Harvard Law Record, V. 130 No. 1, January 14, 2010

8/14/2019 Harvard Law Record, V. 130 No. 1, January 14, 2010

1/8

BY CHRIS SZABLA

In December, Massachusetts At-

torney General Martha Coakley re-

soundingly defeated threechallengers in

the Demo-

cratic Party

primary for

the U.S. Sen-

ate seat occu-

pied by

Edward M.

Kennedy until

his death last

year, and her

cruise to an ul-

timate victory

appeared cer-

tain. After all,the state had

not elected a

senator to sit

on the other

side of the po-

litical aisle for

nearly four

decades. So

when Demo-

cratic col-

leagues like

Senator John

Kerry introduced her as the next

Senator from Massachusetts, they

werent just employing the usualcampaign rhetoric.

But what appeared to be a surpris-

ing surge in the popularity and

electability of Coakleys Republi-

can challenger, Scott Brown, threw

the levelheaded (and some would

say too complacent) Coakley cam-paign into dis-

array. Polls

were showing

the race getting

more repeti-

tive. Ras-

mussen, a

polling service

that tends to

skew toward

conservative

candidates and

which has

been faulted

for its method-ology, never-

t h e l e s s

generated ex-

c i t e m e n t

among Repub-

licans when it

showed Coak-

leys lead

trimmed to 9%.

S u b s e q u e n t

polls have con-

firmed gains

for Brown, but differ over whether

they are much larger or smaller than

those reported by Rasmussen.Suddenly, the Coakley campaign

has found itself under attack for not

going on the offensive since the At-

torney Generals primary victory,

resting on its laurels for a presumed

victory in the last round of the spe-

cial election, scheduled for January

19th.

By contrast, Brown, a State Sena-

tor from Wrentham, has been erod-

ing Coakleys most serious

advantage in the primaries, name

recognition, by barraging the air-

waves two controversial ads. The

first aped the image of former Pres-ident John F. Kennedy, who had

himself held the Senate seat later oc-

cupied by his brother Ted. It begins

with raw footage of President

Kennedy appealing for tax cuts, and

then morphs into an image of Brown

finishinghis words, before Brown is

shown in color saying that tax cuts

could help grow the economy.

By reminding voters of the former

Presidents tax policy, Browns ad

wasclearly intended to tie hiscandi-

dacy to the legacy of the Kennedy

family a mantle a Republican was

Harvard Law RecordJanuary 14, 2010 Vol. CXXX, No. 1www.hlrecord.org twitter @hlrecord

The Independent Newspaper at Harvard Law School

News World at Most Peaceful Ever?

Posner on Financial Reform

Judicial Elections Corrupt?

Opinion India Buries Kashmir Dissent

Nigerians Condemn Terrorist

Features The Fabulous Return of Fenno

A Church Closes on Christmas

Photos: Winter Near and Far

INSIDEThe HL Record

FOLLOWHLRECORD ON

D i s c u s s i o n w i t h t h e N e w D e a n

MARTHA MINOWSPEAKS ON HLSCHA LLENGES, AC C OM PLISHM ENT S

FormerHL Record Editor Joins Husband as Champion

Minow, contd on pg. 3

A REPUBLICAN INTED KENNEDYSSENATE SEAT?

SURPRISING GOP SURGE COULDDERAIL COAKLEY CANDIDACY

Feds Run Amok? Civil Liberties Lawyer

Uncovers Prosecutors Abuse of Power

Double Jeopardy! HLS Student, GradTake Center Stage on Game Show

Harvey Silverglate 67 Tears into System in New Book

BY JENNY PAUL

Dean Martha Minow took the helm of

Harvard Law School at a time when a

dwindling endowment and university-

wide budget cuts have forced the schoolto employ cost-cutting measures.

Minowassumedthe deanship on July

1, inheriting a much tighter budget than

in years past. At the law school, each

department had to trim its budget by 10

percent, after projections showed that

the law school could expect to receive

$10 million less from the endowment in

fiscal year 2010 than it received in

2009, according to a July HLS press re-

lease. Howell Jackson 82 was acting

dean at the time the budget cuts and

other staff reductions were announced.

Still, during her first months as dean,

CORONATION INTERRUPTED:

Mass. Attorney General Martha Coakley

THEUNEXPECTED INSURGENT:

Republican State Senator Scott Brown

Photos: Flickr user weinbergagain (top), Dan Kennedy (bottom)

BY MATTHEW W. HUTCHINS

When Raj Rajaratnam was taken into

federal custody for violating securities

laws, his arrest came with prosecutorsand

investigative agencies usual fanfare over

having rooted out a bad apple and sent a

warning to other would-be violators.

Within days, his hedge fund, the Galleon

Group, had shut its doors, unable to cope

with the pressure the indictment put on its

ability to carry on business.

The weight of an indictment by a federal

grand jury can crush even the most prom-

ising career. And while the gravity of an

accusation would seem to counsel restraint

in the pursuit of those who violate federal

law, a new book, Three Felonies a Day:

How the Feds Target the Innocent, by

prominent Boston defense attorney Har-

vey Silverglate 67, argues that the truth is

the exact opposite. According to Silver-

glate, federal prosecutors have increas-

Harvey Silverglate 67. Photo: Elsa Dorfman

FormerHL Record Editor-in-Chief Andrea

Saenz 08 (top) and 3L Sarah Boyette 10

appeared on the game show Jeopardy!Photos copyright Jeopardy Productions, Inc.

BY CHRIS SZABLA

Though it goes without saying that Harvard Law

School students and alumni are smart, its not every

day that they get to show off their often consider-

able non-legal knowledge. Butthe chance came for

both Sarah Boyette 10 andAndrea Saenz 08 over

the last few weeks, when both starred as contest-

ants on the quiz show Jeopardy!

Just getting on the long-running show is a chal-

lenge requiring both an admissions test and a

practice game and any contestant whose appear-

ance airs is well-qualified for the match. Saenz,

who was the Editor-in-Chief of the Harvard Law

Recordfrom fall 2007 to spring 2008, andwho now

works as an immigration attorney in Boston, knewthe protocol better than most. Her husband, Dan

Election, contd on pg. 3

Jeopardy!, contd on pg. 7

Dean Martha Minow

Feds, contd on pg. 2


2/8

Page 2 Harvard Law Record January 14, 2010

ingly come to rely on vague criminal laws to investi-

gate and indict professionals in the fields of medicine,

politics, law, business, journalism, and non-profit

service for a range of practices that have not histori-

cally been criminalized. The reasons for these pros-

ecutions range from the self-aggrandizing desire of

prosecutors to impose standards of professional con-

duct on other economic domains to the crass abuse of

power for purely political motives.

Silverglates latest book chronicles some of the

mostprominent and controversial federal cases he has

witnessed throughout his career, whether during his

own practice or in the headlines. As he lays out the

facts of each case, Silverglate takes hisreader into the

mind of a top defense attorney to see past the head-

lines and thepresumption of guilt to demonstrate how

in one case after another the Department of Justice

has demonstrated unscrupulous and overzealous use

of creative criminal indictments to intimidate the in-

nocent and coerce false testimony and plea bargains

from its targets.

The problem, says Silverglate, is that the criminal

statutes that were originally written to empower fed-

eral prosecutors to pursue organized crime have be-come malleable putty that can be shaped by a skilled

prosecutor to bring an indictment against almostany-

body. Combined with a vast regulatory state and stiff

sentencing regimes put in place for the war on drugs,

the federal criminal justice system has degenerated

into a thugocracy. Even an extraordinary effort to

conform to statutory and regulatory rules may be in-

adequate to prevent a prosecution, as in the case of

Lee Leichter, who was convicted of violations of the

Medical DeviceAmendments to the Food, Drug, and

Cosmetics Act. Despite his conviction being reversed

on appeal, Leichters life was devastated by the fi-

nancial and professional cost of his criminal defense.

In a recent interview with the Harvard Law Record,

Silverglate said that he wrote the book, Because Ithought it was important to pull back the curtain on

some of these practices.

To many readers, the book will read like a highlight

reel of the most prominent and challenging cases to be

brought in recent years. Whether examining the

Enron scandal and the ensuing demise of Arthur An-

dersen, the prosecution of investment superstar

Michael Milken, the conviction of Martha Stewart, or

the battle over assistedsuicide in Gonzales v. Oregon,

546 U.S. 243 (2006), Silverglate deftly combines the

legal sophistication of a criminal defense expert with

the plain speech and driving narrative of a journalist.

Each chapter is woven together with the consistent

themes of prosecutorial overreaching and the impos-

sibility of determining the scope of conduct prohib-

ited by vague laws, with Silverglates probing rheto-

ric drawing the reader into the suspension of their

presumptions. Thus the reader comes to understanda

well rounded defense of each individuals actions on

personal, ethical, and legal grounds.

The case-by-case style of the book could become

monotonous if it were not for Silverglates impres-

sively researched details, deeply sympathetic anec-

dotes and personal reflections that provide valuable

insight into the facts and circumstances of each case.

In this way, Three Felonies A Daysacrifices objectivity for rhetorical

force. As we are led through a

gallery of the egregious abuses of

prosecutorial authority, Silverglates

unvarnished criticism of the Depart-

ment of Justice belies his criminal

defense and civil libertarian roots.

But for every ounce of bias injected

into the presentation of the books

individual cases, its central thesis,

that power is being routinely

abused, inspires ever greater anger

and resentment.

As a call to action, Silverglate

avoids pretentious lectures on the-ory or overly technical dissections

of particular legal arguments. The

strength of his argument lies in the

traditional toolbox of the defense at-

torney. He presents the facts andes-

tablishes a narrative in each case

that allows the reader to feel that,

There, but for the grace of God, go

I. Each case is supported by legal

arguments, analyzing the theory of

the case to find an interpretation of

facts and law in which the acts of

the defendant were in line with a

reasonable interpretation of their

legal duties. In this way the booksucceeds in ad-

vancingpersuasive interpretations of

the law to lawyers and legal insiders

while at the same time giving educa-

tional background to a more general

audience.

Many of the cases are so recent

that they have either not yet been fi-

nally resolved or the aftermath is still

unfolding in the headlines. Silver-

glate presents the well-publicized

prosecution of Massachusetts House

Speaker Thomas Finneran as a case

of prosecutorial zeal and coercive

tactics bringing ruination to an un-blemished career, largely for making

a statement which was arguably not

false and probably not injurious to

anyone. But the Finneran case

stands out partly because of the

transparent motives of the prosecu-

tors. Asa component ofhis plea bar-

gain to avoid spending time in

prison, Finneran was forced to agree

not to run for public office for at

least five years, an agreement that

Silverglate finds not only excessive

and unethical but probablyunconsti-

tutional.

Just this week, the MassachusettsSupreme Judicial Court denied

Finnerans appeal of the revocation

of his license to practice law. Sil-

verglate said that this latest loss

demonstrates the lasting damage in-

flicted on a public servant who be-

came the target of prosecutors not

due to any pattern of illegal activity but merely for

having been in a position of power and public

scrutiny. It pays to be paranoid when you can be

prosecuted for these kinds of things.

For doctors, Silverglate sees the unwelcome over-

sight of prosecutors as a cause for both professional

concern and a serious impediment to responsible

medical practice. The Department [of Justice] has

drug warriorscontrolling medicine now. As a result,

physicians are subject to SWAT-team style arrest and

luridsmear tactics for conduct which falls right at

the intersection of responsible medical practice and

the federal regulation of prescription medications.

And once an indictment has been brought, prosecu-

tors frequently seek to freeze assets and coerce testi-

mony out of co-defendants in order to procure a swift

plea bargain rather than going through a full trial.

Given the extensive investigative authority of the fed-

eral agents, friends and coworkers may quickly turnagainst one another and become cooperating wit-

nesses, even when their testimony is potentially fab-

ricated to arrange a plea bargain. Like Alan

Dershowitz says, witnesses learn notonly to sing, but

to compose. To Silverglate, these coercive tactics

and the seizure of assets pending litigation constitute

a denial of the constitutional right to a fair defense.

Although prosecutors sit at the front lines of what

Silverglate sees as the Department of Justices abu-

sive decision making, he believes that the entire fed-

eral criminal justice architecture has been infected

with a culture of aggressive prosecutions. He is skep-

tical of any real change coming under Attorney Gen-

eral Holder, because like his predecessors for the last

few decades, Holder began his career as a front-lineprosecutor. And the courts, says Silverglate, are just

as unlikely to be the source of change. Judges, nine

times out of ten, are former D.O.J. honchos. Given

the institutional momentum sustaining these practices,

Silverglate believes the only real change must come

from the political process.

To his great surprise, says Silverglate, his message

has had a widely positive cross-party reception, even

by figures he never expected would agree with him.

Liberals, libertarians, and Republicans alike have

been very positive, says Silverglate. His message,

that the law should provide greater transparency and

prosecutions be brought only in cases of clearly crim-

inal conduct, is one that supporters of constitutional

rights and of limited government can unite behind.

With an impressive roster of endorsements fromlegal

scholars and practitioners, includingAlan Dershowitz,

Susan Estrich 77, Bruce Fein 72 and Michael S.

Greco, Three Felonies A Day could become an im-

portant book in thepublic debate over the need for re-

form of the justice system and the proper role of

prosecutors in shaping the law.

Feds, contd from pg. 1


3/8

Minowhas faced these challenges head

on and has worked to address student

concerns and create new programs tai-

lored to meet student needs that have

arisen as a result of the economic

downturn.

My goals are to help the Harvard

Law School continue to be the leader in

legal education in the world, which in-

cludes continuing to enhance the stu-

dent experience, continuing to enhance

the faculty, [and] managing during a

turbulent economic time, she said in

an interview with the Harvard Law

Recordin November.

Although free coffee service was re-

duced at the beginning of the academic

year, Dean of Students Ellen Cosgrove

announced in an e-mail in November

that the school would make free coffee

available in Lewis all day, indicating

the change was made in response to stu-

dent and faculty complaints. The all-

day service supplements the free coffee

in Pound and Austin halls in the morn-

ing and the free coffee available in the

library during late evenings and week-

ends.

We have a very active, terrific team

here, and when students are unhappy

about something, we try to respond,

Minow said. Coffee was something I

was deeply, personally involved in, and

when students have a problem, we try

to solve it.

The ice skating rink that covered

Jarvis Field during winter months in re-

cent years has been one casualty of the

budget cuts. Minow said she would be

willing to talk to students who are upset

about that change.

Id love to talk with them about that

compared to other priorities, she said.

Minow said the school also is com-

mitted to helping 3Ls and alumni who

have not been able to find work during

the economic downturn.

I would sayits allhands-on deck on

this one very, very active and vigor-

ous, she said.

HLS announced in October the cre-

ation of the Holmes Fellowship, which

will give about 12 third-year students

up to $35,000 to pursue public interest

law in the year immediately following

graduation, with priority given to stu-

dents who show they have not been

able to secure another source of fund-

ing or job.

In addition, Minow said OCS and

OPIA are focusing on job fairs and ca-

reer counseling, andshe hasbeen meet-

ing with law firms and alumni to

encourage them to hire HLS students.

It was the theme of my conversa-

tions with alumni during reunions to in-

crease their involvement in helping

current students andalso alumswho are

looking for jobs, Minow said. People

were incredibly responsive and eager to

help.

Minow also said construction on the

Northwest Corner project is ahead of

schedule and under budget, although

she cautioned that this could change.

The Harvard Crimson reported that the

university recently borrowed $480 mil-

lion to fund capital expenses, including

completion of the new law school fa-

cility. Current first-year students should

still be able to move into the building

during the spring of their 3L year, she

said.

Ive had the great chance to tour the

building, Minow said. Its an ex-

tremely exciting space that is entirely

student focused with all kinds of meet-

ing rooms of different sizes and a great

flow and a sense of a city with a central

artery or a main thoroughfare. Its going

to be fantastic.

Minow said her experiences since as-

suming the deanship have been intense

and busy and exciting. Still, she said

the thing she misses most about only

having the responsibilities of a faculty

member is controlling her own time and

schedule.

I dont do that anymore. Somebody

else is in charge of my time, Minow

said. But I would not for a minute give

up the privilege and pleasures of work-

ingwith students and teaching and writ-

ing.The reason I tookon thisjob was to

try to help other people and help stu-

dents and faculty have the great oppor-

tunities that Ive had.


The ubiquity of violent images in our

society can lead to the impression that

we l ive in an unusually violent era.

Movies and video games depicting

homicidal gangsters, news reports of

warsand genocides, scandals regarding

torture, and debates regarding legal ex-

ecutions all seem to convey a world in

whichdeathis toleratedif not glorified.

But according to psychologist and

Johnstone Family Professor Steven

Pinker, these outward signs of violence

obscure the real historical trend toward

ever greater peaceful coexistence which

has made the present daythe safest time

in human history.

On November 19th, Pinker spoke in

Austin Hall to a group of burrito-eating

law students about the data supporting

the theory that the present day is the

most peaceful in history. Although no

formal records exist for more than a

few centuries back, Pinker says thatnew research is revealing that the toll

taken on human life by homicide and

war was much greater in Medieval and

Renaissance Europe than the present

day. A study by Manuel Eisner indi-

cates that homicide rates have fallen

about 40 fold from 24

per 100,000 individu-

als in the 1200s to

less than 0.6 per

100,000 as of the

1960s. And even

within the past 200years, the decline of

conventional wars of

attrition and interstate

conflict in general has

brought the number of

individuals killed in armed conflict to

less than 2,000 per year during the past

decade, compared with 65,000 per year

during the 1950s.

Pinker says that it is only natural that

despite the decline in actual violence-

related mortality we continue to per-

ceive ourselves as violent. Not only is

it difficult to forget the recent memory

of wars in countries like Korea, Viet-nam, Iraq, and Afghanistan, as well as

genocides by the Nazis, Serbs, Rwan-

dans, and in Darfur, but our own cul-

tural values are a leading indicator of

progress, always moving beyond our

present behavior to cause us to reflect

negativelyon our shortcomings. But in

retrospect, the attitudes toward violence

have made tremendous progress in the

past 400 years. The abandonment or

abolition of practices like public muti-

lation of animals, public executions,

torture, slavery, rape, and conquest of

foreign people has produced a society

that is generally less accustomed to andaccepting of any and all forms of cru-

elty.

Although many scholars and public

thinkers have in the past touted the

noble savage idea of modern society

January 14, 2010 Harvard Law Record Page 3

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otherwise unlikely to inherit. In the Democratic pri-

mary debates, the candidates had scrapped audibly

over which best represented a continuation of the

prominent political familys legacy.

In a second ad, Brown contrasts his stance on taxes

to Coakleys, quoting her saying weve got to get

taxes up. Coakley allies have cried foul, saying

Brown took Coakleys words meant to refer to tax

revenue, rather than rates severely out of context.

A similar criticism could be applied to Browns

Kennedy ad, which refers to a policy adopted by

Kennedy during a period of relative economic pros-

perity, when the country did not face a crisis of bal-

looning debt at least partly attributable to the

enthusiasm for tax cuts shown under the George W.

Bush administration and its Republican Congresses.

During thatperiod, tax cuts failed to increase sluggish

growth and job creation, problems that were only ex-

acerbated by the global financial crisis and deep re-

cession that have developed in the last year and a half.

Coakley haslargelychosen the high road, however,

airing more and more ads emphasizing her positive

contributions to financial regulation and plans to re-

make Wall Street. But if they display a firm grasp of

the nations financial and economic problems, Coak-

leys ads lack charisma and pizzazz. They seem un-

likely to generate enthusiasm for a candidate whose

primary victory was largely attributable to structural

factors.

These included not only statewide name recogni-

tion (Coakley was the only candidate to have been

elected statewide and is from the western part of the

state, boosting her popularity there), but her early

entry into the race, and extremely low turnout in part

due to the elections unorthodox date, proximity to the

holiday season, and even cold weather. Coakley also

had the advantage of an established base of women,

who are eager to see her become the states first fe-

male senator.

If enthusiasm for the race remains as low as it had

been in the primary period, these same conditions

should lead Coakley to victory once more. And Mas-

sachusetts registered Democrats also outnumber Re-

publicans more than three to one. The expected low

turnout could increase the probability that the long-

time frontrunner and candidate whose political ma-

chine is the most well-oiled will be able to achieve

victory.

The Boston Globespoll, which was conducted with

a larger sample size than Rasmussens, and which,

crucially, sampled likely voters, actually showed

Coakley with a 15 percent lead. Her lead grew to 17

points if those merely leaning toward voting for her

were included, the paper reported.

Alarmingly for Democrats, however, the Public

Policy Polling (PPP) service has subsequently re-

ported a possible one-point Brown victory, using a

sample size around the same size of the Globes. The

PPPpoll also seems to show the number of undecided

voters shrinking, indicating that they and likely

other independents had shifted to Brown.

According to the press release included with the

poll, entitled Senate Race Competitive, a declining

number of likely voters were those that had voted for

President Barack Obama 91 in 2008, indicating that

dissatisfaction with sitting Democrats might influence

turnout, as it had during gubernatorial elections in

New Jersey and Virginia last fall, where Democrats

were felled by Republican insurgents. National Re-

publicans have been pointing to those races, and

Browns gains in the hitherto impregnable Demo-

cratic stronghold of Massachusetts, as evidence of its

good chances in this falls upcoming 2010 midterm

Congressional elections.

But absent from the PPP polls choices is inde-

pendent candidate Joe Kennedy, who has no relation

to the Kennedy family, but whose confusing name

might have some influence on the outcome of the

race. The Globe poll showed Kennedy pulling 5%.

Moreover, PPP, while affiliated with Democrats,

shares a suspect phone-touch methodology with Ras-

mussen.

Thinker Pinker: We Live inWorlds Most Peaceful Age

Minow, contd from pg. 1

Election, contd from pg. 1

Pinker, contd on pg. 5


4/8


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Harvard College and are used with permis-

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EStabLiShEd MCMXLVi

Eors-n-Cef

Matthew W. Hutchins

Chris Szabla

Sff Eors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

Conruors

Siyuan ChenAnil ChoudharyNathaniel Fintz

Aminu GamawaNicholas Joy

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Sum Leers n Eorls o:

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Harvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

INDIA BURIESDISSENTINKASHMIRMass Graves Found in Restive Province Undermine

New Delhis Pretensions to DemocracyBY ANIL CHOUDHARY

Nearly 2,600 bodies have been dis-

covered in single, unmarked graves and

in mass graves throughout mountainousIndian-controlled Kashmir. The Inter-

national People's Tribunal on Human

Rights and Justice (IPTHJ), an Indian

Kashmir-based human rights organiza-

tion, claimed that they found the graves

in 55 villages during a three-year sur-

vey that concluded in November. Out

of the 2,600 graves discovered by

IPTHJ, they claim that 177 graves held

more than one body. This report is one

of the most damning pieces of evidence

of the crime against humanity perpe-

trated by the Indian armed forces in

their occupation of the disputed terri-

tory of Kashmir.The Muslim-dominated region of

Kashmir has been a disputed territory

right from the independence of India

and Pakistan in 1947 and has been the

source of conflict for more than half a

century. While both countries claim the

region, it is the civilian population of

Kashmir that has paid the price of the

conflict. In contested claims, more than

68,000 people have lost their lives in

Indian-occupied Kashmir in the past

two decades alone and have witnessed

three conventional wars.

The latest report, if accurate, only

goes to prove the brutalities encoun-tered by the Kashmiris at the hands of

the Indian armed forces. The Indian oc-

cupation of Kashmir casts a dark

shadow over Indias shining image as

the largest democracy in the world. In-

dian democracy prides itself on free-

dom of speech and expression and the

right of its people to dissent. But the

manner in which the dissent of the

Kashmiri population has been crushed

illustrates that India stillhas a long way

to go to be a real functional democracy.

Over the past couple of decades, it has

been alleged by various human rights

groups that the Indian military has

killed a large number of Kashmiri youth

in "fake encounters", dubbing them

"Pakistani terrorists". In April, 2008,

Amnesty International appealed to the

Indian government to investigate hun-

dreds of unidentif ied graves be-

lieved to contain victims of unlawful

killings, enforced disappearances, tor-

ture and other abuses to no avail.

The starkest feature of these recentfindings is that there was no coverage

of the report by the Indian media. Hav-

ing stumbled upon this shocking report

in the New York Times when sitting in

the U.S., I sought the perspective of the

Indian media. To my disbelief and hor-

ror, there wasnot even a single mention

about this report in all the leading In-

dian dailies and news channels, while

all of the major international media

groups had covered the story.

So what does this tell about Indian

democracy? The truth of brutalities in

Kashmir have alwaysbeen kept a secret

to the nation. The Indian state has, fordecades, been suppressing the largely

non-violent dissent of Kashmiri people

against the militarization of Kashmir.

The Indian state has used the divisive

propaganda of militancy and religion as

tools to suppress any kind of dissent

against its forced occupation of the re-

gion. The Indian state has tried to keep

not only the international community in

the dark about its hostili ties toward

Kashmiris butalso the local Indian pop-

ulation, by controlling media reports of

the real situation on the ground in In-

dian occupied Kashmir.

A democracy which suppresses dis-sent by means of violence is the most

vulgar form of democracy, if at all i t

can be called democracy. The suc-

cessful attempt by the Indian state to

keep the Indian populace in the dark

about such damning reports questions

the validity of its claim to be the

largest functional, pluralistic democ-

racy.

Kashmiris not the only placewhere

the Indian government has responded

with violence in the wake of dissent.

The rising tide of the left-wingIndian

Maoists group (termed "Naxalites"),

predominant in East India, have con-stantly faced violent retaliations for

their dissent against the capitalist

regime of the Indian state. The people

of neglected regions of northeastern

India have been the subject of torture

by the Indian military forces for

decades for their demand of more au-

tonomy for the region.

Unfortunately, the resort to violence

against any kind of dissent is not a

newphenomenonfor the Indianstate,

either. The princely states of Juna-

gadh and Hyderabad were annexed

by the Indian state by use of force

when these states declined to be part

of the newly formed independent In-

dian state.

But India's use of violence to viti-

ate dissent has long been kept under

the wraps of propagandist theories of

a functional pluralistic democracy.

India has projected itself, not only to

the international community, but also

to its citizens, as being a soft, liberal

state. But events, past and present,

prove otherwise.

Anil Choudhary is an LL.M. student

from India.

BY AMINU GAMAWA

Like most Nigerians, I was shocked

when I received the news of an attempt

by a twenty-three year old Nigerianman, Umar Farouk Abdulmutallab, to

blow up a transatlantic flight between

Amsterdam and the U.S. city of Detroit.

The incident, which could have cost

hundreds of innocent lives, if not the

courageous efforts of passengers on-

board who subdued the attempted jet

bomber, is a heinous and despicable act

of terrorism. The passengers should be

commended for their heroism.

The fact that the incident took place

on such an important day of Christmas,

a global ceremony that celebrates the

life of Jesus Christ, someone that has

preached peace and tolerance tomankind, makes it all the more unfor-

tunate.

This is the first time that a Nigerian

is involved in such a dastardly act. On

behalf of my Muslim colleagues and

other Nigerians here at Harvard, I

strongly condemn this attempted act of

terrorism as a heinous and callous

crime which does not in any way rep-

resent the character of Islam or Niger-

ian values of peace and harmonious

coexistence. I also strongly urge all

peace-loving Nigerians and Muslims to

join me in condemning this barbarous

act.

The Islam we practice teaches and

represents peace and tolerance across

racial, ethnic and religious divides. It is

very unfortunate that at a time when we

are all joining hands in fighting ex-tremism that such a shameful act has

been attempted on U.S. soil. Terrorism

is condemnable wherever it takes place.

I call upon everyone, especially our

friends and hosts here in the U.S.,to see

this act as an isolated event by an indi-

vidual, brainwashed by some terrorist

groups that are enemies toall of us. The

conduct does not in any way represent

a particular religion or nationality.

Opinion expressed across Nigeriaand

the steps takenby the parents of Farouk

Abdulmutallab demonstrates the com-

mitment of Nigerians to fighting terror-

ism and extremism, both within andbeyond Nigeria. We are all involved in

ensuringour collective safety and in re-

sisting any attempt to commit violence

against innocent citizens in the name of

religion.

I hope and pray that this is the last

time we will experience such an atro-

cious plot against innocent people. I

would like to call on U.S. security offi-

cials not to use this opportunity as an

excuse to harass innocent, law-abiding

and peace-loving Nigerians, who, like

many others, have nothing to do with

this act.

I also call upon the Nigerian security

to fully cooperate with their U.S. coun-

terparts in the investigation and prose-

cution of anyone that is involvedin this

condemnable act. We should all coop-

erate and support the security in theirfight against terrorist wherever theyare

hiding.

This attempt is a reminder and a

wake-up on all nations that the war on

terror is not over. It is a continuing

struggle between, on the one hand, evil

forces that seek to spread violence, and,

on the other, peace-loving humanity.

We must all work together to defeat

anyone who wants to use violence

under the guise of religion to pursue po-

litical ends.

Nigerian security failed to detect and

arrest Umar Farouk Abdulmutallab

when he entered Nigeria from Ghanaon his way to the U.S., and U.S. secu-

rity failed to prevent him from entering

US despite the repeated warning by his

father on his radicalization. These

lapses open serious questions that call

for a review of security measures in

both countries.

Still, once again, the terrorists have

been defeated. May they always be de-

feated.

Aminu Gamawa is an LL.M. student

from Nigeria and secretary of the

Harvard African Law Association.

Nigerians Condemn Christmas Bombing Attempt

Mass graves found in Kashmir in 2008. 2,600 fresh

graves were discovered last year. Photo copyright

International Tribunal for Human Rights and Justice

in Indian-administered Kashmir.


5/8


having a corrupting influence, Pinker

said that the current trend is to accept

that Hobbes had it right andthat prim-

itive life was short and brutish. Stud-

ies of prehistoric skeletons have

shown that a much higher percentage

of the population perished as a result

of inter-tribal violence than are killed

in todays conflicts, even though the

absolute number of mortalities is

higher due to the larger populationtoday. The modern state, says Pinker,

has provided law enforcement and ed-

ucation that have allowed Enlighten-

ment era ideas of human dignity to

become ingrained in our social and

cultural norms. Religion, which once

was a critical component of individu-

als concepts of violence, has faded

into the background in peaceful, sec-

ular societies. And now as our sphere

of empathy continues to expand be-

yond family and community to en-

compass both sexes and other races,

evenanimals are becoming less likely

to be subject to human violence.Apart from the proliferation of more

sophisticated sensibilities, Pinker said

that the reduction in violence can be

attributed in part to the simultaneous

proliferation of modern weapons and

economic development, for the com-

bination of the two has made neigh-

bors much more valuable alive than

dead. First, from a strategic perspec-

tive, the idea of a credible retaliatory

strike is a powerful deterrent to any

military action. When a first strike

from the other side would leave one

disabled and weak, it increases the

need to be prepared to conduct a firststrike oneself. But since the end of

the Cold War, economic opportunity

has outpaced inter-state tensions,

bringing nations together to gain by

cooperationrather thanmilitary force.

Whatever the reasons for the de-

cline in violence, Pinker presented an

array of numbers that demonstrate

that by almost any statistical measure

humans have learned over time how

to live in greater harmony with one

another, and that the phenomenon is

fractal across the whole of humanhis-

tory and within almost any period of

time. As we continue seeking to liveup to a higher standard, we can take

some satisfaction in knowing that so-

cial progress has been shown to have

empirical results and thatabstract val-

ues and aspirations appear to have

made a difference the history of our

species.

WRITE AWRITE A

DISPATCH FROMDISPATCH FROM

YOUR LIFEYOUR LIFE

OROR

CREATECREATE

A COLUMNA COLUMN

TO INDULGETO INDULGE

YOURYOUR

CREATIVITYCREATIVITY

EMAILEMAIL

RECORD@LAWRECORD@LAW

BYNICHOLAS JOY

When it comes to the Treasury De-

partments proposals for new financial

regulations, Judge Richard Posner 62would be perfectly content to have

them never adopted.

Posner spoke at noon on Wednesday,

November 18 about financial regula-

tory reform and the Obama Adminis-

tration. His talk took place in the Ropes

Gray room and was sponsored by the

Federalist Society.

Posner was appointed to the United

States Court ofAppeals for the Seventh

Circuit by President Reaganand served

as Chief Justice of that circuit from

1993 to 2000. He is also a Senior Lec-

turer at the University of Chicago Law

School and has been identified by theJournal of Legal Studies as the most

cited legal scholar of all time.

In his talk, Posner said that he

strongly disapproved of a June 17

Treasury Department report on propos-

als for financial regulation and, more

generally, the whole business of re-

form. He said that the report and the

reform proposals concerned him for

three reasons.

First, he said that there was no au-

thoritative understanding of the causes

of the current financial downturn. He

contrasted the approach of the bi-parti-

san Financial Crisis Inquiry Commis-sion with the non-partisan 9/11

Commission, saying that the commis-

sion tasked with investigating the fi-

nancial crisis had been filled with

activistsfrom each party andwas being

extremely sluggish.

The proposals precede any system-

atic study of what happened, he said.

Whatever was good about the 9/11

Commission is turned upside down.

Second, Posner took issue with pass-

ing reform measures during an eco-

nomic recession. As an example of the

potentially perverse effects such re-

forms could create, he described howrecent regulation on credit cards had

driven up credit card costs and frozen

that aspect of the economy.

The reform is going to impede the

recovery, he said. The biggest prob-

lemin such a collapse is psychological.

The time for ambitious regulation on

risky behavior is when the economy is

booming.

Finally, Posner worried about the lack

of concerted international action, a de-

velopmenthe called most disturbing.

He believes that without international

cooperation, any attempt at increasing

regulation would prove fruitless be-cause of the ability of finance to move

from country to country.

The financial industry is already

global. They will go anywhere, he

said. If major countries restrict their

banks it will create more opportunities

for other countries.

He added that taking action sooner

rather than later could make coordinat-

ing international regulation of finance

more difficult.

If Congress has already acted, our

flexibility will be impaired, Posner

said.

According to Posner, a significant

concernfor the prospect of taking a suc-

cessful approach to financial regulation

is that the U.S. is in the awkward po-

sition that many of the people most re-

sponsible for the economic breakdown

are people in high positions in the cur-

rent regulatory regime. By Posners

view of the causes of the economic cri-sis, Federal Reserve Chairman Ben

Bernanke, Treasury Secretary Timothy

Geithner, and Director of the National

Economic Council and former Harvard

University President Lawrence Sum-

mers all bear some blame.

Posner said that the Federal Re-

serves policies under Bernanke and

his predecessor, Alan Greenspan,

kept short term interest rates too low

for too long, driving a surge in de-

mand for housing. Posner said that

Bernanke failed to heed warnings

about the dramatic rise in housing

prices this produced.

He denied and the government de-

nied that there was a bubble, Posner

said. It created an opportunity and in-

centive for people to take on an enor-mous amount of

debt. There was a

kind of an orgy of

spending and it

collapsed.

By the middle

of 2007, Posner

observed, it was

clear that there

were problems

with mortgages

and the housing

market. He said

that, even as the

situation gotworse, at every

juncture the Fed

under Bernanke

thought the prob-

lem was con-

tained.

According to

Posner, a critical

mistake was made

when Bernanke

and Geithner, then

President of the

Federal Reserve

Bank of New

York, decided toallow the finan-

cial-services firm

Lehman Brothers

to fail. This

caused an investor

panic and a run on

banks.

In Posners

view, Bernanke

and Geithner have

chosen to put the

blame on banks

rather than take

r e s p o n s i b i l i t y

themselves andacknowledge the

role that unsound monetary policy

played.

This sort of populist theory is easy

to sell, he said. If you tell them

bankers are greedy and overpaid theyll

say, Fine, sounds right.

What Posner hopes to see going for-

ward would be a return to a separation

between commercial banks and other

financial-services firms. He said that if

commercial banks were sealed off ,

tightly regulated, and insured by the

FDIC, they could provide a safe back-

bone even in another financial crisis.He said that allowing commercial

banks to diversify themselves with

riskier investments creates a dangerous

and unstable mix. The cultures of the

safe and risky businesses are incompat-

ible with one another.

No one respects risk managers be-

cause they dont create profits. All they

do is stop deals, like lawyers, Posner

said. The traders are the real stars.

There are always these tensions.

Posner Finds Problems With ProposedFinancial Regulation Reform

DissentingOpinion?

EMAIL RECORD@LAW

Richard Posner 62 aired his views at a Federalist Society

meeting in November. Photo by Siyuan Chen.

www.hlrecord.org

Pinker, contd from pg. 3


6/8


7/8


Pawson, was one of the shows stars.

Dan went on to win not two, not

five, but nine games and over $170,000,

collecting more money in regular sea-

son games than all but three other peo-

ple in show history, and winning more

games than all but two others, she

wrote in the Record in January 2008.

Only six other contestants have won

over five shows, a category Jeopardy!

fans have anointed superchampions.

Pawson, a University of Chicago

Law School graduate who turned down

a firm job to live with Saenz in Boston,

now works as a legislative aide at the

Massachusetts State House. He was in-

vited back to the show in 2009 for its

Tournament of Champions, which he

also won. Pawsons winnings allowed

the couple to pay down their bills

which helped the public interest couple

with their law school debt and other ex-

penses just as Saenz gave birth to

their first child. (Their baby, Rebecca,

was born the night Pawsons final Jeop-

ardy appearance aired. The Final Jeop-

ardy category was Baby Names.)

But while Pawsons success grew,

so did Saenzs sense that she, too, could

compete on the vaunted quiz show.

I've been a Jeopardy fan since I was a

kid and it's always been a dream to

compete, she said. After Dan got on

and won everything in sight, I thought

it'd be fun to take my shot. She felt in-

creasingly that she should have taken

the shows qualifying test when Paw-

son had invited her to, back when he

began his run. When she finally did, she

was not only rewarded with an appear-

ance on the show her first aired on

January 7 but became a champion

herself.

Saenz made over $30,000 during

her first appearance, trouncing her com-

petitors in the dramatic final round,

when she surmised that The Flint-

stones was the animated show whose

premiere had been sponsored by Win-

ston Cigarettes. Although she fell to a

competitor the next day, ending her run

with a second place finish, she will be

added to the shows Hall of Fame for

one of the greatest totals ever earned in

a single game.

I was basically hoping to not em-

barrass myself, Saenz said of her ini-

tial goal. The fact that I won a game

and made a healthy fraction of my non-

profit salary in 30 minutes was beyond

anything I expected!

And while Pawson and Saenz were

not the first married couple to have both

been contestants on the show, they are

fairly confident they are the only pair to

have both won at least one game.

Saenz Jeopardy! appearance was

the second time in under a month that a

Harvard Law School affiliate had been

on the show. 3L Sarah Boyette starred

as a contestant on December 24th. With

a respectable second place finish,

Boyette finished the show with a

$21,000 total, but, per the shows rules,

was only allowed to keep $2,000.

Boyette and Saenz are part of a long

line of Harvard Law students and

alumni to have competed on the show

at some point before, during, or after

their time in law school. Several in-

cluding Pam Mueller 08, who was on

the shows college edition before enter-

ing law school, and Amanda Goad 05,

who appeared on its teen tournament

have been champions. Other quiz

shows have also attracted HLS brains; a

few have displayed a gusto for risk-tak-

ing that eludes most law students. Ken

Basin 08 (who formerly wrote a col-

umn for the Record on his experiences

studying abroad in Hong Kong) could

have walked away with half a million

dollars during his appearance on Who

Wants to Be a Millionaire?, but chose

to go for the million dollar question.

When he got it wrong, he took home

only $25,000.

Despite the prevalence of Harvard

Law students on quiz shows, Saenz

doesnt think her legal education helped

her much even if one of the categories

she encountered during her first Jeop-

ardy! appearance was In the Court-

room. She said her J.D. was actually

more useful for interpreting the release

form she had to sign for Sony Pictures

Television, which produces the show.

And when she was asked to describe

her profession, she was careful to de-

scribe herself as an immigration lawyer

rather than just a lawyer because, she

said, I've found that when people hear

you're a lawyer, they often think you

chase ambulances or have annoying tel-

evision commercials.

Still, she thinks HLS students and

alumni should try their hand at a game

they seem particularly adept at winning,

particularly if they could use help with

their cash flow problems. I strongly

encourage any students or faculty who

are feeling nervous about the economy

or job market to hurry and sign up for

January's online qualifying test, she

wrote, adding that a Jeopardy! vic-

tory was even better than the law

schools low income debt repayment

plan.

BY JESSICA CORSI

We walked up to the church on Christmas Eve and

ran smack into the TV cameras and a news anchor out

in front. What the heck was this? The church is lo-

cated in an area of Western Massachusetts small and

rural enough to still be called a village, with a pop-

ulation of less than 2,000 people and nothing in it that

I can remember, except an old hitching post, with the

date of the villages founding stamped on it.

The day had already gotten off to a weird start.

Never in my life had I taken a bus into my mothers

home town on Christmas Eve, and she had already

managed to lose me in a town so small she doesnt

even get mail delivered directly to her house. Yet now

there were bright lights and a TV camera trained on a

tiny little box of a small town church. What could

possibly be going on? The church's Christmas pag-

eant was usually good, but not that good.

Jessica, you do the talking, my great aunt joked,

nodding toward the camera and elbowing me.

Why are they here? I asked her.

This is the last Mass of this church. Its closing.

I could have used a little advance warning.

Last Mass? I asked. By this point we are already

crossing ourselves as we enter and search out a pew.

This is our Christmas Eve Church, because it puts on

a hilarious Christmas pageant before the Mass, and

because the priest that travels here just to do the

Christmas Eve service does touching things like pass

out candy to the children, who in turn do funny things

like run around the church triumphantly eating candy.

If that sounds mundane, youve never been to a

Catholic Mass. It's not usually a barrel of laughs.

We take a seat at the front of the Church, immedi-

ately behind the pews reserved for the pageant par-

ticipants. The place is even more packed than usual,

and, in contrast to previous years, the heat is on, for a

change. I suppose they figure that, for their last night

in existence, they could afford to blast the heat. That,

and the fact that keeping it cold hadnt exactly proven

to be a strategy effective enough to keep them open.

Theyve printed a special bulletin just for the occa-

sion, with St. Bartholomews Parish, 130 years on

the cover and a history of the church inside. My great

aunt starts pointing out family members that I didnt

know I had. And this guy was out relative, and this

one, she says, tracing her finger down the list of

priests and deacons. No wonder my mom is so reli-

gious, I think to myself, as I see just how many fruits

on the family tree managed to wind up taking reli-

gious orders. Im having that How come no one ever

tells me anything? feeling again.

And this nun was our cousin. My father used to

pick her up, and she couldnt leave the convent with-

out another nun. Isnt that crazy? And they had to sit

in the backseat of the car; neither of them could sit up

front with my Dad. Your mom was terrified of them.

Thats true, my mom agreed. I dont know what

it was but I was terrorized when theyd come over.

Id last about a minute before running and hiding.

Habited nuns had walked the rooms of my grand-

parents house, the house I was staying in that night?

Their rules about traveling with at least two women,

not being able to drive, and their giant habits make

me think of Saudi Arabia. It wasnt so long ago that

Catholic religious orders practices resembled Mus-

lims. I remembered that before Vatican II, all of the

girls and women had to cover their heads in Church.

The pageant was starting, sort of. The place was

buzzing with chatter, packed as it was and with the

show running late. The pageant coordinators were

flying around the place looking like Hollywood

agents stressed about their starlets being late for the

red carpet, whispering to each other but offering us

no explanation. Finally it camethe priest ascended

to the pulpit and announced,

Well, theres been some mix-up. Father so-and so

had the time wrong. I just reached him on his cell

phone. He thought that Mass started 30 minutes later.

So why dont we just begin?

The pipe organ began piping, and the choir began

singing. The monotone teenage readers assumed their

positions on stage, and someone began reciting the

words that set the scene for the little town in Bethle-

hem. On cue, the angels began bouncing down the

aisle. The littlest angel was giving new meaning to

bounce: literally skipping around the church, twisting

her head in all directions to get a better view. The tod-

dler was making her halo flap and her sneakers flash

red lights with the impact.

Soon, baby Jesus was there, and he was actually a

real live baby, and also apparently the cutest baby in

the entire world. As Joseph and Mary made their way

around the altar pretending to look for a room at the

in, Josephs staff got caught in the Christmas tree, a

hazard Im sure the original couple endured with as

much grace. As they assumed their positions center

stage and facing the congregation, the angels traipsed

down the aisle once again.

But the worlds cutest toddler angel was, apparently,

related to the worlds cutest baby Jesus. Mommy!

Hiiii!!! she whispered, and as the angels walked right

toward the holy couple and the others took a sharp left

turn, she gleefully continued straight on, running to-

wards her mother Mary to give her a hug and offer a

kiss to the tiny Son of God. As Mary fumbled with

both children, it became clear it was going to be hard

to separate the newborn from his new guardian.

As Mass started, the joyfulness quickly wore off.

The mood was tense, almost heartbreakingly sad. No

one there wanted this to be the last Mass. Already

there had been so many church closings; each week-

end that I had gone home to visit my family my grand-

mother would read me the announcements from the

local paper of which Chuch was closing here, which

over there. I hadnt thought too much about it. I

knew that, in the U.S., Catholicism was faltering; that

the dioceses everywhere were running out of money;

and that the priesthood was hurting for new recruits.

This Church had borrowed a priest from a village in

Nigeria because there were no locals to draw upon.

As the Mass wore on, the whole parish began cry-

ing. I didnt know what do to with myself; Im en-

tirely unused to seeing giant grown men standing in

front of an altar decorated with Christmas flowers and

bawling their eyes out. My own family was tearing

up, and I got swept up in the moment. I only came to

this church one night a year, but I knew that other peo-

ple formed a community here each week, and that

they were losing both that and a sense of their history.

In an act of rebellion, one of the parish organizers an-

nounced that, Tonights collection will not go to the

Dioceses, because they havent taken care of us," I

heard someone announce. It will go to Fathers

church in Nigeria. Id never heard such defiance

coming from the altar before.

I really hope they dont tear the building down,

my great aunt whispered.

It took 15 minutes to walk the 30 yards to the exit

of the church. The parishoners had blocked the aisles

greeting and hugging each other, mourning. My great

aunt was off conversing with relatives no one bothers

to tell me are my relatives. Later on, she would try

and sketch out the family tree.

Back in the car, everyone let out a sigh.

Did you see the angels shoes? my mom asked.

They lit up! my aunt responded. We drove home.

CAMBRIDGE, USA: A CHURCH CLOSES ON CHRISTMAS

Jeopardy!, contd from pg. 1


8/8

court reflect that one individuals

bias. In the opposite scenario, which

Vermeule calls the miracle of aggre-

gation, biased members of a body

cancel each other out, leaving an ob-

jective party in the position of casting

the decisive vote.1

Professor Richard Fallon, who

moderated the panel, questioned

whether it would be appropriate for a

principled individual to change their

vote to offset the vote of another-

member of a panel who was known to

be biased. Prof. Vermeule said that

this would fall under the rubric of

what philosophers call a tragic choice,

giving up objectivity and yet hoping

for a miracle of aggregation to lead to

the virtuous result. Prof. Karlan sug-

gested that in this situation a judge

should rely on the norm of sincerity

and follow the position that their ob-

jective faculties show to be the cor-

rect one. Prof. Lessig expressed

doubt as to whether the norm of sin-

cerity has any real force in the deci-

sions of a court. For Vermeule, this

domain involves difficult questions of

role morality, since if one member of

a court has notably departed from the

norm of sincerity and displayed bias,

it has the capacity to influence the ac-

tions of the other members and the

morality of the choices they make.

For Professor Karlan, the case was

rightly decided not only because it

was the correct application of the law,

but also because once the Court

granted certiorari it was put in a posi-

tion of needing to take a moral stand

against impropriety. The assertion of

power by the Supreme Court to inter-

vene in setting the standards for the

conduct of judicial elections can serve

as an important check against state

legislatures, said Karlan. To Karlan,

the standards for judicial elections

have become so watered down that

the people should reject them and

adopt an alternative method of select-

ing judges. It seems that in the wake

ofCaperton the important legal and

political questions revolving around

judicial elections have become only

more unsettled and yet more pressing

and relevant.

1. Query whether this in fact reflects the

role of Justice Kennedy in the Courts

Caperton majority. See Vermeule, 123

HARV. L. REV. 4, 41 (2009).


Winter Sunsets: Cambridge and Los Angeles


The Harvard Law Review is usually

the leading predictor of the actions of the

Supreme Court, but this time John Gr-

isham beat it to the punch. Grishams

latest legal thriller, The Appeal, bor-

rowed its story of a judge captured by a

wealthy local businessman from the facts

of the case ofCaperton v. A.T. Massey

Coal Co., which recently made its way

from the West Virginia Supreme Court of

Appeals to the Supreme Court of the

United States. So when the Law Review

held its forum on December 7th, it could

only hope that the legal experts it had as-

sembled would provide a scholarly ad-

dendum to the recent Supreme Court

decision. The panel included Prof.

Adrian Vermeule 93, who wrote a for-

ward for the volume titled System Ef-

fects and the Constitution, Prof.

Lawrence Lessig, Prof. Pamela S. Kar-

lan of Stanford Law School, and Prof.

Penny J. White of the University of Ten-

nessee, Knoxville, who was formerly a

Justice of the Tennessee Supreme Court.

In Caperton, the Court was asked to

consider whether it was improper for

Justice Brent Benjamin to sit in a case

which involved Don Blankenship, the

CEO of A.T. Massey, when it was

Blankenship who had provided the fi-

nancial support for Benjamin to win an

election campaign and a post on the

states high court. The investment of

over $3 million in Benjamins campaign

bore fruit for Blankenship when a $50

million verdict against his company was

overturned on its appeal to the West Vir-

ginia high court. When one justice re-

cused himself for having made strongly

negative public statements about

Blankenship and another recused himself

after vacation photos of him with

Blankenship in the French Riviera sur-

faced, it was Justice Benjamins vote that

was pivotal in creating a 3-2 majority to

overturn the verdict.

The Supreme Courts 5-4 opinion held

that Justice Benjamin should have re-

cused himself, and that the impropriety

of sitting on the case was sufficient to

create a constitutional defect in the ap-

peal of the case, remanding the case to

West Virginia for further consideration.

Prof. White expressed exasperation that

the Court could come out so deeply di-

vided on a case that appeared to have a

clear cut answer. The dissent, by Chief

Justice Roberts, posed forty questions to

the majority asking for guidance in the

difficult area of election finance and re-

view of recusal decisions; to White, each

of these questions could be given an clear

answer, so long as you keep your eye on

the fundamental rights of the litigant to a

fair trial. To White, this was the most

important emphasis of the majoritys

opinion, and for the lawyers and judges

seeking to conform their conduct to eth-

ical standards will remain a compass to

guide their conduct. White also noted

that footnote 68 of Prof. Lessigs com-

ment rightly expressed surprise that the

Courts opinion failed to actually rebuke

Justice Benjamin for conduct that would

not be acceptable under any set of recusal

standards, and instead only commended

his careful responses to recusal mo-

tions. Lessig, who is the director of the

Edmond J. Safra Center for Ethics, said

that even if Justice Benjamin really be-

lieved he could sit on the case without

being biased, he is still a cad for having

done so due to the injury his action did

to the public perception of the judiciary

as an institution.

Prof. Vermeule expressed fascination

with the instability created by offsetting

biases of the members of the West Vir-

ginia Court. In his forward, he addressed

the emergent system dynamics through

which a system can have properties that

are not characteristic of the individual el-

ements that compose it. These emergent

properties can then lead to results that are

counter-intuitive, such as the possibility

that an undemocratic process of judicial

review could provide a necessary com-

ponent of a vigorous constitutional

democracy. The situation in Caperton

was, to Vermeule, a nightmare of ag-

gregation, whereby the system dynam-

ics created by biased players lead to the

possibility that any single biased judge

could end up providing the swing vote

that makes the aggregate decision of the

Photo: (above) Nathaniel Fintz 11; (right) Record Staff

LAW REVIEW FORUM: Corruption in Judicial Elections

Top: Prof. Adrian Vermeule 93 and Prof. Lawrence Lessig; Bottom: Prof.

Penny White and Prof. Pamela S. Karlan

Documents

Harvard Law Record, V. 130 No. 1, January 14, 2010