R.129.3 - October 8, 2009_HL Record

8/14/2019 R.129.3 - October 8, 2009_HL Record

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BY CHRIS SZABLA

The race to occupy the late Senator

Edward M. Kennedys U.S. Senate seat

is in full swing. With the state now rep-

resented by one Harvard Law School

alumnus, interim Senator Paul G. Kirk

64, another, Alan Khazei 87, has

joined several prominent locals who are

now competing in a tight race leading

up to the election of a permanent re-placement.

A U.S. Senate seat has not opened in

Massachusetts for decades, and the

quest to take over Kennedys brought a

number of new names onto the states

political radar. While Democrats and

Republicans sparred on Beacon Hill

over the possibility Governor Deval

Patrick 82 would be able to appoint an

interim successor, potential candidates

for a special election, to be held in Jan-

uary 2010, gathered both forces and

funding for a contentious campaign.

State Attorney General Martha Coak-

ley was the first to step into the ring.Her announcement that she would run

for the first U.S. Senate seat vacancy in

Massachusetts in decades followed so

soon after Kennedys death that she

faced criticism. Weeks later, however,

she was the frontrunner in a race that

was heating up long before anyone was

certain who would represent Massa-

BY MATTHEW W. HUTCHINS

One year and trillions of dollars of governmentintervention after the financial crisis, experts on

financial regulation at Harvard Law School as-

sembled to assess the its causes and effects and to

provide insight into what reforms are needed to

effectively regulate financial institutions. Mod-

erated by Prof. Howell Jackson 82, the panel in-

cluded: Geoff Miller, the Comfort Professor of

Law at NYU; Allen Ferrell 95, Greenfield Pro-

fessor of Securities Law; Elizabeth Warren, Leo

Gottlieb Professor and Chair of the Congres-

sional TARP Oversight Panel; and Hal Scott, No-

mura Professor of International Financial

Systems.

Looking backwards, the events of September

and October of 2008 were characterized by wide-spread uncertainty and unprecedented extensions

of the Federal Governments authority to support

financial markets. On September 7th, Fannie

Mae and Freddie Mac were both taken into gov-

Harvard Law RecordOctober 8, 2009 Vol. CXXIX, No. 3www.hlrecord.org twitter @hlrecord

The Independent Newspaper at Harvard Law School

News War Crimes Prosecutor Winds

Down Yugoslav Tribual

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Who Was Behind Lockerbie?

Features Profs First Year Survival Tips

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INSIDEThe HL Record

Financial Crisis Continues to Elude Answers, Provide Headaches

Prof. Elizabeth Warren, right, wants stronger consumer protection in finan-

cial regulation. Prof. Ferrell, left, wonders what caused repo market failures.

CORRECTION: In the print edition this caption is a repeat from Issue No. 1.

One Year Later, Experts Still Dismayed

MASS.SENATE:

THE RACEIS ON

INTERIM SENATOR

PAUL KIRK 64 STEPSINTO KENNEDY SEAT

Its Tom Cruise in...Top Gunner!Its Tom Cruise in...Top Gunner!

Brazils Minister of Ideas Returns to HLS

BY CHRIS SZABLA

Professor Roberto Mangabeira Unger

LL.M. 70s 2007 appointment as

Brazilian President Luiz Ignacio da

Silvas Minister for Strategic Affairs

a position that has been described as

Minister of Ideas piqued curiosity

around the globe. Ungers task, re-

marked the New York Times, was no

more expansive than to plot a long-term

strategy for the country as a whole. The

Economist, which ran a profile on the

longtime member of the Harvard Law

School faculty, seemed intrigued by the

appointments novelty.

Unger was, after all, considered a

consummate academic. After complet-

ing the written requirements of his

LL.M. degree within days of his arrival,

he was named one of the youngest pro-

fessors in Harvard Law School history.

His subsequent scholarship was broad

enough to be termed philosophical. Yet

none of this, alone, made Ungers ap-

pointment surprising he has been di-

rectly or indirectly involved with

Brazilian politics, in some way, since

the 70s. What made the announcement

more astonishing was that Unger had

been one of the Presidents sharpest

critics, calling his one of the most cor-

rupt governments in the world.

Now, nearing the expiration of his

paid leave which, he said, Harvardhad refused to extend Unger has re-

turned to his teaching post, and a much

more modest office in Areeda Hall. His

former position will not be disbanded

despite political and legal challenges to

it that dogged him since the day of his

appointment and one of his students,

who is still earning an S.J.D., has pro-

visionally replaced him.

Given his vague portfolio, and his

barbed words about the President, who

is often referred to as Lula, it was prob-

ably not surprising that Ungers time in

government caused a stir. Beyond for-

Photos - pg. 5Photos - pg. 5

Prof. Roberto Unger Succeded by S.J.D. Protg Daniel Vargas

Actor Pops in on Lecture by Hollywood Attorney Bertram Fields 52

T H E F I N A N C I A L C R I S I S

Alan Khazei 87 and aNew Generation FightToward 2010 Election

Crisis, continued on pg. 6

Unger, continued on pg. 3

Senate, continued on pg. 3

Fabio Pozzebom - Agencia Brasil


2/8

Page 2 Harvard Law Record October 8, 2009

Is 1L One Hell? Prof. Einer Elhauges Survival Tips10. Dont Wait for the Ball

Many students complain that law professors are just

hiding the ball, asking a series of questions without

just telling students the answer. For my own first two

months as a law school student, my notebook was

largely blank because I kept waiting for the answer,

which like Godot never came, just more and more

questions. I wrote this limerick to express my mis-

taken attitude.

His friends used to tell Socrates

Now really, don't be such a tease

Just give us the answer

And things will go faster

And thinking would be such a breeze

But obviously you shouldnt wait for the ball or the

answer. Instead, what you need to understand is the

analytical structure of questions relevant to an issue,

the range of valid positions, arguments made for and

against them, and the process of thinking through

them. Because, unfortunately, thinking isnt such a

breeze, and there is no simple ball that is hidden, but

rather an array of balls that you need to learn how to

juggle.

9. Dont be boring

We are a polite people, but one can take that too far.

A British professor once told me, Americans are too

damn polite, so that a conversation between them con-

sists of each person trying to say what the other per-

son would have said had it been their turn to speak.

And that isnt a real conversation at all. Dont be

afraid to disagree or be provocative, or even to try on

positions you arent quite sure about. And dont close

your minds to those who disagree with you. You may

find that they are more convincing than you thought,

or that discussion with them deepens your under-

standing of just why they are so wrong.

8. Dont Ignore What Other Students Say in

Class

Now, I dont say this out of any painfully polite sen-

timent that everything your classmates say is sound

and interesting. It isnt. And I just told you not to be

too polite. The reason to listen to fellow students in

class is that, through student comments, professors

often teach important lines of arguments or limits with

those arguments. Even if you wanted to focus only onwhat the professor thinks, that may be hard to discern

from what they actually say, because

professors often just take the opposite position of

whatever the student happens to say, to make sure that

both sides are developed. So professors may be en-

thusiastically pushing a position they dont actually

hold. Even if the professor has a position that is re-

vealed during the class, that doesnt mean it is the

gospel or the only thing you should learn, because

were all trying to prepare you for a world where

many judges dont agree with us as perplexing as

that is and where the laws, issues, or jurisdictions

may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times me-thodically briefing details about case facts, procedural

history, and holdings, and memorizing them all.

Dont. Its a waste of time. As a student, I didnt cite

a single case in any first year exam I took. Professors

use case facts and variations to develop doctrinal

points, issues, principles, and broader theories. The

point is not to know the cases themselves, but to un-

derstand the larger points made from them. The cases

are only illustrations of the general issues and posi-

tions, and a means to the end of understanding them.

So brief those larger points, and subordinate cases to

what's really important -- the issues, valid positions,

arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained

that he couldnt follow the class discussion it was

too confusing. Then, at the end of the class, during

exam period, he came into my office said, "You know,

the class actually makes a lot more sense, now that

I've done the reading." So reading is certainly impor-

tant. But I think people often fixate too much on try-

ing to understand everything when reading the

assignments before class. Often the biggest payoff

comes to re-reading the material right after the class,

when you can incorporate what you have learned dur-

ing the discussion.

5. Dont Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot

of cases. So not surprisingly, students often take com-

fort in just memorizing it. But professors dont spend

a lot of time on it in classes. Why? Is it because law

professors are evil and enjoy torturing students with

the confusing parts? Well, sure, thats part of it. But

mainly it is because we figure that after 17 years of

schooling with top grades, most of you already know

how to read. To the extent just reading the rule re-

solves the issue, we kind of think you got that cov-ered on your own. We may spend some time at the

beginning of classes summarizing the basic structure

of the blackletter law, but that doesnt mean that is the

main thing to focus on and that you can just snooze

through the following question and answer period. It

is comforting to focus on the blackletter law because

it is the clearest, but the debated issues are what you

really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being

taught law and policy the law part which they

apply in figuring

BY REBECCA AGULE

On October 5, 2009, Serge Bram-

mertz, Chief Prosecutor of the Interna-

tional Criminal Tribunal for the former

Yugoslavia (ICTY), joined Professor

Alex Whiting and a standing room only

audience for a discussion entitled, In-

ternational Criminal Justice: Chal-

lenges of Investigating and Prosecuting

War Crimes.As a former Professor of Law at the

University of Lige, Brammertz clearly

felt comfortable in front of the student

audience, noting his own appreciation

for the interaction between the judicial

world and the academic one.

Brammertzs fluency in four lan-

guages served him well as a Belgian

federal prosecutor, where he focused on

organized crime, terrorism and interna-

tional humanitarian law. In 2003,

Brammertz moved to the International

Criminal Court (ICC), where as a

member of the Investigations Division

of the Office of the Prosecutor (OTP) he conducted the inaugural investiga-

tions of crimes in Uganda, the Demo-

cratic Republic of the Congo and

Darfur, Sudan. Following the 2005 as-

sassination of former Lebanese Prime

Minister Rafik Hariri, the United Na-

tions Secretary General appointed

Brammertz to the UN Independent In-

vestigation Commission.

Charged with closing out the ICTY,

Brammertz must finish current trials

and locate remaining fugitives. Thus

far, the ICTY has indicted 161 persons,

with seven cases still to be completed.

Brammertz enumerated some of the

Tribunals difficulties, including the

balancing of victims needs against

keeping each case manageable. Recall-

ing how former Yugoslav President Slo-

bodan Miloevi died before the

completion of his trial after five years

in The Hague War Criminal Prison,

Brammertz said, We must formulate

the indictment to represent the magni-

tude of the crimes, but we must also beable to present it in a reasonable time.

Speaking of the ICTY, he said, No

one expected it to last for 15, 20 years.

The recent arrest of Radovan

Karadi, after thirteen years in hiding,

highlights many of the challenges fac-

ing the ICTY. Brammertz noted the

heightened significance of the Karadi

trial, especially as it may be one of the

Tribunals last important cases. Even

with the scope of the indictment still

pending, Karadi has begun contesting

the Tribunals competency, while at-

tempting to claim immunity from pros-

ecution per an agreement with UnitedStatesAmbassador Richard Holbrooke.

The indictment itself, which charges

Karadi with, among other things,

genocide and crimes against humanity

stemming from his participation in the

Bosnian War, including the 1995 Sre-

brenica massacre, has also given rise to

tensions. With only 300 hours to make

its case, the Office of the Prosecutor

must make difficult decisions regarding

which charges to pursue. The OTP cur-

rently refuses to make additional cuts to

meet these limits, as Brammertz ex-

WarCrimesProsecutorWindsDownWorkofYugoslavTribunal,AssessesChallenges

Tips, continued on pg. 3

ICTY, continued on pg. 8


3/8

eign trade and food security, Unger ad-

vised Lula on energy and the environ-

ment, clashing repeatedly with Brazils

former environment minister, Marina

Silva, over development in the Amazon

rain forest.

Unger argued that the country could

expand its agricultural output without

clearing more land in the forest but

then advocated energy projects and

other forms of development in the

Amazon. He also said that Brazils mil-itary outlay needed to be expanded to

protect offshore oil reserves. His pro-

development push appeared to clash

with his responsibility to chair the Pres-

idents Sustainable Amazon project,

and contributed to Silvas resignation in

September 2008. She is now being

touted as a potential challenger to Lula

in the 2010 Brazilian elections.

Earlier in his tenure, Unger also faced

uncertainty about the direction he

would take the countrys Institute of

Applied Economic Research. Many

feared it would be politicized. What-

ever the direction in which the institutemoved, Unger certainly left a mark 5

of its 6 directors were replaced since

Ungers appointee for its head took of-

fice. The institute now faces allegations

that its research is more in line with

the government line than previously.

Ungers return from political practice

hardly signals his retreat from the field

he is the author of a multivolume

work that takes the expansive title Pol-

itics as its name. If that sounds Aris-

totelian, so, too, do Ungers ideas. In

his first major lecture since returning to

Harvard this fall, Unger lambasted the

dictatorship of no alternatives preva-lent in the culture of legal thought, and

called instead for a principle of social

organization that would divinize hu-

manity.

Specifically, Unger called for politi-

cal solutions that would broaden access

to elite, post-Fordist modes of produc-

tion, such as information technology,

and for states that focused on equip-

ping and monitoring civil society

rather than trying to provide social serv-

ices itself. He also advocated the weak-

ening of strong executives by making

branches of government mutually ac-

countable to one another the reduc-

tion in executive power, he said, would

desirably heighten the temperature of

politics.

Unger portrayed his address as a

means to move beyond tired clichs

that have dominated law and politics

for half a century, particularly what he

called the social democratic compro-

mise, which is popular in much of the

world beyond the United States. Sev-

eral in the audience who had long stud-

ied Ungers ideas, however, said thatthey thought the themes in his speech

were a rehash of ideas the scholar was

already well-known for.

Nevertheless, Ungers thoughts have

always prompted spirited debate, in

both practice and theory. Former stu-

dents recall vocal disagreements be-

tween him and President Barack

Obama 91, when the latter was study-

ing at the law school and when Unger,

according to the Chronicle of Higher

Education, was at the high point in his

career, with many of his most influen-

tial books hot off the presses.

Despite the one time disagreementsbetween Unger and his one time stu-

dent, the professor says that the two still

stay in touch. Whats more, Ungers in-

fluence may have rubbed off on other

parts of the Obama administration. The

new regulatory czar, Cass Sunstein 78

who himself engaged with Ungers

ideas in the late 80s is now known for

ideas that similarly bridge the ideolog-

ical chasm between left and right by

proposing state support for the condi-

tions that lead to self-expression.

And in further evidence he has won

influence, Ungers provisional replace-

ment in the Secretariat for Strategic Af-fairs, Daniel Barcelos Vargas a

current Harvard S.J.D. student will

likely fill his mentors shoes capably.

He calls the professor the best I had

and worked as his chief of staff in

Brasilia. More importantly, the obstacle

that brought his former boss back to

Cambridge has been cleared HLS

graduate program will allow Vargas to

remain at the post, without having to

worry about abandoning his progress

toward a doctoral degree.

October 8, 2009 Harvard Law Record Page 3

out how the law resolves particular cases,

and the policy part which they apply to answer the question of what the law should

be. Dont make this mistake. Policy is the just continuation of law by other means.

After all, what do we mean by policy in law other than arguments about what

legal outcomes we should deem best? If you dont have arguments on that topic,

judges will be influenced by your opponent who does, so your opponent will win

any area where blackletter law does not provide a clean answer as applied to your

case. It can also be hard to understand what the blackletter law means or when it

should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the

best outcome is for the two parties to the litigation, because they are in court pre-

cisely because they disagree about that. Instead, generally the best approach is to

ask: What Would Future Parties Want? Often the answer is clearer before vested

interests are acquired, when benefits to one party can be traded off against harms

to the other. Or one might want a rule that is more likely to flag the issue to future

parties, and elicit what they would want.

2. Go Meta

It wont surprise you to learn that legal policy analysis often leads to unclear or

conflicting conclusions. In these sorts of situations, it is often useful to switch to

the meta-question of framing issues around who best is placed to decide the ques-

tion. Every time one side argues that X is the best outcome, the response can be

not only that Y is a better outcome, but also the meta-argument that judges are not

the best placed to decide whether X or Y is best, so judges should defer to some

other set of actors, such as legislators, agencies, or contracting parties who have

chosen (or would choose) Y. Just remember the old saying, Anything you can doI can do meta.

1. Realize the Difference Between Being Confused and Understand-

ing the Confusion

Often students have the following the experience. They read the materials and

thought the law seemed pretty clear. Then they went to class. And now the issues

seem confusing. So they wrongly conclude that class is actually lessening their un-

derstanding. What this reaction misses is that often the correct understanding is

that the laws and issues are unclear. There is conflict about what the doctrine

means, when it applies, when it trumps other doctrines, and what justifies it, and

the same set of issues can be framed in multiple ways. Realizing this doesnt mean

you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But

that doesnt follow. Some things are resolved, and there is a structure to thinking

about the unresolved issues. Unfortunately, sometimes students get so focused on

spotting ambiguities and conflicts that they begin to jump at shadows, straining to

find ambiguities and conflicts everywhere, even when they dont exist. You have

to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite liter-

ally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just

rivers.

When I first took up the study of Zen, mountains were no longer moun-

tains and rivers were no longer rivers.

But now that I am a Zen master, mountains are once again mountains and

rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like

mountains and legal rivers no longer seems like rivers. But have some faith thatwhen the year ends, and you are a law master, that saying will actually make sense.

chusetts in the Senate in the interim.

With health care legislation pending

in Congress, few Democrats were will-

ing to lose their partys legislative su-

permajority. Armed with a personal

appeal from Kennedy, and the argument

that the state ought not lose representa-

tion, advocates of an interim appoint-

ment engaged naysayers who claimed

it was hypocritical for the state legisla-

ture to overturn a law it had passed in

2004 to ensure that Republican Gover-nor Mitt Romney 75 could not appoint

his choice of replacement Senator had

John Kerry won the presidency.

Eventually, advocates of an interim

seat prevailed.At the Kennedy familys

suggestion, Patrick appointed Paul G.

Kirk 64 to fill the seat until January.

Kirk, who was, until then, head of the

Kennedy Presidential Library in

Boston, had been a trusted confidant of

the former Senator Kennedy for

decades. His ascension to the Senate, if

only for a few months, brings the num-

ber of U.S. Senators who graduated

from Harvard Law School to seven.In the meantime, the field of candi-

dates running in the 2010 special elec-

tion has only grown more crowded.

State Republicans have fielded, mostly

prominently, Scott Brown, a State Sen-

ator from Wrentham. Despite the over-

whelmingly Democratic character of

the state, its Republican Party is not

moribund three of the states last four

governors were affiliated with the GOP.

Still, Massachusetts voters have pre-

ferred Democrats represent them on the

national level. A mid-September poll

indicates that Coakley would likely

beat Brown even without the support ofthen-undecided voters.

That means the most likely future

Senator will be decided on December

8, the date of the Democratic primary.

Beyond Coakley and Khazei, Mike Ca-

puano, who represents the states 8th

District in the House of Representa-

tives, and Stephen Pagliuca, the owner

of the Boston Celtics, have official can-

didacies. The same September polling

data indicates a commanding lead for

Coakley, who has benefitted from her

early leap into the race, and the fact that

she is the only one of the candidates to

be elected to statewide office thus far.

Capuano was thought to benefit from

his experience on the national level, but

trails. The polling did not take into ac-

count Pagliucas impact on the race.

While Coakley is largely considered

a safe choice her most controversial

action as Attorney General has been

prosecuting individuals promoting the

Aqua Teen Hunger Force movie with

guerilla art installations that shut down

the city of Boston after they were

thought to be bombs Khazei, whosebackground is both Irish and Iranian,

has positioned himself as an outsider.

The founder of a number of public

service initiatives, most notably City

Year, a youth service program affiliated

with AmeriCorps, Khazei was a major

supporter of the Edward M. Kennedy

National Service Act, which dramati-

cally expanded federal commitment to

similar programs. On Wednesday,

Khazeis campaign announced that he

was being endorsed by a scion of the

Kennedy family, Max Kennedy, the son

of former Attorney General and presi-

dential candidate Robert Kennedy. HLSProfessor Lawrence Lessig also an-

nounced via Twitter that he was

supporting Khazei.

Pagliuca, who graduated from Har-

vard Business School and made his for-

tune in consulting, has campaigned as

someone who can use his business acu-

men to improve the national economy.

Democratic voters may balk at some

of Pagliucas beliefs, however while

he stands with members of the party

who support the option of a public in-

surer as part of health care reform and

supports same-sex marriage, he has said

he is pro-choice, and backed a run byRomney against Kennedy in 1994, as

well as the gubernatorial candidacy of

Republican William Weld 70 and, in

2000, George W. Bush.

Capuano is a five-term Representa-

tive who is best known for a committed

stand against the Patriot Act and a com-

mitment to international development

aid initiatives. Other members of the

Massachusetts House delegation de-

clined runs, saying they were in more

powerful positions in their committees

in the House than they would be in the

Senate.

Unger, continued from pg. 1

Tips, continued from pg. 2

Senate, continued from pg. 1


4/8


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orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

As the G20 replaces the G8, MATTHIAS C. KETTEMANN

revisits the nomenclature of G in world politics.

At the Pittsburgh meeting of the Group of 20, or G20, Pres-

ident Obama announced that the more legitimate informal

gathering of 20 states would replace the smaller, and more

elite, the G8 as the worlds premier forum for discussion on

issues such as climate change, global financial stability and

finding responses to systemic imbalances. While accepting

the G8s effectivity, international relations scholars and most

states not included in this exclusive circle have criticized the

role of club governancefor some time and should welcome

the trend to this (slightly) more representative forum. But the

G-force experienced by politicians in an interconnected, in-

terdependent world which requires policy

responses to keep up with the pace of

change does not stop there. In fact, G is

probably the most important letter in inter-

national relations, as it is used to describe a

rich variety of unofficial political constella-

tions with political clout disproportionate to

their legitimacy if measured in traditional

terms. Heres why:

Whether the G2, a proposal suggesting

closer ties between the US and China is a G1, or a good

one, is open to question. The G3 is both a grouping of

Colombia, Mexico and Venezuela and of the three biggest

European countries, Germany, France and the United King-

dom. The G4 serves to designate both, a group of China,

India, Brazil and South Africa as the leaders of the WTO sub-

group G20 and a coalition of Brazil, Germany, India and

Japan that is campaigning for seats on the Security Council.

Since the last G7 meeting, the G4 has become shorthand for

an elite group of US, Japan, China, and the EU which Pres-

ident Obama pushed to supplant the G7 (a proposal, which

seems to be somewhat at odds with his G20 proposal pro-

moting more international legitimacy).

The G5 was used to designate the worlds largest

economies (US, Germany, Japan, France, UK) until the

group was expanded. Another G5, referring to a group of na-

tions consulting on matters of European security policy, is

still in existence (though has been largely inactive lately).

The G6, the former G5 plus Italy, now meets as the G7 (plus

Canada), the G8 (plus Russia) or the G9 (plus the European

Commission).

But lets talk business: in international financial institu-

tions, where effectivity counts for a lot, the G7 has an im-

portant role, as well. The finance ministers and central bank

heads of the eleven biggest OECD countries meet, surpris-

ingly enough, as the G10. Perhaps they wished to avoid con-

fusion with the actual G11, the Cartagena Group, a group

of South American debtors that have teamed up forces to ease

their burden by negotiating for common solutions. The G12,

again, is a forum for central bank representatives of 13 in-

dustrialized nations.

The G13 is a group of states which are uniting their forces

to reform the United Nations (Since their efforts have not

been spectacularly successful to date, they might profit from

some inspiration from their namesake: G13, a marijuana

strain of American Beauty fame). But here theres clean

fun, too: the G14 is a group of 18 Europes soccer clubs, in-

cluding big names as Ajax Amsterdam, Bayern Mnchen,

Manchester United und Real Madrid.

Now, back to international relations: the G15 is a group of

17non-aligned states founded in 1989, which promotes ide-

ological independence in international af-

fairs and has, in the past, proved anything

but ideologically independent. In trade ne-

gotiations, the G20 developing countries in-

cludes a growing number of developing

countries from Argentine to Zimbabwe that

represent 65% of the worlds population.

Better known, of course, is the other G20:

the informal gathering of the 20 biggest eco-

nomic powers and the European Union,

which is now destined to become the worlds most impor-

tant governance club.

The G24 is a sub-group of the G77 (of 132 developing

nations). Both represent the interests of developing nations in

international financial institutions and global trade talks. In

the framework of the G90, meetings of African, Caribbean

and Pacific island states are held.

Even when flying to and from group meetings, the politi-

cians cannot quite avoid the force of the G: neither the g-

force (during acceleration and deceleration), nor the

gravitational constant G (when staying in air) nor, inci-

dentally, the G100, G150, G400, G500 or G550, all airplanes

manufactured by Gulfstream and used as business jets that

transport the G-groups VIPs.

What does this brief survey tell us about the role of the G

in world politics? First, that you can never trust numbers;

second, that club governance is on the rise and that infor-

mal gatherings producing Gentlemens Agreements play an

increasing normative role; and third, that teaming up to pur-

sue common interests is the best way forward in an increas-

ingly complex and interconnected world.

The G-force in international affairs can also inform the

stalled process of UN reform. Isnt the debate missing the

obvious way forward: simply renaming the 192-member

states organization. G192, anyone?

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

The G-Force in World Politics

BY ANDRU E. WALL

In the coming days President Obama will answer this critical question: what is

the US strategy in Afghanistan? As he weights the options, burdened by eight

years of strategic blunders, no shortage of advice is being offered by his national

security team and the Washington chattering class. If you listen closely, youll

recognize two familiar refrains: the military can win this war if only it is given the

necessary resources, or, alternatively, the struggle for freedom in Afghanistan is

not (or should not be) a predominately military struggle.

This debate, which closely parallels debates over Vietnam, appropriately arouses

passions on both sides. What is not helpful are contentions that one position is

more patriotic or pro-military than the other. Rubber-stamping General Mc-

Chrystals request for more troops does not prove the Presidents commitment to

national defense any more than supplying unlimited financial aid to Afghanistan

proves his commitment to democracy there. Strategy and leadership require

difficult choices between competing and complementing interests.

History is replete with examples where civilian leaders correctly overruled gen-

erals in the field (Lincoln, Churchill and BenGurion to name but three) providing

decisive leadership that led to victory. Military experience or perspective do not

guarantee successful strategy. Let us embrace a shared vision of security for Amer-

ica and self- determinism for the Afghan people. Invective and personal attacks

from pundits and retired officers do not move us closer to this vision.

Andru E. Wall is one of the three American LL.M. students at HLS. From 2007 to

2009 he was the senior legal adviser for U.S. special operations forces in Central

and Southwest Asia.

Obama Should be Wary of MilitaryAdvice on Afghanistan Re-Examining LockerbieWho Really Committed the Bombing? Why was

al-Megrahi Really Released?BY KATE SPENCER

Creating headlines since December 1988, the Lockerbie saga just wont go

away. The most recent media coverage has revolved around the release of the con-

victed al-Megrahi and his return to Libya. His release and the heros welcome he

received provoked international outrage, most vocally from the U.S. Was it really

a straightforward case of the Scottish Justice Minster experiencing a tug on his

heart strings after meeting al-Megrahi, terminally ill with cancer?

On December 21, 1988 at about 7:20pm, over a small town in the Scottish Bor-

ders, Pan Am 103, heading from Heathrow to New Yorks JFK Airport and car-

rying primarily American passengers, fell from the sky . A bomb exploded from

within the hold, tearing a hole into the side of the plane, which then snapped into

pieces in the air. There was no time for the cabin crew to make a distress signal,

no emergency procedures were initiated all on board fell to the ground from

31,000 ft. The explosion killed 11 people on the ground Lockerbie. No passengers

or crew on board the plane survived. Fatalities totalled 270.

Theories abound as to the perpetrators and motives of the attack. Books, films

and countless documentaries have publicised the inconsistencies surrounding the

case (notably few have been screened on U.S. television). Initial blame focused

on three countries: Iran, Syria and Libya. Following the erroneous shooting down

of an Iranian passenger plane by the USS Vincennes 5 months earlier, Iran had

likely motive. The U.S. Defence Intelligence Agency indicated that the Palestine

Front for the Liberation of Palestine in conjunction with elements of the Iranian

government and Hezbollah were planning to attack a U.S. target. 8 weeks before

the bombing a PFLP cell was arrested in West Germany and bombs similar to that

Lockerbie, continued on pg. 7


5/8


BY JESSICA CORSI

On Monday, October 5, Prof. Bruce Hay's Enter-

tainment Law class began with a slight twist:

renowned lawyer to the stars Bertram Fields '52 was

there to discuss his experiences in Hollywood. But

the real buzz began when, a little over 30 minutes

later, Fields' client Tom Cruise surreptitiously entered

the classroom. Immediately met by nervous giggles

and huge goofy grins, he flashed his megawatt smile

in return, waved, and announced that he was there to

see Bert speak; after all, he'd never had a chance to

hear him lecture before.

Making his way to the very back row of the class-

room, Cruise quietly took a seat amongst students,

and assumed an attentive posture. After quick, smiley

glances in his direction, students resumed their nor-

mal classroom activities--they raised their hands and

asked questions; they GChatted; they took notes; they

browsed Net-a-Porter and Bergdorf Goodman. From

time to time they would steal a sidelong look at the

glowing actor. Listening intently to Fields' lecture, he

would occasionally lean over and share a quiet joke

with the student sitting next to him, who, except for

these moments, kept her eyes politely trained on her

computer.

Throughout his discussion, Fields would refer ques-

tions back to Tom, and Cruise would also interject his

own experiences. He spoke about tabloid magazines

and issues concerning the propriety of celebrity im-

ages, working with directors such as the late Stanley

Kubrick, and the business of how the rating on movies

gets set in the U.S. as compared to how it works in

Europe.

When Fields responded to a student's question by

constructing a hypothetical scenario in which Tom de-

manded that his cat be shipped to Boston as part of a

contract, Tom jokingly quipped, "I don't actually have

a cat." Throughout the two hours of class, there was

a natural and comfortable exchange between Fields,

Prof. Hay, Cruise, and the students. Cruise kept stu-

dents laughing with his jokes and intrigued with the

unique opportunity for insight into doing business in

Hollywood.

At one point, Cruise referenced some of the char-

acters he had played who had gone to Harvard Law

School, notably Mitch McDeere, his role in the 1993

adaptation of John Grisham's novel, "The Firm." He

joked that, once while jogging, someone had stopped

him and asked him if he had gone to Harvard Law.

He listened and responded to all student questions

and comments, nodding in agreement many times,

laughing at jokes at others. Twice during the class,

Fields paused to remember the name of a movie and

a particular line, and students helped him out by

yelling, "A Few Good Men!" and "You can't handle

the truth!"

But things really got fun when class ended, and

Cruise--waving and smiling--made his way to the

front of the class to embrace Fields warmly. By then,

a bush fire of text messages, emails, and IMs had

alerted the school that *TOM CRUISE!!!* was sitting

nonchalantly in the back row of Langdell South, and

the room was crowded with students who did not reg-

ularly attend this class.

Despite this, Cruise was gracious and charming,

staying for an hour after class to speak intimately with

the students. He answered questions such as, "Is there

a role you regret not taking?" (short answer: no) and

explained the interaction between paparazzi and his

three children.

As he put it, he does not want his children to be

afraid of anything, and so he downplays the intrusion

of paparrazi. As young children often do, his daugh-

ter Suri has, according to Cruise, some comical re-

sponses. For example, she will sometimes throw

down her arms and say "Why is this person following

me?" and has responded to encroachments on her pri-

vacy by raising a hand and declaring, "Personal

space!"

Cruise probably gave more time to HLS students

than many professors are able to after class. Sharing

advice, stories, high fives, handshakes, hugs, and even

at one point an impromptu dance, he made this early

autumn evening at HLS an especially entertaining one

for all students lucky enough to greet him in person.

CRUISE CONTROLS! ACTOR INVADES HLS

Hollywood Star Appears with Hollywood Attorney Bertram Fields 52 in Entertainment Law Class

Photos: Jessica Corsi


6/8


BY ORAMEL H. SKINNER

The Supreme Court began a new term

this Fall featuring a new member, Jus-

tice Sonia Sotomayor. With any change

in the composition of the highest court

comes a flood of commentary on the fu-

ture of the judicial confirmation

process, and so the Harvard Federalist

Society invited judicial commentator

Ed Whelan to discuss the Sotomayor

confirmation process and Supreme

Court confirmations with Visiting Pro-

fessor Sanford Levinson.

Each agreed that the Sotomayor

process represented a victory for con-

servative legal principles and left many

progressives frustrated. Whelan noted

that Justice Sotomayor did not present a

strong argument for any sort of pro-

gressive judicial philosophy during her

entire hearing. Despite the existence of

a nearly filibuster proof majority in the

Senate in support of the President, she

pointedly rejected President Obamas

empathy standard of judging and of-

fered very conservative sounding an-

swers to basic questions of judicial

philosophy. According to Whelan, Jus-

tice Sotomayor sounded much like a

conservative, or a caricature of a judi-

cial conservative, in much of her testi-

mony. Whelan saw this approach as

evidence that conservatives have suc-

ceeded in coming up with language

which is persuasive and accurate in

portraying conservative judicial beliefs

convincingly. Prof. Levinson agreed

that in the confirmation process there

was a triumph of a certain type of lan-

guage regarding the court, though he

noted that he thought this language so

extreme and binary that no one actually

believed it in practice.

Looking into the future beyond the

most recent confirmation process both

men also agreed that, in the words of

Whelan, the era of Republican disar-

mament on the Supreme Court is over.

Unlike the confirmations of Justices

Ginsburg and Breyer, Republican Sen-

ators engaged on substantive issues of

legal approach and philosophy during

the most recent confirmation battle, and

thirty-one Senators voted against the

confirmation of Justice Sotomayor de-

spite her clear path to confirmation. To

both Professor Levinson and Mr. Whe-

lan this marked a new era of Supreme

Court confirmation battles.

To both commentators this movement

toward a more pointed discussion of ju-

dicial philosophy a good. Whelan

thought that it was a healthy thing to

have a debate about judicial philoso-

phy. Levinson bemoaned the fact that

Democrats and the President had shown

a lack of backbone and leveled criti-

cism at the handling of those nominated

for the Supreme Court.

Professor Levinson also criticized the

practice of employing nominee han-

dlers. I would be interested to know

how much Justice Sotomayor was af-

fected by handlers. He noted his de-

sire to see more nominees be open and

honest in the process like Judge Bork,

but he admitted that post-Bork the best

strategy is to clam up or deceive. Ac-

cording to Professor Levinson an ex-

ample of handlers having too much of

an impact on a nominee was Justice

Thomas. Justice Thomas did himself

a disservice by listening to his handlers,

and as a result many have dismissed

him intellectually.

Changing Court: FedSoc Panel Debates the Sotomayor Factor

ernment conservatorship, giving the United States a

79.9% stake in each entity. One week later, Lehman

Brothers failed and entered bankruptcy, Merrill Lynch

was ushered into an acquisition by Bank of America,

and AIG was bailed out, with the government again

taking 79.9% ownership. By the end of the month,

the Reserve Primary Fund broke the buck, precipi-

tating a Federal Reserve plan to guarantee the funds

assets, Wachovia was being acquired by Wells Fargo,

the stock market was in free fall, the TARP bailouthad failed a key vote in the House, and the short-term

credit market or Repo market had frozen, causing

credit-default swap spreads to skyrocket. The pre-

vailing atmosphere of hopelessness led to the TARP

program being authorized on a second vote, begin-

ning a process of government support that would ul-

timately bring relative stability. Prof. Hal Scott, who

laid out the timeline of the crisis for the audience,

noted that the macro-level stability today must be con-

sidered in light of the dire circum-

stances. If the alternative was that

banks fail and precipitate an eco-

nomic collapse, then we had no alter-

native.

But Prof. Miller pointed out thatthe impossibility of proving the coun-

terfactual scenario will prove to be

the source of imponderable riddles as

we look back in history. What

would have happened if we didnt

rescue Bear Stearns? What would

have happened if we had rescued

Lehman? Prof. Miller sees a mixed

result from the government interven-

tions that stabilized financial mar-

kets. Positive consequences include

the stabilization of financial mar-

kets, the restoration of functioning

credit markets, the signs that green shoots are

emerging and foretelling of economic recovery, andthe potential for positive regulatory reforms. On the

other hand, the US, UK, and Euro zone have together

spent more than one sixth of their collective GDP on

financial rescue packages, there is a possibility of in-

flation if liquidity is restored, moral hazard is a major

concern as financial institutions take risks with pub-

lic funds, and further financial problems linger on the

horizon as commercial real estate seems poised to un-

dergo the same collapse which occurred in subprime

housing finance.

Professor Warren is skeptical and warns that there is

an alternative view of the present situation, that The

green shoots have been glued onto a dead plant. She

looks back to the financial crisis and the too big to

fail phenomenon and sees a sector today which hasbecome even more consolidated and more vulnerable

to systemic risks. Under the surface, the toxic assets

damaged balance sheets at major institutions remain

on their books, the stress test has become obsolete due

to unemployment that has grown faster than pro-

jected, the financial stimulus programs have basically

run their course, and the commercial real estate mar-

ket threatens to drop another bomb shell.

So, who is to blame for the calamity we continue to

face? Prof. Miller says that a short list might include

the names of figures like Bill Clinton, George Bush,

bankers, homeowners, Barney Frank and others, but

the central focus of blame should land on three peo-

ple in particular: Alan Greenspan, Alan Greenspan,

and Alan Greenspan. According to Prof. Miller, thegrowth of the financial bubble, which inflated real es-

tate markets and precipitated an unsustainable model

of finance, was largely due to the unjustified policy

of the Federal Reserve to maintain low interest rates.

It rained credit for 40 days and 40 nights, and when

you get that much credit its going to find its way to

the sea. It just happened to find its way there through

the river of subprime mortgages, but if it hadnt been

that it would have been commercial real estate or

something else.

Professors Ferrell and Scott were less critical of Mr.Greenspan in their assessment of central bank policy

and the causes of the bubble. Prof. Ferrell noted that

loose monetary policy in the United States was a func-

tion of very large capital inflows that had been caused

by fixed exchange rate systems around the world, and

that the only tool the Fed had to maintain full em-

ployment in the face of such capital inflows was to

lower interest rates. Prof. Scott expressed doubts

about Prof. Millers revisionism, asking, What

would have happened to Alan Greenspan if he had

said, Hey, this is a bubble, Im going to crush this

thing. Its always easier after the fact to say it was a

bubble than to actually stop a bubble in progress, be-

cause people will not necessarily agree that its a bub-

ble.But Prof. Warren agreed with Prof. Miller that

Greenspans policies were indeed a precipitating

cause. I dont see Alan Greenspan as a man pushed

by forces. She argues that, looking backwards, there

is evidence that Greenspans policies were designed to

shift systemic risk from financial institutions to fam-

ilies by encouraging variable rate mortgages and the

extraction of equity from homes for investment and

consumption. Now she believes that families have

been put in a double bind, burdened by an over-

whelming amount of debt and at the same time held

responsible as taxpayers for the public debt being as-

sumed by the government in order to support the fi-

nancial system.

Worst of all to Prof. Warren is the moral turpitude ofthe business model adopted by financial system. She

sees the predominant shift in the industry over the last

decade as being from the transparent pricing of risk to

the adoption of a set of tricks and traps designed to

lure in consumers and then punish them arbitrarily

with fees and penalty interest rates. A business

model that is built on fooling people about what credit

costs is a bad business model for families and ulti-

mately for businesses too, because good products get

lost in the shuffle. Furthermore,

the executives and experts who

profited off the implementation of

the present system have largely

been rewarded not for value-pro-

ducing innovation but rather forthe repackaging and aggregation

of risk in opaque instruments.

We have built a pricing model

that encourages deception and

fraud in the name of the next,

fancier thing.

The future of the financial sys-

tem remains cloudy, with the

shape of future reforms obscured

by the failures of the current reg-

ulatory framework to avert a

major catastrophe. According to

Prof. Scott, capital requirements

will be one of the crucial tools used by regulators to

construct a more stable foundation for core institu-tions. Weve got to get capital regulation right, and

this is very very hard. To expect regulators to set the

price for risk is daunting. One of the key problems is

that the pricing of risk, a function which has largely

been entrusted to analysts in the market, has not been

matched by the projection of what capital require-

ments to hold against such risk. Prof. Ferrell sees both

the SEC, with its lack of financial savvy, and the Fed,

with its myopic reliance on markets, as too special-

ized to handle the task of reform. Prof. Miller is con-

vinced that the debates spawned by the crisis will

result in a new architecture being developed for fi-

nance. Life, in the form of legislation and regula-

tion, is going to take shape from this cosmic soup of

the financial crisis, and we are not completely surewhat form it is going to take. But five years from now

the regulation of financial institutions is going to be

significantly different than it has been.

Left to Right: Howell Jackson, Geoff Miller, Allen Ferrell, Elizabeth Warren, and Hal Scott

Crisis, continued from pg. 1


7/8


BY NICHOLAS JOY

If police data show racial disparities,

its not because of racial profiling, ac-

cording to Manhattan Institute Fellow

Heather MacDonald. Its not police-

driven, she said. The fact is this isvictim-driven.

On Tuesday, September 29, Mac-

Donald and Professor Ronald Sullivan

debated the extent to which racial pro-

filing is and should be involved in

policing. The debate was held in the

Ropes Gray Room and co-sponsored by

the Federalist Society and the American

Constitution Society. Sullivan is a clin-

ical professor of law and the director of

the Harvard Criminal Justice Institute.

He has written extensively on issues of

criminal justice and race. MacDonald is

a contributing editor to City Journal and

the author of the bookAre Cops Racist?Beyond the workings of the police and

the anti-profiling lobby, she has studied

homelessness, educational policy, and

business improvement districts.

According to MacDonald, the notion

that policing is racially-biased is

flawed, and this notion hurts law-abid-

ing minorities most of all. She pointed

to data from New York, where she said

that 98 percent of shootings are com-

mitted by blacks or Hispanics, to show

that violent crime perpetrators are inor-

dinately likely to be minorities. The

police cannot respond to crime without

disproportionate involvement in minor-ity neighborhoods, she said. This is

not their choice. They are responding to

crime. MacDonald said that concern

about racial profiling is actually detri-

mental to minorities, since many vic-

tims of crime are minorities themselves.

It is the activists who impose a racial

sense on policing, and they are danger-

ously wrong to do so, she said.

Sullivan sought to avoid the wrong-

headed syllogism that people who en-

gage in racial profiling are racist.

Instead, he painted racial profiling as

the result of race thinking. Race

thinking is an interpretive phenome-non, Sullivan said. We reduce indi-

viduals to stereotypes. Police are not

immune to this phenomenon.

He supported his position with data

of his own. Sullivan said that blacks

represent 12 percent of the population

and 13 percent of drug users, but make

up 57 percent of inmates convicted at

the state level for drug crimes. Blacks

are so over-policed that they are dis-

proportionately investigated, convicted

and sentenced, he said. Sullivan sug-

gested that if the police investigated

drug use on local college campuses, the

numbers might become more balanced.MacDonald called the drug figures

highly misleading. She said that it is

not who is using drugs that is important,

but who is dealing them.

It is open air drug dealing in cities

that causes people to be in fear, Mac-

Donald said. Outside drug dealing is

very dangerous. Thats what the crack

wars were about. She added that po-

lice respond to incidents involving drug

use on the streets rather than in invest-ment banks like the now-defunct

Lehman Brothers both because that is

where calls come from and that is

where drug dealing is most dangerous.

When you have open air dealing, you

have turf, MacDonald said.

Its like a blood bath. Sullivan

pointed out the differences in treatment

he would expect upper-class drug users

and dealers to receive if the police were

called to investigate them. I reject the

notion that if the police got calls at

Lehman Brothers, they would go in as

heavy-handed as they would in pre-

dominantly black neighborhoods, hesaid.

MacDonald responded with a quip. I

agree, she said. But dealers at

Lehman Brothers are not armed. Be-

yond crime statistics, Sullivan de-

scribed the effects of racial profiling by

highlighting elements of police conduct

that minorities are subject to which

never get written down. I have been

spread-eagled on a police car more

times than most people here, he said.

I have also never committed a crime

to my knowledge. Sullivan called at-

tention to potential constitutional viola-

tions that using racial profiling inpolicing could raise. Far too many are

willing to violate the Constitution on

the backs of others, he said. I think

that is something you should think

about, what a certain type of policing

does to the Constitution.

The type of policing that Sullivan ad-

vocates is stops based on a particular-

ized suspicion. If you police well

based on individual suspicion, you do

better policing, he said.

MacDonald said that she was in

agreement with Sullivan over the value

of individualized suspicion and consid-

eration for constitutional rights in po-lice work. I argue that is

overwhelmingly how policing is done,

she said. According to MacDonald, the

vast majority of police use locational or

behavioral cues, not race, to determine

whom to investigate. The real cop

problem is not racism but bad man-

ners, she said. Cops get street-hard-

ened and cynical, but that is no excuse

for failing to behave with manners.

Ultimately, Sullivan was skeptical of

the extent to which police use valid

techniques rather than racial profiling

to conduct their business. People want

to live in safety. Heather and I differ inhow we get there, he said. I say

through good policing, not stereotypi-

cal policing.

Race and the Law:How Often is it Profiling?

used on Pan Am 103 were confiscated. However, in 2001 a Libyan intelligence of-

ficer, Abelbaset Ali Mohmed al-Megrahi, was convicted of involvement in the

bombing and sentenced to life imprisonment, amid extreme doubts over the cir-

cumstantial evidence that secured the conviction.

The trial was conducted under Scottish criminal law, before three judges and

no jury at Camp Zeist in the Netherlands. The entire investigation, trial and after-

math has been immensely complex, and al-Megrahis release has only served to

fan the flames of conspiracy theorists and add to the international controversy.

Skepticism of some of many of the emerging theories is important.

Potentially significant evidence was either not followed up or not presented at

trial. It is alleged that quantities of heroin, large sums of U.S. dollars and a T-shirt

bearing Hezbollah insignia were found at the crash site in Lockerbie, claims that

were never investigated. American agents were present at the crash scene and a re-

cent documentary film has suggested a fragment of the explosive device left the

U.K. and was examined in the U.S.: an allegation which, if true, could have re-

sulted in a claim of contamination of evidence. Further facts that raise questions

are: the party of American intelligence officers on board the flight returning to the

U.S. after an aborted hostage-rescue mission in Lebanon, the anonymous warning

made to the U.S. Embassy in Finland in early December 1988, warning that a Pan

Am flight from Frankfurt would be blown up by Palestinian terrorists in the next

two weeks. Still, politically and logistically, bringing an Iranian sponsored Pales-

tinian terrorist cell to justice would have been nigh on impossible. Undoubtedly

Libya was a more convenient accused.

The prosecution maintained that the bomb was placed in luggage in Malta. By

the end of the trial the defense was suggesting the possibility of it being planted

in Heathrow, a theory supported by Robert Baer, a former CIA agent (played by

George Clooney in Syriana!) He suggests that it makes no sense for the bomb to

be put on the plane at Malta and having to make two stops before it exploded on

its way to the U.S. Much more likely, he maintains, that the bomb had been planted

at Heathrow. Months after the conviction of al-Megrahi, a former security guard

at Heathrow revealed he had discovered a break in at the Pan Am luggage facil-

ity on the day of the attack. The prosecution case relied on the premise that a bag

was checked on a plane from Malta, not Heathrow, without a corresponding pas-

senger. In a civil action brought by Air Malta over a libellous documentary that

showed the bomb bag being loaded onto the plane at Malta, the airline produced

evidence proving all bags had been accounted for and accompanied by passengers.

The action settled out of court.

Also key to the prosecution case was the witness evidence of Tony Gauci, a

Maltese shopkeeper and tailor, who claimed to have sold the clothes found in the

suitcase containing the bomb to al-Megrahi. Considerable doubt arose from

Gaucis evidence, particularly in light of allegations of a $2 million pay-off. Gauci

was non-committal as to whether al-Megrahi was the man who purchased the

clothes from his shop. The closest he got to a positive identification was to state

that there was a resemblance. He was uncertain of the date he sold the clothes

and was memorably described by the man who indicted al-Megrahi, Lord Fraser

(Scotlands most senior law officer at the time) as not quite the full shilling.

The UN appointed external arbiter stated after the trial: there is not one single

piece of material evidence linking [Megrahi] to the crime the guilty verdict ap-

pears to be arbitrary, even irrational. He has also said that the split decision, where

one accused was found guilty and the other not guilty is highly questionable and

further, that it is impossible to believe that a lone intelligence officer could have

masterminded and organised the attack. While the Libyans did eventually (in a

roundabout way) accept responsibility for the attack and paid out billions in com-

pensation to Lockerbie victims families, Libyan government officials label this

move as purely pragmatic: [it was] easier for us to buy peace and this is why we

agreed to compensation. A Scottish Criminal Cases Review Commission (a body

established to investigate alleged miscarriages of justice) inquiry was launched

and a recommendation given that there should be a new appeal. This second ap-

peal was conveniently dropped before Al Megrahis release. Why? Was a deal

done? Was Al Megrahi persuaded to drop his appeal so he could go home to die?

Therein lies the true injustice and the only assumption that can be drawn is it

wouldnt be in the interests of any government concerned to pursue the appeal.

So, unanswered questions engulf the Lockerbie affair. An official inquiry, so

desired by the families of the Scottish victims and the general public, has been re-

peatedly refused; the UN is now being called on to conduct an international in-

quiry. The evidential issues have never been resolved. Factor in the British

commercial presence in Libya (oil and arms trade), the Blair governments fa-

vorable attitude toward Gaddafi and Gaddafis volte-face desire to ingratiate him-

self into the international community. Add to this the extraordinary prisoner

extradition agreement in 2007 (that the Scots refused to carry out) aimed solely at

returning al-Megrahi to Libya and the picture of emerges is one that appears to

leave the U.K. government with much explaining to do.

Whether the conspiracy theories have anything to do with al-Megrahis release

is an entirely separate issue. What all these conspiracy theorists (who see the re-

lease as the latest development in a series of unorthodox goings-on) ignore is the

Scottish issue. Scotland has a distinct legal system, an entirely independent

criminal justice system and, since 1998, a devolved Scottish Parliament with the

power to legislate on most domestic matters. The most recent Scottish election

resulted in an Scottish Nationalist majority coalition, with a clear autonomist

agenda. Relations between the Scottish Government and Westminster are frosty to

say the least. The idea that the Nationalist administration would risk international

censure by releasing al-Megrahi on the orders of Gordon Brown to further

British business interests is, to my mind, absurd. Release on compassionate

grounds is a genuine tradition in Scots criminal law and some suggest this was an

example of the Scottish Government, keen to prove itself as an international actor,

doing something uniquely Scottish. There was widespread support within Scot-

land for the release of al-Megrahi; perhaps as a result of the cynicism surround-

ing his conviction and the outspokenness of those advocating for his release, or at

least re-trial. However the American reaction to the decision and the quagmire of

controversy surrounding it negate any political expediency it may have achieved.

Currently, al-Megrahi is releasing documents he would have used in his latest

appeal on the internet, documents which he says prove his innocence. But despite

his release he will die guilty in the eyes of the law. Without a public inquiry the

unanswered questions will never be answered and the alleged miscarriage of jus-

tice remains just that alleged.

Lockerbie, continued from pg. 4


8/8


1Ls Go Crazy For Cup

Section II had a secret

weapon at last weeks 1L

Cup: A Cookie Monster. But

one victory was not enough.

Ultimately, Section VI came

away with this years 1LCup, followed by a second

place Team America Sec-

tion IV.

Top: Evan Simpson rallies

the troops with a bullhorn;

Left: Jared Rinehimer plows

his way through a carton of

Chips Ahoy! cookies; Right:

Section 2 celebrates their

champions victory in the

cookie-eating contest.

plained, in doing so, the case would no longer be

representative of the crimes committed.

Even as the ICTY nears its end, the Chief Prose-

cutor must maintain pressure to find and arrest the

remaining fugitives. We must wait and see what the

future will show us in this regard, Brammertz said.

We have a tendency to forget what happened 15

years ago, but we must remember how awful the

crimes have been that were committed.

As part of his current visit to the US, Brammertz

will meet with UN officials in New York to discussthe ICTYs completion strategy. Now set to end in

2012, with appeals lasting through 2013, the Tribu-

nal must maintain the pace of trials, even while fac-

ing a 60% downsizing of human resources. In

addition, residual mechanisms must be developed to

deal with on-going and future issues, such as the re-

maining fugitives and witness protection. The ICTY

aims to send a strong message from the international

community that the closure of the Tribunal does not

equate to immunity for those not yet charged. A per-

manent working group, as well as increased engage-

ment with local and regional prosecutions, will likely

fill this gap.

The success of the ICTY depends on how local

prosecutors continue, Brammertz said.While his presentation focused on the ICTY,

Brammertz touched briefly upon other international

tribunals and special courts, using each to underline

the variety of tests facing the international justice

system. He connected each back to the International

Criminal Court and other possible regional courts,

saying, The way those challenges are resolved will

have direct impact on the future of all tribunals.

Brammertz further compared the ICTYs resources

to those of the International Criminal Tribunal for

Rwanda (ICTR), which faces many of the same

struggles, even while it cannot call on local col-

leagues to continue prosecutions in the same man-

ner. The reality of limited resources impedes several

international courts, including the Special Court forSierra Leone must continue its case against former

Liberian President Charles Taylor despite financial

hurdles.

Throughout the evening, Brammertz connected

and distinguished his range of domestic and interna-

tional experiences. Where national trials may focus

on convictions, international tribunals must account

for a broader range issues regarding victims, scope

and legitimacy. In addition, each system faces dif-

ferent practical problems in terms of political obsta-

cles and prosecutorial decisions, as well as access to

crimes scenes, intelligence information and wit-

nesses. To illustrate his point, Brammertz noted that,

in the first years of the ICTY, the continued power

of Miloevi made evidence collection nearly im-possible, even while Serbian authorities further com-

plicated investigations by removing bodies from

mass graves.

Before opening the floor to questions, Brammertz

outlined some of the credibility problems facing the

international community. One of the questions has

become, he explained, how to establish a more ho-

mogeneous system. We are reinventing the wheel

every time, Brammertz said. Other possible options

include the establishment of a standing task force to

collect evidence whenever a crisis arises and in-

creased reliance upon the international community.

As the ICC can only process a limited number of

cases, there can still be support of prosecutions at the

local level, even in areas lacking a strong judiciary.A more objective system will increase the credi-

bility of these mechanisms, Brammertz said.

Whitings War Crimes Clinical, along with the

Human Rights Program and the Bernard Koteen Of-

fice of Public Interest Advising (OPIA), hosted the

event.

Which Celeb Should

Visit HLS Next?Vote at hlrecord.org!

BY MATTHEW W. HUTCHINS

As the leaves change and October ripens, the job

hunting season has entered full force. But in the last

year, the legal world, much like the rest of the econ-

omy, has undergone a major upheaval. Frozen credit

markets halted the flow of the commercial transactions

that have been the lifeblood of many large firms, and

the result has been a tight contraction in their work-

load and hiring needs. Combined with the acceleration

of the interview process affected by the introduction of

the Early Interview Program, the dearth of available

jobs has put HLS students in an unexpected position of

entering this October uncertain of their job prospects.

With as much as 20% fewer interviews conducted on

campus and call-back results that are rumored to have

been unsatisfying, many are being forced to construct

back-up plans on the fly.

The first group affected was the rising 3L class,

many of whom entered the summer confident of their

position having already been hired at a law firm or

public interest organization where they would accept

employment after graduation. To the shock of many,

highly qualified students returned from the summer

with no offer of future employment, not because of

their own failure to perform, but as a consequence of

a general aversion by firms to a further backlog of in-

coming labor. Many of these outcasts from the pri-

vate sector have turned to government service as an

alternative career path. For those who remain dedi-

cated to work at a law firm, changes in the nature of

the legal profession promise to make the job market

extremely challenging.

According to Prof. David Wilkins, Director of the

Program on the Legal Profession, hiring at law firms

is a lagging indicator of the economy and will likely

remain depressed until associates at firms are pressed

to capacity. But even once macro-level growth presses

the legal market out of its slump, hiring practices will

likely change to reflect the growing trends of out-

sourcing and the use of contract attorneys to complete

routine tasks. As companies and firms disaggregate

legal tasks and send commodity work to other

providers, that will reduce the need for Harvard Law

School graduates, Wilkins said, adding that the pay

structure at firms will likely shift away from lockstep

compensation of associates toward a competency-

based system. He says that this will be a response both

to the internal pressure at firms to reduce salary costs

and the external pressure from clients to provide the

lowest possible billable rate for a job.

In the short-term, job seekers will be under pressure

to develop a creative strategy and to enter the next

stage of the process free from doubts and negativity.

The Office of Career Services advises students to look

beyond the major markets and traditional private sec-

tor track and to pay attention to every application and

every opportunity for networking. Mark Weber, As-

sistant Dean for Career Services, has warned that the

bar for applicants has been raised this year, and firms

will be looking to understand how each prospective

hire can bring value to their organization. The OCS

website has been bolstered with numerous webcast

programs aimed at specifically addressing the needs

of students that are changing their employment strat-

egy in mid-course, but OCS advisor Jennifer Perrigo

encourages students to come into the office and talk

to the staff. Overconfidence in ones state of pre-

paredness or negativity about the course of the job

search process can ruin an applicants opportunity to

make a good impression with a prospective employer.

LEGAL MARKET IN FLUX, JOB HUNTERS NEED CREATIVITY

ICTY, continued from pg. 2

Documents

R.129.3 - October 8, 2009_HL Record