alberto Gonzales ’82 seemed
concerned about the issue, recommend-
ing DOJ hire 40 new judges. DOJ isn’t
even close to that goal, barely keeping
up with attrition.
The lack of prosecutorial discretion is
another serious problem the ABA
points out, as unlike the criminal courts,
this is a system where the “cops” (ICE
or Border Patrol officers) file the
charges and the “prosecutors” (DHS
trial attorneys) rarely, if ever terminate
cases for purely discretionary reasons,
even if the respondents are children, the
elderly, or the mentally ill. This leads to
another problem: none of these groups,
even if they are indigent asylum seek-
ers, are entitled to free counsel. Much
has been written on this issue: the lack
of access to counsel in addition to doc-
umented disparities in immigration
judge asylum grant rates has produced
what some scholars call “refugee
roulette” – an unpredictable system that
is not in line with our desires to meet
international human rights obligations.
As a result, more and more cases are
appealed through the Board of Immi-
gration Appeals, which does not, for
various reasons, always review immi-
gration judge decisions very robustly,
and land in the laps of federal circuit
court judges, who are not happy about
their exploding immigration docket.
Judge Richard Posner ’62, who has
been the sharpest and loudest critic,
said as long ago as 2005 that the adju-
dications of cases by the immigration
courts and the BIA had “fallen below
the minimum standards of justice.” The
immigration judges themselves are not
burying their heads in the sand: Dana
Leigh Marks, president of the National
Association of Immigration Judges, has
agreed that for many clients, they are
trying “the equivalent of death penalty
cases…in a traffic court setting.”
We cannot fund cops but not courts.
If local law enforcement partnerships
with immigration authorities are here to
stay, and it looks like they may be, we
must also re-discover prosecutorial dis-
cretion and build an immigration court
system that can keep pace with our de-
sires to process more and more immi-
grants through it – a system that is at
once bigger, fairer, and more flexible.
And yet, despite the cracks in the
walls of the immigration court system,
I’ve decided to join up. When my fel-
lowship ends this year, I’m taking an at-
torney advisor (law clerk) position with
the New York Immigration Court.
I am doing so because the system will
chug on whether or not people work for
it that have defended immigrants or
read ABA commission reports. No one
is going to take a political wrecking ball
to the immigration court system and
tear it all down; the ABA’s most radical
suggestions are converting it to an Arti-
cle I court and hiring a lot more judges
and clerks. Having been both a public
school teacher and a nonprofit attorney,
I know good people can do good work
even in a stressed organization. I’ve
seen that from some of the judges and
even DHS attorneys I’ve encountered
in the last two years. So I will try to do
good work. But it’s slow going.
Andrea Saenz ’08 is an Equal Justice
Works Fellow at Boston’s Political Asy-
lum /Immigration Representation
(PAIR) Project. She was Editor-in-Chief
of the Record from 2007-08.
March 11, 2010
The Ugly, cont’d from pg. 9
The old one would die out, and the cycle would con-
tinue. Perhaps that worked in China 2500 years ago.
But not here. Harvard as a network of books and
buildings doesn’t matter. The Name matters. We can’t
change the Name, but we are out of alignment. So the
Substance must be Rectified, to conform to the
Name.”
“So re-align it. Hire better professors, admit differ-
ent students, write better books and dissertations, tear
down Gropius and put up a dormitory where humans
can live.”
“The professors have tenure, the shelves in the li-
brary are full and new acquisitions controlled by com-
plex exclusivity contracts, all the dissertation topics
have been used up except for ridiculous minutiae, and
Gropius is protected as a heritage landmark. And all
the students admitted here are in such awe of actually
being here that they offer no resistance at all. There is
no tension, nothing to keep us honest. Only someone
immune to the Truth can re-align it.”
Muzhduk nodded, finally understanding what
Sclera was talking about. But he was wrong. “I wear
a towel when I walk to the bathroom now.”
“I have been teaching here since before you were
born, and not a single student has ever been so irrev-
erent on the first day of class. They all knew that such
tricks are ignis fatuus against my Logic, Authority and
Harvard Law Record
Procedure, leading only to an F. You didn’t think of
this, nor of my name and reputation. You trusted ab-
solutely in your foolishness, and so it worked.
“I realised long ago,” Sclera continued, “that one
day someone might be able to wiggle off my Logic
so I developed a more powerful weapon: listening. Or,
rather, hearkening. When you interrupted, I controlled
you through your own words. You didn’t hear my lis-
tening, you thought I was speaking and that you alone
could resist it. Your attention was focused, and I lost
all interest in maintaining the class as mine. I faded
and held on to that moment of egocentric rapture
beaming from your face. In that moment, I was al-
most destroyed, I lost all desire, all possibility of
order, but all that happened was that you escaped, and
only really for that one class, temporarily. So you re-
ally did not escape at all, you see. Unless, of course,
you understood that I was listening, and put up your
foolishness as a mask and a shield. But that seems un-
likely. As refreshing as it is to have a student who
fights back, you clearly stand no chance of making it
through HLS. You are a throwback, with an admis-
sions file that is, shall we say, ‘name-rectified.’ And
yet, you are the embodiment of precisely the sort of
disorder that can bring back a new order, a Rectifica-
tion of Substance such that it conforms to the Name.
Movement away from order is the only way to create
greater order. In exchange, you’ll get your degree.”
Page 11
Muzhduk pulled on his beard again. “And if I re-
fuse?”
“Have you heard of the old German Whitsuntide
rite, the ‘Expulsion of the Wild Man?’ You have until
then. But this, of course, is neither a threat nor a com-
mand. It is merely an offer for an exchange. One
could call it Friendship. I have waited for someone
like you for many years. Goodnight.” Sclera walked
out the door, leaving Muzhduk wondering when
Whitsuntide was. It had been an exhausting day; it
was tomorrow now, after midnight.
He couldn’t sleep, so he walked out of Gropius. The
grass in Holmes Field was covered in autumn leaves,
but the asphalt walking paths were clear even in the
windy moonless night. One or two stray leaves. He
stopped in the middle of the field, at the Statue of Pro-
trusion and Contraption, the jagged pipes at odd an-
gles sculpted to go with the Gropius dormitory. It
made him think of a machine, the Motor Vehicle
which had run down Tickle in Sclera’s first class. Or
had it been Barton? He didn’t remember anymore. He
climbed the statue, wrapped the crook of his knees
over a pipe and hung upside-down. There were no
mountains in Boston, and tall buildings were the op-
posite of mountains. But hanging upside down made
him feel better.

Red Light, cont’d from pg. 6
the position of the United States Gov-
ernment”. This development was
caused, according to the Panel, by “a
cascade of protests by American do-
mestic organizations such as the Fam-
ily Research Council and Focus on the
Family.”
While DOC officials seemed to first
approve the new TLD, they were gal-
vanized into opposition by critique by
the Religious Right, including figures
such as Jim Dobson, who had, as the
Panel writes, “influential access to high
level officials of the U.S. Administra-
tion.”
ICANN thus faced a dilemma: If it
accepted the .xxx domain it would
show that it was immune to interference
by the US government. This was an im-
portant issue at that time, as the so-
called World Summit on the
Information Society process was ongo-
ing at the time. The process explicitly
aimed at creating a more international
(read: less US-influenced) Internet
Governance. But if ICANN did not re-
consider the introduction of .xxx, there
might have been a serious backlash
from the Bush Administration, which
was under pressure from Christian Con-
servatives. “We’re damned if we do”,
ICANN Chairman Vint Cerf is quoted
as saying in 2005, “and damned if we
don’t.” In the end, ICANN refused to
allow .xxx. Now, five years later, they
were again “damned” for this decision.
No deference necessary
The three judge panel consisted of a
former President of the International
Court of Justice, Stephen M. Schwebel,
as Chair, the former president of both
the London Court of International Ar-
bitration and the World Bank Adminis-
trative Tribunal, Jan Paulsson, and
Dickran M. Tevrizian, a U.S. federal
judge for the Central District of Cali-
fornia. The majority first underlined
that “the judgments of the ICANN
Board are to be reviewed and appraised
by the Panel objectively, not deferen-
tially by application of the ‘business
judgement’ rule”. Judge Tevrizian, who
had been nominated by ICANN, dis-
sented on this point saying that a de
novo consideration of evidence should
not have taken place. Also, he disagreed
with the role of international law in the
case. Though not decisive in this case,
the majority ruled that ICANN was
“charged with acting consistently with
relevant principles of international law,
including the general principles of law
recognized as a source of international
law”, and specifically the principle of
good faith. ICANN had denied the im-
port of international legal principles for
its work.
The majority also found that ICM
Registry had met all the necessary con-
ditions, including “sponsorship criteria”
(which relate to the proposal being rep-
resentative of the industry it purports to
represent) and that the decision by the
ICANN Board to reconsider their ap-
plication was a violation of “neutral,
objective and fair documented policy.”
Forced migration?
This decision which ends a year-long
battle that had pitted Internet scholars
against each other does not even satisfy
all representatives of the adult enter-
tainment industry. A Top Level Domain
dedicated exclusively to adult content
could be used by some states as a
means to force all unwanted or suppos-
edly immoral content to migrate to this
TLD which could then be easily moni-
tored or blocked. Professor Goldsmith
confirmed this in his expert report: A
“website on the .XXX domain is easier
for nations to regulate and exclude from
computers in their countries because
they can block all sites on the .XXX do-
main with relative ease but have to look
at the content, or make guesses based
on domain names, to block unwanted
pornography on .COM and other top
level domains.“
Will states use the .xxx domain to
create a red light district on the Inter-
net? Milton Mueller, Professor at Syra-
cuse University School of Information
Studies and Director of its Telecommu-
nications Network Management Pro-
gram and another expert witness for
ICM Registry alongside Professor
Goldsmith, does not think so. In a state-
ment to the Harvard Law Record, he
writes that “countries that possess both
the political power and the hostility to
freedom of expression required to do
that are the ones that systematically
block online porn anyway (China, the
Arab states, Iran, etc). If it meant that
the sites were merely segregated in .xxx
rather than blocked altogether, it would
be a step forward for adult sites. There
might be some countries that try to use
.xxx as a compulsory red light district,
but if that just means that they are
blocked the obvious response is for the
online adult sites to locate in the U.S.
and other more liberal countries”.
Similarly, on the “Online Adult In-
dustry News” blog, Stuart Lawley,
Chairman of ICM Registry, was quoted
as saying that he is “eager to work with
ICANN to make dot-xxx a reality, and
the time for stalling is long past.” (I
would have wanted to read on, but ac-
cessing the site produced a stream of
strange pop-ups of scantily-clad women
and my neighbors in the library had
started to frown.)
Is there anything to Judge Tevrizian’s
warning in his dissent that “any dis-
gruntled person” will now be able to
“second guess” ICANN. “This is sheer
nonsense”, Professor Mueller told the
Record. “One has to be a lot more than
‘disgruntled’ to take on the risks, costs
and time burdens required by the
[process] as it now stands.” First, this is
a question of money. According to
Mueller ICM Registry spent $ 4-5 mil-
lion on legal representation. More fun-
damentally, Mueller believes Judge
Tevrizian’s warning to be plain wrong:
“Couldn't you say the same thing about
judicial review of Congress or the Ex-
ecutive Orders of the President? Or
lawsuits against corporations by their
shareholders? Does Tevrizian think that
no corporate board can ever do
wrong?” As the financial crisis has
demonstrated beyond doubt, corporate
boards can do wrong and courts are
often right to second-guess them.
A defeat that is a victory?
In the end, ICANN’s defeat might ac-
tually be a win. Professor Mueller
wrote in his blog that “the "defeat" for
ICANN's past President and Board
Chair (and the Bush Administration) is
actually a great victory for ICANN as
an institution”. To the Record, he ex-
plained that “ICANN is a new global
governance institution. Up to now, peo-
ple have been deeply worried about its
lack of a foundation in law, a problem
caused by its global nature and its uni-
lateral creation by the US. The feeling
that ICANN has inadequate external ac-
countability mechanisms prevails al-
most everywhere outside of those on
the payroll of ICANN.” The new re-
view process, however, will provide
ICANN's stakeholders with a greater
sense of security and ICANN itself with
some guidance. Overruling ICANN
was important. “The panel proved be-
yond a doubt”, Mueller said, “that the
independent review really is ‘indepen-
dent’, and this in turn builds confidence
that ICANN's own institutional solu-
tions can develop into the robust ac-
countability mechanisms it needs.”
This backbone against future govern-
ment interference might come in rather
handy, as only on February 24,
Lawrence E. Strickling ’76, Assistant
Secretary of Commerce for Communi-
cations and Information, announced
that the US would end its decades-old
“hands-off” policy towards the Internet:
Without “government involvement”, he
said in a speech at the The Media Insti-
tute, “we will lose the one thing that the
Internet must have—not just to thrive,
but to survive—the trust of all actors on
the Internet.”
The panel confirmed ICANN’s view
on one essential point: The decision is
not binding on the ICANN Board. But
ICANN is likely to allow .xxx anyhow.
After all, the last years saw an interna-
tionalization and a liberalization of the
Top Level Domain market. These days,
ICANN is accepting new propositions
for Top Level Domains from cities
(think .berlin), regions, and private ac-
tors. Apart from meeting certain policy
conditions, it’s just the small matter of
paying around US$100,000 to become
the owner of your very own Top Level
Domain.
Matthias C. Kettemann, a Fulbright
and Boas scholar, is an LL.M. student
from Austria.
Page 12
MORE THAN PARADISE LOST IN A.R.T.’S DEPRESSION ON STAGE
ART’s Paradise Lost, featuring David Chandler, Jonathan Epstein. Photo: Marcus Stern.
Funding Immigration Cops, But Not Courts
BY ANDREA SAENZ
As an immigration attorney, I represent an asylum
client who was arrested in the Michael Bianco fac-
tory raid in New Bedford, MA in March 2007 – so
long ago that at the time of the raid, I was a mere 2L
in the Harvard Immigration and Refugee Clinic,
proving support to the lawyers helping the newly ar-
rested clients. After various procedural steps, the
client was finally given an hearing date for Novem-
ber 2009. As usual, we worked for hours upon hours
assembling her brief, country conditions documen-
tation, expert affidavits, and more.
Two weeks before the hearing, the judge took a
medical leave and canceled several weeks of his
schedule. We appeared in court the next month to
get a new hearing date for the client. Her new date:
May 2011, four years after her first arrest. That was
the first free slot.
On top of that, because the client applied for asy-
lum more than a year after entering the U.S., she is
ineligible for a work permit while her case drags on.
She must stay in the U.S without the right to work
until her case is called -- unless she gives up hope
and goes back to the country she fears.
In another recent case, I worried for the entire thir-
teen months we waited between filing the client’s
application for permanent residence and the court
hearing that one of the client’s key witnesses and
claims to relief, her elderly and ill mother, would die
and devastate not only her daughter but her daugh-
ter’s chance at a green card.
These kind of delays are pervasive in every one
of the U.S.’s 57 immigration courts, and are getting
worse by the day, thanks to two factors: the under-
funding of the immigration courts, and the explo-
sive funding of law enforcement programs that refer
foreign-born people from encounters with the crim-
inal justice system into the immigration court sys-
tem. While the recent media attention on the
immigration system has focused on the possibility
of political reform, and importantly, on the shocking
conditions and challenges of the immigration de-
tention system, the actual functioning of the immi-
gration courts themselves has received little ink.
The problem is simple: The immigration courts
were already a ten-pound bag straining to hold a
twenty-pound caseload. With the incredible growth
of the Criminal Alien Program, 287(g) local law en-
forcement partnerships, and Secure Communities
jail screenings, without any parallel growth in fund-
ing for the courts or prosecutorial discretion, the law
enforcement system has dropped a fifty-pound
weight right on top of the sack, and it is more than
the system can bear if it is to produce real due
Harvard Law Record
process. And given what is at stake – the unity of
parents and children, protection from persecution,
and more – we must produce due process.
Consider the numbers: In fiscal year 2008, the De-
partment of Homeland Security initiated removal
proceedings against 291,217 people, who must all
be tried by the Department of Justice’s Executive
Office for Immigration Review (EOIR), operating
with 57 courts and 231 judges. This is a 36% in-
crease from just two years ago. Each judge now
completes more than 1200 cases per year. Compare
that to 729 cases a year for a Veterans Law Judge
and 544 cases a year for a Social Security adminis-
trative law judge.
And it is likely to get worse, as Congress contin-
ues to pump up funding for Immigration and Cus-
toms Enforcement programs. DHS has already
announced that they will expand Secure Communi-
ties and hope to eventually check the immigration
status of virtually every person booked into any
local jail in America through their fingerprints.
Every one of the people referred from these checks,
which include both undocumented people arrested
but never charged with a crime as well as long-time
permanent residents with criminal convictions as
minor as a single simple drug possession charge,
will be funneled into an immigration court system
whose resources are stagnant.
But don’t take my word for it. The American Bar
Association Commission on Immigration has just
released a nearly-500-page report, “Reforming the
Immigration System,” analyzing in great detail the
holes in the court system. The ABA strongly rec-
ommends major changes in judge hiring and train-
ing, access to counsel, judicial review, reduced use
of detention and videoconferencing, and increased
discretion by DHS attorneys. Last June, the Apple-
seed Center for Justice released a report, “Assem-
bly Line Injustice,” making many of the same points
and emphasizing the need for a more professional
and consistent court system that provides some kind
of counsel to poor clients who are eligible for relief.
Beyond delays, judges are under enormous pres-
sure to finish cases that do come before them on
tight “case completion” deadlines, and so to rush
complex cases through the system. Individual hear-
ings, even difficult asylum cases, are regularly dou-
ble and triple-booked into three-hour hearing slots,
with the parties knowing that asking for a continu-
ance to finish means waiting another year or more.
In a case I had in 2008 involving a victim of seri-
ous domestic violence who was put on an electronic
ankle bracelet despite having no criminal record, I
had to beg and plead for an extra month to prepare
Immigration, cont’d on pg. 10
March 11, 2010
...a Missed Opportunity as Well
BY JESSICA CORSI
“For neither man nor angel can discern Hypocrisy,
the only evil that walks Invisible, except to God alone....”
Unfortunately for theater goers attending the A.R.T.'s
latest production, Clifford Odets does not appear to have
taken this wisdom from Milton when writing his own
Paradise Lost. The heavy-handedness of his writing flat-
tens characters who are struggling through the challenges
of the Great Depression and have no need of metaphor
and abstraction. And while the A.R.T. has attempted to
bring the drama to life with quasi-existentialism and in-
novative visual techniques, the story is deprived of true
significance by its suffocatingly hollow dialogue.
Odets’ Paradise Lost is a tale of the well-intentioned,
entrepreneurial Gordon family losing it all as they cling
to each other, their dreams, and the right thing to do.
Each family member and each character in the Gordons’
extended community is, however, little more than a car-
icature of an idea that Odets wished to emphasize, or a
mere mouth piece for speeches on greed, equality,
democracy, or the moral path. The patriarch of the fam-
ily, Leo Gordon, is a soft dreamer, a philosopher turned
business owner whose lofty ideals can’t keep pace with
cut-throat capitalism. Mr. Gordon’s character is thrust
upon the audience, frequently quoting radical, gentle
philosophers. He is less grating than Pearl, the sole
daughter of the family and a reclusive genius concert pi-
anist who never achieved her potential. Mr. Pike, the fur-
nace man living in the Gordons’ basement, is clearly the
voice of Odets himself, tirelessly reminding the audience
that the patriotic response to a financial crisis is the hu-
mane one, and that it is unnatural for humans to starve
when the means to feed humanity have remained at hand
throughout the economic downturn.
Pearl could have been the most interesting character
but was relegated to a constant backseat, both by Odets’
writing and the director's seclusion of her in the corner of
the stage. The most profound social commentary in the
play comes in her all too brief words on the individual-
ism of American society. She has been abandoned by her
fiancé as he seeks work in a bigger city and robbed of
her chance to be the great concert pianist because this
path was too expensive. Pearl declares that she is only
worried about herself and her own well being. Here we
see the tiniest glimmer of the explanation for where
America was then, and where it is now. Odets wanted us
to focus on the grand competing narratives of greed and
profit, of politics and nationhood. What he left out is that
most people can’t be bothered to think in those terms and
instead mind only their own needs and those of their im-
mediate family. If he could have melded the two forces—
individual desperation and the indifference of an
American government that has left individuals to fend
for themselves—he could have painted a picture of the
American character and culture and transcended his
sometimes shrill, sometimes disconnected monologues.
It could have been the perfect time for the American
Repertory Theater to revive a Depression era play about
financial crisis and an American family struggling
through foreclosure. But if the point was to connect
modern audiences to the story of Depression era desper-
ation—a narrative that needs little help to be evocative
and meaningful in today’s bust cycle economy—the ex-
ercise failed.
The American Repertory Theatre placed a quote from
Odets on its website: “It is my hope that when people see
Paradise Lost they’re going to be glad that they’re alive.
And I hope that after they see it, they’ll turn to strangers
sitting next to them and say hello.” When the curtains
closed on the final act, I was too despondent to want to
talk. I was depressed by the subject matter, and by the
fact that little has changed in almost 100 years of Amer-
ican prosperity—the boom is still too high, the bust is
still too low. We feel the pain so sharply because of our
system that allows us to grab it all without paying back
into the community and which keeps corporate giants
afloat while consumers founder. If our wealth went to
the construction of strong social safety nets instead of to
the insulation of individual’s pockets, we wouldn’t be in
a foreclosure crisis right now.
But I was also sad for this missed opportunity of a play.
Without a fully developed family of characters to rally
behind, viewing Paradise Lost was about as touching as
watching pundits debate on a 24 hour news channel. And
if it’s one thing that is not going to move American cul-
ture or economics ahead, it is more one dimensional hot
air dressed up as something worth listening to.