BYANUSH EMELIANOVAAND GUSTAVO RIBEIRO

Why does the brain scare itself? OnMonday, October 19, Professor DanGilbert confronted this question in anevent sponsored by first-year SectionVI. Professor Gilbert, who wrote thebestselling book Stumbling on Happi-ness, is a Professor of Psychology atHarvard University and the Directorof Harvard’s Hedonic PsychologyLaboratory. He opened his remarks bystating that the power of the mind toautomatically make predictions bysimulating outcomes is the key featurethat distinguishes humans from otheranimals. Because the brain is madeup of semi-independent systems, itcan talk to itself or even “scare itself”.

BY CHRIS SZABLA

Michael Leiter ’00 breezed intoHauser Hall after spending the last twohours at the Kennedy School. “I’m inneed of serious intellectual stimula-tion,” he joked, invoking Harvard LawSchool’s longstanding derision of itspublic policy-oriented counterpartacross Harvard Square.Yet Leiter’s cross-campus trek at

Harvard mirrors the evolution in hisown life: from the apogee of the worldof legal academia, as president of theHarvard Law Review, to the NationalCounterterrorism Center, where hespends far more time analyzing foreignintelligence than legal opinions. Whenhe first met Barack Obama ’91, the cur-rent U.S. president spun around uponhearing that Leiter, like him, had led theprestigious Review. “What are youdoing briefing me on counterterror-

ism?” Obama wondered.The National Counterterrorism Cen-

ter was created in the wake of Septem-ber 11th to collect and synchronize datafrom the U.S.’ various intelligenceagencies, and to make correspondingrecommendations for counterterrorismpolicy, which Leiter delivers to person-nel ranging from the President to indi-vidual policemen and firefighters. Hewas appointed in 2008, after a careerthat included a clerkship with JusticeStephen Breyer ’64, a stint as a federalprosecutor, and time spent serving inthe U.S. navy during campaigns in Yu-goslavia and Iraq. It was his militaryservice that gave him his shot at work-ing in counterterrorism.Leiter’s current role puts him in a po-

sition to know quite a bit about theworld, and during his visit to HLS –sponsored by the National Security andLaw Association – he led a discussionon the security situations in areas rang-ing from Afghanistan and Pakistan toYemen and even to the potential for do-mestic Islamist terrorism in the U.S.Afghanistan and Pakistan, Leiter

noted, was “in flux” more than at anytime since Pakistan’s independence inthe wake of Partition from India in1947. The border area between the twocountries was home to “core elements”ofAl Qaeda, which are forming new li-aisons with Pakistani militant groupssuch as Lashkar-e-Taiba, enabling thegroup, just a few weeks ago, to mount adirect attack on Pakistan’s militaryheadquarters.Pakistan, Leiter said, had traditionally

Harvard Law RecordNovember 5, 2009 Vol. CXXIX, No. 5www.hlrecord.org — twitter @hlrecord

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News• Cyberterrorism Eludes Experts• Psychologist’s Sources of Fear

Opinion• More Democracy for Europe• U.S. Assassinations in Somalia

Features• MacKinnon and Social Change• Travel: Ski Austria’s Alps• A.R.T.’s Sexy “Sleep”

INSIDEThe HL Record

Counterterrorism Chief:Secrecy Vital to Nat’l Security

ALL NEW: HLRECORD.ORG

Leiter, cont’d on pg. 3

Nat’l Counterterror Director Argues TerrorFight Oversight is Best Pursued Behind Scenes

NADERasNOVELIST:“ONLY THE SUPER-RICH CAN SAVE US!”Presidential Candidate Ralph Nader ‘58Answers Ayn Rand in Latest Book

Recent Harvard Law School alumnusBrian Schroeder ’09 allegedly set fireto a chapel in Manhattan on the morn-ing of October 31st, according to vari-ous New York media outlets, includingthe New York Times. The chapel, lo-cated in Memorial Park, at First Ave.and 30th St., houses the remains ofunidentified victims of the September11, 2001 terrorist attacks on the WorldTrade Center. Media that reached thescene have indicated that the remains,which are housed in a climate-con-trolled vault while they await DNAidentification, were not affected, butthat cards, flowers, and other memen-

AlumArrested for9/11 Chapel Arson

Stop Fooling Yourself!Psychologist Searches for Source of Fear

BYMATTHEWW. HUTCHINS

Would the United States become a po-lice state if there were another majorterrorist attack on our country? Whydid law professors, deans, and lawyersnot stand up to theconstitutional viola-tions of Bush andCheney? What de-termines the cur-riculum of Harvard Law School? Whydo contracts professors minimize theimportance of adhesion contracts, theyconstitute 99% of what we sign? Is ittrue that 80% of the lawyers represent20% of the people?In his visit to HLS on Friday, October

30th, Ralph Nader ‘58, implored stu-dents in the audience to ask these ques-tions of the government and theschool’s administration. “You don’thave any idea how you are respectedwhen you speak out collectively as lawstudents,” he said. Nader began his ca-

reer as a public advocate while a stu-dent at HLS half a century ago. His ar-ticles in the Harvard Law Recordexamined America’s corporations andpolitical parties with a critical eye, andwhen he graduated he drew on his work

at the Record towrite the bookUnsafe at AnySpeed (1965),which brought to

light the need for federal regulation ofauto industry titans like General Mo-tors. The result was the enactment ofmandatory safety standards that havesaved millions of lives and improvedvehicle efficiency. “That came out ofthe Harvard Law Record. It would nothave come out of the Harvard Law Re-view,” said Nader.Over his decades of public advocacy,

Nader has been instrumental in the cre-ation of numerous public interest or-ganizations and the enactment of

NADER’S SPEECH: VIDEO@HLRECORD.ORG

Nader, cont’d on pg. 5

Gilbert, cont’d on pg. 7 Arson, cont’d on pg. 4

Page 2 Harvard Law Record November 5, 2009

November 5, 2009 Harvard Law Record Page 3

WA R O N T E R R O Rused such groups as proxies through which to conduct its foreign policy. He hopedthat the headquarters attack would compel the Pakistani military to decisivelymove away from its defensive stance toward India and to engage militant groupsinstead. He expressed optimism, however, that Pakistan’s nuclear weapons wouldnot “fall into the wrong hands,” saying that the weapons had been secured, and thathe worried about the use of cruder, more improvised weapons instead.Leiter also highlighted the security risk emanating from Yemen. Recently, a

Yemeni national trained by Al Qaeda had tried to assassinate a member of theSaudi royal family, he said. According to Leiter, Afghanistan, Yemen, and Soma-lia were symptomatic cases, illustrating a larger trend: ex-tremist groups taking over sparsely-governed states or areaswithin states and using them as training grounds to exportterrorism.While the U.S. has not faced as challenging a security

threat from its domestic Muslim population as the U.K.,Leiter noted, the Somali immigrant population in the coun-try was posing an increasing challenge. 18-25 year old So-malis have been traveling in increasing numbers back toSomalia, attracted by the desire to defend the countryagainst intervention from the African Union and otherforces, which are sporadically present in unstable regions ofthe country. While Americans have always traveled abroad to fight for foreigncauses, such as during the Spanish CivilWar, Leiter observed, this was the first in-stance in which the U.S. was producing home-grown suicide bombers.While they existed in lesser numbers, Leiter also pointed out thatAfghan-Amer-

icans have traveled to Pakistan to gain training fromAl Qaeda, and have attemptedto set off improvised explosive devices in the group’s name in the U.S.Leiter said that it would be difficult for domestic agencies to form a single pol-

icy for engagement with the U.S. Muslim community, which he said was too het-erogeneous for such a scheme, although he also noted that the government coulddo more to earn the trust of poorer, less-educated U.S. Muslims, particularly theSomali community.Still, Leiter emphasized that instances of “home-grown terror” were not cause

for any more alarm than traditional domestic security issues faced by the U.S.,such as school shootings. In such a big country, he observed, there were alwaysbound to be new and creative forms of violence. This illustrated, he said, that suchterror should be dealt with as domestic law enforcement agencies deal with otherthreats – they should be prevented and stopped as often as possible, but could notbe eliminated entirely.Leiter said he had divined at least four major lessons from his time at the NCTC.

The first was to not over-learn lessons from the past – an enemy could alwaysreact in a different way to a given tactic or policy. The second was that “the coun-terterrorism tail should not wag the policy dog” – that counterterrorism should

not be the basis for foreign policy. He noticed that inAfghanistan, pursuing coun-terterrorism at the expense of other priorities had left the U.S. supporting literallyany group that would act against Al Qaeda, with potentially dangerous conse-quences. Still, in some cases, as in Yemen, he acknowledged, the U.S. has few in-terests to attend to other than counterterrorism.Third, Leiter opined, formulating policy was easy, but – and here was where he

was most skeptical of the Kennedy School’s public policy perspective – forminga cohesive process to ensure accountability when something happens as a byprod-uct of that policy, work, he said, better suited to lawyers, was the hard part.Finally, and most controversially, Leiter said that everything counterterrorism

did would require a large degree of public trust. He believedtransparency would undermine such trust, making it diffi-cult for counterterrorism policymakers to operate. Muchneeded to happen behind the scenes, he said, citing the useof provisions of the Patriot Act to foil a recent bomb plotagainst NewYork City subways, and noting that, in terms ofinternational operations, there “was no altruism in interna-tional affairs,” and that difficult and delicate trade-offs wereoften made in the pursuit of security.Returning to his third major lesson, Leiter said that, in the

absence of public oversight, lawyers ought to play a greaterrole ensuring that there is accountability for any action taken

behind the scenes. A breakdown of the internal channels set up by the Church andPike Commissions in the 1970s – specifically, a lack of trust in the House andSenate Intelligence Committees and the special courts set up to monitor use ofthe Foreign Intelligence Security Act (FISA) is what has led members of Con-gress to leak vital information to the press, rather than deal with problems withinthe system. “Everything now plays out on the front page of the New York Timesand theWashington Post,” Leiter said, making it difficult for the NCTC and othernational security agencies to pursue effective policies.Leiter’s position on secrecy may reflect the fact that he is a legacy of the Bush

administration, which first appointed him to his position in 2008. Still, he insists,his job has not changed much since Obama took office. 98% of his work, Leitersaid, was “apolitical;” it was just that “the discourse” in the media focused on thehard cases that were not. “In the New York Times counterterrorism is Guantanamo,torture, and assassinations,” Leiter said. What had truly shifted between adminis-trations, Leiter observed, was the weight given to the needs and desires of differ-ent departments – Defense, in particular, had received more attention under Bushthan Obama.And while Leiter’s stance in favor of secrecy and internal oversight both rankled

and invited skepticism, he insisted that the approach would and should not sacri-fice its commitment to values. “The idea of not protecting civil liberties whiledoing this job,” he said, “is losing the war in a different way.”

BY VICTORIA BARANETSKY

Cyberterrorism is a buzzword that has been thrivingin President Barack Obama ’91’s administration, butit has such a nebulous meaning that it managed toeluded three expert panelists last Wednesday.Leonard Bailey was transferred from the Depart-

ment of Justice’s (DOJ) Computer Crimes and Intel-lectual Property Division to the administration’s newNational Security Division (NSD), in September 2009to spearhead the team’s cybercrime efforts.According the NSD’s press release, “Mr. Bailey is

widely respected within the Justice Department andthe Intelligence Community for his knowledge ofcyber issues.” However, even he admitted he is at aloss for words on the subject. The area suffers from a“limited lexicon,” he explained, “we even lack a uni-fied definition of cyberterrorism and that makes dis-course on the subject difficult.”The government has failed to convene its various

departments to forge a single definition. The FBIalone has published three distinct definitions of cyber-terrorism: “Terrorism that initiates…attack[s] on in-formation” in 1999, to “the use of Cyber tools” in2000 and “a criminal act perpetrated by the use ofcomputers” in 2004. Other government agencies re-sponsible for responding to cyberattacks, such as theDepartment of Defense, Federal Emergency Manage-mentAgency, National Infrastructure Protection Cen-ter, Drug Enforcement Agency, National HomelandSecurity Agency, and the Department of Justice haveeach created their own definitions.Bailey’s explanation for the limited and conflicting

vocabulary is twofold. First, “the interest in cyber is-

sues only started in the nineties so the terms are stillnascent.” Secondly, the departments have fragmentedthe definition because the meaning depends on theirdiffering interests. “Look at the response to Twitter,”he observed. “The Department of State lauded its usein Iran, while other departments heavily criticized it.”Unlike Bailey, Kim Taipale, founder and executive

director for the Stilwell Center for Advanced Studiesin Science and Technology Policy believes “cyberter-rorism, whatever it is, is a useless term.” Taipale be-lieves that, “terrorists will use any strategic tool theycan” so “cyber” terrorism is no more important thenother forms. Rather the problem is that there is no“unified legal regime,” creating a “gap between law-makers and authorities,” he stated. “Whether the mil-itary or police should respond, whether it is domesticor foreign is not fully determined,” said Taipale.These separate entities are “incompatible and incon-sistent, making us more vulnerable to terrorism.”Taipale explained that having such a fragmented

legal structure means that we are “not equipped todeal with an array of a whole host of new problems”that cyber issues present.And this is truly troublesomebecause the line between “safe society and chaos is athin one,” said Taipale, “We are in line for some seri-ous cyber-Katrinas that we are not ready to deal with.”Like Bailey, however, Taipale believes that the “ob-

solete security infrastructure” exists because differententities have differing concerns. After cyber-threatswere made to Slobodan Milosevic’s bank accountsduring the 1999 Kosovo crisis, for example, the cy-berterrorism discussion was raised in the U.N., andalthough Russia expressed interest in the problem, theU.S. stalled the discussion. “What is and isn’t per-

missible was never decided because of the U.S.’ in-terest in its own international liability,” said Taipale.“Now there are no rules,” he continued. “Now we arereaping the problems.”Taipale’s fear that the line between safe society and

chaos is fragile is compounded by the problem oftrust, highlighted by Dr. Andrew Colarik, an infor-mation security consultant. Colarik stressed the term’setymology, saying that “there is no cyberterrorismwithout terrorism.” In essence, the goal of terrorism isto cause severe disruption through widespread fear insociety, meaning “our dependency on digital mate-rial,” is the problem, he said. “The majority of ourcurrency is not paper, it’s digital. And like money, ifwe loose confidence in the underlying system, we willhave insolvency.” Colarik argues that we should limitthe amount of information we store digitally.Taipale echoed the doomsday concern, “the U.S. is

a real target because of our dependency on the onlinesystem.” These attacks are about “exploitation.”“Non-peer” countries don’t depend on the digital sys-tem and so they have an opportunity to attack withoutthe risk of suffering from similar counterattacks.But Bailey believes the problems Taipale and Co-

larik raise cannot be solved without some basic agree-ment over terminology. “These are conversations thatcannot take place because there is no common lan-guage to discuss this,” he said. He suggests as a firststep “that we as a government have to consider whatwe think about these issues first.” The hesitation isthat “whatever you decide you have to live with.”While it is possible that trying to divine a definition ofcyberterrorism is a fools’ errand, “it is a way ofachieving an end.”

What Is Cyberterrorism? Even Experts Can’t Agree

Leiter, cont’d from pg. 1

Letter to theEditor

Page 4 Harvard Law Record November 5, 2009

HarvardLaw

Record

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

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

EStabLiShEd MCMXLViEditors-in-Chief

Matthew W. HutchinsChris SzablaStaff Editors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

Contributing WritersVictoria BaranetskyAnush Emelianova

Matthias C. KettemannGustavo Ribeiro

Kan Yan

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

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

Obama’s Nobel is thePride of Africa

When Barack Obama ’91 cam-paigned for and won the U.S. presiden-tial election, he was supported not onlyby Americans, but by millions of peo-ple across the globe who believe in hismessage of “hope”. For us in Africa,Obama symbolizes the renewal of hopefor global peace and security. We seethis honor as an encouragement and ac-knowledgement of his good vision andexcellent leadership in making theworld a safe and better place, for us andthe generations yet unborn. The elec-tion of President Obama marks a newera in international relations.Many young people across the world

see Obama as a role model. Undoubt-edly, the award which identifies him asan Ambassador of Peace will not onlyencourage him, as an individual, butalso others that look up to him. Hisability to reach out to other countriesacross political, ethnic, religious andcultural divides, within his short periodin office, surely made him a hero thatmerits this award.Congratulations President Obama.

More grease to your elbows. We areproud of you!Aminu Gamawa is an LL.M. student

from Nigeria.

BYMATTHIAS C. KETTEMANN

On Wednesday, after the Czech Republic's highest courtfailed to find any grounds on which it was unconstitutional,Czech President Václav Klaus finally signed the LisbonTreaty . The treaty's reforms will now enter into force on De-cember 1, 2010. The debate on its contents, however, is farfrom over. Reacting to my article on the Treaty in the previ-ous issue of the Harvard Law Record, a number of com-menters criticized the undemocratic character of the newtreaty and argued that it wouldmake the EU less democratic (orno more democratic) than it wasbefore. These arguments are mis-leading: they are based on awrong conceptual approach todemocracy in the EU's uniquepost- and transnational context.Article 2 of the Treaty on Euro-

pean Union as amended by theTreaty of Lisbon emphasizes thatthe Union is founded “on the val-ues of respect for human dignity,freedom, democracy, equality, therule of law and respect for humanrights” (emphasis added). Thisprinciple of democracy, which ex-tends its reach vertically (towardsMember States) and horizontally(towards EU institutions), is corrob-orated in the EU's different codifications of human rights,such as Article 3 of the First Additional Protocol to the Eu-ropean Convention on Human Rights, the common constitu-tional traditions of Member States, community practice, andthe other democratic principles in the amended treaty.Despite this, it is true that the commitment to democracy,

which had already been made in Article 6(1) of the Treatyon European Union as it existed prior to Lisbon, has not pre-vented the emergence of the "democratic deficit".But the Lisbon Treaty's attempts at reform have at least led

to a partial mitigation of portions of EU law that create a gapbetween the expectation of democracy and its fulfillment.Some problems remain, namely the gap between theamended treaty's Article 9, which enshrines the principle ofequality for all EU citizens, and the voting procedures in theCouncil, which offer less favourable population-to-votingpower ratios to citizens of bigger states.But the Lisbon Treaty truly mitigates the democratic deficit

by increasing the legitimacy of European decision-makingprocesses. First, national governments, responsible to na-tional parliaments, are united in the European Council. Sec-ond, there are direct lines of legitimacy from the citizen to theEU Parliament, though they are not yet widely perceived.WhenArticle 10 (2) of the Lisbon-amended EU treaty lays

down the democratic accountability of heads of state or gov-ernments in the European Council and of the governmentsin the Council to their national parliaments, or to their citi-zens, it relies on the powers of national parliaments to influ-ence EU decision-making procedures at an early stage byparliamentary control. Using this control more actively will

ensure that the lawmaking process will result less clearly in"laws made in Brussels", but, instead, in legislation thatemerges from a process based on a dialogue between theCommission, national parliaments, national governments onboth the national and the Union levels, the Council, and, im-portantly, the European Parliament.The Lisbon Treaty also bolsters the significance of the na-

tional parliaments' European counterpart. Article 14 (2) ofthe amended EU treaty states that the European Parliament iscomposed of “representatives of the Union’s citizens”. This

may seem obvious, but it repre-sents a real change:Article 189 ofthe old EC Treaty still referred to“representatives of the peoples ofthe States brought together in theCommunity”. Inn the new “com-munity”, the European citizenrymay plays a direct role, rather thanone mediated by the states.Beyond institutional reforms,

the Lisbon Treaty actively en-courages citizen participation: byembracing civil and politicalrights, and by further integratingcivil society and representative as-sociations into the lawmakingprocess.Such support will increase the

quality of deliberative democracyin Europe, allowing for the creation

of a European public discourse. Beyond the treaty's new legalframework, however, far-reaching structural changes in cit-izens' socio-political approaches to European topics and their(under)representation in the media, need to be discussed.This will take years.Indeed, arguments over the shape of democracy have been

a consistent feature of European intellectual history,. It standsto reason that the European Union should be able to shape anew geometry of democracy that fits its current state. A re-alistic conception of democracy has to be developed for theUnion. The multinational model, in which the member statesare the (only) relevant actors, seems anchored in the tradi-tional, nation state-oriented model of democracy. It is essen-tial to realize that the transfer of powers to regulatory entitiesbeyond the nation state needs to coincide with new modelsfor the legitimation of their decisions.A functional model of democratic legitimacy is needed that

combines participative, representative and deliberative ele-ments, in a setting where actors can translate needs into po-litical postulates and develop, propose and pass suitableremedies. This model must make it possible to trace back theexercise of this authority directly – and in an uninterruptedchain of legitimation – to the citizens of the European polity,who need to participate, to the greatest extent feasible, in theprocess of developing laws and norms.Now that the Lisbon Treaty will enter into force, it is upon

the citizens of the European Union to fill the letter of the lawwith life and to dispel the myth of the democratic deficit.

Matthias C. Kettemann is an LL.M. student from Austria.

WE, THE PEOPLE OF EUROPEHow the Lisbon Treaty Will Make the EU More Democratic

toes both inside the chapel and posted to a wooden bench inthe park, which was damaged, were either stolen or burned.Schroeder, 26, is originally from Texas. The valedictorian

of his high school, he received his undergraduate degree fromDuke, where he majored in theatre studies. He was co-pres-ident of HLS Lambda and served on a task force to assesshow to limit the impact of military recruiting on the campusgay community. He also edited the Harvard Latino Law Re-view and acted in the Parody, a satirical comedy stage showabout life at the school. After graduation, Schroeder movedto NewYork, where he had been a summer associate in 2008for the law firm Sidley Austin. Having accepted the firm'sdeferral package, he was due to start as an associate there in2011, after spending a year working at a pro bono organiza-tion with a stipend provided by the firm. Schroder was plan-ning to use the time to work in human rights law inSwitzerland. On Monday, Sidley Austin officially revokedhis job offer.He turned himself in to the police on November 1st, and

his lawyer has claimed he was drugged while the incidenttook place, perhaps because something had slipped into hisdrink. There have also been allegations that the fire was setas part of a drunken dare. Still, Schroeder's motives remainunclear. He says he cannot remember what took place thatnight."Anyone who would set fire to the inviolable Memorial

Park chapel is craven and contemptible," New York CityMayor Michael Bloomberg said in a statement. The NewYork Daily News labeled him "New York's newest PublicEnemy #1". Speaking to the newspaper about the incident, awoman whose son was a firefighter killed in the attacks,asked "why are the good people gone and the losers still withus?" The city's deputy fire chief said he didn't "know whatthey teach those kids at Harvard". Schroeder's mother calledhis actions "dumb" but said her son had committed an iso-lated incident that did not reflect his general character.Schroeder was released the night of his arrest on bail.

Charges for arson, mischief, and burglary are pending.

EU Parliament. Photo by Pietro Naj-Oleari

Arson, cont’d from pg. 1

several landmark pieces of legislation aimed at pro-tecting citizens, including the Safe Drinking WaterAct and the authorizing statutes for the OccupationalSafety and HealthAdministration, the EnvironmentalProtectionAgency, and the Consumer Product SafetyCommission. More recently, he has waged threemajor, national campaigns for President, in 2000 asthe candidate of the Green party and in 2004 and 2008as an independent candidate.Author of over thirty books, Nader’s latest work is

a “practical utopian fiction” that lays out a blueprintof how to change America from both the top-downand bottom-up. Only the Super-Rich Can Save Us!begins with an incensedWarren Buffett responding tothe Hurricane Katrina disaster by organizing an im-promptu relief effort to assist New Orleans survivors.Inspired by his ability to help the most vulnerablethrough forceful application of his wealth, Buffett or-ganizes a convention of fellow billionaires and mediamoguls to devise a plan for reversing the degenera-tion ofAmerican civil society. “The missing elementof the equation for public interest and progressivegroups is that they don’t have enough money,” saidNader. The book, Nader’s “answer to Ayn Rand”,chronicles the Super-Rich crusaders’ quest as theymobilize community organizers in every congres-sional district around the country and push against thecorporate control of Washington politics. “The con-versation is very acute, very provocative, fresh, but Ididn’t want any magic wands. The detail is to showit could happen if the money is there, because the tal-ent is out there. The solutions are on the shelf.”But Nader expressed serious concern about the abil-

ity of the next generation of HLS alumni to apply theirefforts and their imaginations to the problems facingour country. “Without elevated imagination, we don’tgo anywhere. If your imagination is not elevated, you

don’t have a vision of possibilities. If you don’t havevision of possibilities, you don’t have reach. If youdon’t have reach, you don’t have a grasp. And let’sface it, we grow up in cultures that set our imagina-tions at a certain level.” During his time at HLS,Nader found the culture of the school to be an op-pressive series of measures designed to cow studentsinto submission to a legal order dominated by corpo-

rate firms. “I gravitated to the Harvard Law Recordbecause that was the law writ large. That’s where Ifound elbow room to ask the questions of justice andinjustice, and what are lawyers for, and what’s the dif-ference between lawyers and attorneys?”Whereas at-torneys are the partisan advocates of their clients’interests, Nader believes a lawyer is someone whoasks the bigger questions about justice and the pur-poses of the law. The process of inquiry, said Nader,should begin for law students while they still have thefreedom to write about subjects they would enjoy pur-suing after graduation. “It’s very important for lawstudents, while you are free to do it, before you areout working 100 hours a week in these pressure

cooker, corporate law factories, to raise that imagina-tion level.”Beyond just imagination, Nader urged students to

take up the tools of normative analysis with zeal andwork for justice in the relationship of individuals toinstitutions. “If you don’t have fire in your belly, itdoesn’t matter what you do in the area of reform.”Nader pointed to Rosa Parks and the sit-down strikerswho formed the UnitedAutoWorkers as examples ofthe power of having resolute conviction in demandingjustice from society.Students should not, he said, adopt the skepticism of

the academy with respect to normative thinking, be-cause conceptions of justice and injustice are ques-tions that require examination through normativedimensions. Analytical champions like 7th CircuitJudge Richard Posner ’62 are, according to Nader,empirically starved and intellectually arrogant. Quot-ing from an article he wrote for The New Republic in1968, Nader characterized his time in law school as “aprocess of engineering the law student into corridorthinking and largely non-normative evaluation. It wasa three-year excursus into legal minutiae embraced bywooden logic and impervious to what OliverWendellHolmes once called the felt necessities of our times.”Another pitfall of academic myopia, Nader said, is

the fetishistic reverence of pure intellect. But the fal-lacy of this blind adherence to intellectual ability liesin its failure to yield actual improvements in the livesof individuals. “Would you rather have someone whois dim but right or smart but wrong?” he asked. Naderpointed to former President of Harvard UniversityLarry Summers, who was instrumental in the deregu-lation of the financial industry through the Gramm-Leach-BlileyAct of 1999, as the epitome of the fetishof brilliance. Financial deregulation led to the forma-tion of a $600 trillion dollar derivatives industry andthe excessive risk-taking that weakened the Harvardendowment and imperiled mega-banks like Citigroup.But despite his role in financial deregulation, Sum-mers has risen higher yet, now serving as PresidentBarack Obama ’91’s chief economic advisor.Above all, Nader expressed criticism of the steady

degradation of the status of individuals compared toinstitutions inAmerica and the decay of constitutionalorder. He pointed to the power that corporations havegained through adhesion contracts, tort reform, un-fettered lobbying power, opaque government pro-curement contracts, and trillions of dollars in bailoutsto Wall Street firms. Equally distressing to Nader isthe inability of citizens to challenge abuses of the con-stitution by actors at the highest level of government.He said that the Obama administration had only con-tributed to the problem by failing to open a full in-quiry into the Bush administration’s war in Iraq,waterboarding interrogation, and unchecked snoop-ing by the NSAand CIA. “Every time there is a majorviolation pattern and it is not called out and enforcedon, it becomes part of the fiber of a deteriorating sys-tem which will eventually end up with death squadsand rampant homicidal activity.”Nader expressed doubt that President Obama will be

successful in dealing with all the challenges his ad-ministration faces. “His problem is he’s conflictaverse, especially when it comes to corporate powerand being accused of benig soft on terror. He’s beendealt a tough hand . . . However he has a lot of com-petent people working under him.” Among the mostdaunting tasks at hand are the reversal of the damagedone to the Department of Justice under AttorneysGeneral JohnAshcroft andAlberto Gonzalez ’82 andthe extrication of the United States from the Afghanquagmire. “We should have never toppled the wholeregime . . . We will never defeat [the Taliban] becausethey view us as a foreign occupation force.”With a grim demeanor of stark gravity, Nader en-

couraged law students to remember the words ofDaniel Webster: that “justice is the greatest work ofman on Earth.” He cautioned the idealistic youth toappreciate the difficulty of maintaining resolve in thefight for social justice. “The system devours you all,equal opportunity, unless you have a strong-willed de-termination to make a difference and can challengethe invisible, institutional chains that wrap aroundyou.”

November 5, 2009 Harvard Law Record Page 5

BY JESSICA CORSI

When Catharine MacKinnon said goodbye to usat the end of her Sex Equality class on WednesdayOctober 28, she choked up, and we all choked upwith her. The emotion was evident in her voice asshe read us a passage fromVirginiaWoolf’s A Roomof One’s Own that can be found in the center ofMacKinnon’s Sex Equality textbook. The passageentreats us to work: it reminds us of why we workat all, and describes vividly the people for whomwe work when we work on sex equality:“I told you in the course of this paper that Shake-

speare had a sister; but do not look for her in SirSidney Lee's life of the poet. She died young - alas,she never wrote a word . . . . Now my belief is thatthis poet who never wrote a word and was buriedat the crossroads still lives. She lives in you and inme, and in many other women who are not heretonight, for they are washing up the dishes and put-ting the children to bed. But she lives; for greatpoets do not die . . . they need only the opportunityto walk among us in the flesh.This opportunity, as I think, it is now coming

within your power to give her. For my belief is thatif we live another century or so—I am talking of thecommon life which is the real life and not of the lit-tle separate lives which we live as individuals—andhave five hundred a year each of us and rooms ofour own; if we have the habit of freedom and thecourage to write exactly what we think; if we escapea little from the common sitting–room and seehuman beings not always in their relation to eachother but in relation to reality . . . then the oppor-tunity will come and the dead poet who was Shake-speare’s sister will put on the body which she hasso often laid down.. . . As for her coming without that preparation,

without that effort on our part, without that deter-mination that when she is born again she shall findit possible to live and write her poetry, that we can-

not expect, for that would be impossible. But I main-tain that she would come if we worked for her, andthat so to work, even in poverty and obscurity, isworth while."Why do we study law? Why do we study Sex

Equality and why do we put ourselves through theprocess of qualifying at the bar and why do we goto work every day? We do all of these things be-cause Shakespeare’s sister is dead and she neverwrote a word, despite all she could have shown usand despite how much she could have enriched ourlives and fulfilled the purpose of her own. Andwhen we sat in our Sex Equality class, we came intocontact with all of the girls and women—and boysand men, too; but mostly women and girls—whoare dead or too sick or hurt or too poor or too shutout of education or work to write, to share theirgifts, to live their lives and to contribute to ours. InSex Equality, we engaged in something that oftenfalls by the wayside in legal education: the realityof the lives of those living under and touched by thelaw.Legal discourse is theoretically and intentionally

rational, but Sex Equality was an emotional class.Contrary to the need to suppress emotion, it was in-vited into the classroom to inform processes of rea-son and applications and evaluations of law andlegal opinion. Does the current state of rape lawmake you angry? Well, it should; and that anger isan indication that the law in both the black letter andin its implementation should be modified. Do thehorrifying realities of prostitution and legal deci-sions that blame the victims of these horrors and notthe perpetrators of them make you sick? Theyshould.And instead of throwing your hands up and join-

ing the ranks of the complacent, consider insteadwhat your unique position as a person with elitelegal training could contribute to eradicating hor-rors, and to eradicating all of the other forms of dis-

CAMBRIDGE, USA: LAW AS COURAGE,EMOTION, AND SOCIAL CHANGE

Cambridge, cont’d on pg. 7

Nader, cont’d from pg. 1

Page 6 Harvard Law Record November 5, 2009

BY JESSICA CORSI

Many claim that President Barack Obama '91 wasawarded the Nobel Peace Prize to express interna-tional support for the U.S.’ reengagement with multi-lateral peace efforts, including efforts to bring an endto wars in Iraq and elsewhere. This new U.S. foreignpolicy stands in contrast to the U.S. Special Forces'recent targeted assassination of a highly wanted AlQaeda member in Somalia. On September 14th, U.S.helicopters opened fire on a convoy of trucks in south-ern Somalia and shot and killed SalehAli Saleh Nba-han, who is said to be responsible for the bombing ofan Israeli hotel on the coast of Kenya in 2002, and issuspected to have played a role in two 1998 attacksupon American embassies in East Africa. Targetedassassinations in the territory of a country whose gov-ernment is both recognized and supported by the U.S.is a counterproductive way to reengage factions thatthe U.S. had previously alienated.We could start by asking the question of whether or

not this attack was legal under international humani-tarian law, but this is neither the most interesting northe most pressing question. Instead of debatingwhether the war on terror is in fact a war, whetherthe people shot and killed were enemy com-batants, and whether the U.S. had justcause to fly over Somalia andshoot these peopledead, we should

i n s t e a dask: was this a

good idea? The legalityof the issue is fuzzy and doubt-

ful, but more importantly, this type ofmilitary operation is bad policy: we want to

change the world’s opinion about the U.S., and in par-ticular ideas about the U.S.' use of force, and who isor is not its “enemy”. If President Obama wants tomove away from George W. Bush’s aggressive mili-tary posture, a targeted assassination that sends themessage “if you cross us, we will take you out” is nota change in tune but simply more of the same.There are several other messages the U.S. could

send that would fit with the underlying assumptionsthat prompted the award of the Nobel Peace Prize. Ifwe want to reengage international institutions, rein-vigorate the idea that the U.S. is a team player, and

promote the notion of an international rule of law, wecould begin with a message that if you break the law,we will do everything in our power to deal with thisdisagreement through the law. It is not clear whetherthe Obama administration has considered this ap-proach. We have not heard any talk of, for example,capturing SalehAli Saleh Nbahan and bringing him tohis native Kenya, or to the International CriminalCourt, for trial (and now, it's too late). It is discom-fiting to learn of the assassination after the fact with-out being assured that alternative international legalstrategies designed to strengthen global systems andglobal security were considered.Perhaps the most important message that the

Obama administration could have chosen to send in-stead would have been that, if there are some funda-mental differences at issue between the U.S. andpeople set on attacking the U.S., the countrywill do everything in our power to un-derstand and better meet the in-terests of the other side.Commentators

suppor t -ing Obama's

Nobel Peace Prize haveemphasized the President’s un-

precedented engagement with the Mus-lim world. But swooping in and shooting

suspected terrorists dead undermnines such efforts,which would better ensure the U.S.’ long term na-tional security. In the process, the U.S. fails to learnwhere terrorists are coming from, why they are fight-ing, for what they are fighting for, how it is they havecome to believe so strongly that the U.S. is an enemyto be attacked, and why it is that terrorist groups arenot running out of converts. It is both too easy and tooflimsy of an explanation to think that all terrorists aremadmen that can’t be reasoned with. The story can bewritten from another angle, and that story is one of anoppressive U.S. that wages war in Afghanistan andIraq; abducts, tortures, and kills innocent people be-cause they are of Arab descent or are Muslim; andgets away with flouting international human rightsstandards in torture prisons like Abu Ghraib andGuantanamo Bay. This story continues to gainstrength, as evinced with such recent developmentsas Wednesday’s Italian conviction of 23 Americansinvolved in CIA renditions – a conviction that sends

a strong message that the world has not forgotten noris it willing to let the U.S. off the hook for its violenceand illegal war on terror strategies. If we want tochange the perception that the U.S. gets to run aroundthe world shooting whoever it wants because it hasthe biggest guns, we should at least stop sending spe-cial forces to assassinate suspects as they drivethrough remote deserts.What is even more eerie is that this represents a sig-

nificant shift in U.S. foreign policy towardsSomalia. Not since the 1993 “Battle ofBlack Hawk Down” has theU.S. launched a helicop-ter attack there.The attack

came at a timewhen Somalia is consid-

ered increasingly lawless, andthe local Islamist insurgent group, Al-

Shabab, which has links to Al Qaeda, contin-ues its attempts to overthrow Somalia’sinternationally recognized government. Since BlackHawk Down, the U.S. has limited its strikes on thecountry to the use of long-range missiles. In this at-tack, we see the capability and willingness of theObama administration to gather precise intelligenceas to the location of wanted terrorist suspects, and tothen strike quickly to assassinate them. As this is thefirst military action of this sort since Obama took of-fice, it could be an indication that we should expectmore targeted attacks in the future, especially as U.S.troops are withdrawn from the ground, in Iraq andelsewhere. Unlike a prolonged ground war, this at-tack communicates that the Obama administration in-tends to attack Al Qaeda officials wherever they arefound.Knee jerk reactions to this news are often that we

can claim victory and a smart strategy. “We got theguy! He deserved it!” people cry. It is smarter to fightthem where we find them than to keep our troopsunder fire in any one country, others think. But this isneither a strategic nor a victorious approach. It is notpeaceful and its not smart, because it doesn’t addressthe underlying issues that have led us into a fightagainst terrorists and extremism in the first place.Here’s hoping the Nobel Peace Prize is enough of amotivational tool to effectuate this much-needed re-orientation.

“If we wa

nt tochan

ge percep

tionsof th

e U.S., we

should at

leaststop

assassinat

ing suspe

cts.”

BYMATTHIAS C. KETTEMANN

True, after a long and dreary December some sun-worshipping law students might prefer to opt for awarm and ‘beachy’location for theirwinter holidays.But selecting on thebasis of the qualityof sun, sand andsangria is a muchtoo easy way out ofthe difficult ques-tion how to bestspend your winterholidays (apartfrom preparing forwinter term, thatis).If the financial

crisis has taught us one thing, it is that we shouldsometimes consider more conservative investmentoptions. Applying this approach to holiday choices,what better to look for that the choices of retirees.Forbes magazine has just published a list of the 10best retirement havens, including Thailand, Italy,Panama, Ireland, Australia, France, Malaysia, Spainand Canada. Not all the standards applied will helpstudents make their choice, as they include decent andaffordable medical care. But the number one retire-ment haven on Forbes’ list, Austria, does offer someadditional benefits for law students looking for a re-

laxing winter time. Here are five reasons why shouldyou consider choosing mountains over beaches, Eu-rope over the Caribbean, and – once you’ve decidedto hit the slopes – the Alps over the Rockies:

1. Europeans love you(again): Now that BarackObama is US president,go make the most of itand enjoy the love of theworld. Just tell your holi-day hosts that you went tothe same law school as hedid and they might throwin a free night (or a freeZirberl, a famed pineschnapps).

2. Global warming is a re-ality: Enjoy theAlps with

their glaciers and snow as long as you can. Bostonwill offer some Caribbean feeling soon enough.

3. It’s good for your wallet: There are a number ofvery affordable Europeanskiing packages The Aus-trian tourism portal, Aus-tria.info, writes that “forsomeone on or close tothe East Coast, a trip to anAustrian ski resort couldbe between US$ 100 and

US$ 300 less thana trip in a West-ern ski resort.With lift tickets,transfers, food,taxes and tips fac-tored in, a skierwho lives on theWest Coast willfind that a one-week ski vacationin Austria costsabout the same asan equivalent skitrip to a resort inthe Rockies.”

4. The Alps are neither too hot nor too cold: Day-time temps in the Alps in winter are around 20 de-grees F and make for excellent outdoor conditions.The Alps offer snow for every kind of endeavor,from packed powder snow on the groomed runs tofluffy powder snow off-piste.

5. Harvard on the Alps: For those of you who justcan’t get enough of learning, Austrian skiingschools are renowned for their quality of instructionand, as I’m reliably informed by female friends, theattractiveness of the instructors.

For more information on skiing in Austria, visitwww.austria.info.

Travel: As Winter Approaches, Austria’s Alps Beckon

Somalia Assassination Undermines Case for Obama Nobel

November 5, 2009 Harvard Law Record Page 7

crimination we face in our daily lives. Why just study the law and obey the law?If the law makes you unhappy, if the law is grossly disconnected from the reali-ties in which we live, if the law perpetuates rather than alleviates the harms of sexdiscrimination—do something. You are more than equipped. What is a HarvardLaw School education good for if not this?When Professor MacKinnon finished reading fromVirginiaWoolf, we gave her

a standing ovation. Afterwards, I thought about why. I thought about why everyday her class was full of people auditing—not just other students but other pro-fessors, Harvard staff members, and people from the community. I had receivedemails from friends of friends who wanted to take off work and come to see herspeak. What attracted these people so strongly to her class, I think, is her courage.But not just any courage—courage to speak truth not only to the power of ourgendered hierarchies but to the power of the law.Legal education can make us cowed. We fall into the habit of repeating the law

as it is already applied. We are not innovators, and if we are, we innovate on be-half of clients who have no particular reason to be deserving of legal change otherthan that they have paid for our services. But Sex Equality class was aboutcourage to face down and modify the existing legal structure on behalf of vulner-able and marginalized people—women—who do not have billions of dollars tothrow down for our services and for whom legal innovation is not a matter of a bet-ter and more efficient merger or a more profitable contract but rather a matter oflife and death.And with this move we return a deeper meaning to the legal profession. Perhaps

some of our law school class pursued a law degree for the sole purpose of ob-taining a steady, high status job that promises heaps of money. But other peoplecame to law school because they see the law as a tool and they connect emotion-ally to people that they would like to help through the law. They want to see so-cial change that eliminates discrimination and gives voice to those on the marginsof society. Sex Equality gives that back. It reconnects law to emotion and law tocourage and law to social change.We all choked up along with Professor MacKinnon as she read, because we

know from our own experiences that what she read is true: we know that Shake-speare’s sister is dead and that she won’t rise up unless we work. We know thatVirginiaWoolf wouldn’t have been allowed to enter Harvard Law School becauseit did not admit women at that time. We know it to be true that if we sit here anddo nothing women will not advance. And so we tear up and we jump to our feetand we clap our hands, because we’ve made it inside these hallowed institutionsthat Woolf dreamed of entering, and so now we have the power to resurrect thepoet, to let her be born in great numbers in the next generation. We felt our ownprivilege in that moment, but it was not the usual privilege and arrogance regard-ing Harvard’s rank in the world and our rank along with it; it was privilege withmeaning and power to affect change. It is the privilege to use our law degrees toimprove the lives of those who are truly depending on the law for help.

Cambridge, cont’d from pg. 5But Prof. Gilbert believes that the lim-ited mental capacities of humans im-pose limits on the accuracy ofpredictions about the emotional impactof future events.He demonstrated this by identifying-

four limitations of the brain’s ability tosimulate the future: unrepresentative-ness, essentialization, truncation, andpresentism.According to Prof. Gilbert, humans’

mental simulations are unrepresenta-tively based on the individual’s best orworst memories, failing to correspondto the average experience. When themind produces imaginary scenarios, theimages tend to be essentialized, that is,distilled to a simplified image with thedetails cut out. Remembered experi-ences also interfere with accurate pre-diction because they are truncated andfail to incorporate the ability to adapt todifferent situations over time. Further-more, Prof. Gilbert believes the humanmind has a “presentist” bias, acceptingin most circumstances the fiction thattomorrow will be exactly like today andthat the feelings at the moment of mak-ing a decision will persist until the out-come of that decision arises. As anexample, Professor Gilbert demon-strated a photograph of a 16-year-oldwho had tattooed Pac-Man on her head,suggesting that the excitement of themoment would eventually give way toregret.Professor Gilbert does not believe hu-

mans have the capacity to systemati-cally prevent errors in mental

simulations. “As I marinate you in thebloopers and foibles, the mistakes andbiases of the human mind, you must bethinking, is there anything we can doabout this? I’m happy to tell you the an-swer is no,” he said.Despite the failure of predictions to

account for dynamic circumstances, hu-mans tend to adapt or rationalize out-comes to make themselves feel better.Prof. Gilbert illustrated this tendencywith the satisfied attitude of Pete Best,the original drummer for the Beatles.Despite missing out on being part ofone of the most successful bands ever,Best said in a 1994 interview that, “I’mhappier than I would have been with theBeatles.” Professor Gilbert argued thatthis was a striking example of rational-ization.Prof. Gilbert also indicated that there

may be techniques available to mini-mize some types of cognitive error.“Surrogation,” or asking others abouttheir experience of a similar situation,can act as a more reliable guide thanone’s own expectations. In fact, ac-cording to Prof. Gilbert, any randomperson’s actual experience of a givensituation is likely to be much more pre-dictive of our future enjoyment than ourimaginary simulation of that same ex-perience.“Human beings are all basically the

same.”

Video of the presentation will beavailable at the Project on Law andMind Sciences website in November.

BY JESSICA CORSI

In commemoration of the 25th an-niversary of its Human Rights Program,the UN’s highest human rights official,Navanethem Pillay, LL.M. ’82 S.J.D.’88, graced Harvard Law School. Pil-lay, the UN High Commissioner forHuman Rights, discussed her currentposition as a human rights diplomat,and how it differered from her previousroles as a judge and an impassioned ac-tivist.Pillay aimed to show how diplomacy

works behind the scenes to securehuman rights, noting that it played anoft overlooked role in finding the com-mon ground needed to sustain funda-mental human rights agreements.Today, she continued, we see the role ofhuman rights diplomacy in the interna-tional law that states commit to and thatthe UN monitors, and in the larger in-ternational human rights movement thatutilizes advocacy to press governmentsto embrace human rights law.Her talk charted the rise of human

rights as an international movement anda field of practice, including the cre-ation of her own post in 1993, the ex-pansion of the Office of the HighCommissioner for Human Rights,which now spans the globe, and themainstreaming of human rights withinthe UN system. Her timeline high-lighted that the ascendancy of humanrights seemed concurrent with and onthe heels of the mass atrocities and warsthe world witnessed in the former Yu-goslavia, Rwanda, and Somalia in theearly 1990s. She discussed how warwas transformed in the 90s, becoming

privatized—conflicts were no longerbetween states, but internal rebellionsor fights between militias in the serviceof non-state actors who controlled“large swaths of territory, natural re-sources and weapons.” Fueling theatrocities, “[t]he suppliers of weaponsand the beneficiaries of profits fromnatural resources . . . were callously un-concerned with the human rights recordand the rapacity of their customers.”From all this, she noted, we have comea very long way in establishing a work-ing human rights regime.Pillay candidly admitted how hard it

was to work on behalf of human rights,noting that she is “often astonished atthe resistance to and fear of humanrights” that permeates even the UN.After highlighting some of the mostuseful tools for mainstreaming humanrights within the UN system, such asthe Human Rights Council and theirprogress regarding the Universal Peri-odic Review of human rights conditionsin all member states, she reminded theaudience that while “it is easy to getcaught up in the world of the UnitedNations,” the focus must always remainon the conditions on the ground, suchas conflict and poverty.Following her speech, Pillay fielded

questions from audience members oneverything from Darfur to global warm-ing, explaining how her office was in-volved in each of these issues. Sheaddressed critical comments and sensi-tive topics, such as Sri Lanka’s refusalto accept an OHCHR office in countryand her efforts to increase the amountof non-Western staff OHCHR em-ployed.

UN High Commissioner:Diplomacy Key to Securing Human Rights

Gilbert, cont’d from pg. 1

This past weekend, a team of Har-vard Law students won first place atthe Fourth National Puerto Rico TrialAdvocacy Competition in San Juan.The “invitation only” competitionwas sponsored by the Inter-AmericanUniversity of Puerto Rico School ofLaw and held at the Old San JuanDistrict Courthouse.The HLS team, which advanced

undefeated, consisted of 3Ls JohnQuinn, Julian Thompson, and Do-minique Winters and 2L NnekaUkpai. In addition to the overall win,Thompson won Best Cross-Exami-nation and Best Closing Argument.Quinn earned a perfect score in thesemi-final round.The team owes a debt of gratitude

to its esteemed coaches, CriminalJustice Institute (CJI) Deputy Direc-tor J. Soffiyah Elijah, and CJI Clini-cal Instructor Dehlia Umunna.The fact pattern involved charges

of bribery and perjury against a sittingjudge. Ukpai andWinters representedthe prosecution; Quinn and Thompson represented the defendant. The team beganpracticing in late September and met several times a week, including Saturdaysand sessions that went past midnight.Only teams that have won titles in past national competitions are invited to com-

pete in the San Juan tournament. All eight teams participate in the initial rounds

of trials. Judges and attorneys fromaround the country evaluate andscore the competitors. The four teamswith the highest scores advance to thesemi-finals. Harvard defeated StetsonUniversity in the semi-final roundand went on to defeat defendingchampion, Barry University, in thesix hour final round.The teammembers are no strangers

to national trial competitions. Lastyear, Thompson, Ukpai and Winters,along with David Knight ’09, wonthe national Black Law Students As-sociation competition. In that sameyear Knight, Ukpai and Winters,along with Eli Schlam ’09, took sec-ond place in the national AmericanBar Association Criminal JusticeSection’s trial competition inChicago. All four team membersearned perfect scores. These teamswere also coached by Elijah andUmunna. The HLS trial team has anoutstanding legacy of winning na-tional trial competitions. The first

victorious team included Professor Ronald Sullivan Jr. ’94, and Lecturer of LawStephanie Robinson ’94. HLS last won the ABA competition in 2004 when teammember Laura Ferry ’04 won Best Advocate.The HLS trial team has been invited to return to San Juan next fall and to com-

pete in the ABA tournament in Chicago this spring.

Page 8 Harvard Law Record November 5, 2009

Sunny Lee, LL.M. ’10, dressed as Scarlett O’Hara, is seen herewith two Townies in Salem on Halloween. The LL.Ms went toSalem looking for witches and demons; Sunny found Dracula!

“Sleep No More,” a coproduction of theBritish theater troupe Punchdrunk and theAmerican Repertory Theater, is part Macbethand part Hitchcock, but one needn’t need to befamiliar with either to be taken by the experi-ence, as KAN YAN found when he joined theaudience, wearing white masks and followingactors through the halls and classrooms of theOld Lincoln School in Brookline. “Sleep NoMore” runs almost every night exceptMonday, through January 3rd.

We arrive thirty minutes late and are imme-diately ushered into a narrow, pitch-black tun-nel. I feel my way further into the darknessuntil it opens into a velvet-lined bar burstingwith jazz-era people. Boylston Street leadsinto dark elementary school into pitch-blackhallway into anachronistic jazz club into darkelementary school full of people wearingcreepy white masks. I shoot past the whitemasks, reading books, and lounging in a par-lor impeccably matched to the time period ofthe club. In the dark hallways of the school, afaraway, longing music plays, Victorian lampsrest on desks kept at a distance saturated withpotential action, and bodies each topped offwith identically long masks wander aboutslowly and silently.A maskless woman touches my chest and

breaks the wordlessness, “Come! … Come!”We’re in an elegant bedroom with her maid.

She’s kicking and flailing. The maid keeps herbaby from her. I don’t know why. Aroundthem a crowd of white masks silently gathers,sometimes watching intently, sometimes look-ing about the room. The maid drags her intothe next room. She has undressed and is

naked, beautiful and frightening, with mad-ness in her eyes. She looks about her, seeingwhite-masked ghosts the maid cannot. Shelooks through my mask into me, her eyes wildwith fear. She crawls into the bathtub, curls up,waiting for a feeling of safety that nevercomes. She slits her wrists. The water reddens.She flails onto the floor shaking, naked, aloneamong the masks looking down at her.I walk through a forest. The smell of pine is

overpowering. How is there grass in thisschool? Each room is era-perfect, down to theodors and sounds. From behind a mask, withblackened edges of vision, there is a distinctfeeling that one has entered a film. There aredozens of rooms, each holding at least a maskor two silently wandering. I wonder whetherbeing alone in a room is more frightening orless. What a perfect place for a murder.A woman is on top of a bookcase. She’s

shaking and licking her hand, then she wipessomething off a statue of the virgin. She is ob-sessed with its impurity. A shirtless man insuspenders launches up onto the bookcase andthe two dance in a beautifully choreographedstruggle atop the case before falling to thefloor among the masks. They fly around eachother’s bodies silently. Only the mad speak,and they speak to masks they only half believeexist.Time slows on occasion and we are totally

enrapt. We lost our reality somewhere in thedark before the jazz took us, so we are totallyhere with them in the madness of their franticparanoia. They are not alone. They are withus. Yet we are alone. We, behind the masks,the unreal, the imagined.

Theatre: A.R.T.’s “Sleep NoMore” is Surreal, Sexy, Violent

Victory in Puerto Rico for HLS Mock Trial Team

Left to Right: Clinical Instructor Dehlia Umunna, Julian Thompson ‘10, Nneka Ukpai ‘11,Dominique Winters ‘10, John Quinn ‘10, and Deputy Director for the CJI, J. Soffiyah Elijah

What do the elections in NJ, VA, and NYmean?Vote now at hlrecord.org!

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Support Jeremy Haber ’12 in his bid to become acolumnist forVote at views.washingtonpost.com/pundits