The pace of the short race to get on the ballot for thespecial election to Massachusetts’ vacant U.S. Senateseat is accelerating to a full sprint. Two Harvardalumni are running, Alan Khazei ’83 and Steve Pagli-uca HBS ’82, and both came to HLS last Thursday todiscuss their campaigns and rally support. After theevent, the Harvard Law Record was able to meet

briefly with Khazei to discuss his grassroots strategyfor getting on the ballot. Khazei, who founded the non-profit community outreach organization City Year andwas instrumental in the enactment this year of the Ed-ward M. Kennedy ServeAmericaAct, shared insightsinto the influence of Senator Kennedy on his strategyand his purpose for participating in the election.

Interview with Alan Khazei - Page 5

BYMATTHEWW. HUTCHINS

HasAmerica lost its way during the tu-mult of the financial crisis, driven to gov-ernment excess by angry populism? Orhas the sobering effect of instability andloss lifted a fog that had obscured the de-bate on policy objectives? To formerNewYork Governor Eliot Spitzer ’84, thecrisis has revealed the fundamental ne-cessity of government involvement in themarketplace as an enforcer of trans-parency, integrity, and competition, as aregulator of externalities, and as a sourceof core social values that will not be guar-anteed by the market. “Only governmentcan force rules related to transparencyand integrity upon the market.” ButSpitzer sees the present moment as fullof both opportunity and hazard. “Angrypopulism is no better guide for rationalintervention than is Ayn Rand libertari-anism.”Spitzer spoke at Harvard on Thursday,

November 12th on an invitation from theEdmund J. Safra Foundation Center forEthics, an ironic twist which, in light ofhis resignation from the governorship ofNewYork in 2008, prompted heightenedmedia attention to his appearance. Butthe central thrust of Spitzer’s remarks centered on hisexperience not as governor but as the Attorney Gen-eral of New York. In that capacity, he conducted in-vestigations of Wall Street that led to the GlobalSettlement in 2003 to resolve conflicts of interest inthe investment banking industry and fines of over$1.4 billion.After a brief introduction by Professor Lawrence

Lessig, the director of the Safra Center, Spitzer out-lined the parameters within which government inter-vention in the markets is a necessary component of

economic stability and social justice. Looking backon his experience investigating the conflicts of inter-est in the investment banking industry, he said, “Themarket was driving them to a standard of behaviorthat was the lowest common denominator and it wasunacceptable. It would destroy the integrity of themarket, and the only way to resuscitate the marketwas for the government to come in and say some-thing very simple. Tell the truth.” Because of the in-herent pressures created by competition for marketshare, Spitzer believes that government involvement

Harvard Law RecordNovember 19, 2009 Vol. CXXIX, No. 6www.hlrecord.org — twitter @hlrecord

The Independent Newspaper at Harvard Law School

News• Students’ Immigration Victory• Asking if Harvard is Corrupt• Free Coffee Flows All Day• Swine Flu Emergency Prep• France’s School Symbols Ban• Alien Torts Suits: Originalist?

Opinion• Mumbai? Bring Back Bombay!• Cross-Registration Woes

Features• The 1LWho Doesn’t Sleep• Climenko’s “Wire” Spouse• “Arsenic” Kills (its Audience)

INSIDEThe HL Record

ELIOT SPITZER’S ETHICS LESSON?

Spitzer, cont’d on pg. 5

BEHOLD HLRECORD.ORG

When Tarnished ex-N.Y. Governor Eliot Spitzer ’84 Came toHarvard Last Week, the Headlines Missed What He Really Said

KHAZEI CAMPAIGN: MORE INFO ATALANFORSENATE.COM

In Mass. SenateRace, Khazei Betson Grassroots

Alan Khazei ’83 spoke alongside Steve PagliucaHBS ’82 in a discussion of their campaigns for theSenate seat formerly occupied by Ted Kennedy.

Former N.Y. Governor Eliot Spitzer ‘84 delivered a lecturehosted by the Edmond J. Safra Center for Ethics.

Posner Affirms:“Meat is Murder”

Israel’s Bedouin VillagesStruggle for Existence

BYREBECCAAGULE

When the State of Israel wasfounded, in 1948, the new gov-ernment expelled approxi-mately 50,000 Bedouins, asemi-nomadic and pastoralcommunity, from their homes inthe Negev Desert. Others fledinto the surrounding countries.

In the 1960s, theIsraeli governmentbegan transferringthe remainingNegev Bedouins topermanent, state-built townships.Though these

areas now have ap-p r o x i m a t e l y90,000 residents,an additional80,000 Bedouinscontinue to live in

unrecognized villages. The gov-ernment views unrecognizedvillages as illegal settlementsand refuses to provide servicessuch as running water, electric-ity, schools and hospitals. Thisillegal status leaves manyBedouins in constant fear that

A Bedouin Village Goes Without ElectricityWhile Israeli Industry is Fed by Power Lines inthe Background. Photo by Sandra Ashhab.

Ames Finals: 7th Cir. JudgePresides Over Vegan Victory

BYMATTHEWW. HUTCHINS

The marketplace of ideas has hit the road. In a casewhich revolved around a proposed license plate bear-ing the slogan, "Meat is Murder", the highest court inthe Ames competition has upheld limits on the dis-cretion of the State ofAmes to reject the license plate

Photo: Phil Farnsworth

Ames, continued on pg. 5Bedouin, cont’d on pg. 3

BY JESSICA CORSI

Thanks to the help of Harvard LawSchool volunteers, an HLS alumna, anda Stanford law grad, a U.S. citizen mis-takenly detained by Immigration andCustoms Enforcement (ICE) and heldamong regular prisoners at the BristolCounty House of Correction in NorthDartmouth, Mass. was released after amonthlong detention.Walther, 24, became a citizen as a

teenager. The Harvard ImmigrationProject (HIP) helped him claim his cit-izenship, leave jail, and avoid thetrauma of deportation to Peru, a countryhe has not lived in since he was 13.HIP is a student-run organization that

advocates for changes in U.S. immigra-tion law that would protect immigrants’rights. For the last year they have part-nered with the PAIR (Political Asylum/Immigration Representation) Project, aBoston area pro-bono organization thatis often the only legal representationavailable to persons detained by ICE.For each of the estimated 1,000 ICE de-tainees in Boston each day, there arearound seven legal professionals—fourfull time PAIR staff and professorsfrom Suffolk University, Boston Col-lege, and Roger Williams Universitylaw schools—available to assist themwith their claims. The substantial dis-crepancy between the need for legalservices and available practitionersmeans that volunteers, fellows, and stu-dents are essential to preventing wrong-ful detentions and deportations andprotecting detainees’ rights.Walther’s case hinged on precisely

such impermanent personnel—PaulSass ’11, an HIP volunteer; AndreaSaenz ’08, an Equal Justice Works Fel-low at PAIR, former HIP member, andformer Editor-in-Chief of the HarvardLaw Record; and Nick Stanley, a Stan-ford Law alum and deferred law firmassociate who has been working atPAIR for the last three months. Once amonth, a team of PAIR attorneys takesHIP volunteers and other local law stu-dents to ICE detention centers to speakwith detainees in advance of their de-portation hearings. The volunteers in-form the detainees of their rights,taking down their information in casethey can make a claim that could enabletheir release and prevent their deporta-tion. Before HIP got involved, PAIRstaff were sometimes unable to heareveryone’s claims. With HIP’s help,everyone is heard within half a day.It was Paul Sass’ first time meeting

detainees when he was introduced toWalther on October 8th. Walther hadbeen arrested for the Massachusettsequivalent of a DWI. While he was inpolice custody, ICE put a detainer onhim, thinking that he was a Peruviancitizen with Permanent Residency. ICEdescribes its mission as “[s]trengthen-ing the nation’s capacity to detain andremove criminal and other deportablealiens.” It is able to detain and deport

even legal residents for what manywould consider minor offenses.Unfortunately,Walther’s position is

not entirely unique. ICE is supposedto screen for derivative citizenship,but it doesn't always happen in prac-tice, and every year there are manypeople who find themselves behindbars and fighting ICE's presumptionthat because they were born in an-other country, they aren't citizens. In2007, Hector Veloz, the son of a Viet-nam veteran and a U.S. citizen, waslocked up for 13 months in an Ari-zona prison because ICE thought hewas an illegal alien.ICE moved quickly to shuttle

Walther from police custody to immi-gration detention. Local law enforce-ment agencies agree to reportforeign-born individuals to ICE whenthey arrest them or observe them incourt. Once reported, ICE runs acomputer check, and if they find avisa overstay, lack of inspection at theborder, or other cause for ICE to thinkthat the person is here illegally, theysend a detainer to the local police, or-dering them to hold the person for upto 48 hours (not including weekends)and giving ICE the ability to take cus-tody when the local law enforcementagency no longer wants to hold himor her (sometimes even after a sen-tence is completed). This is exactlywhat happened to Walther. Theprocess happens so quickly that thereis often no time for the detained per-son to make any phone calls to ask forhelp or to let family and friends knowwhat is going on. Detainees are oftennot fully informed of what is happen-ing to them, and there are no attorneysor others present during this process tointercede on their behalf.A derivative citizenship case like

Walther’s is particularly complicated;given its vagaries and complexities, at-torneys often liken immigration law totax codes. Walther thought that hemight have obtained citizenship fromhis mother, who had arrived in the U.S.from Peru ahead of him. He followedher here as a Lawful Permanent Resi-dent, or green card holder, and livedwith her as a child. While he was grow-ing up in the U.S., his mother natural-ized as a citizen, but nothing was doneto obtain full citizenship forWalther. In2000, however, Congress passed theChild CitizenshipAct, a federal law thatautomatically gives citizenship to chil-dren such as Walther who were under18 when at least one of their biologicalparents naturalized. Walther’s familydid not know that this law applied tohim and he did not have the documentson him to prove it, given that he hadbeen taken from police custody straightto ICE detention. Due to prison phonesystems, it is extremely difficult forpeople—whether family or counsel—to call in, but Paul and PAIR had madesure that Walther had PAIR’s phonenumber so that he could follow-up with

them. Walther called PAIR a week afterhe gave his information to Paul, andNick Stanley took up his case.Once Nick realized that Walther fell

under the Child Citizenship Act, hemoved quickly to obtain the proof nec-essary to ensure his release—his birthcertificate, his Green Card, and themost important item: proof of hismother’s naturalization. Nick thencalled the Department of Homeland Se-curity’s ICE Chief Counsel Office andspoke the Duty Attorney for the day. Afew hours later the attorney called backto request the documents Nick had ob-tained. Twenty minutes after Nickfaxed them, the attorney called to saythat Walther was going to be released.His release happened so quickly thatthere was no time even to let him knowhe would soon be free, and so Nickcalled Walther’s family to make surethat someone was there to meet himwhen ICE released him into the jail’sparking lot on November 6th, just undera month after Paul took down his infor-mation. Walther ws lucky: his releasecame relatively quickly.Inside the Bristol jail, detainees like

Walther are entirely dependent on coun-sel working on the outside to assistthem. Most cannot afford private attor-

neys, who are often reluctant to get in-volved, because of challenging barriersput in place by ICE and the rapiditywith which their clients are deported.Many people in Walther’s situation aredeported without ever having had coun-sel and with nothing more than a videohearing before an immigration judge.Because deportation is not considered acriminal punishment—despite the factthat it is an extremely harsh “penalty,”particularly for infractions, like DWI,that would not even have merited pro-bation—the U.S. government has de-cided that immigrant detainees facingdeportation do not have a right to coun-sel. ICE is a large bureaucracy and, dueto federal law, the personnel workingon immigration cases are often man-dated to take quick action to detain anddeport without any room for discretion.Walther’s story had a happy ending,

thanks to the work of HIP and PAIR.HIP intends to expand its programs andbecome a student practice organization,which will increase the power of PAIRto assist ICE detainees and preventwrongful detention and deportation.Until then, the detainees in the Bostonarea will continue to rely on the sevenattorneys and handful of volunteerswho get in to see them once a month.

Page 2 Harvard Law Record November 19, 2009

H L S

An increasing number of Harvard Law School students are being infected withthe H1N1 (or swine flu) virus, according to an email to the HLS community byDean of Students Ellen Cosgrove, leading the school to take extraordinary stepsto deal with the situation. The measures come seven months after the first knownoutbreak of the virus in Massachusetts took place at Harvard Dental School, andthree weeks after the university reported running out of regular flu vaccine (it hassince acquired more).According to the email, Dean Minow has asked that all measures be taken to en-

sure that infected students do not miss any material covered in classes. Several op-tions were apparently looked at to bring the classroom to the sick, including theuse of digital tools ranging from Skype to WebEx to Elluminate to iSite videos.In the end, the law school settled on providing recordings of classes to students

whom University Health Services has reported to have contracted the illness – butonly in those rooms where it has the capability to do so. Recordings will be madeavailable for at least four days after each class has taken place. Infected studentswith classes in other rooms will receive copies of notes from fellow students.Meanwhile, the Law School's Local Emergency Management Team, or LEMT,

is looking into contingency plans if the school falls victim to a wider outbreak.This may result in a revised plan for recording and distributing class materials.The university currently has a limited quantity of H1N1 vaccine and it is only

being distributed on the basis of need. According to the University Health Serv-ices website, the university is currently offering the vaccine to pregnant womenand pediatric patients. The next group to be innoculated will include those who areunder six years old, live with assisted care, household contacts of pregnant womenin their third trimester, and medical personnel.Only following these priority patients will UHS be able to offer the vaccine to

university-age students up to 24 years old who are at risk of health problems, fol-lowed by persons up to 64 years old under the same circumstances.UHS has indicated that it will "probably not" receive the 15,000 doses it re-

quested due to slow production of the vaccine.

It was one of the most notable perks introduced to Harvard Law School by for-mer Dean Elena Kagan '86, the current Solicitor General. But as many suspectedwould happen, the free coffee that graced the school's hallowed hallways was cutback following budget cuts early this year. Now, however, free coffee will flowthrough the veins of HLS students more liberally than ever, thanks to a new pilotprogram to provide it all day long.According to an email from Dean of Students Ellen Cosgrove, sent to the HLS

community last week, the school will augment its current free coffee regime bymaking the caffeinated drink available in Lewis Hall's Room 202. The new freecoffee station will supplement the morning coffee available in Pound and AustinHalls until about 10:15am each day, as well as the evening free coffee availablein the library kitchen after 9pm on weekdays and all day on weekends.Cosgrove's email indicated that the move came in response to complaints both

by students and by faculty and staff, whose own free coffee supplies were beingraided by students, resulting in noise in hallways near faculty offices.

Free Coffee Returns, Now for Whole Day Long

Law School Ramps Up Swine Flu Preparations

Victory for Detained LegalImmigrant Highlights

Difficulties Faced by Others

their homes will be demolished or that they will beforced to relocate.On November 10th, Ahmad Amara, a Global Ad-

vocacy Fellow with Harvard Law School’s HumanRights Program, moderated a panel on the Bedouinentitled “Invisible Citizens”. Speakers Khalil Alumurand Yeela Raanan outlined the plight of Israel’sBedouin citizens. Alumur, an Israeli Bedouin, servesas the representative of al-Sira, an unrecognized vil-lage in the Negev and home to his family for morethan seven generations. Raanan works with the Re-gional Council for the Unrecognized Villages, a grass-roots organization created to advocate for villages andcommunities, such as the one whereAlumur currentlylives.Underscoring the depth of the rift between

Bedouins and the Israeli government, Alumur said,that “this is something bigger than misunderstandingor mistrust. There is a crisis between the citizens andthe government.”Alumur described life in his village, which has es-

tablished a daycare, built a mosque, paved the dirtroads and laid water pipes. The residents of al-Sira,located just south of Arad, often co-operate to fill one another’s basicneeds.Before we had any regular power,

my fridge was like a pharmacy for thewhole village,” Alumur said.Seemingly small tactics often make

the difference between a home’s de-struction and preservation. Alumur’sown home remains grey and un-painted, as he know that, were itwhite, the chances of demolitionwould increase. More permanent-looking structures or those builthigher on the hills are also at greaterrisk.Each individual feels the impact of

life in an unrecognized village deeplyand differently. Ranaan described direhealth consequences, such as chronicdiabetes and widespread asthma.Women living in Wadi al Na'am, avillage close to Ramat Hovav, sufferthe highest rate of miscarriages in thecountry. Without schools, childrenmust be bused to out of the villages toreceive an education, a process thatresults in the exclusion of many girls.Unable to marry without homes,young men also suffer.“You don’t want to upset the young

men,” Raanan said.Sometimes done to send a message,

bulldozing also carries strong sym-bolism. Pushed by an audience mem-ber for the reasoning behind homedemolition and the refusal to extendrecognition, Raanan admitted that theanswer would likely be unsatisfac-tory.“Recognition of the villages would

allow people to stay.” Raanan said.“No government wants to makesomething illegal legal.”Raanan offered the audience a bit of

historical context. She described whatshe termed “a process of concentra-tion” by the Israeli government to re-move Bedouins from the largerNegev, originally to Jordan and theninto certain areas of the desert. The1965 Planning and Building Law de-termined the hows and wheres of

homebuilding and set out the home registrationprocess, but the law provided no authority to give per-mission to Bedouins.Compounding these tensions, the Bedouin commu-

nity has historically operated its own courts, previ-ously recognized under the British, and, given thisparallel system, many saw registration as unnecessary.“There was no reason to register,” Raanan said.

“They had their own system.”Raanan continued that the government does allow

for registration when a family decides to sell its home.“But you see the table of what the land is worth, andits really just pennies.”Rejecting violence, Alumur does not consider

breaking the law a viable advocacy tool. Instead, heorganizes demonstrations and protests at Israel’s par-liament, the Knesset, as well as working to drawmedia coverage and the interest of politicians. “Wewant to fight for rights peacefully, legally. We workfrom the inside, not only from the outside,” Alumursaid.Alumur explained the purpose of his trip to Har-

vard, one of several speaking engagements.“I hope to bring the story of the unrecognized vil-

lages to you. I will just tell you the story of al-Sira,”said Alumur. “But it isn’t a different story from theothers.”In closing, Ranaan urged the audience to take ac-

tion, reminding them that the issues at hand are hardlyunique to Israel.“Canada, the US,Australia, they are all dealing with

this. The question is, how do you deal with indige-nous land rights in a western court? This is a politicalquestion, not a judicial issue.”Clinical Instructor Amara works on numerous ini-

tiatives related to Israel and Palestine. More than adozen clinical students have joinedAmara, undertak-ing a variety of projects related to the Bedouin popu-lation. These efforts have included research in supportof cases heard before the Israeli Supreme Court, rec-ommendations to a task force focusing on Bedouinland issues created by the Israeli government, andsubmissions to the United States Department of State.The Middle East Initiative, the Outreach Center at

the Center for Middle Eastern Studies and the HumanRights Program at Harvard Law School co-sponsoredthis event.

November 19, 2009 Harvard Law Record Page 3

Next Record:

December 2

W O R L D

BY CHRIS SZABLA

“How is it that the terrible French, passing racist, sexistlaws, are [also passing laws that are] working out better than[those in] the rest of Europe?” This provocative question wasraised by Patrick Weil, who, in 2003 and 2004, participatedin a commission under formerFrench President Jacques Chiracto determine how France shouldrespond to the harassment ofMuslim girls who went withouthijabs, also known as head-scarves, in schools.

Weil, a historian and sociol-ogist who is spending a semesteras a visiting professor at YaleLaw School, had traveled toCambridge to defend his com-mission’s response – a total banon religious symbols in Frenchschools – before members ofHarvard Law School’s HumanRights Program. Human rightsgroups have been critical of thelaw, which they say is an impediment on the absolute right toreligious practice. But five years after the fateful ban, Weilsaid, studies and data collected from other European coun-tries indicated that the law had made a positive impact.Just how he measured the impact of the law, Weil did not

say. He wanted to focus, instead, on defending it against crit-ics who insisted that a law scrubbing schools of religioussymbols was illiberal. At the heart of the debate is the Frenchidea of laïcité, a form of secularism that mandates not onlythe separation of church and state, but state guarantees thatany particular religion will not overrun the public sphere.The roots of laïcité go back to the anti-Catholicism of the

French Revolution, but its more modern manifestation wasevident in a 1905 law that formally separated religion andthe French state. The 1905 law had said nothing about reli-gious practice in public settings, and Weil firmly defendedthe right to practice one’s religion “on the street”. But theschool, he argued, was a different environment. Since the ter-rorist attacks of September 11th, 2001, French school offi-cials had witnessed increasing pressure on Muslim girls towear headscarves, although the majority did not. They con-sidered going after the harassers themselves, but had a diffi-cult time obtaining testimonies.In 2004, the Stasi commission, appointed by Chirac to in-

vestigate a solution to the problem , recommended the ban onreligious symbols. Weil, who was a member of the group,outlined three ways he thinks that the ban managed to be con-sistent with religious freedom. First, the law allowed studentsfacing harassment for their choice to wear or not to wear re-ligious symbols like headscarves could use the law as an ex-

cuse, rather than suffer for making a personal choice. More-over, those who could not stomach abandoning religioussymbols could always avail themselves of France’s govern-ment-subsidized religious schools. Finally, France coupledthe law with a new flexibility on religious holidays – citizenswould have the option of taking a range of days off, de-

pending on their faith.Gerald Neuman ’80, Har-

vard’s J. Sinclair ArmstrongProfessor of International, For-eign, and Comparative Law,criticized Weil’s characteriza-tion of laïcité – and the ban onreligious symbols – as liberal.Liberalism, Neumann asserted,should be thought of as respectfor the autonomy of individu-als – which individuals shouldbe able to act on themselves.Responsibility for their rights,such as the choice not to weara headscarf, should not betaken over by the state. Heasked how the state made

choices to support one pressure or another on groups – in thecase of Muslim women in France, toward or against assimi-lation, and why religious symbols were banned when thestate could have taken on other practices that caused harass-ment.Noting that it made more sense to ask government employ-ees, such as teachers, to not wear religious symbols, in orderthat the government be perceived as neutral toward religion,Neuman said it made less sense to impose a ban on the re-ceivers of a government service for the same reason. Finally,he wondered whether the French law painted too broad astroke – were other religious groups, he asked, the “collateraldamage” of a law intended to focus on a Muslim problem?Weil, for his part, said that the state needed to protect in-

dividuals because forces other than the state – such as reli-gion – could be equally oppressive. Still, he took Neumann’spoint about other religious groups serving as collateral dam-age, and said that compromises had been found for somegroups, like Sikhs, who were particularly attached to theirreligiously mandated garments.But Weil’s specific solution appeared to boil down to the

fact that laïcité was simply the French way of doing things.It demonstrated, he said, that France could not be reduced tothe stereotypes of authors such as Joan Scott or ChristopherCaldwell, who had asserted that the French were racist orthat their liberalism would lead the country to be overrun byIslam, respectively. “Laïcité,” Weil argued, noting thatFrench governments had come and gone, while the principleremained, “is [even] more important in France than the con-stitution”.

French Secularist Defends Country’s Ban onReligious Symbols in Schools

Nice hijab, but don’t try wearing it to a French school.Photo by Flickr user davidChief.

Bedouin, cont’d from pg. 1

Page 4 Harvard Law Record November 19, 2009

HarvardLawRecord

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

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

EStabLiShEd MCMXLViEditors-in-Chief

Matthew W. HutchinsChris SzablaStaff Editors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

Contributing WritersVictoria Baranetsky

Nicholas JoyKaran Tyagi

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

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

Its Schools Operate Like Independent Fiefdoms. Does Harvard “University” Even Exist?

EDITORIAL: CROSS-REGISTRATION WOES

BY KARAN TYAGI

On November 9th, Indian democracy plunged to its nadir.Elected legislators of the Maharashtra Nav Nirman SenaParty (MNS) rushed to the floor of Maharshtra state’s Leg-islative Assembly to stop the elected member of the Sama-jwadi Party, Abu AsimAzmi, from taking oath in Hindi, thecountry’s official and most widely-spoken language. Theydemanded that he take the oath in Marathi, the language ofthe Marathi people of Maharashtra, whose cause the MNSseeks to espouse. This was followed by MNS legislator RaviKadam slapping Azmi in full view of the public gathering.This follows a similar incident that took place just a fewweeks ago, when the same party threatened noted film pro-ducer Karan Johar for using the word “Bombay” instead ofthe Marathi “Mumbai” in his new movie, Wake up Sid.This linguistic and regional chauvinism is not a new phe-

nomenon. The MNS and its chief, Raj Thackeray, have beenmaking inflammatory and divisive comments since theparty’s formation. Last year, members of the MNS resortedto arson and violence in different parts of Maharashtra inprotest against outsiders entering and working in the state.But in assaulting an elected member of the House in the

Assembly, the MNS has sunk to its lowest depths.Apart fromtaking immediate action against the members of the MNS in-volved in this ruckus, the fact that there is no place for eth-nic and linguistic chauvinism in a city like “Bombay” shouldbe driven home once and for all.At the outset, I would like to point out that the Indian Con-

stitution that allows legislators the freedom to take oath inany official language was written by Dr. BabasahebAmbed-kar, a low-caste native Maharashtrian himself. Further, aswas rightly pointed out byAbhinav Chandrachud LL.M. ’09in the Indian Express, the oath prescribed for members ofstate legislative assemblies was amended by the ConstitutionAct of 1963 to include a promise to “uphold the sovereigntyand integrity of India”. By stopping Azmi from taking theoath in Hindi, the members of the MNS have not only sub-verted the Indian Constitution but have also flouted all formsof parliamentary functioning.The MNS fails to realize that “Bombay” has always had a

multicultural character. It was built by the contribution ofParsi and Gujarati entrepreneurs, Konkan mill laborers, Tel-ugu and Tamil industrialists, Koli and Marathi fishermen,and the North Indian-dominated film industry. “Bombay” isthe financial capital of India because of the contribution ofpeople from different parts of the country. The city epito-mizes the “unity in diversity” characteristic of India. Chat-trapati Shivaji Maharaj, the founder of the Maratha empireand the hero of the people of Maharashtra, was known forfavoring inclusivity and tolerance of other religions. Thus,the attack onAzmi is not only an attack on Bombay’s famedpluralism, but also on the virtues and teachings of theMarathi hero, Chattrapati Shivaji Maharaj.The Maharshtra government has always turned a blind eye

to the threats issued by the MNS and the violence perpetratedby its members. The government has brazenly succumbed tothe threats of the MNS, doling out the excuse that stricter ac-tion would lead to bigger “law and order” problems. The factthat this time the Maharashtra Assembly has suspended themembers of the MNS involved in the incident for four yearsis a heartening sign. But the authorities fear a backlash bythe MNS political activists, one that would lead to wide-spread violence and destruction in “Bombay” and other partsof Maharashtra. They need to display the courage exhibitedby U.S. President Dwight D. Eisenhower during the “LittleRock Nine” incident of 1957.At a time when “Bombay” and the state of Maharashtra

are overrun with such problems as terrorism, malnutrition,poverty, and rising prices, it is shocking that some membersof the Legislative Assembly would engage in a dangerouslinguistic war. On some level, these elected representativesare a reflection of society itself. They are in the Assemblybecause the people have voted for them. For me, this fact ismore dangerous than any threat and any violence that canever be perpetrated by Raj Thackeray and his goons. As acitizen of “Bombay”, it makes me hang my head in shame.The citizens of Bombay cannot afford to let the city be gov-erned by people who propagate fascism. The time has nowcome public opinion to turn strongly against it.

Karan Tyagi is an LL.M. student from India.

Another registration season haspassed at Harvard Law School, com-plete with all the trials, tribulations, andtechnical glitches of the MyPlan sys-tem, the arbitrary course caps that willhave to be manually adjusted by theRegistrar next spring, and the frustra-tion of students who have had to dealwith clinical, elective, and “multi-sec-tion” course registration periods situ-ated weeks apart. Pity the poor lawstudent who wishes to sign up for allthree types of class, for whom registra-tion takes up more time than outlining,and whose Google Calendar is litteredwith the detritus of unfulfilled class-room hopes and dreams.HLS’ vast menu of courses is one of

the school’s main attractions, a stand-out reason why many choose thisbuzzing hive of over 2,000 students,faculty, and affiliates over more inti-mate law schools – in sunnier climes.As Dean Elena Kagan ’86 never grewtired of pointing out, the options alsoextend to other schools of Harvard Uni-versity, offering students the ability towork outside the law school withrenowned members of the Harvard fac-ulty as a whole. But sadly, the chal-lenges of registering into law schoolcourses pale in comparison to thedaunting feat of cross-registration be-tween Harvard schools.Consider: to supplement one’s legal

education with a Graduate School ofArts and Sciences course, a studentmust first wait practically until the newsemester begins, when GSAS finally re-leases its course schedules. Then, andonly then, can a law student begin toplan when to take such a class, wellafter he or she will have had to alreadyregister for law school courses.Students must then bring their signed

cross-registration form to the GSASRegistrar’s Office. (One might expect itto be an affair similar to the modest of-fice suite that holds the law school’sregistrar staff. In reality, it is a palatial,three story building complete withcolumns and an expansive lobby.)Afterfinally locating the relevant line, and arequisite wait, students are sent away tofill out a bubble sheet similar to thoseused to fill in answers on standardizedtests. Then they must get back in line tosubmit the completed materials.A rare example of administrative ef-

ficiency ensures students will not haveto traipse back to the law school’s reg-istrar to gain approval from that officeas well. But such fixes beg the question:if the university was able, recently, tocoordinate its exam schedule to facili-tate cross-registration, why can’t it co-ordinate the release of a courseschedule? And why can’t the wholeprocess – professors’ approvals in-cluded – be moved online?

At least part of the problem seemsto be that Harvard’s various schools op-erate less like organs of a single bodythan as independent organisms thathardly acknowledge one another’s ex-istence. The schools’ individual ap-proaches to professorial discretion onregistration are a case in point. At HLS,professors complain that the systemmakes it difficult to shepherd in stu-dents who they think should be able totake their courses. But at the KennedySchool, professorial discretion reignssupreme.A shocking example emerged earlier

this fall in a Kennedy School classtaught by Rory Stewart. Stewart hasachieved some fame for trekking acrossAfghanistan during the opening chap-ters of the war against the Taliban, andfor later serving as governor of aprovince in Iraq. It was understandable,then, that the relatively small classroomthe school had allotted him for hiscourse on interventionism couldn’t ac-commodate the number of interestedstudents, many of whom had also comefrom schools with which Harvard hascross registration agreements, such asTufts’ Fletcher School of Law andDiplomacy.Stewart’s solution was not to ask the

Kennedy School for a larger classroom,but to make aspiring cross-registrantsapply for slots as auditors. Of these, he

would select only eight (out of thedozens who were hoping to register)who would not only have to give up anyseats to interested Kennedy School stu-dents, but would not be allowed to par-ticipate in class discussion at all.

The plan provoked outrage amongthe Tufts students, who petitioned theiradministration. One even emailedStewart – and the rest of the class – di-rectly, with a strongly-worded messageasserting that Tufts would never treat aHarvard cross-registrant as he hadtreated the visitors from Tufts.Whether the Stewart case was an il-

lustration of Harvard’s strained rela-tions with other universities, ademonstration that these schools couldstand up for their rights better than stu-dents from other Harvard schools, or anindication that other universities’ cross-registrants might be taking up classseats that ought to have gone to Har-vard students, it is clear that HarvardUniversity as a whole needs to reevalu-ate its cross-registration system – notonly because interdisciplinary studiesare the future of many fields, but be-cause without the easy ability for stu-dents and faculties to interact acrossinstitutional lines, Harvard is no morethan a sum of its many parts – and theidea of the “University” as an institu-tion is rendered both hollow and mean-ingless.

Wake Up, India, and Bring Back “Bombay”“Mumbai” is Terrorized by Linguistic Chauvanism

November 19, 2009 Harvard Law Record Page 5

in markets is crucial for the maintenance of trans-parency, integrity, and competition. “Everyone in busi-ness wants to be a monopolist . . . If we don’t havegovernment enforcing competition laws, then we asconsumers, we as an economy, will lose the vitalityand creativity that competition generates.” Indeed, theconsequences of market concentration in the financialsector, combined with the implicit government guar-antee of systemic security, has had the unintendedconsequence, according to Spitzer, of socializing riskand privatizing profit. “Too big to fail is too big, andin fact, too big to fail is too big not to fail.”Spitzer cited the regulation of harm caused to soci-

ety and third parties by legal market activities as an-other crucial component of government activity inprivate markets. As attorney general of New York hebrought suits against electric utilities located in Mid-west states under the Clean Air Act for the harmcaused to NewYork by pollution carried along the jetstream. Now he believes that debt itself has become asystem-wide externality that is harming the market.“When you aggregate all of the excess leverage in oureconomy that has accumulated over the last decade,all of a sudden you have systemic risk.”But beyond merely correcting for inefficient results

of market participants’ behavior, Spitzer recognized arole of the government in molding the character of theeconomy to accord with shared “core values” that areidentified through the political process. Pointing todiscriminatory practices, Spitzer noted that theoristshad written extensively about the rational dynamicswhich should squeeze such behavior out of the mar-ketplace. “The problem is … it just didn’t happen.Discrimination continued because the social valuesand social morays that drove discrimination basedupon race or gender or religion overpowered the ra-tional activity of economic actors.” Likewise, in set-ting a minimum wage, the marketplace will not byitself set a lower limit on compensation that will allowindividuals to support themselves while working aforty-hour week.With respect to the current crisis, Spitzer believes it

was inevitable that “an enormous sum of money wasgoing to be spent creating both solvency and liquid-ity.” Nonetheless, he advanced three primary ques-tions: Who is going to pay for it? What reforms aregoing to be made? How are you going to create jobs?The implementation of the bail-out programs, says

Spitzer, has unfairly deleveraged private banksthrough creation of government debt and unwiselychanneled taxpayer dollars to unregulated financialcounter-parties and failing businesses. “There was ab-

solutely no reason for [AIG’s] counterparties to get100 cents on the dollar . . . Taxpayers were not a partyto that contract.” Spitzer questioned the reasons forfailure to renegotiate such contracts by the New YorkFederal Reserve Bank and the Treasury, pointing inparticular to the $12.9 billion received by GoldmanSachs as a counter-party to contracts withAIG. To putthis sum in perspective, he proposed the alternate pos-sibility of spending $8 billion to fund high-speed railinfrastructure, or instead of a bailout of GM a possiblegovernment contract to purchase electric cars manu-factured domestically from any willing producer. “Thetaxpayer picked up the whole bill, and that waswrong.”Spitzer expressed dismay that despite his failure to

zealously advocate for taxpayer interests, New YorkFed Chief Timothy Geithner had been promoted intothe lead role at the Treasury. He called this an exam-ple of the Peter Principle on steroids: an individualbeen promoted upward until surpassing the point ofhis competence, then his failure had been rewarded bya higher promotion, for the purposes of cleaning upthe mess he created. Spitzer also scoffed at the pro-posals by the White House to make the Federal Re-serve the national systemic risk regulator. “I hate tobreak it to you, but they already are and have been.That’s what they were supposed to be doing for thelast twenty years. Where were they?” He character-ized this as an example of the “regulatory charade”,whereby agencies that had the power to act earlier butshirked from responsibility clamor for greater author-ity to respond once a crisis occurs. “This is one bigfaçade that should be shattered. They had the power;they didn’t want to use it.” He pointed to the Office ofthe Comptroller of the Currency’s regulation of mort-gage-backed securities as a tragic example of this, stat-ing that when he had sought to investigate the industryas a prosecutor his inquiries had been blocked underthe exclusive regulatory authority of the OCC.But despite his views on the role of government,

Spitzer accepts that it is the private sector that has totake the reigns and lead the management of the econ-omy. “The private sector creates wealth, not the gov-ernment.” He indicated meaningful long-term changewill depend on reforms of corporate governance thatempower the private sector, such as the disentangle-ment of institutional investors’ voting powers and theirjockeying for business as retirement asset managers.“We have denied ourselves the dynamism that wecould get from the largest participants in the market-place, the biggest repositories of equity ownership.”

design proposed by the fictional vegan group Hu-mans Against Consumption of Animals (HACA).Judges Richard Posner '62 (7th Cir.), Diane Wood(7th Cir.), and Barrington Daniels Parker, Jr. (2dCir.) presided before arguments by Kathryn Nielsonand Ray Seilie for the State of Ames, opposed byarguments from Candyce Phoenix and Hagan Scot-ten on behalf of HACA.The briefs and arguments from the two compet-

ing teams laid out the tensions in the constitutionaljurisprudence of free speech in the context of a lim-ited private forum. The recent case of PleasantGrove City v. Summum, 129 S.Ct. 1125 (2009), setforth wide breadth for the government's exercise se-lective discretion in accepting certain private mes-sages for public display as government speech. Therespondents argued that this holding was inapplica-ble to the case of a license plate program, especiallysince the statute in question expressed an intent tofacilitate non-profit organizations' ability to com-municate.The judges, whom Dean Minow later character-

ized as a hot bench, challenged the oralists to ex-plain the limits of their arguments by evaluating alist of possible licence plate submissions rangingfrom "Eat More Blueberries" to "Vegans are Com-mies" and "Join the KKK." Hagan Scotten '10, whowas awarded Best Oralist, said that despite the pres-sure he faced during the arguments, it paled in com-parison to his Army Special Forces service on thefront lines of Iraq. "If the Iraqis could shoot as wellas Judge Posner can question, it would have beeneven worse [in Iraq]." For Scotten, the pressure offacing interrogation by three Federal Circuit Judges,"was not nearly as bad, because Posner didn't havebullets."Although the Respondents took both the overall

prize and the prize for Best Oralist, the Petitionerscame away with the prize for Best Brief. "The mar-gin for each of the calls we had to make was ex-tremely narrow," said Judge Parker. The entire panelpraised the quality of the arguments presented, withJudge Wood noting that the oralists all did a "muchbetter job giving a yes or no answer than counselnormally do."This year's Ames competition had the largest par-

ticipation in recent history, with 50 teams signingup, forcing the organizers to conduct two prelimi-nary rounds to select the teams that will go to thesemifinals in the spring. The finalists who com-peted in this week's arguments were drawn from asmaller pool of close to thirty participants.

What is your strategy for challenging the leading con-tenders in this race to become the next Senator fromMassachusetts?I think it’s important for whoever takes over this

very big Senate seat to be connected to the grassroots.Senator Kennedy did that extremely well. It’s the kindof politics I believe in, and it’s also frankly a goodstrategy to win the special election. As the Heraldpointed out today, 93% of the people don’t even knowthat a special election will be happening. So, what Iam doing is organizing a grassroots movement ofyoung people, older people, anyone who’s willing togive a weekend or two and go door to door. If thiswere a yearlong campaign, I would go around andmeet people all across the state. It’s a very short cam-paign, but I still think it’s important to connect to thevoters and the citizens. I’m asking for help because Ican’t do it all personally, but I’m going to be out theretoo to ask citizens, “What do you care about? Whatare your concerns?”As I’ve been campaigning I know people have lost

their jobs, their homes, their savings, their dreams ofa college education. I want to send a message that Iunderstand that. Tell me what you care about, and Iwill help you get it set up.And then I want to take thatmessage and then get my message out. I don’t have apersonal fortune, like other candidates that can relyon that to get their message out.I’m relying on citizens to get my message out.

“Here’s whoAlan Khazei is, here’s why he’s different.He’s been a public servant, not a career politician.He’s not taken money from the special interests. Hehas got a very bold agenda, that’s available on hiswebsite.” And so anyone from Harvard Law School,and we’ve got a great group already signed up, cancome for one weekend, November 21st and 22nd, andjoin this movement with a thousand people to knockon 50,000 doors. And I’m going to do it the weekendafter that and the weekend after that.But all I’m saying is come for this one weekend.

It’s going to be a ball; we’re going to have fun. It’sgoing to be part of a movement of grassroots politicsto show that a citizen candidate, with just citizen sup-port, can be a citizen-senator. I have faith in the vot-ers, and I have faith in volunteers.

Does your experience in community organizing giveyou insight into the legacy of Senator Kennedy andthe issues you would be pressing in Washington?Oh absolutely. I had a chance to work very closely

with Senator Kennedy for more than twenty years. Hewas my mentor, he was my champion, he was myfriend, and he was an incredible leader. I learned somuch from him that I could write a book.First of all, he believed in supporting people from

the grassroots. He believed that as his senator it was-n’t just his job to cast a vote or give a speech; it wasabout how do you empower people to achieve the

American dream. I became who I am because he em-powered me as a 26 year-old graduate of Harvard LawSchool. You know he discovered CityYear, and he puthis arm around me and said, “Alan, I’m going to helpyou make this a national cause. I want to work withyou.”And so I learned that you’ve got to get behind

movement leaders. I learned that you have to haveoutstanding constituent servants. I learned that youhave to first of all listen to peoples’ stories. The in-credible thing about Senator Kennedy is that he dinedwith Presidents and Prime Ministers, kings andqueens, with CEO’s and rock stars, but the people hecared about most, the people he kept in his heart andin his mind every day, were the every day people hemet across Massachusetts from places like New Bed-ford. You know, the factory workers, the entrepre-neurs, the young people who were signing up indroves to do CityYear and thenAmeriCorps, the peo-ple working at community health centers providinghealthcare for people who can’t afford it, the peoplewho were doing legal aid, the people who were com-ing off the boat as new immigrants, just as his grand-parents did, trying to make it here in America.What was so extraordinary about him, was that he

heard peoples’ stories and he never forgot them, andthat’s what I’m going to try and do. I’m not going tobe Senator Kennedy, but I do stand on his shoulders,and I learned a lot from him.

Alan Khazei ‘82: Citizen-Candidate Seeks to Carry Kennedy’s TorchFounder of City Year Looked to Sen. Kennedy as a Mentor, Seeks to Mobilize Grassroots Support in Campaign

Spitzer, cont’d from pg. 1 Ames, cont’d from pg. 1

BY REBECCAAGULE

In March 2006, Martha Giraldo returned to her fa-ther’s farm outside of Cali, Colombia, to find theproperty surrounded by soldiers and her father dead.Based on accusations he was involved with guerillas,the military shot José Orlando Giraldo, and, standingover his stripped and mutilated body, warned Marthaand her family members that they could share his fate.“It was the gravest humiliation that one can feel, to

find your father assassinated. We saw his body com-pletely destroyed,” Giraldo said. “In the middle of thenight, the national army comes and murders your fa-ther.”While horrific in many respects, José’s death is

hardly unique, nor are the numerous questions suchkillings raise under international humanitarian law.“This isn’t just the story of my family. The same

thing is happening to many Colombians, especiallymarginalized members of Colombia communities,like Afro-Colombians and indigenous peoples,” Gi-raldo said.Through a translator, Giraldo spoke about the im-

punity enjoyed by the government actors carrying outextrajudicial killings of Colombian civilians, at anevent hosted by the Harvard Law School Advocatesfor Human Rights. According to human rights organ-

izations, the Colombia military killed 535 civiliansbetween January 2007 and June 2008. Extrajudicialkillings have increased dramatically over the last fewyears, a rise many attribute to the implementation ofa “democratic security policy” designed to fightguerillas and insurgents. Intimidation and reportingissues hinder the collection of accurate date regard-ing extrajudicial killings. While 2,981 cases werefiled from 2002-2008, many suspect that number un-derscores the true extent of the issue.Now a human rights activist and community or-

ganizer, Giraldo traveled to Harvard Law School withWitness for Peace, a “U.S.-based organization thataims to inform the public about connections betweenUS foreign policy and human rights conditions inLatinAmerica.” Giraldo began working with the vic-tims of state crimes program at Witness for Peace in2007 on behalf of her father’s case.“My work in human rights began when members of

Colombian army killed my father, a small scalefarmer,” Giraldo said. “He was loved by the commu-nity here, but the battalion presented him as if he werea narco-terrorist and part of the FARC.”“The whole world knows that my father was not a

guerilla,” Giraldo continued.Despite these efforts, three and a half years later,

none of the military officials involved in José’s death

have been punished. Giraldo believes that the militarykilled her father, and others like him, to demonstratesuccess in the war against the guerillas. Increasing Gi-raldo’s pain has been the frustration of not getting aproper response to inquiries regarding her father’sdeath.“Not one person in charge of human rights for the

military has answered my letter, or shown any con-cern. So now it is the same ones who are killing ourfamily members, who do the investigations,” she con-tinued. “How are we supposed to believe those samepeople are capable of bringing justice for these cases?This is contrary to what we, as victims, are demand-ing.”“The military is supposed to protect,” she said. “But

they are just killing innocent civilians.”AUnited Nations investigation determined that mil-

itary officials often receive benefits, such as promo-tions, time off and cash bonuses, for each successfulkilling.Building a network of informants and establishing

a family forest ranger program, the government blursthe lines between civilians and the military, includinga network of informants, creating an environment offear and mistrust. Giraldo described some of the ad-ditional tactics used by the government in coveringup the killings.

“They manipulate crime scenes,like dressing up someone after theyhave been killed,” she said. “For ex-ample, sometimes the person will bewearing fatigues. They have a bullethole in the arm, but it doesn’t gothrough the fatigues.”Overhearing Giraldo’s presentation

was Colonel Juan Gomez of theColombian Air Force immediatelyspoke. In the United States as an at-taché to the Organization ofAmericanStates and as a visiting professor atthe National Defense University, andat Harvard Law School on an unre-lated engagement, Colonel Gomezfirst extended his condolences to Gi-raldo for her loss. He then explainedthat the Colombian government hasnot denied that many cases of illegalkillings of non-guerillas by the mili-tary have occurred.A dialogue between Giraldo and

Gomez, later recounted in English,quickly developed. Giraldo reiteratedthat her claims had been ignored andthen dismissed, heightening her senseof disillusionment with the govern-ment as a whole and, in particular,with the Ministry of Defense. Cur-rently undergoing a shift from an in-quisitorial to an adversarial judicialsystem and operating with a some-what restricted scope, the Ministry ofDefense lacks the authority to over-see many of the types of cases dis-cussed. Sensing Giraldo’sdissatisfaction with this explanation,Gomez asked her for the details of herfather’s case and offered to providewhat assistance he could.Eventually, Gomez had to depart

for his next appointment and, havingreached an impasse, extended hishand to Giraldo. Taken aback, Gi-raldo rejected the gesture.Already threatened in Colombia,

Giraldo’s tour likely puts her at evengreater risk at home. To explain herdecision to speak, she simply said,“For me it is very important to remindpeople of who the victims of thesekillings are.”

Page 6 Harvard Law Record November 19, 2009

BY NICHOLAS JOY

A relatively new take on a centuries-old statute has stirred up serious ques-tions about how U.S. courts can be usedto litigate international human rightsabuses.On Monday, October 26, Eugene

Kontorovich and Richard Hertz dis-cussed the role of theAlien Tort Statutein the 21st Century. The debate wassponsored by the Federalist Society andheld in the John Chipman Gray Room.Part of the Judiciary Act of 1789, the

Alien Tort Statute gives district courtsoriginal jurisdiction over any civil ac-tion by an alien for a tort committed inviolation of the law of nations or atreaty of the United States. It was rela-tively obscure until the Second Circuitheld in Filartiga v. Pena-Irala, 630 F.2d876 (2d Cir. 1980) that violations of in-ternational norms, including humanrights violations, could confer jurisdic-tion in U.S. courts.According to Kontorovich, a profes-

sor at Northwestern University Schoolof Law, Filartiga has given rise to asector of human rights litigation andsubstantial controversy. He discernedtwo main waves of cases that havearisen in this vein: suits against foreignofficials under the statute and suitsagainst corporations alleged to havehelped countries commit human rightsabuses.However, Kontorovich said that such

litigation was far removed from Con-gress’ intent in passing the statute,which was to prevent Americans whoviolated international law from gettingthe entire country in trouble.The idea is that “we don’t want the

part to endanger the whole,” he said.“They liked to beat up French ambas-sadors back then. Times have changed.”Kontorovich said that, while univer-

sal jurisdiction is properly applied to anarrow set of crimes including piracy,using the Alien Tort Statute to have es-

tablished a civil remedy for universaljurisdiction would set the U.S. apartfrom other nations.“Europe has said they don’t under-

stand what the U.S. is doing with thislaw,” he said. “U.S. courts have useduniversal jurisdiction over offenses noone has before.”Hertz, a senior attorney for Earth-

Rights International, said that the orig-inal purpose of the Alien Tort Statutewas much broader. The framers, hesaid, were concerned about demon-strating to the world that the fledglingnation was committed to internationallaw. Given this purpose, Hertz did notconsider the use of the statute to enforceinternational human rights to be a vio-lation of its original purpose.“The ATS is a shining example of

human rights and separation of pow-ers,” he said. “I think what is drivingthe hostility towards it is distaste for in-ternational law and efforts to protectU.S. corporations.”For Hertz, using the Alien Tort

Statute to sue U.S. corporations is not amajor departure from long-establishedlegal principles, since “you can sueAmericans for the things they doabroad” and “the only place universaljurisdiction comes into effect is tag ju-risdiction.”“It is by statute the policy of the U.S.

to promote human rights,” he said.“This is really about fundamental val-ues shared across the spectrum.”Kontorovich disagreed that the way

theAlien Tort Statute was applied in Fi-lartiga conformed with original intent,saying that “the majority wanted tohave originalism both ways – theframers wanted one thing, but interna-tional law changes.”He expressed further concern that

these cases involve courts in sensitivematters best left to the executive.“It almost never ingratiates us to

other countries,” Kontorovich said.Hertz believes that this line of rea-

soning conflicts with fundamental prin-ciples of the American legal system.“In all other aspects of U.S. law, we

don’t dismiss cases because other coun-tries don’t like them,” he said. “Theidea that if the government says a caseshould be dismissed it should be dis-missed is against separation of powers.”Another area of disagreement was the

degree to which the indeterminate na-ture of international law was problem-atic.Kontorovich said that while some

crimes are universally cognizable andsome are not, “the universally cogniz-able list is very short applying the lawof nations.”“In the modern era, there is lots of

soft law,” he said. He paraphrasedJames Madison as saying that “interna-tional law is there but offers too vaguean answer.”According to Hertz, any vagueness is

addressed by a standard maintainingthat norms have to be well defined ininternational law. He added that theframers “were very comfortable withcourts looking to international law tofigure out what international law is.”Kontorovich also brought up addi-

tional practical and procedural concernsregarding defendants without a U.S.nexus.He said that there is very little evi-

dence that there is any deterrence tosuing foreign officials in part because itwould be hard to enforce judgmentsagainst such people. And, after all,“genocidaires,” he said, are “peoplewho are clearly very risk accepting.Finally, there were due process con-

cerns.“We think being tried by people with

no stake is a due process or fairnessissue,” Kontorovich said. “There is noreason innocent people from around theworld should be hailed into U.S.courts.”

Alien Tort Statute: Did Founders Want U.S.Courts to Look Abroad for Monsters to Destroy?Debate Over What Originalism Means for Human Rights Lawsuits

Pressures on Military Mean Rise in Extrajudicial Killings in Colombia

www.hlrecord.org

November 19, 2009 Harvard Law Record Page 7

HE EXISTS. I have met him. Thereis at least one 1L at HLS who has at-tempted to give up sleep. And it shows.The night we met, at a bar review atGrafton Street, he seemed to be fadingin and out of conversation. His eyeswere closing slightly, his eyelids heavyeven at his most alert and attentive. Helooked…sleepy. Perhaps he didn’t wantto talk to me—I should be kind andgive him aneasy out.“You’re ei-ther reallytired or I’mboring you,”I said.“No, I’m

not bored; Iam actuallyreally tired,”he explained.“You see,I’ve given ups l e ep i ng . ”Genius! Insane! Insane genius? Typical1L? All of the above? I had to learnmore.“No, come on. You haven’t given up

sleeping,” I pressed.“No, really,” he went on, his head

nodding towards his chest. “I have.”“WHY?” I demanded.“Because I had to,” he replied. “I

didn’t do any reading the first part ofthe semester. So in order to catch upand not fail I need to stay up all night.”I wasn’t following. “But—wait—

but—but we’re having this conversa-tion in a bar. At 11:30pm. Why can’tyou just—I don’t know, not go to barsinstead?” It seemed like a fair question.“That’s the thing,” he replied. “I just

seem to waste time during the day. SoI need to stay up all night.”I began to revise my notion that he

was an insane genius, replacing it withthe notion that he was just a person withpoor time management who doesn’t un-derstand the impact of sleep deprivationon information retention. “Well, okay,”I said. “So, could you try and do thingsduring the day?”“But I don’t.”“Okay. So—really? You’re actually

not sleeping at all?”“I tried the no sleep thing two weeks

ago. I stayed up for about three days.And then as I was sitting there study-ing, I spontaneously fell asleep. I sleptfor 14 hours.And then I figured out thatI couldn’t stay up indefinitely.”Progress—he has discovered that it is

impossible to stay up indefinitely andthat insomnia is not an actual studystrategy. “Oh,” I nod, “So you’re actu-ally sleeping now.”“Yes. I’m on an every other day

schedule.”“What?”“I’m on an every other day schedule.

I sleep one night, stay up another night,

sleep the next night…”“And what is tonight?” I wonder. I

hope it’s a sleep night; he’s already halfthere.“Tonight is a stay up night.” Wrong

again; this does not bode well.“No, come on.” “No, really.” “No.”

“Yes!”“But—have you been drinking

tonight?” I wondered, incredulous.“Yeah, but

I stopped awhile ago be-cause I knewI needed tostay up.” Oh.Right. Ofcourse.“So how

do you doit—how doyou stay upall night?”He waswarming to

the question. He looked almost awakeas he was answering. He had obviouslyput thought and planning into hisscheme, and he seemed happy thatsomeone had finally uncovered his se-cret. “A lot of Red Bull!A lot of energydrinks. I stock up on those. And I eat.I’m going to eat right after we leave thisbar.” “Like— what?” I ask. “Chickenwings?” I’m a vegetarian.“Yeah, chicken wings would be

good.” Ew.“So what else do you do to stay up?”“I take smoke breaks—I’m a

smoker.” He nods as he says this, like“Only smokers take smoke breaks.” Inod in response, of course. “So thathelps; the smoke breaks help. And Ihave to go to my common room. I haveto change locations and move around.If I sit on my bed I’ll sleep.”“That’s BECAUSE YOU’RE

TIRED.”“Yeah—exactly. So I move around.

Yeah. I move around and take smokebreaks outside in the cold. It wakes youup.”“And you actually think you’re learn-

ing things? I mean, you know that youlearn best when you’re well-rested,right?”“Yeah, yeah,” comes the reply. I

don’t know which part he’s agreeing to.I have finished my drink. We both

want to go home, me to sleep, heto...not. We walk back to our apart-ments, which are coincidentally acrossthe street from each other. “I’m overthere,” I tell him. “I’m going home.”“I’m going to my motorcycle,” he

replies. “I’m driving to Porter Squareto get a sandwich.” Of course he is. Iwalked up the steps of my apartmentand shook my head in confusion andamusement as he peeled away downMass Ave. The things we do to outlineTorts. God bless 1L Fall.

CAMBRIDGE, USA: THE BOYWHO DOESN’T SLEEP

After spending a relaxing year in the U.K., JESSICA CORSI thought she had re-acclimatized herself to Harvard Law School’s culture of crazed workaholism –until she came upon a 1L who likes to trade the refreshment of sleep for morereading. Is insomnia, she wonders, the secret to securing the Sears Prize?

Photo by Flickr user ArneCoomans.

BY VICTORIA BARANETSKY

Professor Lawrence Lessig’s newfocus on institutional corruption is nowhitting home, as a Harvard Alumni As-sociation event last week demonstrated.Lessig, head of the new InstitutionalCorruption initiative within the EdwardSafra Foundation for Ethics, was ac-companied by Linda Greenhouse, for-mer New York Times Supreme Courtcorrespondent, who quesitoned Har-vard President Drew Faust on the uni-versity’s own miscreant behavior.Lessig, best known for his work in

law and technology, particularly copy-right issues (including the establish-ment of Creative Commons) returned toHarvard this past year to pursue his newfound field of study. Through the SafraFoundation’s Institutional Corruptioninitiative, Lessig reported that he hopesto create a metric to determine “wheninstitutional corruption occurs” and finda way to “produce remedies.”Lessig defines institutional corrup-

tion as “an economy of influences uponan institution” that weaken both “the ef-fectiveness of that institution” and “thepublic trust” within the system. He isless concerned with traditional notionsof corruption, like favors traded for“money in a brown paper bag,” than, ashe has written on his wiki, “non-obvi-ous corruption where a decision is im-properly and/or subtly influenced by agovernment actor's anticipation of somesort of indirect economic gain or loss”.Lobbying Congress is a

“paradigm[atic] example,” said Lessig,according to whom lobbyists have be-come “pushers or suppliers,” affectingCongressional votes. Wealthy lobbyistslike Gerald Cassidy have accumulatedhundreds of millions of dollars to throwat Congress. With their coffers open tolobbyists, Congressmen decidewrongly on “nutrition, healthcare andglobal warming policies,” explainedLessig. “And these are the easy publicpolicy questions,” he guffawed.A “weakened public trust in the insti-

tution,” also defines corruption, ac-cording to Lessig. In essence, theconcern is not whether Representativeswere bought. Instead, the problem isthat “the American public thinks theywere bought. That is what is impor-tant,” he explained. Lessig once againpointed to Congress. “Only 22% of theU.S. has a positive view of Congress,”he stated, “And 88% of California be-lieves money buys results.”Linda Greenhouse never explicitly

asked President Faust whether Harvardwas corrupt, though her interview cir-cled the question. Like Congress, Har-vard seems to be a money makingmachine, illustrated by its recent en-dowment plunge: a 30% drop, from$36.9 billion to a still-phenomenal$26.0 billion as of June this year. LikeCongress, moreover, Harvard seems tohave lost the trust of its constituents.Harvard’s alumni magazine recentlyhighlighted the university’s losses, in anarticle entitled “$11 Billion Less”.“We have a new understanding of

what risk is,” Faust said, when Green-

house asked her about the meltdown.“In a school that relies so heavily on itsendowment, we understand we nowneed to save for rainy day.”Although her prepared response

seemed to assuage fears about Har-vard’s future, alumni were still curiousabout the university’s past decisionsabout its finances. “What about thecompensation?” an audience memberasked, referring to the Harvard Man-agement Corporation, the entity re-sponsible for Harvard’s endowment. Itstop six officials made a collective $26.8million in 2008. Faust replied that theywere “consistent with the other salariesin the market” in order to be “competi-tive.” She did not address an issue at theheart of Lessig’s definition of corrup-tion, however: the loss of public trust.But the driving need for such risky

investing seems to be part of a muchgreater problem. Faust claimed that “weexpect too much of our universities. Wegive them too many roles.” Universi-ties are expected to “supply our work-force, help our children with mentalhealth and socialization, be centers forart and culture and be scientific re-search centers,” she said. “This is anenormous array of tasks. We must askhow universities are supposed to do allof these things and pay for it. Shouldthese roles be played elsewhere?”In her book University, Inc., Jennifer

Washburn explores the commercialtransformation of American higher ed-ucation over the last 30 years. She ar-gues that universities have made moneyby contracting with pharmaceuticalsand other medical institutions as theirprivate researchers and therefore beenbent by their influences. Washburn’sbook suggests that universities have be-come like corrupt Congressmen, de-pendent on and influenced by theeconomic pressures of pharmaceuticals,which behave like the lobbyists. Unfor-tunately, that leaves students to play therole of the shafted American public.Another way to pay for this structure

is by increasing tuition, an issue Fausthas addressed since assuming her rolein 2007. Faust made financial aid a pri-ority after she realized the “cost ofhigher education had risen so much thatmany intelligent individuals could nolonger attend,” she said. But with theeconomic downturn Harvard has hadtrouble committing to its financial aid.Either way, people like disgraced for-

mer Illinois Governor Rod Blagojevichare not to blame, said Lessig. “We arethey, the problem [is] in society,” hecontinued. “Institutional corruption isprimed and permitted by the passivityof the most privileged.” Lessig’s clos-ing remarks go back to the roots of theSafra Foundation, which almost threedecades ago began a national move-ment to institute professional codes ofethical conduct. “These serious prob-lems need serious attention,” saidLessig, “and we are the ones who needto speak up.” If there are problemswithin Harvard, within this country, heimplied, alumni, students, faculty andothers should speak up and not just sitand wait for the panel to be over.

Lessig’s Focus on CorruptionMay Have UncomfortableImplications for Harvard

Page 8 Harvard Law Record November 19, 2009

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Support Jeremy Haber ’13 in his bid to become acolumnist forVote at views.washingtonpost.com/pundits

BY MATTHEWW. HUTCHINS

A cup of tea. Some finger sandwiches. A plate of roast beef with a glass of el-derberry wine. Sweet merciful wine. Joseph Kesserling's Arsenic and Old Lacetakes the simple pleasures of American family life and transmogrifies them intothe absurd veneer of a family of homicidal psychotics. This combination of ba-nality and madness proved to be an excellent choice for the HLS Drama Society’sfall show, produced by Greg LeSaint ’11 and directed by Kristin Kramer ’10.While HLS students may sometimes feel trapped within a fiction that is simulta-neously hum-drum and permeated by paranoia, it sometimes takes a well-writtendrama to put things in perspective.Mortimer Brewster is a rising theater critic for a New York newspaper. He and

his girlfriend, Elaine Harper, are passionately in love and decide to get married.While Elaine runs off to tell her father, the pastor, that she will be out with Mor-timer that night, Aunt Abby and Aunt Martha prepare tea and sandwiches to cel-ebrate the young couple's engagement. Ensconsced in such banal circumstances,the shrewd Mortimer swaggers with assurance that he has charted out his life'splan.But like a 1L who gets cold-called on the first day to explain the policy behind

Dudley and Stephens, Mortimer, played by Stephen Cha-Kim ’11, soon finds him-self clammy and stammering as he struggles to refute the rationalization of homi-cide. While his aunties are in the kitchen, Mortimer discoveres the body of a man,hidden in the window-seat cabinet. No worries, say Aunt Abby andAunt Martha.President Roosevelt will go to Panama and dig another set of canal locks, andwe'll take the body down tonight for a proper Christian funeral. There's alreadyeleven more bodies down in the basement.

Annie Smith ’12 and Brienne Letourneau ’10, playing the saccharine auntiesAbby and Martha, carried the absurdity of the play magnificently through their re-production of all the familiar mannerisms of kind spinsters. Later, Mortimer'slong-lost brother, the psychotic killer Jonathan Brewster, played by RandallAdams'10, returns home along with his side-kick, Dr. Einstein, planning to take over thehouse and establish an underground plastic surgery clinic to do face-changes forcriminals. For the aunties, this rude intrusion becomes downright unbearable whenthey discover a second dead body, brought by brother Jonathan, hidden in the win-dow seat. How can they give a proper funeral to a complete stranger?In a semester filled with employment anxieties and uncertainty about the fu-

ture,Arsenic offers a few farcical glimpses of cause for hope. As we see the plightof Mortimer go from bad to worse during the course of the play, it serves as a re-minder to appreciate the little things, like home cooked meals that aren't lacedwith poison and the certainty that when we go to sleep at night we aren't restingmere inches away from a corpse. Running around looking for a job should seemlike a piece of cake after seeing Mortimer frantically try to get his brother Teddycommitted so that he can pin the dozen bodies in the cellar on the hapless loony.And the occasional disagreement over Thanksgiving dinner should seem like noth-ing compared to the "Melbourne" treatment Jonathan devised to torture Mortimerafter being asked to get out of town. Yes, we have plenty of characters aroundcampus that are devious or detestable, irritating or insecure, superficial or self-important. But as the Drama Society periodically reminds us, the special com-munity we live in is full of talented people who are genuinely funny, sometimesbecause of the shows they produce on a stage in Pound Hall, and sometimes be-cause they deserve to be portrayed there.

and Old LaceArsenicDrama Society’s Fall Farce ServesInsanity Spiked with Homicide

Left to right: Emily Murphy, La-Toya Franklyn, Tina Huang, and Robert Haferd, all 3Ls

Left: Jonathan Brewster, played by Randall Adams '10, hatches a diabolical plot. Above: AnnieSmith ‘12 and Brienne Letourneau '10 watch as one of their hapless victims imbibes a poisoned drink.

A team representing HLS recently won First Place at ABA Section of Labor andEmployment Law’s TrialAdvocacy Competition for the Boston Region. The teamwill be representing Harvard and the Boston Region in the National Finals com-petition in Washington, D.C., January 30th and 31st.

Employing Advocacy

Students Protest StupakPro-Choice Rally Againast Anti-Abortion Amendment to

Health Bill Hits Harvard SquareAcoalition of activists from across Harvard University and beyond came togetherin Harvard Square on Wednesday, November 18th to protest the Stupak Amend-ment to the House of Representatives’ health care legislation, which the bodypassed nearly two weeks ago. The students used coat hangers to symbolize whatabortions would look like without financial support for proper procedures.