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Harvard LawWinter 2011

ALSO INSIDE: EU law, viewed from home and abroad

bulletinOn the Court

OCT. 1, 2010: Chief Justice John G. Roberts Jr. ’79 with Associate Justice Elena Kagan ’86 after her investiture ceremony

A bounty of new books about its decisions and dynamics

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IN THIS ISSUE

24a On the CourtThe ‘10th justice’ becomes the 9th

28a BandwidthRegulating digital communications is like trying to control an explosion. FCC Chairman Julius Genachowski ’91 brings a full spectrum of skills to the job.

34a Stories from the West WingThree faculty who served in the Obama administration talk about gridlock, being part of history, living life at warp speed and the day the Easter Bunny blacked out the White House.

40a The Shape of the World to ComeThirty years ago, Laurent Cohen-Tanugi left France to attend HLS. Today, he is an international lawyer, public intellectual and architect of a European strategy for globalization.

assistant dean for communicationsRobb London ’86

editorEmily Newburger

managing editorLinda Grant

class notes editorJenny Lackey Kurk

editorial assistance

Greg DiBella, Christian Flow, Jill Greenfield

’12, Alexander Heffner, Christine Perkins,

Lori Ann Saslav, Erica Sheftman

design director Ronn Campisi

editorial office

Harvard Law Bulletin, 125 Mount Auburn St.,

Cambridge, MA 02138

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The Harvard Law Bulletin (ISSN 1053-8186) is published

two times a year by Harvard Law School,

1563 Massachusetts Ave.,

Cambridge, MA 02138.

© 2011 by the President and

Fellows of Harvard College.

Printed in the U.S.A.

coverChief Justice John G. Roberts Jr. ’79 with

Associate Justice Elena Kagan ’86 Photograph by Brooks Kraft

volume 62 | number 1 | winter 2011

1 FROM THE DEAN

2 LETTERS

3 HEARSAY

4 FACULTY LAURELSMacArthur-winning historian and HLS Professor Annette Gordon-Reed ’84 on inviting Thomas Jefferson to the Tea Party, and other questions

6 ABSTRACTRoe on derivatives and the bank-ruptcy crisis; Desan on money as a “creature of law”

9 CONNECTING THEORY TO PRACTICEHLS clinic helps teens who have been victimized by acts of violence.

1O NOW ONLINE

12 ON THE BOOKSHELVES Minow on the legacy of America’s landmark education decision; Charles and Gregory Fried ask what can be justified in an age of terror; Heymann and Blum on laws, outlaws and ter-rorists; Feldman on FDR’s great justices

21 OUTSIDE THE CLASSROOMWinning asylum for refugees from persecution

46 HLSA NEWS

48 CLASS NOTES A Brennan biographer; Intelligence advice; Victory against warrant-less wiretapping; Aerial views of the Arctic; A life devoted to proving “you can”; A unanimous first; Law and faith; From HLS to the NFL

64 AUTHORS AND AUTEURS

68 FACULTY TRIBUTEBenjamin Kaplan, 1911-2010

69 IN MEMORIAM

70 LEADERSHIP PROFILEKenneth I. Chenault ’76

72 GALLERYAn HLS pop history quiz

5 page 21

5 page 34

5 page 12

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FROM THE DEAN

President Andrew Jackson once said, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” Harvard Law School has long educated advocates and counselors about the judiciary but has also prepared individuals to serve as judges committed to law’s promise. When our graduates accept the invitation and responsibility of becoming judges, it is a cause for celebration and hope—celebration of individual achievement and hope for the vitality of the rule of law.

Committed to Law’s Promise

This issue of the Bulletin includes a look at recent scholarship on the United States Supreme Court. Com-ing at a time of renewed rel-evance of the New Deal era, Professor Noah Feldman’s “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” illuminates the battles of four justices appointed by President Franklin Delano Roosevelt. An authorized biography of Justice William Brennan ’31 by longtime

Bulletin cor-respondent Seth Stern ’01 and co-author Stephen Wer-miel and my own new book on legacies of

Brown v. Board of Education provide fresh materials for Court-watchers, young and old.

Harvard Law School graduates serve on courts around the world, including international courts, and on state courts across the United States. According to our last count, more than 150 sitting U.S. federal judges are Harvard Law School alumni. Two of them, Chief Justice John G. Roberts Jr. ’79 and former-Dean, now-

Justice Elena Kagan ’86, are pictured on our cover. We are proud to be associated with each of the 21 individu-als whose careers took them from Harvard Law School to the United States Supreme Court. (All right, two of them—William Cushing and Joseph Story—attended Harvard College before the law school was founded!) Today, six of the nine jus-tices on the Court (Chief Jus-tice Roberts and Associate Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Antonin Scalia and Elena Kagan) attended the Harvard Law School. We are grateful for their service to the country!

We honor public service by other alumni, faculty and students in this issue as we look at the work of Julius Genachowski ’91, chairman of the Federal Communica-tions Commission, and his predecessor in that post, Kevin Martin ’93. These pages also share candid re-flections of Professors Dan-iel Meltzer ’75, David Barron ’94 and Jody Freeman LL.M. ’91 S.J.D. ’95 as they return to HLS from government posts with significant responsi-bilities and challenges.

Also detailed in this

Bulletin: scholarship by Professors Mark Roe ’75 (on the financial crisis and bankruptcy law) and Chris-tine Desan (on law’s role in the evolution of money), the innovative HLS Institute for Global Law and Policy (headed by Professor David Kennedy ’80), and some of the many crucial projects under way at our 30 clin-ics and student practice organizations. One of our new faculty stars, Gráinne de Búrca, offers insight into the EU as a model of trans-

national governance and as a significant international player. This issue also shares interviews with leading in-ternational corporate lawyer and public intellectual Lau-rent Cohen-Tanugi LL.M. ’82 and extraordinary business leader Kenneth I. Chenault ’76.

It is a privilege to bring you this news from HLS, and with it my warm re-gards.

Dean Martha Minow

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“ When our graduates accept the invitation and responsibility of becoming judges, it is a cause for celebration and hope.” —martha minow

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and guess what? I was right. Professor Rakoff did take Professor Sander’s Tax Workshop. And even better,

Professor Sander wrote an article about the course, for the HLS Bulletin, no less.

Professor Rakoff stands on the shoulders of a true educator. I’m glad to see the tradition being carried on.

Alice Ballard ’73Philadelphia

AND WHAT ABOUT FANNIE MAE?

I find it surprising that none of the faculty participants in the Bulletin feature [“Hard Hats Required,” Summer 2010] said word one about the role of Fannie Mae in the subprime mortgage debacle. If I lend money and bear the risk of getting it back, I will be very careful indeed. If, on the other hand, I know that I can sell that risk to someone who—due to populist political pressure—is less interested in getting repaid, I do not have to be so careful. Where is the assessment of Fannie Mae’s role in distorting such simple market fundamentals?

Rauer L. Meyer ’73Los Angeles

TAXING QUESTIONS

Professor Alstott’s “Abstract” defense of the inheritance tax [“A Tax—

Not an Attack—On Families,” Summer 2010] gets right to the intellectual mush without asking some fundamental questions about double taxation/death taxes.

A single parent who, by hard work and modest

consumption, over a lifetime saved $8 million after paying the full statutory income tax rate, should be able to give those four social-workers-to-be in the buggy their ticket to a decent life/lifestyle without including a road map to the arcanum of financial engineering. (Or pay an estate tax lawyer $500/hour!)

Dennis Rocheleau ’67Fairfield, Conn. / Waupaca, Wis.

SERVICE ON TRIBUNAL SHOULD HAVE BEEN MENTIONED

Strangely, the article [Summer 2010] on Krzysztof Skubiszewski LL.M. ’58, the former Polish foreign minister, omitted any reference to his long service until his death as the full-time president of the Iran-United States Claims Tribunal in The Hague. The tribunal, created by the 1981 Algiers Declaration to resolve then existing disputes between Iran and the United States, is still functioning. I had the privilege of serving with him, as did George Aldrich ’57 LL.M. ’58 and Charles Brower ’61. He was a man of great courage and intellect.

Justice Richard M. Mosk ’63 Los Angeles

CORRECTION: The Summer 2010 story on Ory Okolloh ’05 included several editorial errors. See the online version for corrections: http://www.law.harvard.edu/news/bulletin/2010/summer/cn_05.php.

† WRITE to the Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138; e-mail [email protected]. Letters may be edited for length and clarity.

THANKS FOR MAKING MY DAY

It is hard to restrain my enthusiasm for the Bulletin. The insights it gives me into what is happening at the school and, at least equally important, what is happening in areas of the law with which I haven’t the faintest contact make reading it a real pleasure. The fact that it is so readable is an obvious plus.

I am particularly impressed by the new areas which are being opened to Harvard Law School graduates, particularly those in public service. When I graduated, getting a public service job often meant that one couldn’t find something at Broad and Wall or comparable locations elsewhere. Parenthetically, I have the feeling that the Happiness Quotient may be as high for one type as for the other.

Thanks again for helping to make my day.

Arthur L. Berger ’48 Harrisburg, Pa.

SANDER TAX CLASS WAS “FIRST-OF-ITS-KIND

PROBLEM-SOLVING WORKSHOP”

As I read your article about Professor Rakoff’s “first-of-its-kind problem-solving workshop,” I said to myself, “Gee, I bet I know where he got that idea—he probably took Frank Sander’s tax class,” the truly “first-of-its-kind problem-solving workshop” at HLS.

I took Professor Sander’s wonderful course almost 40 years ago. Memory is tricky, but here are two of the assignments I recall: negotiating the tax aspects of the sale of a business (two teams in opposition—four students each) and preparing testimony for Senate hearings on a proposed revision to the Code (again, two four-student teams, making opposing presentations on the need for this particular reform). I wasn’t much of a student, but I learned some tax in that class. It was great.

I checked with Professor Sander,

LETTERS

summer 2010 harvard law bulletin 5

TEACHING REAL-LIFE LAWYERING—ambiguities and all

Law schools have long taught students to “think like lawyers” and to

develop analytic skills through the study of case law. But practicing

lawyers today depend on a variety of skills beyond the ones typically

emphasized in law school curricula. Equipping students with additional

skills—including generating creative options, managing media rela-

tions, negotiating and working in teams—is the purpose of HLS’s new

Problem Solving Workshop.

Professor Joseph Singer ’81 spent the past two years developing the

workshop with Todd Rakoff ’75 and testing it on upper-class students.

Instead of looking at a case at its end point—an appeals court deci-

sion—the workshop presents cases that begin with the initial contact

between lawyer and client. “The students improved radically over the

three weeks in their abilities to generate workable solutions, drawing

on theories, facts, interests, ethics and relationships,” Singer says.

The purpose of the workshop, adds Singer, “is to put students in a

very practical setting, of learning how to help clients achieve their goals

within the bounds of the law and ethics.” He sees it as an essential part

of 1L orientation, supplementing the technical skills students learn in

regular courses with an emphasis on common sense, judgment, even

wisdom. It also stresses that in real life, unlike in casebooks, ambigui-

ties abound—in the law, in the facts, in what a client wants or thinks he

wants.

HLS’s clinical program—the most extensive in the world—enables

students to represent clients in real cases under the guidance of prac-

ticing attorneys. In a similar vein, the workshop gives students a frame-

work for approaching problems based on key questions: Who is the

client? What are the client’s goals? What facts need to be discovered?

What laws are relevant, leading to what constraints and opportunities?

What options can be generated to solve the client’s problem?

“It’s the most fulfi lling teaching I’ve ever done,” says Professor John

Palfrey ’01. “I think we have, in the Problem Solving Workshop, a real op-

portunity to fi nd better ways to prepare students to become lawyers.”

practical skills, creative thinking and exercising judgment (the course was tested on second- and third-year students over the past two years). Mock client interviews, group brainstorming, decision trees, interactions with practicing attorneys—even how to write an effective e-mail and deal with the media—are not the traditional tools of American legal education, which, for 150 years, has relied more on analysis of appellate case law. And that’s precisely the point.

The Problem Solving Workshop, which Rakoff believes is the first course of its kind to be introduced into a law school curriculum, puts students in the position of real-life attorneys. Over a three-week period, it presents them with seven very different clients, from a multinational corporation with child-labor issues to a tenant facing eviction after the landlord has lost her home in foreclosure.

Working in teams, the students start each case from the beginning—when the client walks in the door—and gather facts, help the client figure out short- and long-term goals, devise a range of possible options, guide the client in weighing those choices, and negotiate with other parties.

This bottom-up approach mirrors what students will face in practice, and it’s an essential part of equipping

THE CLASS ATTEMPTS to mirror what students will face in practice to equip them with the tools they will need in today’s legal world.

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4 harvard law bulletin summer 2010

By Elaine McArdleIt’s a January morning at Harvard Law School, and in a classroom in Pound Hall, a revolution in legal education is under way.

Eighty 1Ls watch as a classmate, Christina Cruz Chinloy ’12, interviews a female “client” in a simulated case involving wrongful termination, in the law school’s new Problem Solving Workshop. “I understand how you feel slighted,” says Chinloy, her voice sympathetic as she leans forward, seeking information to build the case.

Professor Todd Rakoff ’75, co-creator of the workshop, which launched this year as a mandatory winter term course for first-year HLS students, stops the interaction. “Client, how’s it going?” he asks Janet Katz, an HLS librarian playing the client.

“No one so far has said, ‘Here are your options,’” Katz replies. “No one has asked me, ‘If you could go back to your old job, would you?’” And one student, she notes, dodged her question about legal fees.

A few more students try their hand at the exercise before Harry T. Daniels, a partner at WilmerHale, steps in to show students how he would proceed, including presenting the client with options: Take the severance package? Leverage questionable behavior at the company so it will void the client’s noncompete agreement?

The class is clearly impressed with Daniels. “The biggest difference was the authority with which he spoke, not only on the law, but in saying, ‘This is what I’ll do for you,’” says Chinloy.

Rakoff praises the students for their efforts. After all, the members of the Class of 2012 are pioneers, the first to take this new course that emphasizes

INSIDE THE CLASSROOM

Beyond the Case MethodA first-of-its-kind PROBLEM-SOLVING

workshop prepares 1Ls for the realities of law practice

BEYOND KNOWING WHAT THE LAW IS, LAWYERS NEED TO FIGURE OUT HOW

TO USE IT TO SOLVE CLIENT PROBLEMS.

WORKING IN TEAMS, students take each case from the very beginning,

brainstorming anddiscussing strategy.

Professor Joseph Singer

Deborah Lloyd, manager and senior counsel, General Electric (on right side of table), playing the role of managing attorney, listens to a presentation from (left to right) 1Ls Jason Gelbort, Daniel Cluchey, Steve Henrick, Martha McCoy, Christopher Mills.

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STANDING ON THE SHOULDERS

OF A TRUE EDUCATOR

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winter 2011 harvard law bulletin 3Illustrations by adam mccauley

HEARSAYFACULTY

SHORT TAKES

“Politics and Corporate Money”Professor Lucian Bebchuk LL.M. ’80 S.J.D. ’84Project Syndicate

Sept. 20, 2010

“A recent decision issued by the United States Supreme Court expanded the freedom of corporations to spend money on political campaigns and candidates. … This raises well-known questions about democracy and private power, but another important question is often overlooked: who should decide for a publicly traded corporation whether to spend funds on politics, how much, and to what ends? ... The interests of directors, executives, and dominant shareholders with respect to such decisions may often diverge significantly from those of public investors.

“Legal rules allowing corporations to spend on politics are premised on the view that expression of corporations’ positions has a legitimate role in the political marketplace. But a corporation’s wishes should not be automatically and necessarily equated with those of its management. That is why we need new legislation to ensure that the use of corporate funds in politics does not stray from the interests of shareholders.”

“Imagining a Liberal Court”Professor Noah FeldmanThe New York Times Magazine

June 24, 2010

“[P]rogressive constitutional thought must discover (or rediscover) a core set of beliefs about the right relationship between government, the individual and the powerful corporate entities that operate under the umbrella of the market. Reregulation, embraced

by the Obama administration to address a range of serious economic and environmental dangers, demands its own set of constitutional explorations and explanations. A truly progressive constitutional project needs to go beyond simply upholding regulations challenged in court. It demands that the Supreme Court and other bodies acknowledge the government’s responsibility to protect our democracy from the harmful side effects of all-powerful markets.”

“Our Nation’s Secrets, Stuck in a Broken System”Professor Jack GoldsmithThe Washington Post

Oct. 22, 2010

“Bob Woodward’s ‘Obama’s Wars’ contains remarkable revelations about the inner workings of the administration’s national security team and the development of its policy on Afghanistan and Pakistan. Equally remarkable is how much classified information is in these revelations—so much classified information, in fact, that it calls into question the legitimacy of the presidential secrecy system. …

“The Woodward disclosures are especially incongruous because the Obama Justice Department is engaged in an unprecedented number of prosecutions of lower-level officials for their disclosures of classified information. An attorney for Stephen Jin-Woo Kim, one official under indictment, has said this month that Kim will challenge his indictment in light of top officials leaking classified material to Woodward. This legal strategy is not likely to succeed. But the optics for the government, to put it mildly, are not good.”

“Schumer’s Project Runway”Professor Jeannie Suk ’02 and C. Scott HemphillThe Wall Street Journal

Aug. 24, 2010

“Congress has for several years considered adding fashion design to the copyright laws. But previous bills were thought to protect too much—failing to acknowledge that almost all fashion designs, whether classic or cutting edge, are inspired to some degree by the works of other designers. A law prohibiting similarity in fashion would be like banning fashion itself.

“Sen. Charles Schumer (D., N.Y.) introduced a bill earlier this month that attempts to get around this problem. It prohibits only design copies that are substantially identical. In layman’s terms, a good way to tell if a copy should be allowed is to ask whether it fails the ‘squint test’: If you need to squint to see the difference between two designs, then one is an infringing copy of the other.”

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4 harvard law bulletin winter 2011

When Annette Gordon-Reed ’84 won a “genius grant” this fall, the MacArthur Foundation recognized the Harvard Law professor and historian as having dramatically changed the course of Jeffersonian scholarship. It started with her 1997 book, “Thomas Jefferson and Sally Hemings: An American Controversy,” a re-examination of the evidence about the long-rumored relationship between Jefferson and his slave Sally Hemings. Gordon-Reed’s conclusions were confirmed in 1998 by DNA testing that supported evidence of Jefferson’s genetic paternity of Hemings’ descendants. Eleven years later, her exploration of the lives of those descendants, “The Hemingses of Monticello: An American Family,” won her the National Book Award and then the Pulitzer. In July 2010, she joined HLS, the Harvard History Department and the Radcliffe Institute for Advanced Study. Currently a fellow at the Cullman Center for Scholars and Writers at the New York Public Library, she spoke with Bulletin reporter Alexander Heffner shortly after her MacArthur was announced.

FACULTY LAURELS

Recognizing Jefferson’s ‘Genius’Gordon-Reed on investigative history, redefining

idols and INVITING JEFFERSON TO THE TEA PARTY

Your research has

brought to the fore the

possibility of redefi ning

Thomas Jefferson and

the generally idolized

founders. Was that your

intention?

Yes, definitely. He was and remains a pivotal figure in the American story on more levels than anyone I can think of—the development of democracy, race, slavery, the Native American question, relations with foreign nations, botany, architecture—the list goes on and on.

Are enough “investiga-

tive historians” re-

examining the founders

or later presidents, as

you did?

Well, I suspect that biographers and historians will continue to refine and expand the range of questions that are asked about presidents. That’s the nature of history. Where we are now shapes our perspective about how to look at the past. We can’t really jump into a time machine and go back to the place and report what we see. There are built-in limitations and we have to live with them.

With the MacArthur

Fellowship, do you have

specifi c travel in mind

as part of your Jefferson

investigation—perhaps

exploring the former

president’s own ances-

try?

I will use some of the money for travel to the places where later generations of the Hemingses lived—Ohio, Wisconsin, Illinois, California, Tennessee. I can now go and stay as long as my schedule permits, without having to think about money. I don’t have any plans, right now, to do any investigations of Jefferson’s ancestry.

Which aspect of Jeffer-

son is most underappre-

ciated, and which aspect

is most ripe for your own

further examination?

I think his life as a slaveholder and in Charlottesville has not been fully explored. Talk about Jefferson and slavery is largely talk about his intellectual attitudes about the institution, not how he lived it on a day-to-day basis.

In today’s political

discourse, the Tea Party

protesters have been

getting a lot of play.

What’s your reaction

to their self-professed

comparisons to Jefferson

and fellow founders?

Well, I suppose it is a tribute to the legacy of the founders that modern movements would want to pattern themselves after them. The thing that occurs to me, however, is that the founders were reacting against a monarchy across an ocean. They could not have voted George III or any part of the government out of office. American citizens can do that if they are able to persuade enough of their fellow citizens of the rightness of their cause. Losing an election does not make the party that wins illegitimate or alien.

You have a joint appoint-

ment at Harvard. What

collaborations do you

envision?

Too many to think of all of them now. But law and history is a natural. ... [L]ife happens with a cascade of things taking place from all directions. It was like that in history, too. P


harvard law bulletin 5

PROFESSOR ANNETTE GORDON-REED ’84, whose many awards now include a MacArthur Fellowship

Photographed at the New York Historical Society by nicole bengiveno/the new york time s


6 harvard law bulletin winter 2011 Illustration by walter vasconcelos

Although the sweeping financial reform package that President Obama ’91 signed into law in July contained hundreds of provisions in its 848-page final version, Professor Mark Roe ’75 says it’s still not long enough.

The legislation should have addressed exceptions to normal bankruptcy rules enjoyed by holders of derivatives and similar instruments, says Roe. In an article forthcoming in the Stanford Law Review, “The Derivatives Players’ Payment Priorities as Financial Crisis Accelerator,” he argues that these exceptions undermine market discipline and

exacerbated the financial crisis. Roe observes that while firms

in bankruptcy are protected from immediately having to pay their creditors—so that the court has time to assess the bankrupt’s finances

before the firm is pulled to pieces—parties that hold derivatives and repurchase agreements can seize and sell off the bankrupt’s collateral immediately. Roe notes that there are bases for a more creditor-friendly

bankruptcy in many places in the Bankruptcy Code. But the favorable treatment of parties holding these financial instruments—which became a popular means to raise a large amount

of money quickly on Wall Street in recent decades—reduces risk for the failed firms’ trading partners to such a degree that their incentives to monitor the firms’ financial health decline commensurately.

“Normally, markets will adjust to whatever kind of rule Congress puts in place, and having a financing means that’s very safe is usually for the good,” he says. But here we’re not dealing with normal financing. “The [Bankruptcy] Code’s impact [on these instruments] is to transfer risk to the United States as the ultimate guarantor of the [large financial] firms’ solvency, draining financial resiliency,” he writes. “This encourages more knife’s-edge financing, because it’s the

ABSTRACT

Exceptional DerivativesBANKRUPTCY RULE EXCEPTIONS

exacerbated financial crisis, says Roe

WHEN NORMAL BANKRUPTCY RULES

APPLY, THERE IS MORE TIME TO STEADY THE

FINANCIAL SHIP


winter 2011 harvard law bulletin 7

“The point is that we have two sets of bankruptcy rules—one for derivatives counterparties and one for everyone else—and having two sets of rules here is unwise. One set limits creditors’ seizures from the bankrupt firm. The second set exempts seizures and accords extra priorities to creditors holding financial contracts called ‘derivatives’ or ‘repurchase agreements.’ It is no surprise that sophisticated finance players seek this favored framework because it protects them. By doing so, the super-prioritized counterparties’ incentive to ration their dealings with financially weak debtors declines [because it’s the United States that bears the risk of a major financial failure].

“These negative incentives can perniciously affect the debtor itself, its other creditors, and, ultimately, the economy. Better for Congress to re-do most of the special treatment, repealing some and cutting back others. Doing so would reduce the possibility of another AIG-Bear-Lehman melt-down.”

From “The Derivatives Players’ Payment Priorities as Financial Crisis Accelerator,” forthcoming in the Stanford Law Review

G To read the entire manuscript, go to http://www.ssrn.com/abstract=1567075

U.S. Treasury that picks up the risk of catastrophic failure.” If these firms weren’t financially central, financial markets could, and normally would, adjust. But it’s the presence of the United States as ultimate guarantor that weakens the potential efficacy of financial market adjustments, Roe argues.

The original rationale for the exception was that healthy parties to derivatives contracts might themselves collapse if they are not paid because of the bankruptcy of a derivatives-trading firm, he writes. The fear was that this would lead to a contagion of financial catastrophe throughout Wall Street and all of American finance. But after the financial crisis of 2007-2008, we now know, he says, that it’s equally possible that the bankruptcy favoritism toward derivatives can spur heavy users to collapse, as financial players use the exception to pull cash out of the failing firm quickly and irrevocably.

When AIG, for example, lost its high-quality investment grade rating, derivatives counterparties demanded that the company put up more collateral right away. If normal bankruptcy rules applied, Roe says, “they wouldn’t have been able to pull fresh collateral from AIG so easily on the eve of its failure, so the crisis

Although the derivatives setup in bankruptcy is new enough not to have

generated the judicial decisions that populate law school casebooks, last

year Mark Roe devoted several classes to the subject in his bankruptcy

course.

One student in the class, Ephraim Mernick ’12 (J.D./M.B.A.), was suffi cient-

ly motivated by the discussions to take Roe up on his offer to help place him

in the offi ce of Sen. Sheldon Whitehouse, chairman of the Senate Judiciary

subcommittee focused on bankruptcy legislation.

The internship was facilitated through the HLS Semester in Washington

Clinic, and Mernick says the four months were a highlight of his Harvard Law

experience, with practical and academic components. As it turned out, he

addressed many issues for the senator’s offi ce—derivatives among them—

and he also wrote a paper on the topic, separate from his Senate work.

Derivatives in the Classroom AND BEYOND

collateral. When the paying up was all done, the collateral was coming from AIG’s other creditors. The special exceptions to normal bankruptcy practice hurt those other creditors, and eventually the U.S. Treasury, as cash and value moved out of the company.

Repealing the wide exceptions, or cutting them back, would motivate the derivatives market players to more carefully consider the risk of their transactions and the financial stability of their trading partners, and would lessen the possibility of another financial meltdown, Roe says.

Roe hopes that the exception will be changed and that his article will help spark debate that eventually leads to a phased-in rollback of several of the derivatives’ special treatment exceptions. “The goal,” he says, “is to figure out how we can use and understand corporate law and bankruptcy law to make business work better and more effectively.” P

atmosphere might not have been so severe, and there would have been more time to steady the financial ship.” The contest, he adds, was not between AIG and the creditor demanding new

EXCERPT: Why Should Derivatives Players Get the Upper Hand?


8 harvard law bulletin winter 2011 Illustration by ellen weinstein

In her study of money in law, Professor Christine Desan has found herself looking back as far as medieval times. But in the wake of the financial crisis of 2008, in large part caused by liquidity problems—money oversupplied and then frozen in credit markets—her historical scholarship has led her to insights into today’s economic predicaments.

For the past decade, the legal historian has focused on money as a “creature of law.” In a recent work on the subject, “Beyond Commodification: Contract and the Credit-Based World of Modern Capitalism” (published in the collection “Transformation of American Law II: Essays for Morton Horwitz”), Desan examines how governments manage money, and the legalities that define it.

Desan’s argument is that societies have made money in many different ways and that those differences matter enormously. In “Beyond Commodification,” she examines the way contract doctrine has changed along with money. She contrasts the kind of contract that

undergirded medieval money with the doctrine that supports modern, bank-based money. “The essay is aimed at the notion we almost all share that money is just a function, just a thing that makes exchanges happen,” she says. “I argue instead that money has never been a neutral technology, not even when it seemed to be a commodity

ABSTRACT

Making Money Uncovering the legal debates

at the heart of MODERN MONEY

and certainly not when it became bank money.”

Desan begins her story in the medieval period

because money made of precious metal seems to be such a simple, straightforward means of exchange. But silver and gold

coins were surprisingly fragile media: They circulated stably only when their net value, a compound

including both their commodity and liquidity values, remained constant across denominations and borders. And that rarely occurred. Coins wore out, prices of silver and gold changed, and sovereigns competed to attract precious metal to their mints. As a result, governments periodically had to change the face value of their coin. That intervention caused enormous controversies—devaluations or revaluations hurt creditors or debtors, left people with more or less silver or gold relative to the face value of their money, and

generally shook up prices. Given the turmoil, the government’s action had to be legitimized—and it was. Common law courts held that the sovereign could modify the contract that made money in order to support its ability to circulate. The legal order was knit together by a jurisprudence that defined liquidity as a public resource and required people to sacrifice property to make it work.

A LEGAL HISTORIAN

EXPLORES MONEY AS A “CREATURE

OF LAW”



Modern money operates according to a radically different kind of contract—or at least so it seems at first glance, says Desan. Most of the circulating medium that people use to pay public or private obligations is now produced by banks that back the checks their customers write on deposits. Those checks multiply the much smaller reserve, once made of gold and today made of cash, held by the banks. “Contract doctrine becomes essential to making money all over again,” she says. “Only if people believe the bank promise is sacrosanct will they hold paper representations of value rather than demanding gold or cash out of the bank reserves.” Desan points here to a landmark case from the 1930s, U.S. v. Perry, in which the Supreme Court repudiated Congress’ power to depreciate the amount of gold in the gold dollars owed to those holding WWI liberty bonds. “The doctrine of contract that the Court developed in Perry is far from the older and more flexible approach,” she says. “New doctrine condemns change from the original terms of a bargain, holds the government to the same standards as an individual and treats the bond as if it were a private agreement.”

The story has a twist, however. After it sanctified the contract and repudiated legislative devaluation of gold coin, the Supreme Court in Perry reached the question of damages—and decided there were

none. When Congress had devalued gold coin, it had also destroyed the legitimate market for the original coin and the gold in it. There was no way to measure the loss to the claimant, said the Court, which meant that there was no loss at all. Perry still had all the legal tender to which he was entitled, when the Court considered the legitimate market.

The amazing twist in Per-ry has had a remarkable re-sult, says Desan: It confirms that the contract underlying money should be considered rigid and binding, according to its ex ante terms. But it preserves the government’s power in times of exigency to make changes.

Desan argues that the modern approach “criti-cally configures the new political economy.” Modern markets depend on highly leveraged forms of liquidity that people will accept only if they are strengthened by rigid guarantees. Most of the time, those guarantees operate smoothly. They even reduce the strain on reserves by creating credit that itself provides liquidity. But in the end, the money supply remains a public entity and depends on the judgment of political authorities. She concludes that the law needs improvement beyond the sleight of hand we inherited from Perry: “As the financial crisis demonstrated, we need to map money’s legal dynamics, consider its dis-tributive impact and reform it to operate more effectively and fairly.” P

CONNECTING THEORY TO PRACTICE

Uncommon Loss, Common BondHLS clinic helps teens

who have been victimizedby ACTS OF VIOLENCE

By Elaine McArdle

Mark Hutchinson’s father lost the use of his legs in a bomb-

ing in Northern Ireland. Caitlin Leavey was 10 years old

when her father, a New York City fi re lieutenant, died lead-

ing fi refi ghters from Ladder 15 into the south tower of the

World Trade Center on Sept. 11, 2001. For these teens and 73

others from around the globe with family members killed

or seriously injured in acts of violence, this past summer of-

fered a valuable experience: a weeklong program in Belfast,

Northern Ireland, called Project Common Bond, where they

learned new skills for communication and confl ict resolu-

tion under the guidance of the Harvard Negotiation and

Mediation Clinical Program.

The curriculum for the program was developed last

spring by two students in the clinic, Elaine Lin ’10 and Annie

Levin ’10. Immediately after taking the bar exam in July, Lin

and Levin fl ew to Belfast to teach the program along with

Robert C. Bordone ’97, clinic director and clinical professor

of law; Toby Berkman ’10, an associate at the clinic; and HLS

PROGRAM PARTICIPANTS came from countries on four continents, and nations in conflict. Pictured right: Kristina Anaya and Mark Hutchinson, with Professor Robert Bordone (center)



NOW ONLINE

Ramping Up NewRamps to Justice

Cyberlaw Clinic helps Massachusetts with ACCESS TO THE COURTS

By Elaine McArdleHow can technology help people gain better and easier access to the judicial system? Are there new technologies—or more efficient ways of using existing ones—that can assist low-income, pro se and other litigants to navigate the legal system while easing the burden on underresourced courts?

Students in the HLS Cyberlaw Clinic affiliated with Harvard’s Berkman Center for Internet & Society are working on a new project for the Massachusetts Trial Court that develops uses of technology to improve access to the justice system. The project is especially timely: In the current economy, more people are seeking legal redress to problems while fewer than ever are represented by lawyers; at the same time, court budgets have been slashed and there are fewer personnel to help the public.

For nearly a year, students in the Cyberlaw Clinic, under the supervision of Phillip Malone, HLS clinical professor and the clinic’s director, have assessed a wide array of technologies that can help courts improve access to their services by all litigants, including the self-represented. “This project bridges the best of traditional law school clinical practice—assisting low-income, underrepresented people—with our clinic’s expertise

Negotiation Workshop Lecturer Florrie

Darwin ’84.

Project Common Bond is sponsored

by Tuesday’s Children, a New York-based

organization that provides a wide range

of services to people directly affected by

the events of 9/11. It’s hosted camps twice

before, but this was the fi rst to be held

outside the U.S. and to bring together chil-

dren from nations in confl ict. The Belfast

campers, ages 15 to 20, came from the

U.S., Spain (including the Basque country),

Israel, the West Bank and Gaza, Northern

Ireland, Ireland and Argentina. Through

group activities led by the Harvard team,

designed to foster trust, cooperation and

communication, the teens worked on

listening to and empathizing with people

from very different cultures—including

those with whom they may be in direct

confl ict.

“The curriculum helped the students

with perspective-taking, how to talk

about things not as ‘the truth’ but as how

they see them, and also helped them

identify and deal with emotions. These

skills are central to helping individuals

understand and deal with confl ict more

effectively,” said Bordone. “I think the

campers left with a better set of tools

and a sense that the other side, too, has a

story to tell.”

Hutchinson, 16, who lives in Belfast

and cares for his father, said, “I learned a

number of things from the program, such

as that I am not the only person out in the

world [whose] family has been affected in

times of trouble, such as the Troubles in

Northern Ireland.”

“I learned how effective nonverbal

communication is, and how little it meant

that we all didn’t speak English,” said

Leavey, 19, who is studying Peace and

Confl ict Studies at NYU and plans to work

with children who have been affected

by violence. The program also taught her

“how to be an active listener and how we

can respond—and teach others how to

respond—to confl ict.”

Bordone said the Belfast project

was equally valuable for his clinical

students: “It was real-world, con-

necting theory to practice in a way

[that] can make a real difference.”

Lin agreed, calling the project

“the capstone” of her Harvard expe-

rience and “the initiation into life

after law school.” She is working in

Australia for the next year at a con-

fl ict management fi rm and teaching

negotiation at Monash University

Law School in Melbourne.

Bordone added that the week

gave students a chance to see real

change, particularly in those camp-

ers who live in confl ict zones.

“While it’s gratifying to see Irish

Catholics and Protestants become

friends during the course of the

week,” he said, “it’s even more

meaningful to hear them talk about

how they might share what they

learned with others when they

return to their segregated home

communities. This kind of connec-

tion can make a difference, particu-

larly in a moment of disruption and

violence.” P

Students in the Harvard Negotiation and Mediation Clinical Program represent clients throughout the U.S. and the world and help them design better ways to resolve their differences. For example, in recent semesters, students in the clinic have evaluated the dispute resolution processes at the National Institutes of Health, helped the Cleveland Indians organization improve its

success in player acquisition negotiations and created specialized training programs for environmental lawyers in China in collaboration with the Natural Resources Defense Council. It is the first law school clinic in the nation to focus on conflict assessment and designing systems to resolve disputes.

For more information about the clinic, visit www.law.harvard.edu/negotiation.

Conflict Resolution BY DESIGN



in technology and the use of the Internet to leverage those efforts,” says Malone. “Because of that, students love it.”

The project began last January, when Malone and Professor John Palfrey ’01, vice dean for library and information resources and faculty co-director of Berkman, were approached by Judge Dina Fein of the Massachusetts housing court, who was appointed as special adviser to the Access to Justice Initiative by Supreme Judicial Court Chief Justice Margaret H. Marshall and Chief Justice for Administration and Management Robert A. Mulligan. Fein’s charge is to determine ways to broaden access to civil justice in Massachusetts, including for pro se litigants, low-income people, litigants who aren’t proficient in English, and people with mental or physical disabilities.

“It was clear from the inception of the Access to Justice Initiative that the use of technology would be key to the courts’ success in meeting the needs of historically underserved populations,” says Fein. “I approached Berkman initially hoping the center might help guide and support our work in this area. Over the past year, Phil Malone and the clinic students have done so much more than I could possibly have imagined, not only providing the Trial Court with a clear road map for moving forward with our use of technology but also allowing Massachusetts to attract energized partners from around the country and to assume a leadership role nationally.”

The clinic has taken a comprehensive approach to its challenge. Students have examined technology initiatives in courts around the country; interviewed court and legal aid personnel, technology specialists and vendors; and analyzed relevant literature. In August, Malone and the students presented a preliminary report to Fein on strategic planning and “best

practices” for using technology to better serve the needs of litigants. It includes recommendations on making courts’ websites more helpful and easier to use; providing simpler, automated ways for people to fill out legal forms online; implementing electronic case management and “e-filing” systems that are fully accessible to pro se litigants; and developing online but “live” assistance for litigants with questions. While the Massachusetts Trial Court is the immediate client for this phase of the project, Malone and his students expect to broaden the results into a rich set of guidelines, resources and implementation materials that can help courts around the country.

Alan M. Cheuk ’11 worked on the project over the summer. Among the options and issues he looked at were automated interviews for form completion, interoperability standards for form-filling software and e-filing systems, accessibility requirements for government websites and applications, and encryption and digital signing technology—all in the context of the unique needs of pro se parties. “I hope that the final report, when it is done, will be a go-to source for best practices,” he says, “to ensure a just solution that accommodates the needs of self-represented litigants.”

Dean Martha Minow is a strong supporter of the project, which continues now in a second phase. “From my perspective as vice chair of the Legal Services Corporation as well as my role as dean, the partnership between the Cyberlaw Clinic and the Massachusetts Trial Court exemplifies the opportunity represented when experts in new technologies join with justice professionals to extend access and transparency,” says Minow. “It’s also a splendid chance for students to make a major difference in the struggle to make the promise of justice real in people’s lives.” P

TECHNOLOGY CAN HELP

COURTS IMPROVE ACCESS TO

THEIR SERVICES


“AS LONG AS this country stands for the ideals of equal opportunity and tolerance, schooling is one of the most important settings for promoting not just these ideals, but the practices that support and reflect them.”



What Brown v. Board of Education awakened—in a future dean, in this country and abroad

ON THE BOOKSHELVES

A Life’s Project and a Project’s Life

Dean Martha Minow answers seven questions about her new book, “In Brown’s Wake: Legacies of America’s Educational Landmark” (Oxford University Press, 2010).

What prompted you to write this book?

In some ways it’s been a life’s project. After graduate work and research in education during the Boston desegregation struggles, I pursued law school in hopes of advancing the efforts for equal education opportunity. I had the privilege of clerking for Justice Thurgood Marshall and discussing with him the unfinished business of Brown v. Board of Education. I lived through fights over the treatments of gender, class, religion, disability, and sexual orientation in schools and elsewhere. When the 50th anniversary of Brown came around, I was dismayed by how much of the public discussion and scholarly debate stressed the failures of the decision. I decided to write a book acknowledging disappointments while tracking the unexpected legacies of the decision.

What are some unexpected legacies?

Litigation and legislation pursuing equal education for girls, and then for boys; for kids with disabilities; for children learning English—maybe these efforts are not so surprising. More surprising may be the litigation movement for school choice and for equal treatment of religious schools and the challenge to the treatment of Roma children, who have largely been assigned to schools for children

with disabilities in the Czech Republic.

What about racial equality—what

are the prospects for achieving

that in schools?

The relative success of schools run by the U.S. military in clos-ing the racial gap in achievement is instructive. The high expec-tations coupled with flexible teaching methods adapted to different students contribute; so do the context of a racially inte-grated world in which African-Americans routinely hold positions of authority—and the requirement of parental involve-ment, enforced by commanding officers. Here we have both high achievement and racial mixing in schools. Much of the country has given up on racial integra-tion, and closing the achieve-ment gap is the remnant of the Brown v. Board spirit.

Is there a cautionary tale here or a

road not taken?

The current increase in school choice—notably with charter schools—could be a new occasion for racial integration, or instead, a time for further separation by race or ethnicity. Schools can identify a special mission, such as teaching African-American history or conveying Hispanic cultures. These can be great topics, but if they foreseeably attract homogeneous student bodies, there’s a choice to be made by parents and by school systems. School systems could instead promote the creation of schools that attract students from diverse backgrounds and offer a shared

mission that helps bridge racial, ethnic and other differences. Ironically, after the Supreme Court’s decision in the Seattle and Louisville schools cases [Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007); Meredith v. Jefferson County Board of Education (2007)], the one constraint on school choice plans is assignment of students by race—even when it’s intended to produce integrated schools. But choice plans can use socioeconomic class and residence as factors in student assignment—and these factors can G

ETT

Y IM

AG

ES

MARTHA MINOW explores Brown’s wide-ranging impact—on everything from school choice in the U.S. to legal challenges to the treatment of Roma children in the Czech Republic.

HA

RV

AR

D N

EW

S O

FFIC

E



often be used to produce racially mixed schools. As long as this country stands for the ideals of equal opportunity and tolerance, schooling is one of the most important settings for promoting not just these ideals, but the practices that support and reflect them.

Are there legal arguments against inte-

gration other than avoiding classifi cation

of individuals by race?

In some circumstances, preservation of culture may justify separate schools. One fascinating but perhaps sui generis situation involves the Kamehameha Schools in Hawai’i. Funded by a private trust created by the last royalty in Hawai’i, these schools have been restricted to Native Hawai’ians. Yet they are really good schools, so other kids want to attend. Several court challenges have attacked the admission criterion, raising questions over whether

ON THE BOOKSHELVES

“In the field of public education, ... ‘separate but equal’ has no place.”Brown v. Board of Education, 1954

Native Hawai’ian is a racial, ethnic or political category. The trust in turn has contributed support to public charter schools conveying Native Hawai’ian culture—and although enrollment is by choice, the vast majority of the students in these schools are Native Hawai’ians. They are doing somewhat better academically than other Native Hawai’ians who stayed in the regular schools. There are other subcommunities that do or could benefit from schools devoted to their culture and traditions. The fascinating and challenging fact about schooling is that it is at once a focal point for individuals and their life chances while it is also an understandable preoccupation of groups—ethnic, racial, religious—in passing on their commitments. Defining and ensuring equality might focus on individuals or groups—and equal protection and religious freedom can both be evoked in this context.

How does this work relate to your other

research on mass confl ict and genocide?

The risk of intergroup distrust or hatred, I fear, increases when schooling communicates sharp differences between people; the promise of

schooling, in contrast, could break cycles of hatred and forge ties among people with different backgrounds. The success of schools is crucial not just for the careers and life chances of individual students but also for expanding social networks, and hence opportunities for mutual

help and respect for everyone.

How did Harvard Law School, and

Harvard generally, affect your work on

the book?

I had tremendous help from students in class discussions and as research assistants, editors and interlocutors as I worked on the book over the past 10 years. Colleagues on the faculty and in the clinics gave advice and criticism. The Harvard Law School library was extraordinarily helpful—and that’s one reason I have donated my research materials, including the many books I consulted for the project, to its collections. I was delighted that the library and the Charles Hamilton Houston Institute sponsored a discussion of “In Brown’s Wake.” The Harvard Graduate School of Education has offered me encouragement and assistance since my student days—and will also host a discussion of the book. And the Humanities Center at the university has organized a daylong conference around it. I am honored by each of these occasions and grateful to everyone at Harvard who helps me pursue this work while doing professor and dean work as well. P

%To watch a discussion of Minow’s book, go to http://tinyurl.com/in-browns-wake-discussionB

ETTMANN/CORBIS


winter 2011 harvard law bulletin 15Illustration by gary neill

By Jeri Zeder

Father and son Charles Fried and Gregory Fried both value simplicity of expression. So it is fitting that they begin their book, “Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror” (Norton, 2010), with a rhetorical shortcut: a painting by 20th-century artist Leon Golub called “Interrogation I.” It depicts a man, nakedly exposed, hands bound, roped and swaying upside down from the ceiling. He is flanked by two soldiers in knee-high jackboots, one poised to strike him (again) with a bludgeon, the other (perhaps)

A father-and-son collaboration asks whatcan be justified IN AN AGE OF TERROR

Human Dignity, Democracy and the Loaded Gun



ON THE BOOKSHELVES

shouting orders. It’s a sickening image of political might wielding pitiless power over a helpless human form. It does not matter what this prisoner has done. In our gut, we know this is wrong.

Professor Charles Fried, who writes extensively on moral and political philosophy and the law, began his career at Harvard Law School in 1961. He also served as President Reagan’s solicitor general, and as associate justice of the Supreme Judicial Court of Massachusetts. His son, Gregory, a philosophy professor at Suffolk University since 2004, focuses his scholarship on classical liberal thought. Both men are steeped in the history of political philosophy and are keenly attuned to current events. “Because It Is Wrong” grew out of conversations they began after the attacks of 9/11, which picked up steam after the revelations of torture at Abu Ghraib in 2004.

The book explores three issues

presented by Bush administration policies, primarily from ethical but also from historical and legal perspectives: torture; eavesdropping, surveillance and the right to privacy; and executive prerogative. The authors conclude that torture is wrong, period. For Charles, it’s a question of human dignity. “If anything at all can ever justify destroying the dignity of a human being, then our capacity for valuing ourselves … and others is undermined,” he says.

Extending his father’s thought, Gregory adds, “We are a republic founded on the idea that there are inalienable rights and that dignity is an essential part of what the government is there to protect—that dignity precedes government.” He continues, “If you do grant government the power to engage in the most intimate invasion of freedom of the person, turning their body against them to break their will,

you have granted to the government a power that we think is completely inconsistent with a free republic.”

In contrast to torture, the Frieds maintain that invasions of privacy through eavesdropping and surveillance are justified under certain conditions and circumstances. Coming to that realization surprised Gregory.

“That’s not a position that I would have taken before thinking through the topics in this book,” he says. “I think we as Americans tend to have an instinctual absolutism about privacy. I now believe privacy cannot be an absolute.”

Charles, too, found himself changing his mind as he wrestled with the issues. “To my surprise, I came to conclude that arguments against torture, why torture is absolutely wrong, had a carry-over to the death penalty, which I had not expected,” Charles says about his conclusion that just as it is morally wrong to torture a

LOOKING FOR THE THIRD PARADIGM WHEN CRIMINAL LAW AND THE LAWS OF WAR ARE NOT ENOUGH

Assistant Professor

Gabriella Blum LL.M. ’01 S.J.D. ’03 is a specialist in the laws of war. Profes-sor Philip Heymann ’60 is an expert in domestic law enforcement. With these dif-ferent backgrounds, they decided to teach a course together on counterterrorism. Along the way, they challenged each oth-er, discovered points of agreement, and realized that they had something new to say about law and national se-curity. “Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism” (MIT

Press, 2010) is the outcome of that collaboration and in October received an award from the Chicago-Kent Col-lege of Law.

In prose that satisfies the expert’s craving for depth,

the lay reader’s need for clarity, and the demands of both for nuance, Blum and Heymann concede that the two dominant security paradigms—domestic criminal

law and the laws of war—were not designed to address terrorism. But they reject the Bush administration’s

national security claim of unchecked executive power, which they call the “No Law Zone.” They argue that as we develop a third legal paradigm, we can and should be guided by the principles underlying the rules of domestic criminal law and the laws of war, and adopt rules for terrorism based on those principles. The authors illustrate their approach in chapters examining targeted killing, detention and interrogation.

But Blum and Heymann also acknowledge the limits of law. They examine when counterterrorism actions might be legal but unwise,

or illegal but necessary. And they devote the last section of the book to nonlegal concerns: negotiating with terrorists and reducing support for terrorism within the Muslim world. Their conclusion is sobering: We must accept that we can’t reduce the risk of terrorism to zero. We must prepare, mentally and logistically, for the next attack. If we do these things—if we control our fear—we’ll be less likely to overreact, which itself carries its own damaging consequences. —J.Z.

%For a talk on the book, go to http://bit.ly/lawsoutlawstalk

THE AUTHORS CONCLUDE THAT

TORTURE IS WRONG, PERIOD



person who is totally within the state’s power, it is also morally wrong to kill him. Beyond capital punishment, the Frieds explore related issues, including the relative evil of killing compared with torture. “Killing just ends the life,” says Charles. It is worse, he believes, to destroy human dignity. They also consider targeted killing—justified, they say, as long as the target is acting as an enemy soldier.

It’s clear, both from reading the book and from interviewing its authors, that father and son, despite their political differences, hold each other in the highest intellectual esteem. In today’s atmosphere of debased public discourse, this book—and their relationship—shines with intellectual integrity and generosity. Through argument, reflection, and the act of writing and rewriting each other’s words, Charles and Gregory worked their way to agreement on every point and issue—save one.

In the final third of the book, the authors address the question of executive prerogative: Is it ever permissible for an American president to violate the law, and if so, when? Their discussion incorporates the classics—Aristotle, Locke and Montaigne—as well as today’s headlines, particularly the example of a husband slapped with a ticket as he speeds his pregnant wife, who has gone into labor, down a highway breakdown lane.

Most of us would agree, the Frieds say, that the state trooper who ticketed the husband was wrong, because in an emergency, it should be a government official’s prerogative to suspend what the written law requires. They apply the principle to compare Presidents Bush, Jefferson and Lincoln. All three violated the Constitution under

emergency circumstances: Jefferson, when he appropriated funds for the military in the face of an imminent British attack; Lincoln, when he suspended habeas corpus at the start of the Civil War; and Bush, when he authorized torture and warrantless wiretapping in the wake of 9/11. The difference, Charles

and Gregory argue, is that Jefferson and Lincoln subsequently submitted themselves to the legal regime: They openly declared what they had done, admitted that they violated the law and sought the approval of Congress, which legalized their actions after the fact. Bush, in contrast, as commander in chief acting for the sake of national security, claimed the power to ignore and violate the law. (The Frieds note that Congress did eventually ratify Bush’s wiretapping program, which in their eyes legitimated his actions there. Congress never ratified torture.) “That is an absolutely radical departure from our national traditions and from constitutional control of the executive around this question of the gray area of the law,” Gregory says.

Charles agrees. Where he splits from his son is in what to do about it. Gregory sees prosecution of those Bush administration officials who ordered torture as the only way to redress, once and for all, the damage done to the Constitution. Charles believes that prosecuting, far from putting the issue to rest, would unproductively drag the issue forward for years. “The idea that a democratic government that peacefully took over power would start criminally prosecuting their predecessors leads to a terrible chain of pursuit,” says Charles, citing the independent counsel investigations that weakened one modern presidency after another. He further believes that prosecuting would be disproportionate to the crime—Dick Cheney, he says, was not Stalin, Hitler or Pol Pot.

And there “Because It Is Wrong” ends—but the conversation does not. The Frieds note that justifications for torture are still on the books—“like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” in the words of Justice Jackson in his Korematsu dissent—and the people who ordered torture are publicly unrepentant. “So, there’s a dilemma,” Charles acknowledges. “How do you signal the repudiation of such behavior short of criminal prosecution? I understand the strength of Greg’s argument—only a prosecution can make that statement—and that leaves me casting about for alternatives.” Before our eyes, father and son consider alternatives, such as presidential pardons and congressional commissions, but remain unsatisfied.

“So the loaded gun is still on the table,” Charles says.

“Still on the table,” echoes Gregory. P

Jeri Zeder is a freelance writer based in Lexington, Mass.

J

THE BUSH ADMINISTRATION violated the law, Gregory and Charles Fried agree. Where they disagree, is on what to do about it.

% For an interview with the Frieds, go to http://tinyurl.com/Fried-interview

02-23_HLB_Winter11_05_r1.indd 17 11/16/10 6:18 PM


ON THE BOOKSHELVES

FDR APPOINTED ALL FOUR to the Supreme Court, but that didn’t mean they had to agree

with each other

Great Minds That Did Not Think Alike

By Seth Stern ’01Professor Noah Feldman has a knack for picking the right book topics at the right time.

He began work on his first book, “After Jihad: America and the Struggle for Islamic Democracy,” long before the topic became of intense interest after the 9/11 attacks. And he started working on his latest, about four of President Franklin D. Roosevelt’s Supreme Court justices, in 2005, years before the New Deal era suddenly became newly relevant.

“I obviously had no idea we were headed for this big recession we are in or that Wall Street would be the subject of so much criticism or that the parallels with the progressive era and FDR’s presidency would become so central,” Feldman says. “It was just serendipity.”

In “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” Feldman focuses on four men with remarkably diverse resumes, who, despite shared links to Roosevelt, often found themselves at odds once they joined the Court.

While much scholarship has focused on the justices of the Warren Court of the 1960s, Feldman says, “it seems to me many of the most important ideas we think of as our constitutional ideas were actually created in the years of the Roosevelt Court.”

Feldman says he focused on Hugo Black, William O. Douglas, Felix Frankfurter LL.B. 1906 and Robert Jackson because “these four justices were all chosen in an era when life experience was central to getting to be a justice, and they had fascinating life stories and backgrounds which they then brought to bear when they were on the Court.”

Black, an Alabamian and former Ku Klux Klan member, came to the Court directly from the U.S. Senate, where he had a reputation as something of a radical.

Douglas had headed the Securities and Exchange Commission and made a name for himself as a critic of Wall Street.

Jackson had served as Roosevelt’s solicitor general and attorney general during World War II and the president’s most important wartime legal adviser. He later took a leave from the Court to serve as chief prosecutor at the Nuremberg war crimes trials.

Frankfurter, a professor at Harvard Law School at the time of his nomination, had been an important—and often controversial—figure in American liberalism, coming to the defense of Italian-American anarchists Sacco and Vanzetti, who, despite his efforts, were executed in 1927.

“These are people with huge life experiences, and they

also had huge personalities,” Feldman says. “They had no judicial experience, but by any measure they are four of the greatest justices we’ve ever had.”

These four interwoven biographies are a change in direction for Feldman, whose last book, “The Fall and Rise of the Islamic State,” traced the history of Shari’ah law. But he says he tends to track back and forth between a focus on the Islamic world and U.S. constitutional history. He says he got the idea for this book while teaching constitutional law.

“I became fascinated with the way different personalities of the justices reflect and create their beliefs and ideas,” Feldman says. “These are real human beings and not just names on a page.”

He details the common ground these four justices shared when they joined the Court between 1937 and 1941 and how their relations frayed in subsequent years as each refined a

different judicial philosophy. But Feldman doesn’t think it’s necessarily a

bad thing that they came to dislike each other and argue so much.

“We live at a time when we believe everyone should be collegial—including Supreme Court justices—but these justices made greatness out of their differences,” Feldman says.

Looking back half a century after the quartet served together, Feldman says each of the justices continues to be influential.

He credits Black as an early voice for originalism, Douglas as the “intellectual father of the rights-expanding school of constitutional thought,” and Jackson as the progenitor of the sort of pragmatism adopted more recently by Justices Sandra Day O’Connor and Stephen Breyer ’64, while Frankfurter was the strongest advocate of judicial restraint.

Of the four, Feldman views Frankfurter as deserving more credit than he gets. “Republicans don’t like him because he was a New Dealer, and Democrats don’t like him because he was a judicial conservative,” he says. “But even though nobody practices it, everybody preaches judicial restraint, and that’s Frankfurter.”

Feldman says all four would find confirmation to the Supreme Court hard going today, a reality which he thinks is regrettable.

“There’s something to be said for people with broad life experiences, big ideas and strong personalities.” P

Seth Stern ’01 is co-author of “Justice Brennan: Liberal Cham-pion” (see p. 50).

ba

sjt


winter 2011 harvard law bulletin 19Illustration by arthur giron

“THESE ARE PEOPLE with huge life experiences,” says Feldman, and all four would find confirmation to the Supreme Court difficult today.

clockwise from top left: Hugo Black, Robert Jackson, Felix Frankfurter, William O. Douglas



RECENT FACULTY BOOKS

“Prospects for the

Professions in China” (Routledge, 2010) edited by Professor William P.

Alford ’77, William Kirby and Kenneth Winston. Through its meditations on Chinese professional development in areas such as journalism, law, accounting, engineering and the clergy, this collection of essays focuses on an Eastern power undergoing an “epochal effort at national transformation.” Readers are asked to consider the areas of tension and overlap between Western professional models and those on the rise in the Chinese system, while confronting issues such as the historical roots of modern Chinese professionalism, the trade-offs between autocracy and state control, and the translation of professional values across international and ideological lines.

“The Oxford

Introductions to U.S.

Law: Torts” (Oxford University Press, 2010) by Professor John

Goldberg and Benjamin Zipursky. Beginning with critical judicial decisions and legislation regarding tort law, the authors contextualize

each new development and cover related issues from medical malpractice to punitive damages, offering a comprehensive analysis of tort today.

Professor Henry E. Smith and Thomas Merrill, “Property” (Oxford University Press, 2010). This volume is designed for law students who want a short and theoretically integrated treatment of property law, as well as for lawyers who are interested in the law’s

conceptual foundations. One reviewer calls it “nothing short of a marvel.”

“Stones of Hope: How

African Activists

Reclaim Human

Rights to Challenge

Global Poverty”

(Stanford University Press, November 2010) edited by Professor Lucie

White ’81 and Jeremy Perelman S.J.D. ’11. With a foreword by Jeffrey Sachs and his daughter, Lisa Sachs. This volume presents a combination of theoretical essays and case studies highlighting the innovations of African lawyers in economic and social

rights activism to fight “the violence of radical poverty.”

“The Trials of

Zion” (Grand Central Publishing, 2010) by Professor Alan

Dershowitz. This thriller begins with an act of terror that brings the Middle East to the point of explosion. A young Jewish-American lawyer joins the defense team for a Palestinian arrested in the case, but as the plot unfolds, it’s the lawyer’s father—a famed criminal attorney—who must win the Palestinian’s case or risk losing his daughter.

e

n

economic and social

Edited by

William P. Alford,

Kenneth Winston and

William C. Kirby

Prospectsfor the

Professions in China

RoutledgeStudies on

Civil Society in Asia

ROFESSIONSINCHINAdWilliam

C.Kirby

Studiess oonnCivil Societ

y in Asia



WINNING ASYLUM for refugees from persecution

OUTSIDE THE CLASSROOM

Safe Harbor

By Elaine McArdle

After countless hours of interviewing their client, digging through documents and working with experts to prepare for two court hearings, students in the Harvard Immigration and Refugee Clinic got what they were after: a grant of asylum.

Their client was a 25-year-old from the Democratic Republic of Congo—a man not much older than they are—who had been violently beaten by youths in his neighborhood in Congo, because he is gay and dared to think that gay people should be treated equally. When the decision from the judge came in the mail—asylum granted—the young man was ecstatic. That would have been reward enough for Lauren Kuley ’10 and Connor Kuratek ’10.

Then came a note from the young man’s mother, who now lives in Kenya. “[T]hank you so much for the great work successfully done in your efforts towards granting my child permanent stay documents in the USA,” she wrote. “May God Almighty bless you forever.”

Under the direction of Clinical Professor Deborah Anker LL.M. ’84, students at the Harvard Immigration and Refugee Clinic work on about 50 asylum cases a year, as well as other cases such as family reunification, visas for people who’ve cooperated with American law enforcement, special immigrant juvenile cases, and appellate work, including in the U.S. Supreme Court. For the past 25 years, the clinic has been a leader in developing the law of refugee status in the U.S., through client representation, federal court litigation, international and domestic advocacy, and training of students and adjudicators. Students represent clients from around the world fleeing life-threatening situations.

Immigration law has developed enormously over the past decade, with HLS students deeply

involved in that evolution. “Many issues related to persecuted groups, like women, children and members of the LGT community, are surrounded by ambiguity still, and we are deeply involved in developing a rule of law culture in the administrative and judicial arenas,” says Anker, author of the

forthcoming major treatise “Law of Asylum in the United States.”

“That clinical was the most valuable learning experience I had at Harvard,” says Kuratek, who is now an associate at Davis Polk in New York City, where he also does pro bono asylum work. “We had responsibility to decide the course of this individual’s life. It made me see the human side of the law, and how powerful we can be as students.” Kuratek says of receiving the letter from the client’s mother: “That’s when it really hit me what it meant to him and his family—and to future asylees who are in his situation.”

Kuley and Kuratek worked on the case last year under the supervision of clinical instructor and lead attorney Sabrineh Ardalan. They interviewed the man extensively to prepare his

HLS STUDENTS REPRESENT CLIENTS FROM AROUND THE

WORLD FLEEING LIFE-THREATENING

SITUATIONS



affidavit, as well as his mother, by telephone in Kenya. They also found and interviewed experts who submitted affidavits supporting their assertion that homosexuality is severely punished in the DRC and Kenya. “The affidavit was a significant part of our work since that is the foundation of the client’s case and the centerpiece for his testimony. It has to develop into a legal theory while remaining true to the client’s voice and to the details he’ll be able to recall on the stand,” Kuley explains.

HIRC had filed for asylum for the man based on his membership in a particular social group—based on his sexual identity—and because of his political beliefs that gays should be treated equally by the DRC government. For almost two decades, U.S. law has granted asylum because of persecution related to sexual identity, but there have been challenges related to proof and country conditions, Anker notes. “Refugees rarely flee with corroborative evidence, and such evidence is hard to produce,” she says. The DRC case was particularly difficult because there is little documentation from the U.S. State Department supporting the contention that gays are persecuted there; indeed, the judge in the Boston immigration court seemed skeptical of the man’s claim.

The students stayed in Cambridge last December, long after the fall semester ended and their friends had flown home for the holidays, to represent their client at a Dec. 23 hearing. The witnesses had to be lined up and prepared for testimony (some by telephone). Kuley and Kuratek also conducted the direct examination of the client.

In April, the man’s mother flew to Boston to testify that her son was persecuted because he was gay; she described taking him to the hospital after one assault, because he was in such severe pain. Kuley delivered the closing argument. But for months, they had no answer from the court. Finally, in September, they learned that their client was granted asylum.

Says Kuley, who is now clerking for Judge Karen Nelson Moore ’73 on the 6th Circuit Court of Appeals, “I witnessed

how important to the case it is to develop a good rapport with the client. I think our client was better able to tell us his story, both in preparing for court and in front of the judge, because he knew us and trusted us. Sabi and Debbie did a really great job showing us how to develop that kind of respectful and congenial relationship with him.”

And, she adds: “It was also a lesson in the value of persistence.” After the December hearing, the students were worried about the outcome. But after a pep talk from Anker, Kuley recalls, “we came back even more prepared the next time. In immigration cases especially, preparation makes a big difference—I think it communicates credibility and sincerity to the judge—as does trying lots of different angles and legal theories since the immigration judge

has so much discretion.”Students working in the Harvard Immigration and

Refugee Clinic landed another victory in June 2010 when a young woman from Guatemala, who escaped with her two

“THE CLINICAL ... MADE ME SEE THE HUMAN

SIDE OF THE LAW, AND HOW POWERFUL WE

CAN BE AS STUDENTS”

Professor Deborah Anker LL.M. ’84, HIRC director, with Defne Ozgediz ’11, Gianna Borroto ’11 and Sabrineh Ardalan, clinical instructor


winter 2011 harvard law bulletin 23Photograph by tsar fedorsky

young children from a man who had repeatedly tortured all three of them, was granted asylum. Under the supervision of Ardalan, clinical students Defne Ozgediz ’11 and Gianna Borroto ’11 spent last spring developing her case. The woman sought asylum in the United States on the basis of gender and beliefs—her partner brutally attacked her because she believed in equal rights for women and because she insisted on her right to independence: to run her own business and not to submit to his sexual and physical abuse and control. She feared she and her children would be killed if forced to return to Guatemala.

The case touched on an issue of significance to HIRC and, in particular, to Anker, who has been a prime mover in urging legislative and regulatory reform. Since 1986, due in significant part to the work of the clinic under Anker’s direction, the federal government has recognized that violence against women is persecution—a serious human rights violation—that can be the basis for an asylum petition. In 1995, the clinic drafted historic federal asylum law guidelines, which served as international precedent.

But these guidelines still are not consistently applied at the local level, and the clinic, in conjunction with its partners at Greater Boston Legal Services, has continued to push for their uniform application, filing amicus briefs, training asylum officers and working with congressional staffers.

The students met with the woman weekly to learn the details of her life in Guatemala, which they presented in an affidavit along with her petition for asylum. Borroto served as interpreter for the client, who speaks mainly Spanish, including at meetings with a therapist to discuss the abuse she and her children had endured. The students also researched cultural and political conditions in Guatemala, gathering news stories on domestic violence, machismo and “femicide.” They worked with Ardalan to develop the theory of the case, prepared the client to testify at an interview before an asylum officer and represented her at the interview, under the supervision of Anker and Ardalan. Two months later, in June, their client received the

news she’d dreamed of: asylum status in the U.S. for herself and her children.

“The moment I realized our client would never have to go back to Guatemala, and that she and her kids were going to have a good life here, was one of the most moving moments I’ve had while in law school,” says Ozgediz.

“I had the chance to develop my legal writing skills by working on the client’s affidavit, while at the same time getting client contact with our weekly interviews,” says Borroto, who is considering going into immigration work after graduation, perhaps with a focus on policy. “It was difficult to ask her about these experiences, but through the interview process we formed a relationship … and she began to feel more comfortable sharing these details with us.”

Adds Ozgediz, “The clinic gave us an opportunity to take on a great deal of responsibility in a case where our client and her kids had their whole lives at stake. Classroom courses teach us about different areas of the law, but this let us see what it is like to be an immigration lawyer and serve a client in a way that a classroom education can’t.” P

STUDENTS IN HARVARD’S Immigration and Refugee Clinic take on about 50 asylum cases a year, as well as appellate work, including in the Supreme Court.



ON THE COURT

Oct. 1, 2010: Justice Elena Kagan ’86 with Chief Justice John G. Roberts Jr. ’79 after Kagan’s investi-ture ceremony at the Supreme Court


winter 2011 harvard law bulletin 25Photograph by brooks kraft

As Harvard Law School’s

first female dean and the first wom-an ever to serve as U.S. solicitor general, Elena Kagan ’86 has made a habit of making history.

On Oct. 1, Kagan sat on the far right-hand side of the Supreme Court’s courtroom in a chair first used by Chief Justice John Mar-shall, poised to make history once again at her formal investiture cer-emony.

Kagan had already been a justice for almost two months by then, having taken the constitutional oath on Aug. 7 from Chief Justice John G. Roberts Jr. ’79. Five days be-fore the investiture ceremony, she had attended her first conference—in which the justices met privately to discuss all the cert petitions that had piled up over the summer.

In a sense, the investiture was her public debut in her new role, one witnessed by all three retired justices as well as a trio of Demo-cratic senators who had helped shepherd her nomination, and President Barack Obama ’91, who had tapped her for the Court five months earlier.

After the clerk of the Court read her commission, Kagan left the audience behind for the last time and ascended to the center of the bench. Roberts administered the

WHENTHE ‘10TH

JUSTICE’ BECAME THE 9THBY SETH

STERN ’01



judicial oath as her seven colleagues stood facing her. Then Kagan finally took her seat—bringing the number of sitting justices who attended HLS to six.

The robe Kagan wore that day was a gift from some of her former colleagues on the Harvard Law faculty. More than a dozen of them—includ-ing Carol Steiker ’86, Laurence Tribe ’66, Eliza-beth Warren and Robert Clark ’72—sat in the

audience, as was the case nearly every step along the way in her rapid eleva-tion from solicitor general. (At that confirmation hearing last year, Kagan noted she had “brought a little bit of family from Cambridge” as she intro-duced the half dozen faculty members seated behind her.)

Her Harvard colleagues were there again on May 10 when Obama an-nounced Kagan’s nomination to succeed John Paul Stevens, the Court’s longest serving member, at a White House cere-mony. And they were there throughout Kagan’s three-day appearance before the Senate Judiciary Committee.

Confirmation hearings, like most aspects of the nomination process, have become carefully script-ed affairs, where nominees have little to gain from revealing too much about themselves. But Steiker, who has known Kagan since they were second-year law students, said she was struck by how the person she knew shined through.

“I thought she was remarkably forthcoming and natural and funny,” said Steiker. “You could see the teacher in her in her explanations about constitutional interpretation and the ways the Constitution changes and doesn’t change over time. And you could see the person she was through her humor and her willingness to defuse tense moments with humor.”

In her opening statement, Kagan assured senators that “the Court must also recognize the limits on itself and respect the choices made by the American people.” She elicited laughs from both sides of the aisle in response to a question from Lindsey Graham (R-S.C.) about where she was at the time of a thwarted airline bombing last Christmas.

“Like all Jews, I was probably at a Chinese res-taurant,” Kagan said.

Kagan’s tenure as Harvard Law School’s dean—and the scope of access she provided to military recruiters to campus—became a focus of the hearings.

HLS Lecturer Tom Goldstein, the Supreme

Court litigator and editor of SCOTUSblog.com, who has attended six confirmations, said it was a predictable focus of attention in “this era where conservatives care so much about respect for the military, and gay rights is kind of a cleaving issue between the parties.”

After Kagan had concluded her testimony, Clark joined Professors Jack Goldsmith and Ronald Sullivan ’94 in testifying on Kagan’s be-half, along with Kurt White ’11, president of the Harvard Law School Armed Forces Association. White praised Kagan for going “to such great lengths to show her respect for and appreciation of the military and military veterans.”

Clark said he chose to focus his testimony on other aspects of her record at Harvard that hadn’t received as much attention.

“I tried to make a more general point that her experience as a scholar of administrative law and constitutional law and her experience as an administrator of a major school should not be ignored,” Clark said. “There were lots of people critiquing her because she hadn’t been a judge. I thought that was a little narrow-minded.”

Three alumni—Stephen Presser ’71, Ed Whelan ’85 and Ronald Rotunda ’70—testified in opposi-tion.

“THERE WAS NOTHING LIKE ... SEEING THE

COMPLETE COURT WITH

ELENA AS ITS NEWEST

MEMBER.”

GE

TTY

IMA

GE

S

5TH ANNIVERSARY FOR THE COURT’S 17TH CHIEF JUSTICEOn Sept. 29, 2005, John G. Roberts Jr. ’79 was

sworn in as chief justice of the United States,

as his wife, Jane Roberts, and President George

W. Bush looked on. This year marks the fi fth an-

niversary of Roberts’ tenure leading the Court.

In November, Harvard Law School students got

the chance to argue before the Court’s 17th chief

justice, when he honored the school by presid-

ing at the 100th Ames Moot Court Competition.

Look for a related story in a forthcoming issue of

Harvard Law Today.



Presser seized upon comments then-Dean Kagan had made about Justice Anthony Kennedy ’61 during one of his appearances at Harvard Law School.

Presser said: “Her praise of Justice Kennedy’s jurisprudence and his independence could cer-tainly be interpreted as Ms. Kagan suggesting both that it was appropriate for justices to formu-late their own notions of what the Constitution should mean, and that it was appropriate for justices to change the meaning of the Constitution by reference to emerging international norms and policies.”

Another five weeks would pass until the Sen-ate confirmed Kagan by a 63-37 vote. The next day, Kagan returned to the White House for an East Room celebration attended by Dean Martha Minow, along with a dozen faculty members and administrators, including Professors David Bar-ron ’94, John Manning ’85, Daniel Meltzer ’75 and Lawrence Lessig.

“It was a great celebratory mood there,” said Sullivan.

That night, she gathered at a Washington bar for a more private celebration with family and friends. “I’ve never seen Elena—or maybe any-body—with such a genuine smile,” said Lessig.

What Kagan didn’t display was any hint of anxiety about the task ahead, said Dean of Stu-dents Ellen Cosgrove, who has known her since they worked together at the University of Chicago.

“I’ve never seen her nervous,” Cosgrove said. “I’ve seen her in really tough situations, and she is calm, she is confident. It’s an amazing quality to have.”

And on Saturday, Aug. 7, Kagan took the ju-dicial oath from Roberts at the Court. After the typically grueling 89-day process leading up to her confirmation, Kagan might have been forgiven had she opted for a little time off before taking her life-tenured seat on the nation’s highest court.

But by Sunday, her first full day as a justice, Kagan was already scheduled to start computer training at the Court.

“That’s Elena,” said Steiker. “She is going to work very hard.”

For Cosgrove, who had witnessed each public step in the confirmation process, the import of the moment didn’t sink in until the October investi-ture ceremony.

“There was nothing like watching her take her seat with the other eight justices and seeing the complete Court with Elena as its newest mem-ber,” Cosgrove said. “That was the moment of real goose bumps.”

From the moment President Barack

Obama announced Elena Kagan’s

nomination, through her appearance before

the Senate Judiciary Committee, to the

afternoon when she took the judicial oath,

Harvard Law School colleagues were there to show their support.

STE

VE

PE

TTE

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Y

After the ceremony, Kagan—minus her judi-cial robe—joined Chief Justice Roberts for the traditional walk down the Court’s 44 front steps, a scene captured by a dozen television cameras arrayed across the plaza. They posed together for pictures at the bottom before Roberts withdrew and left Kagan standing alone.

“Ready for Monday?” one journalist yelled out. “All set,” Kagan replied before walking away. Sure enough, when the first oral argument of

the new term and her tenure began three days lat-er, barely 10 minutes passed before Kagan jumped in with her first question.

That question and the half dozen or so that fol-lowed in the course of the one-hour oral argument in a low-profile bankruptcy law case were polite but firm, a tone familiar to any former student who once sat in her administrative law class in Langdell Hall. P

Seth Stern ’01 was a student in Kagan’s administrative law class in the fall of 1999.

BR

OO

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AFT

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winter 2011 harvard law bulletin 29Illustration by david m. brinley

At the entrance to the office of Federal Communications Commission Chairman Julius Genachowski, on identical stands, sit two objects that seem symbolic of the FCC’s past and future and how radically the purview of the agency has changed since its founding in the 1930s. One is a thick dictionary, left over from a former FCC chairman. It contains words like telephone and radio, technologies that the FCC was created to oversee, but not the word broadband—the high-speed communications network that is now the agency’s primary preoccupation. The other object is an iPad, a device that depends in large part on broadband, and one that signals the centrality of new technologies to modern daily life—and

BANDWIDTH

Regulating digital communications is like trying to control an explosion. FCC Chairman Julius Genachowski

’91 brings a full spectrum of skills to the job.

BY K AT I E BAC O N



Genachowski’s strong belief in their importance.Genachowski ’91, who was classmates

with Barack Obama and served as his chief technology adviser during the 2008 campaign, came to this job passionate about expanding broadband to all corners of the country. “I’m convinced that broadband will be as important to 21st-century America as electricity was to 20th-century America,” he told me in an August interview in his office. Eventually, Genachowski says, broadband will be the platform for all communications technology and will be an essential part of most aspects of our society—from the economy to health care to our educational system. But according to the FCC, 35 percent of people in the U.S. still don’t have it, and the speed of some of the broadband that does exist is inadequate. “Broadband should be the core mission of the FCC,” he says. “And now it is.” Accordingly, in March, the agency released a massive National Broadband Plan, a blueprint for radically expanding and improving the country’s communications network while protecting consumer interests. Genachowski’s FCC then set about building momentum for the plan. “Thanks to Julius’ advocacy, pretty much everyone agrees we need to have a national policy of providing Internet access to everyone in the country some way or another,” says Reed Hundt, who was a

chairman of the FCC under Clinton and was Genachowski’s boss during that time.

Following up on an Obama campaign promise, Genachowski has also sought to enshrine rules protecting “net neutrality”—the idea that all content should be treated equally by the companies providing Internet service. Proponents of net neutrality rules worry that these companies can unfairly provide ultraquick access to certain sites for financial gain, while gumming up the connections to competing sites. But opponents argue that the cable and phone companies responsible for building out the broadband networks should have the right to charge varying rates depending on how much bandwidth a site uses. In a September 2009 speech at the Brookings Institution, Genachowski laid out his argument:

“This is not about protecting the Internet against imaginary dangers. We’re seeing the breaks and cracks emerge, and they threaten to change the Internet’s fundamental architecture of openness. This would shrink opportunities for innovators, content creators, and small businesses around the country, and limit the full and free expression the Internet promises. This is about preserving and maintaining something profoundly successful and ensuring that it’s not distorted or undermined. If we wait too long to preserve a free and open Internet, it will be too late.”

But in April, Genachowski’s agenda encountered a serious roadblock, in the form of a federal appeals court decision in Comcast Corporation v. Federal Communications Commission. In the court case, originally filed by his predecessor, Kevin Martin ’93, the FCC argued that Comcast was violating net neutrality principles by slowing customer access to a site that was clogging Comcast’s network. The problem for the FCC is that the court ruled it has no authority under current law to regulate online service providers or their broadband networks. In response, Genachowski came up with a “third way” proposal to reclassify broadband as a type of hybrid utility—which would allow the FCC to regulate broadband under its authority to oversee telecommunications, while at the same time exempting Internet service providers from onerous regulations or price controls. He called the approach “consistent with the long-standing consensus regarding the limited but essential role that government should play with respect to broadband communications.” According to Thomas Perrelli ’91, a friend of Genachowski’s from law school who is now the associate

Genachowski is passion-ate about expanding

broadband to all corners of the country

and about establishing rules to protect net

neutrality—despite the stumbling blocks the

agency has encoun-tered, including a fed-

eral ruling that said the FCC has no authority to regulate online service

providers.

ASS

OC

IATE

D P

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SS



attorney general, the “third way” approach is also consistent with Genachowski’s working style. “This is really the way Julius approaches a lot of problems—trying to bring people together and find an approach that people can get behind is very characteristic of him,” Perrelli says.

Since the ruling, the FCC has continued pushing forward aspects of the National Broadband Plan, but considerable attention has shifted to the jurisdictional questions now facing the agency. At issue, too, are larger tensions—between consumer interests and business interests, between those who believe in more regulation and those who believe in less, and between those who believe passionately in an open Internet and those who worry that an open Internet will unfairly benefit some types of companies over others. These tensions inevitably coalesce around the person who runs the FCC. Blair Levin, who worked with Genachowski at the FCC under both Clinton and Obama and is now a communications strategist at the Aspen Institute, offers some perspective: “If there’s any decision that’s easy, it’s made long before an FCC chairman has to deal with it. I’m quite certain that Genachowski will be in line with other chairmen who will be controversial. You can’t do the job without controversy. It just doesn’t happen.” Yochai Benkler ’94, the faculty co-director of the Berkman Center for Internet & Society and

professor for entrepreneurial legal studies at Harvard Law School, makes a similar point. In 2009, he was commissioned by the FCC to do a study of broadband deployment throughout the world (see sidebar). “This is a case of a very talented and well-intentioned man bumping up against an impossible political economy,” says Benkler. “There are hundreds of billions of dollars at stake in the core questions he’s interested in working on.”

The chairman of the FCC, perhaps more than the head of any other federal agency, has to walk a delicate line—between the powerful businesses that make up the communications industry and the consumers who rely on it. HLS Dean Martha Minow, whose father, Newton Minow, was chairman of the FCC under President Kennedy, and who has known Genachowski since his days at Harvard Law, sees it this way: “There’s a risk that the chair simply serves the industry, and there’s a risk that the chair does not understand the needs and demands of the industry. Julius is uniquely suited to understanding the industry perspective while keeping American needs at heart.”

Genachowski describes himself as stubborn. Others have described him as pragmatic, creative and deeply knowledgeable about cutting-edge technologies. And according to Hundt, there’s widespread respect in Washington for

Berkman Broadband Study Stresses Open Access

In 2009, HLS

Professor Yochai

Benkler ’94 and the

Berkman Center for

Internet & Society

were commis-

sioned by the FCC

to do a study on

broadband deploy-

ment throughout

the world (see

http://bit.ly/broad-

bandstudy). Among

its key fi ndings

was that a series of

regulatory policies

called open access

regulation have

contributed to

superior broad-

band penetration,

capacity and af-

fordability in other

countries.

They wrote in

their report: “Open

access policies

seek to make it

easier for new

competitors to

enter and compete

in broadband mar-

kets by requiring

existing carriers

to lease access to

their networks to

their competitors,

mostly at regulated

rates.”

The FCC did not

incorporate the

report’s fi ndings

into the National

Broadband Plan

released in March.

Nevertheless, in a

New York Times op-

ed, Benkler praised

aspects of the FCC

plan: “[I]t takes

many admirable

steps—including

very important

efforts toward

opening space

in the broadcast

spectrum,” he

wrote, but the

plan, he continued,

“does not address

the source of the

access problem:

without a major

policy shift to

increase competi-

tion, broadband

service in the

United States will

continue to lag far

behind the rest

of the developed

world.”

HLS Professor Yochai Benkler says of Gena-chowski: “This is a case of a very talented and well-intentioned man bumping up against an impossible political economy. There are hundreds of billions of dollars at stake in the core questions he’s interested in working on.”

PH

IL F

AR

NSW

OR

TH



Genachowski’s acumen and integrity. He’ll need all those qualities, as well as some help from the political process, to push his agenda through.

The son of two survivors of the Holocaust, Genachowski grew up on Long Island. He was always interested in technology, and recalls once when his father took him to his alma mater, MIT, to show him the research he’d done creating a device to help blind people read. “It was an important experience, and what it really showed me was the power of technology to transform lives for the better. And that was something that ended up pointing me on a path that was relevant to this job,” he says.

In the years before and after law school, Genachowski gained experience in all three branches of government, as well as in the private sector. A history major at Columbia, he decided to go to law school because he was “interested in the world and the way it works.” But he deferred twice to work for Chuck Schumer ’74, now a New York senator, who at the time was a member of the House of Representatives. Then he got an opportunity to work as an aide for the House committee investigating the Iran-Contra affair. But when he approached Harvard for a

third deferment, they turned him down. “Being stubborn, I decided to take the job and take my chances,” he says.

When he did go to law school, Genachowski says, “I learned a lot about the importance of a healthy debate, and about the importance of multiple disciplines coming together in areas like public policy to produce the best outcomes for the country.” Among other classes, he took constitutional law from Laurence Tribe ’66 and civil procedure from Minow. As Minow recalls, “He was a star creative student with the ability to get to the heart of the matter, maintaining common sense while using sharp analytic skills. He’s still like that today.” Genachowski served as notes editor for the Harvard Law Review under Barack Obama. They would sometimes escape from their work onto the basketball court (Genachowski has a picture in his office of the two of them playing basketball). And they would talk about the paths that led them to Harvard Law and the Law Review. “Growing up, Harvard Law School was the last place I expected to go,” Genachowski told me. “Only in America could someone who was the child of immigrants, of Holocaust survivors, end up on the Law Review at Harvard Law School. I was very appreciative

The Predecessor: Kevin Martin ’93 Led FCC Under President George W. Bush

Genachowski’s path

to the chairmanship

of the FCC in some

ways mirrored that

of his predecessor,

Kevin Martin ’93,

though they arrived

via different sides

of the political aisle.

After graduating from

Harvard Law, each

worked as a legal ad-

viser to the FCC early

in his career, and then

as a technology ad-

viser for the president-

elect, prior to being

tapped as head of the

agency. Martin served

as a commissioner

of the FCC during

President George W.

Bush’s fi rst term, and

was elevated to chair-

man at the beginning

of his second, during

a time of exponential

Internet growth. His

philosophy during his

four years as chair-

man, he has said, was

to “pursue deregula-

tion while paying

close attention to its

impact on consumers

and the particulars

of a given market.” In

terms of broadband,

his goal was to create

the conditions neces-

sary for the expan-

sion of broadband

infrastructure—the

number of broadband

lines doubled to more

than 100 million during

his tenure—and also

to push the develop-

ment of broadband

networks that could

link state and regional

health care facilities.

Like Genachowski,

Martin faced con-

troversy during his

tenure, particularly

over the FCC’s efforts

to strengthen polic-

ing of indecency over

the airwaves and to

relax media ownership

rules.

In October, Martin

offered some advice to

Genachowski, as part of

a C-SPAN panel with for-

mer FCC Chairmen Reed

Hundt and Michael

Powell: “Some of the

most important advice

I got as chairman was

that you have to be

deliberate in thinking

and decision-making,

but you have to make

sure you move forward

with what you thought

was the right thing.”

Martin is now a

partner at the law and

lobbying fi rm Patton

Boggs, in Washington,

D.C., where he co-

chairs the technology

and communications

practice, and is repre-

senting a half dozen

clients opposed to the

proposed $30 billion

merger of Comcast and

NBC—a plan that is

now under review at …

the FCC. —K.B.

GE

TTY

IMA

GE

S



when I was there of the uniqueness and the import of that opportunity. Barack Obama had a very different background, but we shared that appreciation.”

After graduation, Genachowski clerked for Abner J. Mikva in the U.S. Court of Appeals for the District of Columbia (the position was offered first to Obama, who turned it down in favor of returning to work in Chicago and writing his book “Dreams from My Father”). Genachowski went on to clerk for two Supreme Court justices—William Brennan ’31 and David Souter ’66. At that point, in 1994, a typical path might have been to teach at a law school or work for a prestigious firm. But Genachowski instead chose the FCC.

“People thought it was a little strange. But I was interested in technology and I thought that communications technology was a world that was about to explode—and that was an explosion that you wanted to be near,” he says. He spent the next three years as a high-level legal adviser, eventually serving as chief counsel to Reed Hundt. As Hundt recalls, “Harvard and also the Supreme Court clerkships gave him a tremendous base of knowledge—he was really quite brilliant.” Back then, when the Internet was still in its infancy, digital communications—satellite radio, and digital mobile service and TV—were just becoming topics of conversation for the FCC. Genachowski was there for the first spectrum auctions, where the government sells off the rights to transmit signals over specific sections of the airwaves. (A decade and a half later, with the huge expansion of mobile devices and mobile Internet use, a looming spectrum crunch is one of the issues Genachowski is working to address.)

But according to Hundt, what really prepared Genachowski for his current job was not his time at the agency, but the decade he spent in the private sector, working in the nascent digital world—as an executive at IAC/InterActive, Barry Diller’s media and e-commerce company, and as a founder of an incubator for Web startups, among other positions.

Obama drew on that expertise during the 2008 campaign. Genachowski recognized the social networking power of the Internet and made a successful pitch to the candidate that he could and should use that power to his advantage. Many of the technology issues of the campaign—including a strong defense of net neutrality and the push to develop a national wireless system for emergency responders—have remained priorities under Genachowski at the FCC.

This past summer, the agency gathered

comments on its reclassification plan while meeting with stakeholders such as Google, Verizon, AT&T and the Open Internet Coalition to try to come up with an acceptable agreement on net neutrality. (The talks were called off in August, after Google and Verizon announced their own agreement. The two companies had long been in behind-the-scenes negotiations to come up with a mutually beneficial policy on net neutrality.) Genachowski moved forward on aspects of his agenda, including the most significant release of spectrum since the 1980s, to be used for extra-powerful Wi-Fi networks. But net neutrality and reclassification became such hot-button issues that the decisions on them have been delayed, and most likely will not be made until well after the midterm elections in November. While some of the FCC’s business can proceed without reclassification, much of it is dependent on re-establishing clear jurisdiction over broadband. According to Levin of the Aspen Institute, it’s not yet clear how the FCC will achieve that, but there’s a general recognition that broadband needs some level of government oversight. “I think at some point it’s either determined by the Court that there is some residual power, or Congress steps in and restores that power. There’s a great public interest in this being done by a government agency,” Levin says.

With the delay on reclassification and net neutrality, Genachowski has come under strong criticism from consumer groups advocating for an open Internet. One such critic is Aparna Sridhar, policy counsel at Free Press, a media-reform organization. “He’s doing a good job at gathering information and he recognizes the problems before him, but I think the issue is that solving them is hard. It requires potentially upsetting major interests, and it requires the stomach to do those things,” Sridhar says.

But Genachowski argues that coming to the right solutions takes time—and that the ongoing process of debate over how broadband should be deployed throughout the country and over how to keep the Internet open is essential for reaching those solutions. “One of the things that I’m proud of is that there are many issues now about our broadband future that are being discussed and debated. Some of these are hard, complex issues, but a year ago they weren’t being discussed,” he says. “We need to debate them to make the right decisions for the country.” P

Katie Bacon, a journalist and editor based in the Boston area, has written for The New York Times, The Atlantic.com and other publications.

“There’s a risk that the [FCC] chair simply serves the industry, and there’s a risk that the chair does not understand the needs and demands of the industry,” said Dean Martha Minow. “Julius is uniquely suited to understanding the industry perspective while keeping American needs at heart.”



from the West Wing

Three faculty who served in the Obama administration, and recently returned to HLS, talk about gridlock, being part of history, living life at warp speed and the day the Easter Bunny blacked out the White House

I N T E RV I EWS BY E L A I N E McA R D L E

STORIES

Meltzer Barron Freeman



Professor David Barron ’94, an expert in constitutional and administrative law and a member of the Clinton admin-istration, joined Obama’s team as act-ing head of the Office of Legal Counsel in the Department of Justice, where he worked for 18 months before returning to HLS this August.

Professor Daniel J. Meltzer ’75, a veteran of the Carter administration, joined Obama’s transition team to oversee the preparation of executive orders that might be issued soon after the president took office. At the request of his friend Chief White House Counsel Gregory Craig, Meltzer then accepted the posi-tion of principal deputy counsel to the president, committing for one year and remaining another four months to as-sist Craig’s successor, Robert Bauer.

Professor Jody Freeman LL.M. ’91 S.J.D. ’95, founding director of the school’s Envi-ronmental Law and Policy Program, served as counselor for energy and cli-mate change in the White House for more than a year, returning to Cam-bridge in the spring.

THE WORK THEY DID:professor daniel j.

meltzer ’75, principal deputy counsel to the president

“A significant part of the work consists of giving advice to the president and the White House staff about compliance with a large set of rules that govern some of their activities. Examples include compliance with conflict of interest and other ethical rules, restrictions on contacts with federal agencies, compliance with the Hatch Act and other rules regulating the appropriate bounds of political activity, and issues related to the Freedom of Information Act and the Federal Advisory Committee Act. The Counsel’s Office is also responsible for making recommendations to the president on individuals nominated as federal judges and U.S. attorneys. In addition, there is a huge volume of material that comes through the office—for example, draft communications to Congress about pending legislation, proposed testimony of government officials and draft remarks of the president—all of which are reviewed by someone in the office to be sure they don’t raise any legal questions. And then there are a broad set of hard and interesting issues—a range of national security matters relating to terrorism and detention policy, or questions about positions to take in controversial



litigation—in which we work with the Department of Justice to ensure that the government’s legal approach is consistent with the president’s program.”

professor david barron ’94, head of the Office of Legal Counsel

“Our office has to approve all executive orders for form and legality, as well as reviewing all the issues about setting up the government, such as appointment issues—both statutory and constitutional questions about who can be appointed and how they can be appointed. On top of that, there was all this pending litigation that the department had to deal with, the Harriet Miers litigation [concerning whether the former White House counsel

in the Bush administration could be required to appear before Congress or whether she instead had immunity] and all the pending Guantánamo litigation. And there were so many basic separation of powers issues already in court. And all the new legislation from the economic crisis—all that had to be reviewed. There was also a very ambitious legislative agenda, and we review it all.”

professor jody freeman ll.m. ’91 s.j.d. ’95, counselor for

energy and climate change

“Our office was responsible for advancing the president’s agenda on energy and climate change, and related environmental issues. This included advising the president on

the use of executive power by the EPA, DOE, DOI, DOT and other agencies to make progress on his goals; leading the White House team working on passing com-prehensive energy and climate legislation; and coordinating with the NSC and the State Department teams on the strategy for pursuing an international agreement in Co-penhagen. The issues we worked on in the office were incredibly di-verse—renewable energy, energy efficiency, transmission, biofuels, greenhouse gas regulation, green jobs—anything that related to the president’s agenda for the clean energy economy and for address-ing climate change. We played a key coordinating role on a number of issues—for example, the his-toric fuel efficiency standards set jointly by the EPA and the Depart-ment of Transportation.”

ON JUMPING RIGHT IN:meltzer: “After the inauguration, one walks into an entirely empty set of offices—no permanent lawyers, no assistants, no books, no memoranda—just desks, computers and empty bookshelves. Thus, each White House Counsel’s Office starts from scratch. The lawyers in the Bush administration’s Counsel’s Office were extremely helpful to us when we had questions, but to a certain extent you don’t know the right questions to ask until after you are already there. It’s a crazy way to run an important government legal office, but that seems to be the way it’s always been done. You can’t help but spend a certain amount of time reinventing the wheel.”

barron: “There was a small group of us who were there from Day One—this was before the attorney general was in, before the deputy attorney general was in—so the first day is basically walking down Constitution Avenue through the crowds into the building. A group of us took our oath after [the president] took his oath, and then right away there was a huge number of executive orders that were being issued. I think the ethics executive order, the

limitations on lobbying, that was the very first day, and the next couple of days later, the executive order on Guantánamo and on creating a detention task force, and a whole range of executive orders in the first few weeks.”

freeman: “Literally moments after my appointment was finalized, I started working from my garage office on a set of executive orders, in my yoga pants. Things were going a mile a minute, and this was before the inauguration. It was warp speed. I bought a BlackBerry, got on a plane, dropped my stuff in a hotel room and showed up for work. It was truly like leaping off a cliff. I had no idea how to do my job. No one explained it. I just started doing it.”

“As polarizing as thingsseemed, I’ve seen peoplewith different legalpriorities working togetheras hard as you couldpossibly work.” David Barron



MAJOR ACCOMPLISHMENTS: HOW DIFFERENT WAS THE WEST WING FROM LIFE AT HLS?meltzer: “I sometimes joke that the job is about 180 degrees different from being a law professor. Law professors work on a small number of things at one time, they pick their projects, they generally have a lot of relevant background knowledge about the matters they’re working on, they work on the substance apart from a complex political and institutional environment, they have enough time to work things through more or less to their satisfaction, they are free to talk about what they are working on, and no one is very interested. None of those things is true about the White House Counsel’s Office.”

freeman: “In a way, it was hugely different; in another way, it wasn’t. The pace was just totally different. There are only three speeds: urgent, emergency and immediately. And of course there is a political valence to everything that doesn’t exist here, so there are political imperatives that constrain the kind of policy options you can consider. At the same time, the substance, the laws and regulations, the interagency process, the governance system, is something I know well. So advising on that felt very familiar.”

meltzer: “Among

the things of which I am proud is the relationship that our office established with the Department of Justice, in which we sought to respect the department’s independence and our shared commitment to compliance with the law while also striving to ensure that the president’s views and concerns were given appropriate consideration when the administration was formulating its legal positions.”

barron [reflecting

on the negative publicity the Office of Legal Counsel garnered during the Bush administration, particularly for the “torture memos”]: “I think the main goal was I wanted the office to be thought of as operating in accordance with its best traditions, so it would be respected in the way it has been for most of the time of its operation.”

freeman: “One of the real accomplishments of our office was that we kept energy and environmental issues on the front burner even as the administration was tackling two wars, health care reform, financial regulatory reform, two Supreme Court nominations and a host of other issues. I

think our office played a critical role in helping the president to use his executive power effectively while at the same time moving the ball down the field on comprehensive energy and climate legislation. Even though it was unsuccessful in the Senate, getting the bill out of the House was at the time real progress, and all this was while coordinating the largest investment in clean energy in U.S. history, via the Recovery Act, which put about $90 billion into the clean energy sector. The experience with the fuel efficiency standards really exemplifies what can be done when everyone rows in the same direction—the first-ever greenhouse gas standards and the strictest fuel efficiency standards in U.S. history, announced by two agencies working hand in hand, with the support of the entire auto industry, states, labor and environmental groups. Plus, it involved a raft of litigation. The president was really pleased with the result because it was such a win-win-win. He said, ‘This is what I’m talking about.’”

March 20, 2010: Nancy-Ann DeParle ’83, director of the White House Offi ce of Health Reform, consult-

ing with Meltzer, while President Obama calls a member of Congress. The House passed the health

care bill the next day. Also present, from left: Robert Bauer, counsel to the president; Phil Schiliro,

assistant to the president for legislative affairs; Danielle Gray ’03, associate counsel to the president.

PE

TE S

OU

ZA



THE PACE WAS HOW INSANE?meltzer: “There was an exhilarating quality to the pace and the number of interesting issues that passed through, and the adrenaline was clearly flowing, but it was frustrating and sometimes a little bit frightening to have to provide legal advice under ridiculously short time constraints on issues of some complexity about which one didn’t feel as informed as one would like to be. It felt like an avalanche when I arrived, and the avalanche did not feel much smaller when I left. It’s just a huge, huge volume of business.”

barron: “The pace of the government seems extremely fast now. I would ask people who were in sub-Cabinet positions in the Clinton administration and were now working in the Obama White House, and they were all of the view that the pace of the government has quickened enormously. I think some of it is national security, maybe a lot of it, but there had also just been a big economic breakdown as well, and the war in Iraq and the war in Afghanistan, and the issues of terrorism—and that’s before you even get to the affirmative agenda.”

freeman: “There were times when I would literally run to the White House in the morning, partly out of exhilaration and partly out of fear. There was just this sense of relentless incoming to manage, and at the same time we needed to be pushing the positive agenda forward. The pace has an impact. Your body chemistry changes. You either lose weight or gain it. And your family just gives up on you. Routinely, I was on a computer with two BlackBerries going at the same time. I saw my mother only once, for a single day, during this experience, when I met her in New York City. We were walking through the Museum of Modern Art, and then we went shoe shopping, and I was on two BlackBerries the whole time. She has a photo of me in MoMA frantically typing on two BlackBerries. No art. No shoes.”

HOW POLARIZED IS WASHINGTON TODAY?

“There were times when I would literally run to the White House in the morning, partly out of exhilaration and partly out of fear.” Jody Freeman

meltzer: “It seems

much more partisan and nastier, and that was a source of enormous frustration. Whether you were talking about responding to the financial crisis, judicial nominations, or trying to respond sensibly to the threat of terrorism, it was just extremely difficult to find a basis for working things through in a cooperative and bipartisan way.”

barron: “I have to say that given that the president was being im-peached during a large portion of my time in the Clinton administra-tion, polarization seems to be a feature of our government. You could get pessimistic, I guess, but I have somewhat of an optimistic read on it. As polarizing as things seemed, I’ve seen people with different legal pri-orities working together as hard as you could pos-sibly work on the most challenging issues from a perspective of trying to get the law right. If that can happen, there’s a reason to be optimistic. There’s no doubt that it’s going on [extreme parti-sanship]—you can’t deny

it—I’m just saying it’s not the whole story. I think for young lawyers com-ing through, it’s a mistake to think the only options are to choose up sides.”

freeman: “It’s

very hard to get anything done without a supermajority, which makes big structural reform really challenging and frustrating. That said, the president got the Recovery Act through, he got health care done, he got financial regulation done, because the Democrats pulled together. The question is, Can the same thing happen with climate change and energy? You’d think that the [BP] oil spill would have put a punctuation mark on the need to transition to cleaner forms of energy that are less dangerous for the environment and for the public—that it would have added some impetus to getting a bill passed. It was very disappointing to watch Congress instead only wanting to deal in an immediate sense with BP. That was a perfect instance where something positive could have come from a tragedy. You think, If nothing else helps the case, why doesn’t this? But the focus was already turning to the midterm elections.”



FUNNY WHITE HOUSE MOMENTS:meltzer: “The president had a Christmas dinner for senior staff which featured the unlikely combination of Bon Jovi and the Rockettes as the entertainment.”

barron: “During the transition, all I had was my wife’s old BlackBerry, which didn’t have Internet service [Barron is married to Juliette Kayyem ’95, assistant secretary for intergovernmental affairs in the Department of Homeland Security]. It was just a phone, so that was my phone, and when I went to my first meeting for the transition, everybody whips out their BlackBerries and starts typing on them because an e-mail had just come in about some meeting, so I faked it—I pretended to type on it. I went home that night and said, ‘Juliette, we have to get this turned on because you obviously can’t operate in this city without one.’”

freeman: “There were all kinds of very funny moments. At the White House Easter Egg Roll, the Easter Bunny tripped over a wire and the power temporarily went out. I mean … power outage … in the White House ... due to Easter Bunny.

IMPRESSIONS OF PRESIDENT OBAMA:meltzer: “I arrived down there not really knowing the president, having only the smallest acquaintance with him from law school, so my sense of him was from having watched the campaign, but I was an enormous admirer. I left the White House being a still-greater admirer, which in some ways is surprising, because often when you have a chance to work at close range with someone, no matter how distinguished, his warts become more visible. But I thought he was a remarkably able, thoughtful, shrewd, wise and decent person, who was committed to trying to do the right thing in the extraordinarily difficult circumstances that he inherited. He also is a superb lawyer.”

barron: “I think he’s an exceptional leader and, from all that you can tell, has a much longer view of things than most people are capable of having. He’s also just an exceptional lawyer. We didn’t have that much interaction with him, but there have been a lot of great lawyers who worked in the Office of Legal Counsel, and I can’t imagine any that could have worked for a better lawyer than the current president.”

freeman: “He’s a very, very impressive person. It was really terrific to watch somebody who is so smart and strategic, so decisive and even-keeled. He also happens to really get our issues. I don’t know that any president before him has fully put it all together the way I think he does, in terms of the way the economic and energy challenges are related and represent an opportunity for the U.S. to gain a competitive advantage. And that always gives you hope, because if the guy at the top really understands this, then … ”

ON BEING PART OF HISTORY:meltzer: “I never got to the point where it didn’t feel a little bit special to be walking into the West Wing every morning.”

barron: “There is a shared spirit of good will, a very special environment, which makes it an unusually fulfilling experience for many people. It’s hard outside government to replicate that as a lawyer. In the adversarial system, you have your own team of lawyers. But it’s something distinct when the client is the United States of America.”

freeman: “I had a feeling the entire time I was there that I was part of something special. There are all these indications that you aren’t somewhere normal—the Secret Service, Marine One landing on the lawn, seeing this or that world leader wander into the West Wing. But beyond the atmospherics, the work was special. I loved the substance. I loved working with really smart, dedicated people, and I’ll always feel lucky I got a chance to contribute.”

Elaine McArdle is a Boston-area freelance writer.

ASS

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40 harvard law bulletin winter 2011 Photographed by asia kepka in paris, oct. 13, 2010

THE SHAPE

Thirty years ago, Laurent Cohen-Tanugi embraced internationalism by leaving France to attend HLS. Today, as a leading international lawyer and public intellectual, he is an architect of a European strategy for globalization.

BY E M I LY N EW BU RG E R


OF THE WORLD TO COME



In 1981, a young Frenchman attended Harvard Law School’s graduate program. Like many alumni, after he received his LL.M. degree, he worked for a firm in the States. When he went back to France, Laurent Cohen-Tanugi LL.M. ’82 be-came an associate at the Paris office of the firm, but he also published an elegant comparative analysis of the French and American legal and democratic traditions. The book, “Le droit sans l’État” (“Law without the State”), which was called “Tocquevillian,” influenced the transformation of the French idea of democracy and the legal profession, and it launched the 27-year-old’s career in France as a writer and intellectual.

Cohen-Tanugi has since written other books that articu-late the tensions facing France and Europe at different stages in their political and economic development, as well as the relationship between Europe and the U.S. in the globalized world. He also served as an adviser to the French govern-ment on issues related to the future of the European Union.

At the same time, Cohen-Tanugi is an international M&A and arbitration lawyer who has been involved in some of the major trans-Atlantic mergers of the last 25 years—as a partner at Cleary Gottlieb Steen & Hamilton, then Skadden, Arps, and as general counsel of a French pharmaceutical company. (In 2009, he taught a class at HLS on those deals and he is offering it this spring at France’s leading business school.) He now runs an independent practice in what he calls the traditional “trusted adviser” model.

HLS Professor Lucian Bebchuk LL.M. ’80 S.J.D. ’84 says of Cohen-Tanugi, whom he first met when they were both students at HLS: “He offers the rare and fascinating com-bination of a sophisticated corporate lawyer and a broad-ranging and prolific public intellectual. His intellectual body of work is a reflection of his passion for ideas, creativity and gift for writing.”

A graduate of the prestigious École Normale Supérieure and the Institut d’Études Politiques, Cohen-Tanugi decided to take a detour on the path to French civil service and ap-plied to study law in the United States. He saw it as a com-promise between “intellectual activity and real life.”

He was accepted to Harvard Law but hesitated. What sealed the deal, he says, were a few words from writer and international lawyer Samuel Pisar LL.M. ’55 S.J.D. ’59, a survivor of Auschwitz, who had written a highly acclaimed book about the experience and was practicing in Paris.

“When I finally got him on the phone,” recalls Cohen-Tanugi, “I explained my choice: Should I become a high-ranking civil servant or go to Harvard Law School? Without any hesitation, Pisar replied, ‘Go to Harvard Law School,’ and hung up the phone.”

“So I did, and it changed my life,” says Cohen-Tanugi. “I discovered what law meant in the United States—I mean, how different the role of law and lawyers in society, in poli-tics, in the economy were between the United States and France at the time.” His first book stemmed from that real-ization and was directly inspired by his Harvard experience. Cohen-Tanugi says people in France still want to talk to him about this book. He laughs, “I’ve since written eight more,

but this is the one they come back to most often.”

Many in France had very nega-tive views of the American legal system, Cohen-Tanugi says. He concedes that in some respects, they were justified. But in the book he argued that law and law-yers and legal regulation were central to American democracy. “In the ’80s, France was trying to reduce the role of the state, in the economy and in society,” he says. “It was the Reagan era and there was a lot of talk about the market as the solution.” Cohen-Tanugi argued that you can’t have the market alone; you also need the rule of law because you need to regulate the market. He made

the case that the way to reduce the role of the state in France was to encourage the rise of law and lawyers. “It was a mes-sage that was really new at the time,” he says, “and it’s the direction French democracy, and the legal profession, have followed over the past 20 years.”

Through his focus on France, Cohen-Tanugi began to write about Europe—first “as an interesting political science animal, something that was actually an embodiment of the ‘law without the state,’ the title of my first book,” he says, “because it was really a legal system without being a state.”

He wrote an essay (translated into English as “Europe in Danger”) on the political issues that he anticipated would arise as Europe moved toward unification. Two months after it came out in 1992, French President François Mitter-rand submitted the Maastricht Treaty—which created the European Union and would lead to the birth of the euro—to a referendum. This was a first, says Cohen-Tanugi. There had never been a referendum on a European treaty. “That prompted a huge national debate, a huge partisan campaign and the coming out of the anti-Europeans,” he says.

Jacques Salès LL.M. ’67, a Paris-based attorney, founder of Salès Vincent & Associés and former head of the Harvard Law School Association, has known Cohen-Tanugi for years. He remembers his visibility and eloquence on the issue of the referendum, at a time when French public opinion was highly divided. “There were many opponents,” Salès says, from many factions. “We did not know how it would go.”

“I found myself engaged in the campaign in favor of the treaty, taking a very pro-Europe stance,” recalls Cohen-Ta-nugi. “I met Jacques Delors [then president of the European Commission] and became part of the movement.

“From being an analyst of Europe as a political science concept, I became a European militant, if you will,” he says. “And I’ve remained that since then.”

For Cohen-Tanugi, that has meant a hard, clear-eyed look at the institution that he champions. In books, articles, and regular columns for French and international newspapers,

COHEN-TANUGI IS THE RARE

INTERNATIONAL CORPORATE

LAWYER WHO IS ALSO A BR0AD-

RANGING PUBLIC INTELLECTUAL



Professor Gráinne de Búrca

calls EU law “history in the

making, a process of integra-

tion that’s taking place and

changing before our eyes.”

When she fi rst taught the sub-

ject in Europe—at Oxford and

then the European University

Institute in Florence, Italy—it

was a question of interpreting

the region’s emergent law.

When the Irish scholar

came to the U.S. to teach—

fi rst at Fordham Law School

and this fall joining the faculty

at HLS—her angle changed.

Instead of the law of the land,

the EU represented a model of

the possible. “It’s the world’s

largest trading block,” says

de Búrca. “And despite the

fi nancial crisis, it’s still seen by

many as the most successful

example of regional economic

cooperation, emulated by

other regional organizations,

including ASEAN, the African

Union and Mercosur.”

States that had been at

war, on and off, for centuries,

“are now knotted together in

this ... incredibly complicated,

fi ne-grained, but, nonetheless,

working system of political

and economic governance.”

It’s a fascinating entity, she

says, as a trading power and

as a global political force in its

own right.

In her writing on the EU, de

Búrca is exploring its viability

and signifi cance as a model of

transnational governance, as

well as its emerging role as an

international actor.

The signing of the Maas-

tricht Treaty in 1992 marked

the creation of the euro,

but also, de Búrca says, “the

expansion of Europe’s ambi-

tions from being a project

of economic integration to

something explicitly political.”

This expansion did not come

without tensions. And in 2008,

the fi nancial crisis raised these

tensions to a whole new level,

she says.

Some people have gone

so far as to predict the end of

the euro and of the European

project itself. “I don’t believe

there is a real threat to the

future existence of the EU,”

says de Búrca, “but these are

very turbulent times.”

De Búrca believes that for

political elites, there’s little

risk of a loss of faith in the Eu-

ropean project. But she does

see a signifi cant disconnect

between these governments

and their citizens. And that

growing gap, she says, is what

is most likely to be destabiliz-

ing.

She also points to the trou-

bling wave of anti-immigrant

sentiment, which “cuts against

the ideals on which the EU

was founded.” It started well

before the French expulsion of

Roma this summer, she says.

Since the Eastern expansion

of the EU in 2004, there has

been a whole new anti-immi-

grant slant often couched in

nationalist rhetoric, aimed in

particular at migrant workers

from the newer member states

of Central and Eastern Europe,

as well as at non-EU nationals

more generally.

But at the same time as

these debates rage in individ-

ual states, de Búrca observes

that the web of policymaking

and governance and admin-

istration that links all of the

EU countries on a daily basis

is only getting stronger. And

most Europeans don’t realize

it. “Their sense of national

identity and sovereignty is far

stronger than the actuality of

how and where their laws and

policies are made.”

Many citizens don’t realize

how much their everyday life

is governed at a European

level, de Búrca says, until they

have a problem that calls for

government involvement. And

then it becomes clear just how

complex it is. “It’s not just a

case of writing to your local

MP, or to your town council,”

she says. “The position is much

more complicated. It’s increas-

ingly hard to point to an issue

that is uniquely national, or

uniquely European.” The local,

national and European levels

are increasingly meshed, she

says, in the making of policy

from family law to criminal

law.

In 2009, the Lisbon Treaty

came into force, after a decade

of failed struggle to enact a

constitution for Europe. The

treaty contains almost every-

thing that was in the rejected

constitutional treaty—all the

functional reforms, says de

Búrca, but with the symbol-

ism of “superstatehood taken

out.” For de Búrca, this omis-

sion speaks volumes about

member states’ ambivalence

toward the EU’s emerging role.

“On the one hand, they

want the EU to be a strong

global actor,” she says. “On the

other hand, there’s always a

fear of undermining the voice

and the status of the individu-

al states.” —E.N.

De Búrca studies the European Union as a model of transnational governance

LIVING HISTORY

Professor

Gráinne de

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he has addressed the challenges facing Europe since the signing of the Maastricht Treaty, as the EU has grown from 19 to 27 states “without institutional reform, a sufficient fi-nancial commitment, or popular consultation or support.”

In 2007, he wrote a book putting his concerns about Eu-rope in the bigger context of the global geopolitics of the 21st century. “Guerre ou paix,” titled in English “The Shape of the World to Come,” looks at how the rise of economic pow-erhouses such as China and India, the diminishing influence of Europe and the U.S., and the transformation represented by the attacks of 9/11, have created a new geopolitical reality with new power dynamics. He says it’s not a question of “the West against the rest.” But he believes that there is an im-portant role for Europe and the U.S., and that their ability to rise to the challenge is not a given. “For all their democratic shortcomings, China’s and even Russia’s ruling classes have demonstrated strategic vision and the leadership skills to bring about change and use globalization to restore national power,” he writes. “The long-run superiority of democratic government over authoritarian regimes to produce stable

… societies does not eliminate the need for political vision and cour-age.”

In 2008, he approached some of the same issues from a different angle. In anticipation of the French presidency of the EU, Christine Lagarde, the French minister of fi-nance, asked Cohen-Tanugi to lead a task force assessing the Lisbon Strategy—an economic growth and employment strategy for Europe launched in 2000, which called for structural reforms across countries to compete with the U.S. in terms

of productivity and innovation.For almost a year, Cohen-Tanugi traveled through Europe

holding interviews and staging debates. In the end, he says, the report his task force issued called for something more ambitious than was outlined in the original plan. “Beyond Lisbon: A European Strategy for Globalisation,” the report and a related book, came out just as the financial crisis broke. But Cohen-Tanugi says the central theme is more rel-evant than ever. “Europe has to upgrade its ambition and its means to cope with globalization in a meaningful way.”

In late August, when the Bulletin interviewed Cohen-Ta-nugi, talk of reforms to France’s retirement system had been in the news all summer, and he predicted demonstrations would break out after people got back from their holidays. Sure enough, in the fall, after the French government voted to increase the retirement age from 60 to 62, Parisians took to the streets, and strikes spread across the country. Cohen-Tanugi believes changes to the entitlement system through-out Europe are necessary and inevitable. “There is a moment of social protest in this country,” he says, “but it will happen, because everyone knows that it has to. There is only a debate as to the modalities.”

Another debate that had been raging in France this sum-mer centered around immigration. French President Nicolas Sarkozy’s government issued orders to expel more than 100 Roma. There also had been talk of stripping French citizen-ship from naturalized citizens if they threatened or took the life of a police officer.

Cohen-Tanugi says when it comes to immigration, France is in a “gloomy” period. “We haven’t been successful at in-tegrating immigrants and making them part of society,” he says. And in the suburbs, in particular, this had led to vio-lence.

“There’s this whole debate right now in France about national identity, immigration and security. It’s been very politicized,” he says, “with extreme right tonalities.”

The situation is all the more challenging, he adds, because “Europe needs immigration. We have a demographic decline and an aging workforce. We will not be able to remain compet-itive and have the workforce we need without immigration.”

Much of Cohen-Tanugi’s writing focuses on, or at least engages with, the issue of trans-Atlantic relations (their recent low point was the topic of “An Alliance at Risk: The United States and Europe since September 11”).

“French and Americans have a very ambivalent relation-ship of love and hate,” he says, “or at least admiration and irritation, that is very strong, certainly among the French,” he laughs. But there are lots of commonalities, he adds. “The two countries were at the heart of the revolution of modern democracy. It’s really two democratic traditions in competi-tion.”

In foreign policy, he says, “the Gaullist tradition in France, which has influenced Europe, was really just to as-sert French independence against the U.S.” On the European level, it’s less confrontational. “But essentially one of the ele-ments of trying to build a European identity is to distinguish from the U.S. in terms of values.” He adds that there are cer-tainly important differences between U.S. and European so-ciety in terms of the role of the state and the existence of the social safety net, for example. “But there’s been a temptation to raise the profile of these differences here without really knowing the United States very well. It can be overblown and create unnecessary conflict. That happened during the Iraq war,” he says. “The difference in values was really exag-gerated when you compare it to the common interests, the huge weight of the trans-Atlantic economy.”

“I am seen as an Atlanticist—that’s true,” he says, “but I happen to also be a proponent of European integration. I see no contradiction in wanting a strong Europe that is allied to the United States.”

In 1983, Cohen-Tanugi married American Jodie Einbinder ’82, whom he met in antitrust class. She now works in the French Ministry of Economy and Finance and for many years was a partner and corporate lawyer at Salès Vincent & Associés in Paris. They have two sons who are attending col-lege and graduate school in the States.

But Laurent Cohen-Tanugi says his inclination to see himself as part of something bigger than France goes beyond his connections to the U.S. Born in Tunis, he is from a Jewish

“I SEE NO CONTRADICTION

IN WANTING A STRONG EUROPE

THAT IS ALLIED TO THE UNITED

STATES.”



family that had lived in Tunisia, at least on his father’s side, since the 17th century, after the Inquisition drove his ances-tors out of Spain.

He thinks his background influenced him in wanting to have a more international career, outside of just one state, just one national framework. That goes back to “the environ-ment I grew up in,” he says, “the cosmopolitan atmosphere of Tunis,” the Mediterranean mix of cultures and religions, and “the values that my parents instilled.”

From early on, after hearing the stories told by his par-ents and grandparents, Cohen-Tanugi formed very positive

images of Americans as liberators. He also grew up with the idea of Europe as a product of World War II—an answer to the era’s atrocities and a way to end the continent’s en-trenched rivalries.

Many of these influences may have been unconscious. “But to me, Europe is about transcending nationalism,” says Cohen-Tanugi. “I think without the European project, it would feel really provincial to live in France or in most of the other member countries, if we didn’t have the European dimension to really have a say in the global world. And that’s what I’m advocating for, that we haven’t gone far enough.” P

The global economy is alarm-

ingly vulnerable to private

contractual obligations and

property arrangements. That’s

one lesson from the credit

market freeze that cascaded

into Europe’s fi nancial crisis.

Another lesson: The state is

back. Even those most enthu-

siastic about economic global-

ization have turned to their

national state for bailouts and

regulatory protection.

“When private law can be

a form of global governance

and local rules can have global

consequences,” says HLS

Professor David Kennedy ’80,

“politics and economics take

place on different scales in

different institutions, making

it terribly diffi cult to under-

stand the workings of global

policy. Just how are we now

governed?”

That’s the basic question

behind HLS’s Institute for

Global Law and Policy, of

which Kennedy is director.

Formerly the European Law

Research Center, the institute

was renamed last year to

refl ect its broader research

scope and to engage the

increasingly legalized and

disaggregated nature of global

governance across a range

of issues, from humanitarian

action and war to poverty, risk

management and economic

development. Kennedy says

each of these issues is also a

legal regime: “We need to un-

derstand that even things we

don’t like—war, inequality, un-

derdevelopment—have legal

roots.” Yet the laws governing

these issues come not from

a single source—such as the

UN—but from various national

and subnational governments

and institutions. Therefore,

Kennedy says, “We must look

for disaggregated solutions.”

To that end, IGLP’s theoreti-

cal work centers on develop-

ing better maps of the global

legal order to improve the

range of possible solutions.

Environmental protection,

for example, may be more

fruitfully tackled by cities

working together—or

by collaboration among

military forces—than

by the search for global

treaties and intergovern-

mental agreement. The

institute is committed to

bringing fresh thinking

and new perspectives

to discussions of global

policy—particularly by

encouraging “voices from the

periphery,” as Kennedy puts

it, including the perspectives

of scholars from such places

as Russia, Egypt, Colombia,

Thailand, Brazil, China, South

Africa and India. The institute

also promotes networking

among scholars around the

world.

So far this year, the insti-

tute has secured important re-

lationships with sponsors and

funders, and has developed a

network of scholars, many of

whom serve on IGLP’s Honor-

ary, Advisory and Academic

Councils. It also launched its

signature program: a 10-day

workshop for young scholars

and policymakers from around

the world. The June 2010

workshop, which focused on

global policy in the aftermath

of the fi nancial crisis, drew

more than 80 participants

from more than 35 countries.

This fall’s events included

a seminar on mergers and

acquisitions in the context of

the fi nancial crisis, and current

developments in EU and U.S.

antitrust law.

The 2011 conference next

June, co-sponsored by the

School of Oriental and African

Studies (University of London),

the Bernard and Audre Rapo-

port Center for Human Rights

and Justice (University of

Texas) and the Sciences Po Law

School (Paris), will introduce

a series of seminars. These

will bring scholars together

as they advance their work

toward publication.

“The range of solutions

that have been developed

for global challenges from

poverty alleviation to security

has been far too narrow,” Ken-

nedy says. And that’s why, he

believes, it is important for

Harvard to have inaugurated

this collaborative institute for

thinking about global policy

problems in new and untradi-

tional ways. —Jeri Zeder

MAPPING THE NEW GLOBAL ORDERHLS institute seeks to broaden the solutions to global challenges

ASI

A K

EP

KA

Professor David Kennedy ’80



SHARON E. JONES ’82, the new president of the HLSA, on her goals for the association

CONNECTIVITY | How to stay in touch with HLS

HLS CONNECT Share your expertise with students

and other grads through the online advising network.

You can also take advantage of the online directory

and get access to job databases in the public and

private sectors: https://hlsconnect.com/.

CLASS NOTES Submit your news for the Harvard

Law Bulletin to http://www.bit.ly/sendyournews.

FACEBOOK Get your news from campus at http://

www.facebook.com/harvardlaw

and follow HLSA events around the world at

http://on.fb.me/HLSAfacebook.

TWITTER Receive HLSA event announcements by

signing up at http://twitter.com/hlsa.

The focus of the Harvard Law School As-sociation over the next two years will be building awareness and engagement among alumni on a global basis. My mantra is “One World, One HLSA.” We work collaborative-ly with local associations that focus on events for students and alumni in their own cities. Over the next two years, we intend to build upon our global initiative so that alumni and students can more easily connect with each other around the United States and around the world. We are also launching these pages

as a regular feature of the Harvard Law Bulletin.

During the next two years, we will work hard to support exist-ing affi nity initiatives, such as our upcoming Celebration of Black Alumni (September 2011). We are launching a new initiative, a global women’s network, that will connect HLS alumnae throughout the world. It will begin in Chi-cago and Washington, D.C., and expand based upon interest. In addition, we will begin focusing on our senior alumni (alumni who graduated before 1965) through

an initiative that will provide special programming during reunion weekends as well as through local associations. We will also continue with our new alumni programming (for recent grads) and outreach to current students.

The Harvard Law School Association was founded in 1886 and will celebrate its 125th anniversary during my term. There will be dinners and receptions around the world over the next 12 months, beginning in December 2010. Please plan to attend as many events as possible. I look forward to celebrating with old friends and new. ø

Sharon E. Jones ’82 became president of the HLSA in June 2010. She is president of O-H Community Partners in Chicago.

CONNECTHLS

KARA ROSEEN

’09, Whitney Washington ’09 and Talhia Tuck ’10 were among the more than 300 people who attended the gathering of the HLSA of the District of Columbia, Virginia and Maryland.

HLSA snapshot

➽

CLASS NOTES

HUNDREDS OF ALUMNI attended HLSA events across the country this spring, and Dean Martha Minow spoke at many of them. She’s pictured {far right} with Bryan Cressey ’76 and Christy Cressey at the Harvard Law Society of Illinois reception in Chicago.

HLSA news


winter 2011 harvard law bulletin 47harvard law bulletin 47

A self-proclaimed “political

junkie,” Bryson Morgan ’11 worked after college for the Utah Democratic Party and saw firsthand the influence special interest groups and lobbyists can have on the political process. In part, he came to HLS out of a desire to address the ethical issues that arise out of this influence.

At the end of his fi rst semester, Morgan expressed his interest in ethics and working on Capitol Hill to Alexa Shabecoff at HLS’s Bernard Koteen Of-fi ce of Public Interest Advising. She put him in touch with Leo Wise ’03, who

had just been selected to head the Offi ce of Congres-sional Ethics in the U.S. House of Representatives. Wise and Morgan had an instant connection, and Morgan was off ered a sum-mer position at the offi ce.

“In my initial meeting with him ... I realized Bryson was a remarkable person and lawyer,” Wise comments. “Over the summer, he immediately

stepped into investiga-tions. He was doing the same work our staff attor-neys were doing.”

In Wise, Morgan found a mentor and role model. “Leo is always the fi rst per-

son I call to get advice,” he says. “He’s been a pleasure to work with and is someone I clicked with personally. He has this aura of honesty and integrity, and is a great example of the type of lawyer I’d like to be.”

For Wise—who announced in Octo-ber he was joining the U.S. Attorney’s Offi ce for the District of Maryland—his love of mentoring is a manifestation of his passion for public service: “Public service is so incredibly exciting and satisfying. You just want to talk to peo-ple about how important it is, encour-age them and inspire them to pursue it. As a mentor, you can use your experi-ences to educate the next generation and connect them to your network.” ø

“ YOU CAN USE YOUR EXPERIENCES TO EDUCATE THE NEXT GENERATION”An HLS mentoring success story

Whatever your fi eld of practice, share your expertise and insight with students through the Alumni Advising Network at https://hlsconnect.com/

Dec. 8, 2010

HLSA of Northern CaliforniaReception with Dean Minow Bingham McCutchen San Francisco

Dec. 9, 2010

HLSA of Northern California Reception with Dean MinowLatham & WatkinsMenlo Park

Feb. 11, 2011

HLSA of San DiegoJerry Lovejoy ’78, general counsel, El Pollo LocoUniversity Club Atop Symphony Towers San Diego

Feb. 15, 2011

HLSA of Florida

April 8-10, 2011

Spring Reunions WeekendClasses of 1961, 1971, 1976, 1986, 2001, 2006 Harvard Law School Sept. 16-18, 2011

A Celebration of Black Alumni IIIHarvard Law School

CALENDAR

Join the HLSA for celebrations in Miami, D.C., San Francisco, To-ronto, Paris, Krakow, Cairo and other cities in the U.S. and around the world.

For more information on an event near you, check our calendar at http://bit.ly/hlsaeventscalendar

Help us celebrate ...

Looking forward to seeing you!

➽

The Harvard Law School Association is turning 125!

MENTOR AND MENTEE: From left, Leo Wise ’03 and Bryson Morgan ’11

l For the latest on Harvard Law School Association events, go to http://bit.ly/hlsaeventscalendar or call 617-384-9523.



CLASS NOTESSEND US YOUR NEWSAlumni updates may be e-mailed to [email protected]. Deadline for the next issue: march 1

circa the 1950s: A pair of HLS students takes advantage of

an empty classroom—lined with the faces of luminaries

from the past—to dutifully outline cases on negligence

(you remember—what duty of care is owed, and to

whom?). We could have captioned this photo “Pair, Duty,

Torts.” Instead, we chose an anagram of that caption.

Perhaps you wordsmiths can figure it out! answer on p. 52.

1940 bentley kassal wrote that he gave talks at Oxford University and at Skadden, Arps, Slate, Meagher & Flom’s London of-fice on May 10 and 12 about his World War II experiences and his career. He also spoke about the changes in New York law prac-tice in the 70 years since his admission to the bar. That same month, he was honored in Cambridge, Mass., as a member of the Harvard Rugby Football Team on the oc-casion of the 70th anniversary of the 1940 team’s undefeated championship title in the Eastern Rugby League.

1942 Dean Emeritus at the University of Connecticut School of Law phillip i. blum-berg reports the publication of “Repres-sive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law” (Cambridge Uni-versity Press, 2010). Blumberg wrote that his book “examines how the political ideals of the American Revolution were under-mined by the adoption of the repressive legal doctrines of the English monarchial system. Freedom of speech was dramatically confined, and the repressive jurisprudence remained unchallenged by the courts until well into the 20th century.”

1943 bob langworthy wrote: “I am still practicing law at age 91 and enjoying what I do. I am living in a retirement home but go-ing to the office five days a week. Three and a half years ago, I lost my dear wife, Betty, whom I miss greatly. I have three children, four grandchildren and five great-grand-children.”

1948 george w. mcmanus jr. received the Executive Director’s Award at the Equal Justice Council’s 13th annual awards and recognition breakfast in May. The event, held at Camden Yards, honored the work of the Maryland Legal Aid Bureau and Equal Justice Council. McManus is a lawyer, writ-er, boater and supporter of Maryland Legal Aid. He served as project director of Legal Aid’s Baltimore office, assisting with many aspects of the creation of a law office for the poor and disadvantaged.

1951 In March, samuel k. lessey jr. was elected head of the Dwight D. Eisen-hower Society’s board of trustees. Located in Gettysburg, Pa., the society promotes the memory and legacy of the 34th president of the United States through educational programs, scholarships and special events.

HLS

HIS

TOR

ICA

L A

ND

SP

EC

IAL

CO

LLE

CTI

ON

S

48_69_HLB_Winter11_07_r1.indd 48 11/17/10 12:20 PM


c l a s s n o t e s

Lessey served in the U.S. Air Force for 38 years, retiring as a brigadier general. Presi-dent Ronald Reagan appointed him director of the Selective Service System and inspec-tor general of the U.S. Synthetic Fuels Corp. He is a former vice president and director of the National Aviation Corp. and vice presi-dent of Shearson, Hammill & Co.

“A Window in Time: Merrimack Farm-ers’ Exchange in Crisis and Transition” by charles f. sheridan is a book about the elimination of a farmers’ co-op after more than 50 years of successful operations in New Hampshire. Sheridan is senior counsel to the New Hampshire law firm Sulloway & Hollis, specializing in corporate law as well as trusts and estates.

1952 john m. geaghan was named a Chevalier of the Legion of Honor by the president of France, Nicolas Sarkozy, in 2009. The then consul general of France, Pierre-François Mourier, presented Geaghan with the medal during a private ceremony in San Francisco, which was at-tended by his wife, Maureen; his daughter, Sharon; and her husband and their four daughters.

The American Institute of Certified Pub-lic Accountants created the sidney kess Award for Excellence in Continuing Educa-tion to recognize individual CPAs who have made significant contributions in tax and financial planning. Kess is a renowned tax expert, attorney, lecturer and author.

The American Inns of Court’s 2010 Pro-fessionalism Award for the Sixth Circuit was awarded to mark o’neill in May. This award is presented biannually to honor a senior practicing judge or lawyer whose life and practice display excellent charac-ter, integrity and dedication to the highest standards of the legal profession. O’Neill is a partner at Weston Hurd in Cleveland.

1953 murray drabkin has been reap-pointed by the governor of Maryland to the board of visitors and governors of Washing-ton College. Founded in 1782, Washington College, in Chestertown on Maryland’s east-ern shore, is one of the nation’s oldest liberal arts colleges. Drabkin noted that “George Washington served on the college board un-til he became president of the United States in 1789, but I caution against drawing any further inferences.”

david landau has retired from the ap-pellate division of the New Jersey Superior Court. Previously, he served as supervising judge of the court’s Civil Appeals Settlement Program and presiding judge of the Megan’s Law Appeal Panel. He is of counsel with the Newark firm Hellring Lindeman Goldstein & Siegal, where he worked prior to his ap-pointment to the bench.

1954 roger pugh and his wife, Joanne Sacco Pugh (A.B. ’54), were elections ob-servers for the Organization for Security and Co-operation in Europe in the munici-pal elections in the Republic of Georgia on May 30. Pugh continues to be the primary U.N. representative for Lawyers Without Borders and to audit courses at Hunter Col-lege.

1955 daniel gutterman taught busi-ness transactions and law at Innovative University of Eurasia in Pavlodar, located in Kazakhstan, in March and April.

1956 allan mendelsohn ll.m. wrote an article published in the May 2010 edi-tion of The Federal Lawyer titled “Judicial Restraint in International Law.” The article “addresses two significant and so far un-explored questions in today’s practice of international law: (1) why it is so important that courts throughout the world exercise judicial restraint when faced with issues of international law; and (2) what the U.S. gov-ernment is doing to contribute toward this goal.” Mendelsohn practices law with Sher and Blackwell in Washington, D.C., and is an adjunct professor of international trans-portation law and of transnational litigation at the Georgetown University Law Center.

1957 maurice s. binkow was appointed to the board of Gift of Life Michigan in Ann Arbor, an organ and tissue recovery organi-zation. He is a partner in Honigman Miller Schwartz and Cohn’s real estate department in Detroit.

1959 On May 3, the Montgomery County Housing Conference presented its annual paul sarbanes ’60 Community Service Award to charles l. edson, citing his work in establishing a Section 8 afford-able housing program, which has provided housing for more than 1.5 million lower-income Americans.

1960 frederick d. lipman wrote “The Family Business Guide” (Palgrave Macmil-lan, 2010), a book of practical advice on best and worst practices for family businesses, covering topics including succession plan-ning, corporate governance, compensation strategies, sale of the family business and IPOs. Lipman is a senior partner in Blank Rome’s Philadelphia office.

1961�50th Reunion April 8-10, 2011

1963 In August, peter a. winograd became a member of the board of governors of the American Bar Association. He is serv-

ing a three-year term with 37 other board members, helping to oversee administration and management. Winograd is professor emeritus and former associate dean at the University of New Mexico School of Law in Albuquerque. He also previously was a di-rector of law programs with the Educational Testing Service in New Jersey, and he was an administrative dean and director of admis-sions at Georgetown University Law Center and New York University School of Law.

1964 Wealth Manager magazine has named tamar frankel ll.m. s.j.d. ’72 one of the Top 50 Women in Wealth. Frankel is a professor at Boston University School of Law and is co-author of “Law and the Financial System—Securitization and Asset Backed Securities: Law, Process, Case Stud-ies, and Simulations” (Vandeplas Publish-ing, 2009), written with Mark Fagan. Fran-kel teaches and writes in the areas of mutual funds, securitization, financial system regu-lation and corporate governance.

The Delaware Valley Regional Planning Commission recognized joseph m. manko for his outstanding leadership and commit-ment to the region at its 9th Annual Celebra-tion of Regional Excellence in May. Manko is one of the founding partners of Manko, Gold, Katcher & Fox in Bala Cynwyd, Pa.

1965 rosine lorotte ll.m. wrote that she is part of a group of LL.M.s and their spouses who have met annually in a differ-ent country since 1966 “during the Whit-sun weekend.” This year their reunion was held in Avignon, France. The group was made up of Lorotte, lieve craenen, tsuneo okuyama, jean russotto, jenö staehelin, dieter von schulthess and altamiro boscoli.

benjamin i. page co-wrote “Living with the Dragon: How the American Public Views the Rise of China” (Columbia Uni-versity Press, 2010). He is the Gordon Scott Fulcher Professor of Decision Making at Northwestern University. He also co-wrote “The Foreign Policy Disconnect” and “The Rational Public.”

1966 h. john rogers was invited to present his paper titled “Joseph A. Yablon-ski: Union Insider, Rebel Candidate, Murder Victim: His Legacy” at the 33rd annual Con-vention of the International Psychohistori-cal Association at Fordham University. Rog-ers is an attorney in New Martinsville, W.Va.

The American Jewish Committee Los Angeles 2010 Community Service Award was given to michael umansky in May. Formerly managing partner of the Los An-geles office of Stroock & Stroock & Lavan, he is now vice president, general counsel and secretary of Motorcar Parts of America.

48_69_HLB_Winter11_07.indd 49 11/15/10 3:11 PM


DICTUM ➽ WILLIAM BRENNAN ’31 AND HIS COMPLICATED RELATIONSHIP WITH HARVARD LAW SCHOOL

Marshaling Brennan

SETH STERN ’01, a

legal affairs reporter for

Congressional Quar-

terly, recently completed

“Justice Brennan: Liberal

Champion” (Houghton

Miffl in Harcourt, 2010)

with Stephen Wermiel.

The biography weighs in

at more than 500 pages,

and included among

them is the story of Bren-

nan’s brief disaffection

with HLS and the thaw

that ended it, an episode

described by Stern below.

THE REACTION FROM Harvard Law School was

decidedly cool 54 years

ago when President

Eisenhower appointed its

alumnus William J. Bren-

nan Jr. ’31 to serve on the

Supreme Court.

Few were more

surprised by the choice

of this little-known New

Jersey judge than his law

school classmate Profes-

sor Paul Freund ’31 S.J.D.

’32 and the man who had

taught them both: Justice

Felix Frankfurter LL.B.

1906.

Embarrassed to have

been quoted by the

Harvard Law Record pre-

dicting Brennan would

become a “great justice,”

Freund privately wrote

Frankfurter, “I can only

hope that my spurious

prediction will turn out

to be one of those self-

fulfi lling prophecies.”

Frankfurter harbored

his own misgivings

about Brennan, who was

not among the favorite

students he had invited

to join his seminars and

Sunday teas or later

funneled to New Deal

agencies after his friend,

Franklin D. Roosevelt,

became president.

The tepid reactions

from Freund and Frank-

furter ushered in what

proved to be a rocky fi rst

decade in the relation-

ship between Harvard

Law School and its sev-

enth alumnus to join the

nation’s highest court.

Things went well at

fi rst, particularly when

Brennan opted to follow

Frankfurter’s advice and

enlist Freund as his sole

supplier of law clerks.

Frankfurter could con-

ceive of no other source.

“If you want to

get good groceries in

Washington, you go to

Magruders,” Frankfurter

once explained. “If you

wanted to get a lot of

fi rst-class lawyers, you

went to the Harvard Law

School.”

But Frankfurter grew

increasingly disenchant-

ed with his

former pupil’s

direction

as Brennan

aligned with

the bloc of

liberals.

Brennan

joked about

Frankfurter’s disappoint-

ment during a speech at

the Harvard Law Review’s

annual banquet in April

1959. “I was a student of

Professor Frankfurter,”

said Brennan. “And when

we disagree on the

Court—perhaps you have

noticed that this hap-

pens not infrequently—

he observes that he has

no memory of any signs

in me of being his prize

pupil.”

A few months later,

their confl ict spilled

out in the pages of the

Harvard Law Review,

where Henry Hart, a

leading constitutional

scholar and longtime

Frankfurter disciple, criti-

cized one of Brennan’s

recent opinions.

Brennan mostly took

Hart’s criticism in stride,

just as he had when

Harvard Law School’s

admissions committee

rejected his son in 1955.

Brennan still accepted

an invitation in 1962

to judge HLS’s moot

court competition, and

he spoke at the

Legal Aid Bureau’s

50th anniversary

banquet the fol-

lowing year.

Brennan had

never viewed

the school with

Frankfurter’s

reverence. He enjoyed

recounting the story of

his fi rst appearance in a

New Jersey courtroom

as a young lawyer, when

the judge presiding over

the case mocked him for

using words a witness

could not understand.

“You see, he’s a Harvard

graduate and he doesn’t

speak English,” the judge

said.

But Brennan could

not forgive his alma ma-

ter when he was passed

over for a seat on the

school’s Visiting Commit-

tee in 1963 in favor of his

colleague John M. Harlan.

Dean Erwin Griswold

’28 S.J.D. ’29 later said no

slight was intended; the

school simply wanted to

fi ll the Visiting Commit-

tee with men of “varied

backgrounds.”

Brennan did not see

it that way. He never said

anything about his hurt

feelings to Griswold or

anyone else on Harvard

Law’s faculty, but he

shared his disappoint-

ment with his clerks.

“It was a case of

Harvard picking its ideo-

logical heir rather than

one of its own sons,” said

Stephen J. Friedman ’62,

who clerked for Brennan

during the October 1963

term.

Brennan later told

the book’s co-author,

Stephen Wermiel, that

there was no connection

to the perceived slight,

but in April 1965 he in-

formed Professor Freund

that, after nine years,

his role—and Harvard’s

“I WAS A STUDENT OF PROFESSOR FRANKFURTER,” SAID BRENNAN. “AND WHEN WE DISAGREE ON THE COURT ... HE OBSERVES THAT HE

HAS NO MEMORY OF ANY SIGNS IN ME OF BEING HIS PRIZE PUPIL.”

Seth Stern



monopoly—in supplying

law clerks was coming to

an end.

By April 1966, word of

Brennan’s disaffection had

reached Griswold, who ex-

tended an invitation to join

the Visiting Committee.

Griswold also approached

Professor Frank Michelman

‘60, the fi rst clerk of Bren-

nan’s to join the Harvard

Law faculty, looking for a

way to honor the justice,

and then settled on the

idea of commissioning a

portrait, which was un-

veiled during a weekend-

long celebration in 1967.

A few months later,

Brennan returned to cam-

pus as a featured speaker

at the school’s 150th an-

niversary celebration. “The

school has not been con-

tent to rest on memories

of a Golden Age—an age

of giants, now legendary,”

Brennan said. “After 150

years, I sense no lessening

of vitality. Indeed, I am

confi dent that the school’s

great days are still before

it.” P

Seth Stern ’01 has been a

legal journalist since he grad-

uated from law school. Below

he takes his turn answering

the questions.

How did you come to work

on this book? My co-author,

Steve Wermiel, who was then

covering the Supreme Court

for The Wall Street Journal,

started this biography in 1986.

After years of research, in-

cluding 60 hours of interviews

with Justice Brennan, Steve

was looking for a partner by

2006 and sought out a fellow

lawyer-journalist. Given the

exclusive access Justice Bren-

nan had granted Steve and

the interviews he had con-

ducted, this really was a once-

in-a lifetime opportunity.

What have you learned

about Justice Brennan that

surprised you most? I am

particularly fascinated by the

tensions between Brennan’s

personal views and some of

the positions he took as a

justice. There is this notion

that he was a liberal activist

who wrote his personal pref-

erences into law. In fact, no

one infuriated this champion

of press freedoms more than

reporters. He wrote seminal

women’s rights decisions in

the 1970s even as he refused

to hire female clerks. He per-

sonally opposed abortion but

signed on to Roe v. Wade after

helping lay the groundwork

for it in prior decisions.

How do Americans

remember him? I’m struck

by Brennan’s enduring

relevance 20 years after his

retirement. After President

Obama took offi ce, liberals

invoked Brennan as just

the sort of passionate and

persuasive justice they want

on the Court. Law students,

who were toddlers when he

retired, post messages on

Twitter holding him up as

their hero. But it’s also true

that progressive legal schol-

ars have become increasingly

uneasy with Brennan’s vision

of a “living Constitution.”

Liberals are still groping for

an alternative that resonates

with the public as well as the

brand of judicial restraint so

effectively marketed to the

public by conservatives.

Are there issues where

you found yourself disagree-

ing with Brennan?

We sought to write the

book down the middle, and

there are a number of places

where I took issue with Bren-

nan’s approach. I came to

question how much he relied

on human dignity as the value

underlying his death penalty

dissents and other decisions.

But I also came to admire

Brennan deeply for the way

he applied the concept of

human dignity in his own

life. He treated everyone at

the Court—including the

maintenance staff and police

offi cers—with the same

respect and affection.

How has writing this book

infl uenced the way you think

about today’s

Court? I’ve learned that

the Supreme Court is an in-

stitution where change often

comes slowly. It was six terms

before Justice Brennan’s

bloc of liberals got their fi fth

vote after Arthur Goldberg

replaced Felix Frankfurter in

1962. That’s when Hugo Black

fi nally could turn a quarter

century’s worth of dissents

into majority opinions. Except

in those instances where

a new justice dramatically

alters the Court’s ideologi-

cal balance, I don’t think it’s

realistic to expect a new

arrival such as Elena Kagan to

come in and shift the Court’s

direction.

“One measure of Brennan’s job satisfaction was his answers to a Harvard Law School survey mailed to alumni in November 1966. For the question, ‘Are you satisfi ed with your present work?’ Brennan checked ‘Very satisfi ed’—the highest rating. When asked what satisfi ed him in his work, Brennan marked off ‘subject matter,’ ‘intellectual stimulation,’ ‘independence,’ ‘people with whom I work,’ ‘variety of work,’ ‘organization for which I work,’ and ‘importance of problems.’ He did not check ‘high prestige of profession,’ ‘helping people,’ ‘high income’–or, least surprisingly, ‘opportunity for advancement.’” From “Justice Brennan: Liberal Champion”

QUESTIONING the QUESTIONER

SETH STERN ’01 has been a legal

journalist since he graduated from

law school. Below he takes his turn

answering the questions.

How did you come to work on this book?

My co-author, Steve Wermiel, who

was then covering the Supreme Court

for The Wall Street Journal, started

this biography in 1986. After years

of research, including 60 hours of

interviews with Justice Brennan, Steve

was looking for a partner by 2006 and

sought out a fellow lawyer-journalist.

Given the exclusive access Justice

Brennan had granted Steve and the

interviews he had conducted, this really

was a once-in-a-lifetime opportunity.

What have you learned about Justice

Brennan that surprised you most?

I am particularly fascinated by the

tensions between Brennan’s personal

views and some of the positions he took

as a justice. There is this notion that

he was a liberal activist who wrote his

personal preferences into law. In fact,

no one infuriated this champion of

press freedoms more than reporters. He

wrote seminal women’s rights decisions

in the 1970s even as he refused to hire

female clerks. He personally opposed

abortion but signed on to Roe v. Wade

after helping lay the groundwork for it

in prior decisions.

How do Americans remember him?

I’m struck by Brennan’s enduring

relevance 20 years after his retirement.

After President Obama took offi ce,

liberals invoked Brennan as just the sort

of passionate and persuasive justice

they want on the Court. Law students,

who were toddlers when he retired,

post messages on Twitter holding him

up as their hero. But it’s also true that

progressive legal scholars have become

increasingly uneasy with Brennan’s

vision of a “living Constitution.” Liberals

are still groping for an alternative

that resonates with the public as well

as the brand of judicial restraint so

effectively marketed to the public by

conservatives.

Are there issues where you found

yourself disagreeing with Brennan?

We sought to write the book down

the middle, and there are a number

of places where I took issue with

Brennan’s approach. I came to question

how much he relied on human dignity

as the value underlying his death

penalty dissents and other decisions.

But I also came to admire Brennan

deeply for the way he applied the

concept of human dignity in his own

life. He treated everyone at the Court—

including the maintenance staff and

police offi cers—with the same respect

and affection.

How has writing this book infl uenced

the way you think about today’s

Court?

I’ve learned that the Supreme Court

is an institution where change often

comes slowly. It was six terms before

Justice Brennan’s bloc of liberals got

their fi fth vote after Arthur Goldberg

replaced Felix Frankfurter in 1962.

That’s when Hugo Black fi nally could

turn a quarter century’s worth of

dissents into majority opinions.

Except in those instances where a new

justice dramatically alters the Court’s

ideological balance, I don’t think it’s

realistic to expect a new arrival such

as Elena Kagan to come in and shift the

Court’s direction.

WHAT COLOR is a Supreme Court justice’s parachute?➽


c l a s s n o t e s


1967 “W.B. Yeats and the Muses” (Oxford University Press, 2010) by joe hassett ex-amines the way in which relationships with nine fascinating women inspired great poet-ry. Hassett is of counsel to the international law firm Hogan Lovells, focusing mainly on securities and corporate governance cases.

bill levit wrote that he and three other members of the Class of 1967 traveled to-gether to Pochaiev Monastery in the West-ern Ukraine on May 21. The group, consist-ing of Missy Levit, Bill Levit, john connor, andrea maharam corcoran and thomas corcoran, has previously traveled togeth-er, along with susan scholle connor, to India and Turkey.

michael j. pollack wrote, “An unusual happening occurred in the duplicate bridge game on Aug. 17 at the Sands Point Bridge Club in Port Washington, N.Y. One member of each of the top 3 East-West pairs was a 1967 Harvard Law School graduate. The three classmates were denis eagle—first place; Michael Pollack—second place; david kay—third place.”

The American Bar Association section of international law awarded peter trooboff the Leonard J. Theberge Award for Private International Law in April. Trooboff has practiced international law as a partner and senior counsel at Covington & Burling for more than 35 years.

1968 thomas w. taylor started a second career as a snowboard instructor in New England after retiring from the Boston law firm Ropes & Gray in 1998. Taylor wrote: “Over the last 10 seasons, I have snowboard-ed over 6 million vertical feet, in and out of bounds, and have hiked for turns more than 250 times. For recreation, I still play trum-pet, performing in public around 25 times each year with a variety of jazz, concert band and chamber groups.”

1969 gerhardt bubnik ll.m. celebrated his 75th birthday this year with a party for colleagues, friends and clients in Prague, Czech Republic. The Czech Bar published a profile on the occasion. Earlier this year he was awarded the Prize of the International Olympic Committee for the Fight Against Doping, primarily for his pioneering work in creating Czech sport legal jurisprudence in doping as chairman of the Appellate Commission of the Czech Olympic Com-mittee. He resigned from his position in the International Skating Union, and at the June Congress in Barcelona, Bubnik was award-ed honorary membership. He wrote, “So far I am continuing my legal practice (I am the second longest serving advocate in the Czech Bar—52 years), but I am beginning to think of retirement.”

lawrence frolik ll.m. ’72, a profes-sor at the University of Pittsburgh School of Law, wrote that he was awarded the University of Pittsburgh Chancellor’s Dis-tinguished Public Service Award for his “outstanding public service contributions to persons with disabilities and older adults.” In making the award, the selection commit-tee noted that Frolik is considered one of the founders of the field of elder law.

william rawn wrote: “In 2009, Archi-tect magazine, one of the profession’s two leading magazines, named our firm (Wil-liam Rawn Associates, Architects in Boston) as the number one architectural firm in the country based in large part on architectural awards and performance in sustainable design. More than a bit surreal, but nice for everyone in our office. Most of the top 10 are some of the largest firms in the country. Ours is medium-sized.”

1970 guy blynn was elected president of Bookmarks, a nonprofit organization that aims to provide positive literary experi-ences to all ages and demographics in the Piedmont Triad area of North Carolina. In addition to being active in a large number of law organizations, including N.C. Volun-teer Lawyers for the Arts and International Trademark Association, as well as various community organizations like the Winston-Salem Human Relations Commission, Blynn is the retired vice president and general counsel of R.J. Reynolds Global Products.


The New Jersey Transit and the Port Au-thority of New York and New Jersey selected harvey j. kirsh ll.m. to act as chairman of a dispute review board, for both subsur-face and surface contracts, relating to the construction of the $8.7 billion Mass Transit Tunnel project. Construction of the railroad commuter tunnel from the suburbs of New Jersey to central Manhattan is expected to be completed in 2017. As a member of the JAMS global engineering and construction group, Kirsh participated as a speaker and panelist in a webcast program sponsored by the American Law Institute and the American Bar Association on the “Top Ten Cost-Effective Ways to Resolve Construction Disputes.”

1972 patrick t. christiansen was ap-pointed by the speaker of the Florida House of Representatives to the Florida High Speed Rail Commission. He is a founding trustee for the University of Central Florida, and he serves as chairman of the Orlando Museum of Art. He and his wife live in Orlando, Fla., and have two sons, Todd and Sean.

robert j. katz was appointed chairman of the board of councilors of the University of Southern California’s Shoah Foundation Institute for Visual History and Education, and harry robinson ’94 was appointed one of its vice chairmen. What is now the Shoah Foundation Institute began in 1994 when Steven Spielberg established the Survivors of the Shoah Visual History Foun-dation to gather video testimonies from survivors and other witnesses of the Holo-caust. The foundation maintains a library containing nearly 52,000 video testimonies. Katz, who has been a driving force behind the institute since its early years, is senior director of the Goldman Sachs Group and is a member of the executive committee of the Dean’s Advisory Board at Harvard Law School. Robinson leads McKinsey & Co.’s West Coast media and entertainment prac-tice.

weldon j. rougeau has joined the Washington, D.C., office of Blank Rome as of counsel in the government relations group, and as a principal in the firm’s government affairs subsidiary, Blank Rome Government Relations. Rougeau focuses his practice on federal government relations, emphasizing telecommunications, health care, financial services, employment and labor, higher edu-cation, nonprofits and international busi-ness development.

1973 bruce i. campbell has been recog-nized by Chambers USA 2010 in Corporate/M&A. He is a senior shareholder of Davis Brown in Des Moines, Iowa, where he prac-tices in the business division.

edward c. fitzpatrick joined Baker & Daniels as a partner in the firm’s Chicago office in April. He concentrates on the finan-cial services industry and complex business litigation. Prior to joining Baker & Daniels, he was executive vice president at FBOP Corp.

henry l. hecht wrote “Effective Depo-sitions” (second edition), a comprehensive, practical guide through every stage of the deposition process. This edition covers sub-jects like real-time transcription, video de-positions, the Fifth Amendment on civil de-positions, issues for women at depositions and handling deposition discovery disputes. Hecht is a lecturer in residence at University of California, Berkeley School of Law.

alan c. mendelson was honored at the American Liver Foundation’s annual Salute to Excellence gala in San Francisco’s Palace Hotel for his outstanding contributions to biotechnology and medical innovation over the past 30 years. Mendelson is a partner in the Silicon Valley office of Latham & Watkins, where he continues to co-chair the emerging companies practice group and represents emerging and public growth

,answer to puzzle on p. 48: “Portrait Study”


c l a s s n o t e s


Since early this year, rita hauser ’58 and roel campos ’79 have been

serving on the

President’s In-

telligence Ad-

visory Board,

appointed

by President

Barack Obama

’91. The board

acts as an

independent source of

advice on the effective-

ness with which the U.S.

intelligence community is

meeting the nation’s intel-

ligence needs. Hauser fi rst

served on the nonpartisan

board during the Bush

administration, from 2001

to 2004.

An international

lawyer, Hauser is of

counsel at the New York

City law fi rm Stroock

& Stroock & Lavan,

where she was a

senior partner for

more than 20 years.

She is president of The

Hauser Foundation,

and she chairs the

International Peace

Academy

(a research

organization

affi liated with

the United

Nations) and the

Advisory Board of

the International

Crisis Group. She also

serves on the Dean’s

Advisory Board at Harvard

Law School.

Campos is currently

the partner-in-charge of

the D.C. offi ce of Cooley

Godward Kronish. Prior

to joining Cooley, he was

a commissioner of the

Securities and Exchange

Commission, acting as a

liaison to the international

regulatory community.

He was one of

two principal

owner-executives

of El Dorado

Communications, a

radio broadcasting

company, at its

headquarters in

Houston, before joining

the commission.

Two from HLS Serve on Intelligence Advisory Boardcompanies throughout the country.

philip pillai ll.m. s.j.d. ’82 was ap-pointed to the High Court of Singapore in June. He had served as a judicial commis-sioner in the High Court since last year. Pil-lai was sworn in at a ceremony at the Istana before J.Y. Pillay, chairman of the Council of Presidential Advisers.

scott w. stucky of the U.S. Court of Appeals for the Armed Forces wrote that he “recently judged the final rounds of the moot court competitions at Vanderbilt Law School (with Chief Judge Alex Kozinski of the 9th Circuit and Judge Duane Benton of the 8th Circuit) and at UCLA Law School (with Judge Barrington Parker of the 2nd Circuit and Judge Sandra Ikuta of the 9th Circuit).”

1974 john w. daniels jr. was appointed chairman of the Greater Milwaukee Founda-tion Board of Directors. He is also chairman of Quarles and Brady, where he practices real estate law, representing national, re-gional, local, and governmental owners and investors.

fletcher “flash” wiley was named a member of the Greater Boston Chamber of Commerce’s Academy of Distinguished Bostonians, a group of local leaders who have made significant contributions to the Greater Boston community. He was honored at an event on May 4 in Boston. Wiley was chairman of the Greater Boston Chamber of Commerce from 1994 to 1996. He currently serves as of counsel at Bingham McCutchen and principal and chairman of the advisory board of PRWT Services.

In March, NJBIZ named alice young one of New Jersey’s Best 50 Women in Busi-ness, an award given annually to women business leaders based on their professional accomplishments, community involvement and advocacy for women. She was recog-nized at an award ceremony in Somerset in April, and she was featured in a special supplement to the April 2010 issue of NJBIZ. Young is a partner and chairwoman of the Asia Pacific group at Kaye Scholer.

1975 New York Super Lawyers named da-vid a. holstein in its upstate edition 2010 for his work in estate planning and probate. Holstein is a member at Green & Seifter Attorneys in Syracuse.

alan lederman wrote that he was named a leader in his field in tax by UK-based Chambers and Partners, “a legal directory, which included only the world’s leading lawyers and law firms.” He is a shareholder at the law firm Gunster in Fort Lauderdale, Fla.

ray mabus, secretary of the Navy and former governor of Mississippi, was ap-pointed by president barack obama ’91

to develop a Gulf Coast restoration plan in cooperation with states, local communities, tribes, fishermen, conservationists and gulf residents, as part of a long-term plan to re-build the gulf states affected by the oil spill.


In 2009, lawrence baca became the first American Indian to head the Federal Bar Association. Baca was previously deputy director of the U.S. Department of Justice’s Office of Tribal Justice and also served as a senior trial attorney in the Civil Rights Division. He served with the DOJ for more than 30 years, and in 2008 he was awarded the Attorney General’s Medallion for his dedicated service related to the civil rights of American Indians. Baca is one of several HLS graduates who lead the Federal Bar’s Indian law section.

The Chicago Foundation for Women honored janice e. rodgers with a 2010 Impact Award in March. The foundation is dedicated to increasing resources and opportunities for women and girls in the Greater Chicago area by awarding grants. Rodgers is a partner in the Chicago office of Quarles & Bradley, where she represents and advises nonprofit organizations.

1977 The U.S. Senate unanimously con-firmed mark a. goldsmith for a judgeship on the Detroit U.S. District Court in June. Goldsmith was nominated by president

barack obama ’91 and was previously an Oakland County, Mich., circuit court judge presiding over criminal and civil matters since 2004. He also served as an adjunct in-structor at Wayne State Law School.

1978 penda d. hair, the co-founder and co-director of Advancement Project, helped the organization celebrate 10 years of creat-ing change and delivering impact at a gala in October 2009. Advancement Project’s mis-sion is to provide grassroots organizations across the country with the tools they need to make positive changes to their own com-munities in the area of civil justice.

The Los Angeles Daily Journal named jeanne irving to its 2010 list of “Top Wom-en Litigators.” Irving has worked at the boutique commercial litigation firm Hen-nigan, Bennett & Dorman since its founding in 1995.

1979 amy berman jackson was nomi-nated to a seat on the U.S. District Court in June by president barack obama ’91. She is currently a member of Trout Cacheris in Washington, D.C., where she specializes in complex criminal and civil trials and ap-peals.

1980 In April, ralph d. gants, associ-ate justice of the Massachusetts Supreme Judicial Court, spoke during an Anti-Def-amation League of New England breakfast celebrating the 2010 Summer Associate Research Program. The program provides


54 54 harvard law bulletin winter 2011

STEVEN GOLDBERG ’72 has never been afraid

to challenge author-

ity. From protesting the

Vietnam War while a

student at Harvard Law

School to representing

a National Guardsman

in a suit against the

involuntary extension

of his enlistment, the

Portland, Ore., attorney

has sought to check

misuse of power and to

support those affected

by it. That was his goal in

a case involving one of

the most controversial

initiatives surrounding

the War on Terror, which

for him exemplifi es over-

reach at the highest level

of government.

Since 2006, Goldberg

has served as one of the

attorneys represent-

ing Al Haramain, a now

defunct Islamic charity

with an American branch

in Oregon, and two of

its American lawyers,

in a case alleging that

the Bush administration

illegally wiretapped the

plaintiffs after suspect-

ing the organization of

terrorist ties. The basis

for the suit emerged

only after the govern-

ment inadvertently

sent another attorney

representing Al Haramain

a document—report-

edly a log of calls—that

pointed to the apparent

surveillance. That docu-

ment—and arguments

surrounding its use—led

to a complex and long-

running case involving

state secrets and the

president’s ability to cir-

cumvent Congress, which

culminated in a federal

judge ruling on March

31 that the surveillance

was unlawful under the

Foreign Intelligence

Surveillance Act.

“We never understood

how unbelievable this

case would be in terms of

the novelty of the issues

and the amount of time

it would take to work on

the case,” Goldberg says.

“But at the same time,

it’s the most challenging,

exciting thing I’ve ever

done in my legal career.”

Attorneys who viewed

the document in 2004 in

fact did not understand

what it signifi ed until De-

cember 2005, when The

New York Times reported

on a warrantless wiretap-

ping program that Presi-

dent Bush had secretly

authorized after the 9/11

terrorist attacks. Until

then, Goldberg says, they

assumed that the surveil-

lance had been autho-

rized through a warrant

under FISA. Soon after

the attorneys fi led the

suit, the Department of

Justice sought to remove

consideration of the

document and dismiss

the case itself using the

state-secrets privilege.

“When the state-secrets

privilege is asserted as

a defense, it’s extremely

diffi cult to argue against

it,” says Goldberg.

Ultimately, he and

the legal team were able

to establish standing to

sue the government over

warrantless wiretap-

ping—they are the fi rst

litigants to do so—by

citing evidence other

than the document’s

contents (which he is

not allowed to disclose),

including a speech by

an FBI offi cial acknowl-

edging that the charity

had been surveilled. The

attorneys representing

the charity operated

under the assumption

that they too were being

surveilled, according

to Goldberg, and tried

to discuss critical legal

strategies only in person.

Goldberg expects

that the government

will appeal the judge’s

decision, which provides

for yet-to-be-determined

compensatory damages.

He notes that the Obama

administration has

contested the case just

as vigorously as the Bush

administration, which

initiated the program.

“The core issue of

how easily a president

can disregard Congress

is still very critical and

needs to be resolved,”

he says.

He became connected

to the case through his

work with the National

Lawyers Guild, a progres-

sive legal organization

that he has been involved

with since law school.

As a student, Goldberg

got a project funded for

law students to counsel

soldiers on issues such as

fi ling for conscientious

objector status, and he

worked for a welfare

rights organization. Later

he became partner in the

Portland fi rm Goldberg,

Mechanic, Stuart &

Gibson, concentrating on

labor law and civil rights,

and a few years ago he

launched a solo practice.

Having his own

practice gives him the

fl exibility, he says, to

devote the substantial

time necessary to cases

like Al Haramain’s. Nearly

40 years after graduating

from law school, he re-

mains infl uenced by the

protests of his youth, still

driven by a commitment

to fi ght for the principles

he believes in.

“When I was in law

school, the times were

infected in a positive way

by challenges to govern-

ment both domestically

and internationally,”

Goldberg says.

“I don’t think I’ve ever

forgotten those lessons.

It’s kind of determined

how I’d lead my life and

pursue my legal career.”

lewis rice

The Wire

PROFILE ➽ STANDING ON PRINCIPLES SHAPED AT HLS, STEVEN GOLDBERG ’72 WINS A LANDMARK RULING

GOLDBERG’S LEGAL TEAM WAS THE FIRST TO ESTABLISH STANDING TO SUE THE GOVERNMENT OVER WARRANTLESS WIRETAPPING

COUGHLIN-GLASER


c l a s s n o t e s


law firm summer associates with the oppor-tunity to complete pro bono legal research projects on civil rights issues. Gants spoke to the audience on the importance of pro bono service and the current challenges facing the legal profession.

The president of Duquesne University named ken gormley dean of the School of Law in March. Gormley had served as interim dean of the school since December 2008, and also as associate vice president for interdisciplinary scholarship and special projects at Duquesne. A member of the law school faculty since 1994, he taught courses on constitutional law, state constitutional law, and political and civil rights. He served as president of the Allegheny County Bar Association, and he is the author of several books, including “The Death of American Virtue: Clinton vs. Starr,” published in Feb-ruary. Gormley also serves as of counsel at Schnader Harrison Segal & Lewis in Pitts-burgh.

robert f. hinton joined Archer Norris’ Los Angeles office as a partner in its busi-ness litigation practice in February. Hinton’s litigation experience includes prosecution and defense in federal class actions and complex business, consumer, real estate, copyright, medical malpractice and legal malpractice cases, representing corpora-tions and individuals. He was previously a partner with Robins, Kaplan, Miller & Ciresi.

robert stier jr. was elected to the American Law Institute in March. He is a partner at Pierce Atwood’s Portland, Maine, office, where he concentrates on jury trials of cases involving scientific and technical subject matter, including patent, products liability, trade secret and other technology-related litigation.

1981 scott s. barker joined Wheeler Trigg O’Donnell in Denver as a partner in July. He focuses his practice on complex civil litigation and class-action lawsuits involving commercial, environmental, nat-ural-resources, product-liability, toxic-tort, antitrust, trade-secret and personal-injury-defense matters.

“From June 11 through July 26, I had my first solo exhibit of paintings and drawings in the Living Room Gallery at Saint Peter’s Church in midtown Manhattan,” wrote diane englander. “Having been a man-agement consultant to nonprofits for over 17 years, I began painting full time about two years ago. You can see my work at www.DianeEnglander.net.”

robert p. george was awarded the Honorific Medal for the Defense of Human Rights of the Republic of Poland on May 4 in Warsaw. After the ceremony, he also de-livered the 2010 Petrazycki Lecture in Law

on “Natural Law, God, and Human Rights.” George is the McCormick Professor of Juris-prudence and director of the James Madison Program in American Ideals and Institu-tions at Princeton University. He is the au-thor of several books, including “The Clash of Orthodoxies: Law, Religion and Morality in Crisis” and “In Defense of Natural Law.”

manny medrano and John Carlton launched Medrano & Carlton, a boutique litigation firm in Los Angeles specializing in white-collar criminal defense and complex business litigation. Medrano is a reporter for KTLA News in Los Angeles, and a for-mer Supreme Court and legal affairs cor-respondent for ABC News in Washington, D.C. Prior to his work as a reporter, Medra-no was a trial lawyer at Sonnenschein, Nath & Rosenthal in Los Angeles. He also served as an assistant U.S. attorney for the Los Angeles U.S. Attorney’s Office.

1982 william e. bordley received the Attorney General’s Award for Outstand-ing Service in Freedom of Information Act Administration in October 2009 at the 57th Annual Attorney General Awards Cer-emony. Attorney General Eric Holder recog-nized more than 200 Department of Justice employees for their distinguished public service. Bordley is associate general counsel in the Office of General Counsel’s U.S. Mar-shals Service.

s. alan childress and martha s. davis ll.m. published the fourth edition of their treatise, “Federal Standards of Re-view,” in three volumes, with LexisNexis. Davis is the Eugene Harrington Professor of Law at Thurgood Marshall-TSU, and Childress is the Conrad Meyer III Profes-sor at Tulane. Childress started Quid Pro Books, a publishing company for e-books and print in law, history, and the social sciences, republishing classic out-of-print books and emphasizing new manuscripts. Among its publications is Childress’ own “The Annotated Common Law,” featuring 200 asides to decode Oliver Wendell Holmes Jr. for new readers, and photos courtesy of the HLS library’s Historical & Special Col-lections. Quid Pro Books has also published a modern edition of Benjamin N. Cardozo’s “The Nature of the Judicial Process” intro-duced by his premier biographer, HLS Pro-fessor andrew l. kaufman ’54. Childress wrote that the foreword is excellent and that Kaufman is the only author he has ever met to set a deadline and meet it on the nose. These books and 15 others are in paperback but also fully functional Kindle, Nook, Sony and iPad formats. Many e-books in nonfic-tion from traditional publishers, he added, do not handle footnotes and indices well.

In May, renato corona ll.m. was named the 23rd chief justice of the Supreme

Court of the Philippines by President Gloria Macapagal-Arroyo. Corona was previously a supreme court senior associate justice who was appointed to the court in 2002.

The directors of the American Friends of the Yitzhak Rabin Center elected stuart davidson chairman of the board in March. The center was founded in 1997 in memory of the prime minister and minister of de-fense of Israel. Davidson is a partner in the Philadelphia office of Willig, Williams & Davidson.

After almost 30 years of practicing law in D.C., and after his oldest child gradu-ated from college, michael k. kellogg returned, at least part time, to his first love: philosophy. The result, “Three Ques-tions We Never Stop Asking” (Prometheus Books), was published in July. He describes it as “an introduction to the essential issues of Western philosophy, and six of its great-est thinkers, as well as an attempt to explain why philosophy still matters in understand-ing the shape of the intellectual, spiritual and moral space in which our lives unfold.”

kathleen mcdermott ll.m. is author of “Style For All: Why Fashion, Invented by Kings, Now Belongs to All of Us” in e-book and paperback. All of the illustrations are by McDermott. Her book can be viewed at http://web.mac.com/hautehistory/iWeb/Style%20For%20All/Style%20For%20All.html.

theodore i. yi and everett s. ward ’86 have been inducted into the Ely chapter of Lambda Alpha International, the Honorary Society for the Advancement of Land Eco-nomics. Yi and Ward are both partners in the real estate group in the Chicago office of Quarles & Brady. Yi has extensive real estate experience with a focus on commercial lease transactions and has represented a number of Fortune 250 corporations. Ward has rep-resented clients concerning the acquisition, disposition, development, financing, and leasing of commercial, industrial and resi-dential real property. Both are fellows of the American College of Real Estate Lawyers.

1983 wallace k. lightsey is serving as the South Carolina Bar Foundation’s president-elect. Lightsey is a partner with Wyche, Burgess, Freeman & Parham and has been practicing for 24 years. Most of his work consists of trial and appellate liti-gation, with an emphasis on commercial, corporate and news media litigation. He also has an active practice litigating disputes over intellectual property and in recent years has been lead counsel in copyright lawsuits involving close to a billion dollars at issue.

After many years as a writer and editor at The American Lawyer magazine and The Deal, john e. morris wrote that he recently



= 1,000 WORDS

robert haas ’72 spent three years photographing the Arctic from a bird’s-eye view. “Through the Eyes of the Vikings: An Aerial Vision of Arctic Lands” (National Geographic Press, 2010) is the glimmering result and Haas’ third book of aerial photogra-phy. The landscapes featured include the occasional figure, whether it be a polar bear in Manitoba or a clam digger in Alaska. But they also showcase neuron-like explosions of color (clusters of recycling at a lumber facility in Sweden) and fiery swirls, like bold-ly marbled paper (industrial byproducts at a waste treatment facility in Norway): aerial transformations both rich and strange.


c l a s s n o t e s


joined Dow Jones Investment Banker as an editor. He is co-author of the book “King of Capital: The Remarkable Rise, Fall, and Rise Again of Steve Schwarzman and Black-stone,” a history of the Blackstone Group and the rise of the large private equity firms. It was published by Crown in October.

1984 anita allen was appointed to serve as a member of the Presidential Commis-sion for the Study of Bioethical Issues by president barack obama ’91 in April. She is the Henry R. Silverman Professor of Law and Professor of Philosophy at the Univer-sity of Pennsylvania Law School, the deputy dean for academic affairs of the school and a senior fellow in the bioethics department of the university’s School of Medicine. Allen is recognized for her work on confidentiality in medicine, genetics and research, racial justice, and women’s health.

“I have been teaching at the William S. Richardson School of Law at the University of Hawai’i at Manoa since January 2006 and am the director of the Institute of Asian-Pa-cific Business Law,” wrote charles booth. Over the past year, he has co-written three books: “A Global View of Business Insol-vency Systems” (World Bank & Martinus Nijhoff, 2010), “Hong Kong Personal Insol-vency Manual” (second edition, Hong Kong Institute of Certified Public Accountants, 2010) and “Hong Kong Corporate Insolvency Manual” (second edition, HKICPA, 2009). “I headed up the bankruptcy and insolvency law aspects of a commercial law reform project for Vanuatu,” he wrote, “which culminated in the drafting of proposed new Personal, Corporate and Cross-Border In-solvency Acts.”

howard morse joined Cooley Godward Kronish’s antitrust and trade regulation practice in Washington, D.C., in April. Morse previously co-chaired the antitrust practice at Drinker Biddle, and he was also the assistant director of the Bureau of Com-petition at the Federal Trade Commission.

jennifer wriggins, the Sumner T. Bernstein Professor of Law at the University of Maine School of Law, co-wrote the book “The Measure of Injury: Race, Gender, and Tort Law” (NYU Press, 2010). HLS Dean Martha Minow called the book “brimming with insights about how societies do and should express what matters in assigning liability for human pain and loss.”

1985 mike cassidy, a professor at Boston College Law School, was awarded the Emil Slizewski Distinguished Teaching Award by the graduating class at the law school’s 2010 commencement exercises. Cassidy co-wrote his second book, “Lawyers and Funda-mental Moral Responsibility,” with daniel coquillette ’71, the Charles Warren Visit-

PAUL S. MILLER ’86, a leader in the

disability rights movement, died Oct.

19, at age 49. Miller was on the faculty

of the University of Washington and

was also an adviser to President Barack

Obama ’91.

“In a world where persons with

disabilities are still too often told ‘you

can’t,’ Paul spent his life proving the op-

posite,” Obama said in a statement after

Miller’s death. “Paul went on to become

a law professor, disability law expert,

one of the longest-serving commission-

ers of the Equal Employment Opportu-

nity Commission, an adviser to President

Bill Clinton and, later, an invaluable

adviser to me. But more important than

any title or position was the work that

drove him. He dedicated his life to a

world more fair and more equal, and

an America where all are free to pursue

their full measure of happiness—and all

of us are better off for it.”

To read a Bulletin profi le of Miller, go to http://www.law.harvard.edu/news/bulletin/2004/summer/classnotes_02.php

A Life Devoted to Proving ‘You Can’

TRIBUTE ̋ PAUL S. MILLER ’86

DA

VID

DE

AL

ing Professor of American Legal History at HLS, and Judith McMorrow, and it was recently published by LexisNexis.

In April, joseph m. doloboff joined Blank Rome’s Los Angeles office as a part-ner in their business tax group. He focuses his practice on mergers, acquisitions and dispositions for corporations and partner-ships. Doloboff previously worked at De Castro, West, Chodorow, Glickfeld & Nass.

michael malamut wrote: “I have been working since August 2009 as principal counsel to the Massachusetts Division of Housing Stabilization, which oversees the state’s programs for homeless individu-als and families. It’s an exciting time for the program, which has tremendous need caused by the current economic situation. It’s great being part of a very innovative and empirically driven approach to homeless-ness and affordable housing being imple-mented by new leadership. I’m sorry to have missed the [HLS] reunion; our family had a great opportunity to visit Israel with our temple on a trip geared toward families with young children (ours are Barbara, 7, and Max, 9). We had a terrific time!”


In February, president barack obama ’91

nominated Orange County Superior Court Judge josephine staton tucker to the fed-eral bench, and she was confirmed in June. Tucker serves on the U.S. District Court for the Central District of California. She had served as a state court judge since 2002, presiding over criminal, family and civil law matters.

1987 In the spring, sharon vinick became one of five founding partners of Dickson Levy Vinick Burrell Hyams, a new women-owned employment law firm in Oakland, Calif. The firm focuses on work-place discrimination and retaliation, the rights of women and people of color, dis-ability rights, whistleblower and wrongful discharge cases, and other employment law matters. Vinick previously had her own firm.

The Queens Chamber of Commerce named louis vlahos a Business Person of the Year at its 99th annual reception in Sep-tember. Vlahos is a partner at Farrell Fritz in Uniondale, N.Y., and concentrates on tax law. He serves on the boards of the Queens Theatre in the Park and of the Long Island City Business Development Corp. and on the advisory board at Queens College.

1988 dave jones won the California Democratic Primary in June in his campaign



c l a s s n o t e s

ON JUNE 7, the U.S.

Senate approved the

nomination of the fi rst

Korean-American in U.S.

history to serve as a fed-

eral district court judge.

By a 90-0 vote, Lucy

Koh ’93 was confi rmed

to sit on the U.S. District

Court for the Northern

District of California. She

had been serving as a

California Superior Court

judge for Santa Clara

County, and before that,

she had established her-

self as an IP litigator and

criminal prosecutor.

Koh was the fi rst

in her family born in

the United States. Her

mother had escaped

from North Korea at the

age of 10 by walking

for two weeks to South

Korea, hiding from North

Korean soldiers along the

way. Her father fought

against the Communists

in the Korean War. He

immigrated to the United

States and worked as a

busboy and waiter while

taking university courses.

Koh was raised

primarily in Mississippi,

where her mother taught

at Alcorn State Univer-

sity. As a young child, she

was bused to predomi-

nantly African-American

public schools. U.S. Sen.

Barbara Boxer told the

Senate that it was in

part this experience that

inspired Koh to pursue

a career in law and to

work for the NAACP Legal

Defense and Educational

Fund in law school. After

graduating from law

school, Koh worked on

civil rights issues

for a U.S. Senate

Judiciary Committee

subcommittee and

worked at the Justice

Department for then

U.S. Deputy Attorney

General Jamie S.

Gorelick ’75.

Early in her career,

she moved to Los

Angeles and became a

federal prosecutor. Then

FBI Director Louis J. Freeh

gave Koh an award for

her prosecution of a $54

million securities fraud

case. A jury instruction

from one of Koh’s trials

was also adopted as a 9th

Circuit Model Criminal

Jury Instruction.

She later worked in

private practice as a part-

ner at McDermott Will &

Emery in Silicon Valley,

where she concentrated

on complex intellectual

property litigation. She

was part of the litigation

team in the landmark

patent case In re Seagate

Technology, in which a

new standard was set for

willful patent infringe-

ment for the fi rst time in

24 years.

Bijal V. Vakil, who now

is executive partner-in-

charge of White

& Case’s Silicon

Valley offi ce, was

her colleague at

McDermott, and

they both also were

actively involved

with the Asian Pacifi c

Bar Association of Silicon

Valley. “Judge Koh is

uniquely positioned to

be a district judge in

Silicon Valley because

of her criminal law and

intellectual property

background,” he said.

Praise for Koh’s

appointment has also

come from leadership of

the Asian-American legal

bar. Joseph J. Centeno,

president of the National

Asian Pacifi c American

Bar Association, called it

“a historic achievement.”

In 2008, Koh spoke

about her experience

practicing law as an

Asian-American woman

during an event at

Harvard Law School

focused on women

graduates. She touched

on negative stereotypes

about Asians that she

confronted as a prosecu-

tor and a judge. But she

also made the audience

laugh as she spoke of

some stereotypes that

were potentially helpful.

She recalled, for example,

that as a patent litigator,

if a client “wanted to

presume I was from a

long line of Silicon Valley

engineers,” she said, “I

would never tell them no-

body in my family could

program a VCR.”

Koh is the second

federal judge of Korean

descent. The fi rst was

9th Circuit Judge Herbert

Choy ’41, who was ap-

pointed to the Circuit

Court by President

Richard Nixon in 1971.

michelle bates deakin

STEPPING UP ➽ LUCY KOH ’93

A Daughter of the Korean Peninsula Ascends to the Federal Bench

LONG BEFORE HER JUDICIAL APPOINTMENT, KOH HAD BEEN SETTING NEW STANDARDS

to become the state’s insurance commis-sioner. The insurance commissioner is a statewide constitutional office that regulates the insurance industry in California. He represents Sacramento in the California State Assembly, where he has chaired the Assembly Health and Assembly Judiciary Committees. Previously, Jones was a special assistant and counsel to then U.S. Attorney General janet reno ’63. He and his wife, Kim Flores (M.P.P. ’88), live with their two children in Sacramento.

“I was recently promoted to professor of

law at the Notre Dame Law School, where I also serve as an associate dean,” michael s. kirsch wrote. “My scholarship focuses on tax policy, with an emphasis on internation-al tax issues. In addition, the 2010 graduat-ing class selected me as the Distinguished Professor of the Year. Prior to joining the Notre Dame faculty in 2001, I served as the associate international tax counsel in the U.S. Treasury Department’s Office of Tax Policy.”

In April, p. david lopez was sworn in as general counsel of the U.S. Equal Employ-

ment Opportunity Commission. He was nominated by president barack obama ’91 in October 2009. He is serving at the EEOC’s Washington headquarters until the end of the congressional session in 2011. Lo-pez works with EEOC Chairwoman jacque-line berrien ’86 and EEOC Commissioner chai feldblum ’85. During the previous 12 years, Lopez practiced in the Phoenix District Office of the EEOC. He is married to Maria Leyva, and they have three boys, Javier, Julian Diego and Luis Andres.

margaret berry wilson wrote “What

JOH

N S

TUB

LER



c l a s s n o t e s

Every 2nd Grade Teacher Needs to Know About Setting Up and Running a Class-room” and co-wrote “Doing Math in Morn-ing Meeting: 150 Quick Activities That Con-nect to Your Curriculum,” both published in 2010 by Northeast Foundation for Children. Prior to her work at NEFC, she was a teach-er in Nashville, Tenn.

stephen s. wu was appointed chairman of the American Bar Association section of science and technology law. He is a partner at the Silicon Valley firm Cooke Kobrick & Wu. He served on the ABA section’s govern-ing council from 2004 to 2007, and he was co-chairman of its Information Security Committee from 2001 to 2004. Wu works on trade secrets, copyright, trademark cases, and disputes relating to computer and Inter-net technology.

1989 The United States Senate confirmed denzil price marshall jr. on May 5 to serve as the U.S. district judge for the Eastern District of Arkansas. Marshall had served as a judge on the Arkansas Court of Appeals since 2006, and before that he was a principal with Barrett & Deacon in Jonesboro.

melvin williams jr. wrote that he and his wife, Laura, “joyfully announce the birth of their son, Anderson Manzo Joel Williams, on May 21. Given his lungs, I’m sure An-derson has a bright future as an advocate.” Williams was recently asked by the White House to serve as general counsel of the Millennium Challenge Corp., a U.S. agency dedicated to reducing poverty through growth in countries committed to good gov-ernance, economic freedom and investing in their citizens.

1990 ghislaine bouillet-cordonnier ll.m. launched her collection of children’s books about sustainable development, “Al-batross,” in English, Chinese and French in the Francophone Pavilion at the Opening Ceremony of Expo 2010 in Shanghai. She is currently the senior vice president, general counsel and CSR representative for a major chemicals company in Shanghai.

The Bradley Foundation of Milwaukee selected four winners of the 2010 Bradley Prize, including bradley smith. This award includes a $250,000 stipend and is awarded for achievements in “the promo-tion of liberal democracy, democratic capi-talism and a vigorous defense of American institutions.” Smith is the Blackmore/Nault Designated Professor of Law at Capital University in Columbus, Ohio, and founder and chairman of the Center for Competitive Politics in Alexandria, Va.

1991 b. ted howes was appointed to serve as the head of the international arbi-

tration group at the firm of McDermott Will & Emery. In this position, he is the head of the worldwide international arbitration practice at the firm, including McDermott’s offices in Europe and Shanghai. Howes has been a partner at the firm since 2003, in its New York City office.

porus f. kaka ll.m. wrote that he “was designated in April as senior counsel/advocate by the High Court in India. The designation is made by the judges of the court where you practice and is applicable across India. It is similar to a designation of Queens Counsel in the U.K. and termed col-loquially as ‘taking silk’ as the formal gown one wears to the court changes to a silk gown upon designation of seniority.”

bettina elias siegel wrote, “After leav-ing the law over a decade ago to raise our two children (my husband is fellow HLS ’91 classmate martin siegel), I began to write on a freelance basis for various national magazines. Then, after becoming actively involved in trying to improve the food in our Houston school district, I decided to launch a daily blog on all things ‘kids and food,’ with a special emphasis on school food re-form. Called ‘The Lunch Tray,’ the blog now draws readers from all 50 states and almost as many foreign countries.”

With a grant from the Soros Founda-tion, jean-marie simon has republished her 1987 book, “Guatemala: Eternal Spring, Eternal Tyranny,” in Guatemala, in Span-ish. The book, which details the country’s civil war with 150 color photos and text, was nominated for the WOLA-Duke Book Award 2010 and appeared as number one on the best-seller list in Guatemala. Simon wrote: “Guatemalans are eager for informa-tion about the war. The young 20-30 crowd is—surprisingly—keenly interested in the subject, perhaps out of curiosity about such a dark period in the country’s recent history. For the older generation, the book is impor-tant, because they can point to the photos and tell their children and grandchildren, ‘See, this really happened—I didn’t make it up.’”

In April, matthew e. sloan, brandon van dyke ’01 and david m. turetsky ’02 were promoted to partner at Skadden, Arps, Slate, Meagher & Flom. Sloan works in the firm’s Los Angeles office focusing on litiga-tion. Van Dyke focuses his practice on merg-ers and acquisitions in the New York City office, and Turetsky specializes in corporate restructuring, also in New York City.

1993 robin junger ll.m. was appointed deputy minister of energy, mines and petro-leum resources for the province of British Columbia. He previously served as deputy minister, energy and clean technology, at the Office of the Premier, where he led the de-

velopment of British Columbia’s new Clean Energy Act.

In May, the Harvard Law School Asso-ciation elected matthew leitman to a four-year term on its council. Leitman is a princi-pal at Miller Canfield, where he practices in the areas of criminal defense, complex com-mercial litigation and appellate litigation in the Detroit office.

margaret minister o’keefe rejoined Pierce Atwood as a partner in its intellectual property and technology and litigation prac-tice groups in March. She had spent the pre-vious three years working as general counsel and chief licensing officer at angela adams, “a contemporary lifestyle brand.” Prior to her time at angela adams, O’Keefe was an at-torney with Pierce Atwood for 10 years.

1994 In June, monica coakley joined KPMG, an audit, tax and advisory firm, as a principal in its Washington national tax practice in New York. She assists clients with corporate tax matters. Coakley was previously a partner at Dewey & LeBoeuf, where she focused her practice on federal tax aspects of structuring and implementing complex corporate transactions.

jason a. levine, a capital partner in the Washington, D.C., office of McDermott Will & Emery, was appointed head of the firm’s 40-lawyer trial practice group.

sandra raye mitchell was honored with the Jefferson Award for Public Service for her work with a nonprofit she founded, I C Hope Makin A Nu Reality Foundation. The foundation, which began in 2007, fo-cuses on education and leadership skills and introduces young women to successful role models. “We utilize experiential learning, new technology, new media channels and entertainment platforms to educate at-risk girls ages 8 to 18 to develop self-help skills… that strengthen their ability to mature into healthy citizens and contribute to healthy communities,” states the foundation’s web-site, http://www.ichope2.com/index.html. Mitchell is the founding principal of the Mitchell Law Group in Oakland, Calif.

1995 In August, marco a. castilla ll.m. joined Duane Morris’ corporate practice group in Houston. He focuses his practice on corporate and international law. Prior to this position, he was a partner at Haynes and Boone. Castilla has represented U.S., Mexican and other international clients in structuring foreign operations and in con-nection with investments, joint ventures, and mergers and acquisitions in many countries.

natalie derzko ll.m. has been pro-moted to of counsel within the Washington, D.C., office of Covington & Burling. She practices in the areas of intellectual prop-



c l a s s n o t e s

erty, strategic counseling, due diligence, pat-ent prosecution, patent litigation, intellec-tual property policy and law reform. Derzko also counsels clients regarding regulatory issues arising under the Hatch-Waxman legislation and has been recognized as a member of the Washington SmartCEO’s Legal Elite.

david gevertz, vice chairman of Baker Donelson’s labor and employment group, was named “a rising star” and “one of 10 employment attorneys under 40 in the U.S. to watch” by Law360, a national newswire for business lawyers. Gevertz is a share-holder in the firm’s Atlanta office, and he concentrates his practice on defending large and medium-sized organizations accused of violating local, state and federal discrimina-tion; wage and hour; privacy; drug testing; and benefits laws. He is chairman of the board of directors of Covenant House of Georgia and is a member of the board of di-rectors of Callanwolde Fine Arts Center.

Investment Dealers’ Digest named scott kolbrenner one of the “Forty Under For-ty” M&A professionals. He is a managing director at Houlihan Lokey, an investment banking firm in Los Angeles, where he spe-cializes in the infrastructure services and materials sector. Kolbrenner wrote that he lives with his wife and two children in Los Angeles, and also serves as president of the Harvard Law School Association of South-ern California.

michael rubenstein was recently named managing director at H5 (www.H5.com), a specialized consulting firm which provides electronic information services for litigators. In this role, he leads a national team of consultants who help clients leverage scientific expertise to re-duce the costs and increase the accuracy of document-intensive discovery. Rubenstein wrote that he and his wife, Nirit, live in San Francisco and are the proud parents of a 2-year-old son, Danny.

1996 The 2010 Chambers USA’s Guide to America’s Leading Lawyers for Busi-ness recognized e.b. “chip” chiles iv in the area of general commercial litigation. He is a managing member of Quattlebaum, Grooms, Tull & Burrow in Little Rock, Ark.

1997 kristy parker wrote, “In March 2010, I was promoted to deputy chief of the Criminal Section of the Civil Rights Division of the United States Department of Justice.”

1998 david i. brown wrote, “I’m happy to announce that my wife, Julie, and I wel-comed our second child, Cody, to the world on Feb. 21. His brother, Carter, 3, welcomed him with almost equally open arms.”

Finance & Commerce magazine named

ann cathcart chaplin a “Minnesotan on the Move” in April. Chaplin is managing principal at Fish & Richardson in the Twin Cities office. The award honors 40 business professionals throughout the state who are positioned to make history during the com-ing years.

john d. ciorciari is author of “The Limits of Alignment: Southeast Asia and the Great Powers since 1975” (Georgetown University Press, 2010), a book that explores how small states in Southeast Asia ensure their security. He seeks to show that devel-oping countries prefer limited alignments that maneuver between strict neutrality and formal alliances to obtain the benefits of security cooperation.

This year, deborah hesford dossan-tos became president of the Women’s Bar Association of Massachusetts. She spent the previous year as president-elect, and she served as vice president of operations prior to that. A shareholder at the Boston office of Ogletree Deakins, a labor and employment firm, she develops employment policies, manages litigation and counsels clients on a variety of complex matters.

gabriel e. meister and Joohee Meister wrote to announce the birth of their son, Orion Haneul Meister, on March 5. Gabriel Meister wrote: “By early June, Orion already weighed 17 pounds—more than twice his birth weight. One theory suggests that, as-suming continued growth along these lines, Orion will weigh over 1 million pounds by around his fourth birthday. Which would be awesome.”

1999 The San Francisco office of Coving-ton & Burling promoted tammy albarrán to partner. She focuses on SEC enforcement work, private securities class-action litiga-tion, derivative actions and internal inves-tigations.

david b. flassing was selected as a special trial attorney in the Office of Chief Counsel for the IRS in Chicago. He previ-ously served as senior attorney in the Large and Mid-Size Business Division of Chief Counsel. Flassing and his wife, Trisha, and their children, Atticus and Annika, live in Riverside, Ill.

“After more than 10 years as a litigator at King & Spalding—the last three as partner—I have decided to start my own firm to help those who need it most: victims of corpo-rate greed and corruption,” wrote matt harman. “Harman Law LLC [in Atlanta] is a national law firm that fights for justice for those who have been harmed—physically or financially—by someone who refuses to do what’s right. We have just launched our website, www.harmanlaw.com, and are open for business. … I believe that quality legal representation should be available to

all—not just the powerful and elite.”carrie norbin killoran was recently

elected a trustee of Macalester College in St. Paul, Minn. She is vice president and chief compliance/integrity officer for Aurora Health Care in Milwaukee. Prior to this ap-pointment, she was a partner at Quarles & Brady in its health law practice.

noah rubins wrote: “I was elected partner at Freshfields Bruckhaus Deringer, in the Paris international arbitration group. I have been with Freshfields in Paris since early 2004, focusing particularly on in-ternational investment protection treaties and disputes involving the former Soviet Union.”

joshua d. wolson was elected a part-ner at Dilworth Paxson in its Washington, D.C., and Philadelphia offices. He practices with the litigation department, focusing on complex commercial litigation, including class actions, antitrust, contracts, business torts and intellectual property.

2000 elisha graff wrote: “I was elected to the partnership at Simpson Thacher & Bartlett in New York effective Jan. 1, 2010. My practice focuses on bankruptcy and restructuring, with an emphasis on repre-senting financial institutions and companies in Chapter 11 cases and out-of-court restruc-turings.”

In May, jonathan m. grossman joined Cozen O’Connor’s antitrust group in its Washington, D.C., office. Grossman has represented clients before the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice. He previ-ously worked at Hogan & Hartson, where he advised clients on a variety of antitrust matters.

michael rader wrote that he and his wife, Daniela (D.M.D. ’02 P.D. ’03), “wel-comed a new baby boy on June 21. Erez joins big siblings Gavri, Adri and Eden.” The Raders can be reached at [email protected].

Charlotte Business Journal’s 17th annual “40 Under 40” recognized angelique vincent as a promising young professional for her career achievements and positive im-pact on the community. Vincent is a member of the litigation department and employ-ment and labor practice group at Robinson, Bradshaw & Hinson. She joined the firm in 2000 and was elected a partner in 2007. She has served for five years on the board of directors of Charlotte Emergency Housing, a nonprofit organization that helps families end homelessness.


david edgar and sheila vera (flynn)



WHILE SHE WAS in law

school, Rachel Anderson

’03 dreamed of fi nding a

way to combine her pas-

sions for the law and for

her evangelical Christian

faith into one career. She

had no idea what that

would look like, but she

held out that hope as she

pursued joint degrees

from Harvard Law School

and Harvard Divinity

School.

Since graduation,

Anderson has been

pursuing faith-based

policy work, fi rst as

public policy director of

the Episcopal Diocese

of Massachusetts. Next,

she created a network

of progressive evangeli-

cals called the Boston

Faith and Justice Net-

work, an advocacy group

of Christians committed

to alleviating poverty.

And since March 2009, An-

derson has been the fi rst

director of faith-based

outreach at the Center

for Responsible Lending,

a nonprofi t research and

advocacy group that fo-

cuses on issues surround-

ing predatory lending,

examining practices that

are discriminatory or ex-

ploitative, documenting

them and formulating

policy alternatives.

Based in the D.C.

offi ce of CRL, Anderson

channels her expertise

specifi cally to faith

communities, where she

has found tremendous

motivations to address

fi nancial exploitation.

“There are churches

whose members’

neighborhoods are being

blighted by payday lend-

ing and where people

are losing their homes

to foreclosures and

costly and discriminatory

loans,” she says.

Anderson reaches

out to religious leaders

to help them educate

their parishioners about

what is happening in the

lending fi eld, and she

advocates for fairer laws

and regulations.

After a summer

maternity leave follow-

ing the birth of her fi rst

child, she embarked this

fall on an initiative with

the Mississippi Center for

Justice to reform payday

lending in the state,

where rates on short-

term loans can exceed

500 percent. Along with

policy advocates, educa-

tional institutions and

faith communities, she is

lobbying the Mississippi

Legislature to reinstate a

usury cap of 36 percent.

She is also enlisting

faith-based groups in

her advocacy efforts.

After a series of meetings

with leaders ranging

from Catholic bishops to

megachurch pastors in

which they resoundingly

reported that usury has

hurt their members, she

is offering workshops to

discuss the issue within

their congregations. And

she is also offering media

and legislative training

in preparation for a state

lobby day in the spring

of 2011.

“Churches and

religious leaders have

a unique moral voice in

the community,” says

Anderson. “And I want

them to have a voice in

public decision-making

to articulate their moral

concerns and their moral

vision.”

Fighting predatory

lending unites a coalition

of faith groups. Prior

to the Christmas and

Hanukkah holidays of

2009, Anderson, along

with PICO, a national

network of faith-based

community organiza-

tions, helped organize

a press conference in

front of the U.S. Treasury

Department. A rabbi, a

pastor of a black Baptist

church, and a Protestant

minister implored the

leaders of fi nancial insti-

tutions and the Treasury

that, in the spirit of the

coming holidays, lenders

should help families stay

in their homes. Follow-

ing the news conference,

faith leaders met with

members of the White

House National Eco-

nomic Council, where

they delivered a letter

signed by hundreds of

clergy nationwide calling

for specifi c reforms to

hold banks account-

able, help homeowners

avoid foreclosure and

protect consumers from

predatory lending. PICO

has continued to press fi -

nancial institutions, par-

ticularly Bank of America,

to end predatory lending

and help families facing

foreclosure.

“It’s a human issue,

because homes are at

risk,” she says. “And it’s

a moral issue affecting

what our corporations

and laws and public

policy look like.”

Anderson says that

she’s grateful for the

opportunity she had as

a Harvard student “to

explore both the practice

of law and policymaking,

and faith and ethical tra-

ditions and bring them

together.” She appreci-

ates the faculty encour-

agement she received

at HLS to explore how

her evangelical Christian

values infl uence her

perspective on the law.

Of particular value to her

were Lani Guinier’s class

on community lawyering

and Martha Minow’s on

nonprofi ts.

Anderson fi rst put the

nonprofi ts class to use

when she created the

Boston Faith and Justice

Network. “I had a desire

to see my faith commu-

nity engage in the public

sphere in new ways,” she

says.

michelle bates deakin

PROFILE ➽ RACHEL ANDERSON ’03 ENLISTS RELIGIOUS ORGANIZATIONS TO FIGHT PREDATORY LENDING

Connecting Law and Faith

ANDERSON HAS FOUND TREMENDOUS MOTIVATION IN FAITH-BASED COMMUNITIES TO ADDRESS FINANCIAL EXPLOITATION

CH

RIS

HA

RTL

OV

E


PROFILE ➽ HOW DARON ROBERTS ’07 WENT FROM HLS TO THE NFL

Game Plan

IN THE SPRING of 2007,

HLS Professor David

Wilkins ’80 asked the

members of his seminar

to envision their futures.

One student foresaw a

federal judicial appoint-

ment. Another wanted

to make partner at a

prominent law fi rm. Also

in the class was Daron

Roberts ’07, who had a

different sort of answer.

He wanted to be head

coach at a national foot-

ball powerhouse.

The pronouncement

was a bit of a surprise

even to Roberts. The 3L

hadn’t had any football

experience since his

days as an All-District

strong safety for Mount

Pleasant (Texas) High

School. A University of

Texas graduate with a

year on Capitol Hill and

two years at the Kennedy

School under his belt,

he had thought of being

a politician—perhaps

spending a few years at

a Texas law fi rm before

moving into public ser-

vice. Now all that was to

be postponed. Graciously

but fi rmly, Roberts

turned down job offers

from international law

heavyweights like Vinson

& Elkins. There was no

longer a fallback option.

The turning point had

come the previous sum-

mer, at a South Carolina

youth football camp

where Roberts volun-

teered during a break in

his internship schedule.

There, he says, he real-

ized he was reliving his

“best days” as a high

school player, marveling

anew at the power of

the game to bring young

men together, and at his

own desire to mentor the

campers. “I remember

fl ying back, leaving there

and thinking, I’ve got

to coach football,” he

recalls. “And I’ve got to

do it now.”

Roberts set his

sights high, offering his

services to all 32 National

Football League teams

and to the top 50 college

programs as well. “After

fi ve years at a setting

like Harvard, my only

inclination was to be a

part of the best program

that would take me,” he

recalls. “I always envi-

sioned the NFL as where

I want to be—the NFL is

the Harvard of football.”

Roberts was willing to

work for no pay begin-

ning after his graduation

in June 2007—that is, if

anyone would have him.

As it happens, there

was only one person who

would. Just two months

before receiving his law

school diploma, Roberts

got a call from Herman

Edwards, then coach of

the NFL’s Kansas City

Chiefs. Edwards offered

a coaching internship.

His rationale? “He said, ‘If

you can get through the

fi rst year of Harvard Law

School, then you ought

to be able to make it

through training camp,’”

Roberts recalls.

That proved to be the

case. While friends at

notoriously demanding

fi rms proved their mettle

with late nights and early

mornings, Roberts kept

pace and then some.

After Edwards agreed, at

the end of training camp,

to let him stay on with

the Chiefs through the

2007 season, he began

spending nights on a

mattress in a stadium

closet to make sure

he was ready for work

each day at 4:30 a.m. The

commitment made an

impression. In 2008, the

Chiefs hired Roberts to

a full-time position as a

defensive quality control

assistant. In 2009, he

made the move to the De-

troit Lions, where he now

helps coach the team’s

secondary.

The transition—from

law student to profes-

sional coach—has

been breathtakingly

rapid. According to Shaun

Mathew ’07, when some-

one asks him which of his

law school friends has

the most interesting job,

he inevitably tells them

about Roberts. “I have

even more fun answering

their next question,” says

Mathew: “‘How is that

even possible?’”

But Roberts remains

grounded, and focused

on mentorship. He

recently launched a

free camp—“4th and

1”—for younger players

in east Texas, emphasiz-

ing football skills in the

morning, SAT skills in the

afternoon and life skills

at night. Cambridge, he

says, often seems closer

than ever. “Drafting legal

arguments and drafting

a game plan in the NFL

are really two identi-

cal exercises,” he says.

“What’s my opponent’s

best argument? How do

I combat that argument?

What are the counterar-

guments to my position?

That’s very similar to us

asking, Who is their best

player? How do we stop

their best player? What

will be their next move?”

christian flow

“DRAFTING LEGAL ARGUMENTS AND DRAFTING A GAME PLAN IN THE NFL ARE REALLY TWO IDENTICAL EXERCISES.”


GA

VIN

SM

ITH


c l a s s n o t e s


barrett wrote to “announce the birth of [our] second child, Katherine (Kate) Sage Barrett, joining big brother Logan in Man-hattan on July 10.”

The board of directors of Beginning with Children Foundation appointed george w. flowers as the organization’s executive di-rector in July. The New York City foundation advocates for high academic standards and accountability in public education to ensure that low-income and underserved children receive quality education. It is the insti-tutional partner to two charter schools in Brooklyn, Beginning with Children Charter School and Community Partnership Charter School. Flowers previously served as senior counsel at Merck & Co., where he chaired the Global Law Department Diversity Com-mittee.

andrew hammel ll.m. wrote that his first book, “Ending the Death Penalty: The European Experience in Global Perspec-tive,” was published by Palgrave Macmillan in the U.S. in August. Hammel is an as-sistant professor at the University of Düs-seldorf.

clint hermes wrote that he “was named senior vice president and general counsel of St. Jude Children’s Research Hos-pital, overseeing the legal and tech transfer and government affairs of U.S. News’ num-ber one ranked pediatric cancer hospital in the nation (August 2010 rankings).”

archana sridhar was appointed as-sistant dean of the Graduate Program at the University of Toronto Faculty of Law, where she oversees the graduate programs and supports faculty research. Sridhar wrote that she is enjoying life with husband Kevin and their 2-year-old son, Ignatius.

2002 laura r. braden received the first annual Microsoft LCA Law Firm Associ-ate Award, presented to legal professionals who have made important contributions to the company. The award was presented during Microsoft’s annual worldwide Law & Corporate Affairs Department Summit in Bellevue, Wash. Braden was involved in a patent infringement suit in which she helped achieve a reversal of a $388 million jury verdict against Microsoft in 2009. She is an associate at Fish & Richardson’s Wash-ington, D.C., office.

jeff treut, who practices tax law in Jersey City, N.J., wrote that he has developed a liquid solution that cures toenail fungus. He began researching formulas of patented antifungal medications, mixing ingredients and testing them on his own toes. Treut sells the product through his website, www.nofungusnow.com.

2003 Massachusetts Lawyers Weekly named thomas a. brown an “Up & Com-

ing Lawyer.” Brown is an associate at Fish & Richardson’s Boston office, where he focuses on patent litigation and prosecution in the area of computer science and technol-ogy. Brown accepted his award at an event in Boston in May.

william dance joined Tucker Ellis & West in the firm’s Los Angeles office as counsel. Dance is a trial lawyer and prac-tices in the areas of medical and pharma-ceutical liability. He has published articles and a book about aspects of electronic discovery.

2004 “In 2006, shortly after completing the Soros Justice Advocacy Fellowship (for which I was featured on the HLS website on Jan. 28, 2004), I left law to become a liter-ary fiction writer,” wrote olufunke grace bankole. “Since that time, my fiction has appeared in Michigan Quarterly Review, New Letters, The Antioch Review, Stand Magazine, and is forthcoming in Glimmer Train Stories. Most recently, I won the high-ly regarded Glimmer Train Stories Short Story Award for New Writers. I have also been awarded a Ludwig Vogelstein Founda-tion grant for my novel-in-progress.”

In August, matthew d. van itallie was appointed the chief accountability officer of the Baltimore school system. He previ-ously worked in the Cleveland public school system, the New Jersey Department of Education and the Washington, D.C., public schools.

2005 jennifer a. lee wrote that she and gene hong ’03 were married in New York on June 5.

alexandria marzano-lesnevich received a 2010 Rona Jaffe Foundation Writ-ers’ Award, which is given annually to six women writers who demonstrate excellence and promise in the early stages of their careers. She was awarded $25,000 during a ceremony in New York City in September. Marzano-Lesnevich is a nonfiction writer whose work appears in “Fourth Genre,” and she is working on her first book, “Any One of Us,” a personal narrative that combines memoir with an inquiry into a murder and the murderer’s past.


ben maxymuk wrote: “I am now a staff attorney at the Equal Justice Initiative in Montgomery, Ala. Previously, I was a fel-low at the same organization. We represent death-row inmates and other indigent criminal defendants and prisoners. My part-ner, Valerie Downes, and I had a baby boy in January. His name is Dexter Gideon.”

nathaniel brishen rogers joined

Temple University Beasley School of Law as an assistant professor. He teaches torts and a seminar called Emerging Issues in Labor Law. Prior to this appointment, he was a Climenko Fellow and lecturer at Harvard Law School.

2007 kimathi kuenyehia ll.m. wrote that he relocated to Ghana after law school, and he has set up a thriving corporate bou-tique practice to provide legal advisory ser-vices exclusively to foreign investors coming to Ghana.

2008 kala mulqueeny s.j.d. was named a 2010 Yale World Fellow by Yale University. Mulqueeny is one of 15 Yale World Fellows who is participating in the four-month lead-ership program this year. Currently senior counsel for the Asian Development Bank in Manila, Philippines, she also has practiced with firms in Sydney, New York and Hong Kong; has done not-for-profit public interest work; and has taught in Asian law schools. “The program is an extraordinary chance to share ideas and experiences with out-standing peers who still want to ‘change the world,’” Mulqueeny said.

The Supreme Court Fellows Program has selected ryan rowberry as the 2010-2011 Supreme Court Fellow assigned to the Fed-eral Judicial Center. Rowberry is spending his year in the International Division and in the Federal Judicial History Office. He was previously an associate in the environment and natural resources division at Hogan & Hartson in Washington, D.C.

rebecca silberberg wrote that she and eric levine are engaged to be mar-ried. They met their first day at Harvard Law School, and their wedding is planned for March 2011. Silberberg is an associate at Skadden, Arps, Slate, Meagher & Flom, and Levine is an associate at Dewey & LeBoeuf, both in New York City.

2009 sarah scherer bertozzi and david king kessler were married on Aug. 21 at the Charles Hotel in Cambridge, Mass. Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit officiated. The next day the couple hosted a celebratory brunch in Pound 101, the classroom in which they met during the first week of their first year at Harvard Law School. They were both assigned to Professor Todd Rakoff’s Section 7, and a large contingent from that section attended their wedding.

steve feldman and ariella shkolnik were married on June 19 at the Gramercy Park Hotel in New York City.

michelle schaaf gyves was named a trustee at the Hill School, her high school alma mater, in Pottstown, Pa.



“War Don Don” by rebecca richman

cohen ’07. Winner of the Special Jury Award at the South by Southwest Film Festival, this film explores the trial of Issa Sesay, a former rebel leader accused of war crimes in Sierra Leone.

The trial highlights the challenge of creating justice in a country torn by civil war. The film, which translates from Krio to “War Is Over,” gives

voice to the people in the trial and to Sierra Leonians outside the courtroom. Cohen focuses on the inherently subjective boundaries of right and wrong during conflict. Whether or not you end up feeling sympathetic to Sesay after you see the court issue its verdict, in the end, “War Don Don” opens up a broader discussion about the nature of crimes against humanity and the international justice system. It was broadcast on HBO in September and—as of December—is available on DVD.

“Islamic Law and Civil Code: The Law of Property in Egypt”by richard a. debs ’58 (Columbia University Press). Originally the author’s doctoral dissertation written

some 50 years ago, the book examines the development of national law in Egypt. Frank Vogel, founder and former director of the Harvard Law School Islamic Legal Studies Program,

writes in a foreword: “Despite the passage of years, no study I am aware of renders Dr. Debs’s work obsolete or even significantly overlaps with it.” An advisory director of Morgan Stanley, Debs focuses on the Civil Code of 1949, which established modern Egyptian property law, and examines how

traditional Islamic legal institutions that existed in the 19th century were incorporated into it. The result, he writes, is a nation that is governed by its constitution and legislation but still respects the religious tradition of Shari’ah.

“Wild West 2.0: How to Protect and Restore Your Online Reputation on the Untamed Social Frontier” by michael

fertik ’05 and David Thompson (American Management Association). Fertik, the founder and CEO of the online reputation management firm ReputationDefender, and his chief privacy officer have written an account of how disasters can happen

AUTHORS AND AUTEURS ➽ BOOKS AND MOVIES BY HLS ALUMNI

SUPREME PRAGMATISM

“Making Our Democracy Work: A Judge’s View” by stephen breyer ’64 (Knopf). To ensure public confidence, the Supreme Court should employ a “pragmatic” approach to interpreting the law, with consideration for the real-world consequences of its actions, Justice Stephen Breyer argues. “The key lies in the Court’s ability to apply the Constitution’s enduring values to changing circumstances,” he writes. Breyer notes that the public has not always abided by the Court’s rulings in cases such as Cherokee Nation v. Georgia, the Court’s decision to protect Cherokee Indians, and Brown v. Board of Education, which federal troops had to enforce. In contrast, a recent case like Bush v. Gore, though controversial, faced no such resistance. Although the public now accepts the legitimacy of Court decisions even when they are unpopular, according to Breyer, that will continue only through civic education and Court “rulings and interpretations that help the Constitution work in practice.” He outlines principles to consider when deciding whether to overturn an earlier case, including whether it has created a set of unworkable legal rules or it has been embedded in national culture. He concludes by examining the Court’s role in protecting individual liberties. In those cases, as in others, Breyer says that Court decisions that respect the role of other government branches and make the law work more effectively will help foster “a workable democratic government.”

48_69_HLB_Winter11_07_r1.indd 64 11/16/10 6:30 PM

online, and how to make sure they don’t happen to you. The book offers a step-by-step guide to readers looking to assess their online footprint and endorses a “proactive” approach to warding off online character assaults. Readers are encouraged to shore up their online presence with positive or neutral material, building up what the authors term “Google insurance” to drown out attacks and slanders that might come later.

“Dust” by Joan Frances Turner (Ace Books). This debut novel by a 1995 graduate—her real name is hilary

hall—is narrated by Jesse, a member of the undead (“zombie,” she says, is

a racist term) since a car accident at the age of 15. As we follow Jesse and her decaying band of fellow hunters, the Fly-by-Nights, through Indiana (they fight and banter

with each other, rot, and devour bloody meat), we learn a thing or two about what it means to leave life behind.

“The Partnership” by steven j.

harper ’79. Written by a man who himself spent 30 years as a litigator in a large firm, this novel—Harper’s first—follows two star attorneys at the fictional Michelman & Samson as they stage relentless, soul-draining drives to the top of the career ladder, sacrificing their morals, their personal lives and their friendship along the way.

“Regulating from Nowhere: Environmental Law and the Search for Objectivity” by douglas a. kysar ’98 (Yale University

Press). Yale Professor Kysar draws on philosophy, psychology, economics and science to critique the dominant

cost-benefit model for assessing environmental risk and making policy decisions. Kysar’s work rigorously defends the “precautionary principle” in

environmental lawmaking, which at once recognizes the limits of our ability to numerically assess the many risks that face us and brings us back in touch with our moral responsibility not just to other human generations but to other forms of life. The book’s final segment takes shape around Kysar’s own model statute, which he calls “The Environmental Possibilities Act,” and which looks at how we might engage with a moral and constitutional vision of economic policymaking.

“A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic” by george william van

cleve ’77 (University of Chicago Press). This analysis of the legal and political history of slavery—from the American Revolution through the Missouri Compromise—asks why it persisted and prospered after a revolution some thought would end it. Now a scholar-in-residence in the Department of History at the University of Virginia, Van Cleve argues that slavery endured because it was essential to the foundation of the republic. He examines the Constitution’s formation in detail, finding that it was “pro-slavery in its politics, its economics and its law.” To create a strong

federal republic that could become a continental empire, he contends, the Southern states had to be willing partners in the endeavor, and a major part of the “price of their allegiance” was the “continued protection of slavery as it expanded.”

“Red Hook Road” by ayelet

waldman ’91 (Doubleday). This novel set in Down East Maine opens with a

wedding followed by the death of the bride and groom on their way to their own reception. In the chapters and years that follow, the couple’s family members—Maine natives on one side

and summer people from New York City on the other—find their lives interwoven in ways they might not have predicted.

“Initial Public Offerings: A Practical Guide to Going Public” by david a. westenberg ’83 (Practising Law Institute). Hailed as the upcoming “bible of the market” on The New York Times’ DealBook blog, Westenberg’s work aims to be a comprehensive, ground-up guidebook for companies and their advisers as they first consider and then enact the complicated process of going public. Readers are shepherded from the most minute preliminary considerations all the way through topics like investor relations and post-IPO liquidity by the WilmerHale partner, who himself has decades of experience leading companies from formation through venture financing and onward to IPOs. P



Head TK


1. Paul Edelman ’50 and granddaughter Alita

2. Class of 2005

3. Geraldine Horn and Michael M. Horn ’65

4. Pamela Everhart ’90

5. 1995 LL.M. classmates Maria-Sara Jijon and Nathalie Moreno

6. David Simon ’50 and his wife, Suzanne Simon, and Bob Shamansky ’50

7. 1980 classmates John Snyder and Bob Hinton

8. Christian Hausmaninger LL.M. ’90 and his wife, Franziska Hausmaninger-Tschofen LL.M. ’90

9. 1980 classmates Mary Lu Bilek, Jeff Kindler, Aaron Marcu and John Sachs

10. Class of 1955

11. Jim Robertson ’65

12. Emeritus Club member Donald Marcus ’58 and his wife, Judith Marcus

photographs by asia kepka

FALL REUNIONS ➽ A PEAK WEEKENDMANY HAPPY

RETURNS

1 2

3

65

4


7 8

9 10

11 12



FACULTY TRIBUTE ̋ PROFESSOR EMERITUS BENJAMIN KAPLAN: 1911-2010

A Legendary Teacher, in the Classroom and on the Bench

BENJAMIN KAPLAN, THE Royall Professor of Law Emeritus

at Harvard Law School and a

former justice of the Massachu-

setts Supreme Judicial Court,

died Aug. 18, 2010.

A specialist in civil procedure

and a preeminent copyright

scholar, Kaplan co-wrote the

fi rst casebook on copyright, with

Yale Law Professor Ralph Brown

’57 in 1960. His 1967 seminal text,

“An Unhurried View of Copy-

right,” grew out of a series of lec-

tures he delivered at Columbia

Law School.

“Ben Kaplan was a towering

giant in the law with legendary

wisdom and analytic precision,”

said Dean Martha Minow. “The

generations of students and

litigants guided by his work as

professor and justice ensure

that his legacy will long endure.”

Kaplan fi rst joined Harvard

Law as a visiting professor, in

1947. The visit turned out to last

a quarter of a century, during

which he developed his long-

standing interest in civil proce-

dure and intellectual property,

joined the permanent faculty,

and had a lasting infl uence on

generations of students, legal

scholars and jurists.

“Sometimes one is lucky

enough to have a teacher who

changes one’s life,” said Profes-

sor Andrew Kaufman ’54. “Ben

Kaplan was such a teacher, and I

was his lucky student. He taught

me how to think critically about

law and life.”

Professor David Shapiro ’57

said of his former teacher: “Ben

Kaplan’s wisdom and wit, and

his mastery of the art of teach-

ing, have been an inspiration to

me as a student and throughout

my academic career. Like the

many others who have had the

good fortune to work with and

learn from him, I treasure the

experience—he was a wonder-

ful combination of rigor and

encouragement, of skepticism

and faith.”

Kaplan’s students also

included two Supreme Court

justices, Stephen Breyer ’64 and

Ruth Bader Ginsburg ’56-’58.

At a memorial service that

fi lled Ames Courtroom in Octo-

ber, Breyer called Kaplan “the

master of us all.”

“To listen to Ben teach,” he

added, “was to listen to the

Socratic method at its best, used

by a fi rst-rate craftsman and ar-

ticulated by a true gentleman.”

Breyer also recalled how

beautifully Kaplan wrote, but he

praised above all, “the quality

of his thought and analysis, his

integrity, his humanity that ani-

mates his opinions and assures

us that they will last.”

Kaplan graduated from Co-

lumbia Law School in 1933, and

he began his law practice with

the New York fi rm

Greenbaum, Wolff &

Ernst, participating

in the civil rights

case Hague v. Com-

mittee for Industrial

Organization, which

reached the U.S.

Supreme Court in

1939.

In 1942, he joined

the U.S. Army, ending

his tour of duty as a

member of Justice

Robert Jackson’s

prosecuting staff in

the fi rst Nuremberg

case. Working fi rst

with Col. Telford

Taylor ’32 and then

with Jackson, Kaplan

played an important

role in drafting the

indictment in the

case.

In 1972, Kaplan

left the Harvard Law

faculty to become an

associate justice of

the Massachusetts

Supreme Judicial

Court. He served

until 1981, when he

reached the con-

stitutional age for

retirement. He was

recalled to the Mas-

sachusetts Appeals

Court in 1983.

In a 1988 profi le in the Bulle-

tin, Kaplan said: “Each appellate

case presents itself as a puzzle.

The challenge is to fi nd the one

right solution, and to explain it

in a way that satisfi es not only

the Bar and the specialists but

also the general intelligent pub-

lic. There is not much difference

in the end between judging and

teaching. The job of the judge,

like that of the teacher, is to

instruct, to educate.” P

“TO LISTEN TO BEN TEACH WAS TO LISTEN TO THE SOCRATIC METHOD AT ITS BEST, USED BY A FIRST-RATE CRAFTSMAN AND ARTICULATED BY

A TRUE GENTLEMAN.” —JUSTICE STEPHEN BREYER ’64

HLS

HIS

TOR

ICA

L A

ND

SP

EC

IAL

CO

LLE

CTI

ON

S.



1930–1939leo yanoff ’33

July 16, 2010

david ginsburg ’35

May 23, 2010

ward b. lewis ’35

April 10, 2010

alexander a. marks ’35

June 9, 2009

john j. zoller ’35

Sept. 6, 2010

robert l. werner ’36

May 14, 2010

bernard s. needle ’37

Feb. 26, 2009

w. willard wirtz ’37

April 24, 2010

1940–1949morton d. elkind ’40

Aug. 22, 2010

john p. “jack” fishwick ’40

Aug. 9, 2010

louis henkin ’40

Oct. 14, 2010

james f. mccoy ’40

April 30, 2010

addison m. parker ’40

June 15, 2006

herbert robinson ’40

June 14, 2010

william a. centner ’42

Feb. 28, 2007

albert w. schiffrin ’42

Aug. 29, 2009

rush e. stouffer ’42

Sept. 10, 2010

hector g. dowd ’43

June 23, 2010

louis f. eaton jr. ’43

May 26, 2010

louis kunin ’44

July 11, 2010

robert marks ’44

Sept. 27, 2010

clyde o. martz ’44

May 18, 2010

albert w. barney ’45

May 10, 2010

donald m. cormie, q.c.

ll.m. ’46

Feb. 20, 2010

jerome h. berkowitz ’47

Dec. 2, 2009

stanley e. edwards, q.c.

ll.m. ’47

May 12, 2010

john r. alexander ’48

Dec. 29, 2008

george p. flannery ’48

June 20, 2010

herbert w. irwin ’48

April 22, 2010

william h. latimer jr. ’48

May 5, 2010

charles b. melby jr. ’48

May 23, 2010

richard h. millen ’48

March 10, 2010

herbert l. sherman jr. ’48

May 14, 2010

david b. stearns ’48

Feb. 19, 2010

charles a. sullivan jr. ’48

Sept. 5, 2009

philip h. ward iii ’48

March 18, 2008

james m. wilson jr. ’48

Nov. 15, 2009

herbert s. ascherman ’49

April 14, 2010

weaver w. dunnan ’49

June 29, 2010

allen f. goodfellow ’49

May 4, 2010

william w. hancock ’49

June 14, 2010

john b. henderson ’49

Sept. 5, 2010

chadwick johnson ’49

Aug. 27, 2010

paul j. kirby ’49

April 27, 2010

edwin j. sommer jr. ’49

April 9, 2010

1950–1959robert a. curley ’50

June 11, 2010

brian d. forrow ’50

Aug. 4, 2010

hans f. loeser ’50

May 15, 2010

joe l. randle ll.m. ’50

May 11, 2010

theodore f. “ted” stevens

’50

Aug. 9, 2010

burton c. wood ’50

May 9, 2010

joseph w. di carlo ’51

Sept. 8, 2010

joseph h. indick ’51

July 16, 2010

irwin j. landes ’51

May 27, 2010

richard bertrand “dick”

mcmurray ’51

May 4, 2010

jacob i. alspector ’52

Sept. 3, 2010

eugene r. anderson ’52

July 30, 2010

thomas p. birmingham ’52

April 29, 2010

edward p. brandeau ’52

June 15, 2010

daniel p. davison ’52

Aug. 25, 2010

anthony f. de la pena ’52

Nov. 6, 2008

joseph m. farley ’52

May 24, 2010

h. jonathan fox ’52

Aug. 27, 2010

james j. guinan ’52

May 21, 2010

lloyd w. herrold ’52

Aug. 28, 2010

richard j. graving ’53

April 19, 2010

stephen w. howe ’53

Aug. 4, 2010

gabriel a. ivan ’53

May 29, 2010

john r. lennan ’53

Aug. 19, 2009

william a. piedimonte ’53

July 22, 2010

r. regner “reg” arvidson

’54

July 26, 2010

f. martin bowne ’54

March 13, 2010

william e. foley ’51-’52

Sept. 17, 2010

gerard f. giordano jr. ’54

April 22, 2010

john mason harding ’54

Sept. 28, 2010

elvin “zadie” kanter ’54

Aug. 9, 2010

ronald s. konecky ’54

June 10, 2010

robert a. mackennan ’54

July 30, 2010

herbert b. rose ’54

May 22, 2010

norman m. yoffe ’54

April 9, 2010

lawrence b. florio ’55

April 10, 2010

jeremy e. goldstein ’55

June 19, 2010

saul h. magram ’55

June 21, 2010

james a. reed jr. ’55

Oct. 28, 2008

fred m. ringel ’55

June 26, 2010

phil j. shafer ’55

March 31, 2010

daniel a. soberman ll.m.

’55

July 17, 2010

john r. allen ’56

Sept. 3, 2010

andrew c. carlin ’56

May 12, 2010

john o. ehrenclou ’56

Aug. 6, 2010

john h. goewey ’56

April 17, 2010

stephen r. petschek ’56

July 24, 2010

p. james riordan ’56

Nov. 22, 2009

richard m. wall ll.m. ’56

Sept. 14, 2010

wallace r. bennett ll.m.

’57

July 25, 2010

william a. dobrovir ’57

May 23, 2008

martin d. ginsburg ’58

June 27, 2010

gerald d. kleinman ’58

April 6, 2009

david a. nelson ’58

Oct. 1, 2010

edwin v. petz ’58

Aug. 13, 2010

krzysztof skubiszewski

ll.m. ’58

Feb. 8, 2010

herbert s. denenberg

ll.m. ’59

March 18, 2010

arthur f. flaherty ’59

Aug. 19, 2010

eugene m. grimmig ’59

Aug. 21, 2010

carl d. hobelman ’59

Aug. 31, 2010

lee pollak ’59

Dec. 4, 2009

1960–1969donald e. endacott ’60

April 26, 2010

robert h. mackinnon ’60

July 6, 2010

richard l. mayer ’60

July 2, 2010

walter h. mclaughlin

jr. ’60

June 11, 2010

walter a. baker ’61

May 24, 2010

robert e. jordan iii ’61

May 14, 2010

paul r. mcdaniel ’61

July 16, 2010

david b. salzman ’61

April 14, 2010

juan manuel garcia-

passalacqua ’62

July 2, 2010

duane r. batista ’63

Aug. 23, 2010

paul a. lynch ’64

June 26, 2010

edward f. c. mcgonagle

ll.m. ’64

July 19, 2010

roger p. craig ’65

May 25, 2010

lloyd cymrot ’66

April 7, 2010

richard j. flaster ’66

Aug. 9, 2010

k. dun gifford ’66

May 9, 2010

neal w. johnston ’66

May 24, 2010

robert j. klein ’66

Feb. 20, 2010

david k. park ’66

Aug. 27, 2010

john w. “jack” delaney ’67

July 30, 2010

robert b. “roben” eubank

’67

April 23, 2010

peter j. “jim” hunter jr.

ll.m. ’67

Sept. 15, 2010

ronald s. sheldon ’67

March 2, 2009

john h. smith ’67

Nov. 11, 2009

patricia a. flynn ’68

June 22, 2010

william l. murphy ’69

June 4, 2010

1970–1979kenneth f. seminatore ’71

Aug. 31, 2010

dennis b. wolkoff ’71

March 9, 2010

arthur g. peinado ’72

Aug. 12, 2010

shalom l. kohn ’74

May 30, 2010

daniel m. ferrere ll.m.

’76

July 29, 2010

1980–1989sandra l. cohen ’80

Aug. 25, 2010

richard h. “rick”

schneider ’81

April 2, 2010

robert a. “robbie”

womack ’82

May 31, 2010

peter a. von mehren ’85

Feb. 1, 2010

paul s. miller ’86

Oct. 19, 2010

1990–1999woodrow f. downs ’90

June 17, 2010

greg c. giraldo ’90

Sept. 29, 2010

2000–2009noah d. levin ’07

Aug. 25, 2010

IN MEMORIAM OBITUARY INFORMATION Notices may be sent to Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138 or to [email protected]



LEADERSHIP PROFILE

A Conversation with Kenneth I. Chenault ’76

Kenneth I. Chenault ’76, chairman and CEO of American Express, is widely considered one of the most successful and talented business strategists of our time. Joining AmEx in 1981 as director of strategic planning, he was named president and COO in 1997, and CEO and chairman in 2001. Chenault is a member of the Council on Foreign Relations and the Business Roundtable.

What drew you to law school,

in general, and to HLS in

particular?

I was attracted to law school because I believed it would help me prepare for a career in the real world. At that time, I didn’t know whether I wanted to practice law, go into government, teach or join a not-for-profi t or-ganization. Harvard Law provided an opportunity to learn from a faculty that had shaped the laws of our country and helped to change the world around us. It also off ered an op-portunity to study with the brightest students and to test myself against the best.

Did you have a particular

career path in mind after

graduating HLS?

Back then, business and the corporate world were not on my radar screen. By gradu-ation, I had decided to be an attorney and joined Rogers & Wells in New York. My plans were to practice law and then possibly go into public service. The busi-ness world of the later 1970s was going through some sweeping changes. We were moving from an industrial-based to a service economy, and new patterns of global trade were emerging. Old companies were fading away, and new, dynamic ones were taking their place. With all that was changing, I began to think that busi-ness off ered more oppor-tunities to get ahead and to make a diff erence. Corpora-

tions are “for profi t,” but I recognized that businesses could play a leading role in driving social change, that they do have responsibility for being good citizens.

I moved back to Boston and joined some of my Harvard classmates at Bain & Co. I quickly realized I en-joyed business. I liked being responsible for developing strategies. I liked creating a persuasive argument, pursuing it with clients and rallying support among my colleagues. I also liked the discipline that came with measurement, the chance to be judged in terms of out-comes. The ability to drive change appealed to me, and I was very comfortable with the concept of being held ac-countable for my work.

You joined American Express

in 1981 and are widely cred-

ited for transforming it into

the premier fi nancial services

and travel company in the

world. What was your vision

for what AmEx should be?

When I joined American Express, it was a well-estab-lished global company with a long heritage built on cus-tomer service dating back to 1850. I didn’t have goals for the company back then, but I wanted to learn as many aspects of the business as I could.

One of the fi rst things I learned was the importance of brands. That lesson would shape my thinking for years to come. I learned the importance

of earning the trust of your customers and how important relationships were to any successful business. Building a brand requires you to make a commitment. The founders of American Express made a commitment to serve their customers, and they brought that commitment to life in good times and bad. In many ways, the vision that I have for our company today is still grounded in that tradition. We value the trust that our customers put in us, and we know that we have to earn it every day.

You believe strongly in corpo-

rate social responsibility; you

have said that businesses ex-

ist to serve not only their cus-

tomers but also the communi-

ties in which they operate.

Why do you believe this is the

appropriate approach for a

corporation (and its CEO)?

Corporations exist because society allows them to ex-ist. I believe every business has an obligation to give back and to help improve our society. Sometimes we show this by writing checks. Sometimes it’s by provid-ing our employees with opportunities and time to volunteer. Sometimes it’s by sharing our skills and resources. Sometimes it’s by being there for customers in times of emergency when there is no one else to turn to. Regardless of how we do it, contributing to the bet-terment of society is part of the corporate charter.


What more should corpora-

tions, and their leaders, be

doing to serve the world?

You don’t need an opinion poll to know that very few people believe corporations always deliver on their social responsibilities. But I know there are many individuals and companies—small, medium and large—that are committed to social good and that believe that companies can pursue profi ts while also contributing to the public good. Leaders can’t just look at the bottom line. They have an obligation that goes beyond the products or the jobs they help to create.

I want American Express to serve customers and help our business partners suc-ceed. I encourage employees to ask the tough questions, speak up and demand ac-tion, whether it helps to make a service more help-ful, a product more trans-parent or the community healthier.

How did your HLS education

affect your life and your ca-

reer? Did HLS have an impact

on your dedication to public

service?

Harvard Law taught me a disciplined approach to analyzing problems and situations. It taught me the value of appreciating

diff erent perspectives and respecting the opinions of people you don’t always agree with. Harvard also taught me the importance of adaptability, integrity and accountability. I learned that you have to know what you stand for, but that you cannot be so rigid in your thinking that you never adapt to new realities. I learned never to put goals ahead of values. I learned that when you are given opportunity, you need to hold yourself personally accountable to delivering results. Harvard taught me the importance of law but also the importance of leadership.

You have chosen to gener-

ously support HLS—why have

you done so?

I want future students—particularly those who are economically disadvantaged —to have plenty of opportu-nity to benefi t from study-ing at Harvard Law.

What do you hope to see HLS

achieve in the coming years?

I want Harvard to develop great lawyers and great leaders. Whether they end up on the bench or in the boardroom, I want them to leave Cambridge with a sense of purpose and a commitment to bring about positive change in the world around them. P

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EE

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GALLERY

Talking About a Revolution

daniel coquillette ’71, the Charles Warren Visiting Professor of American Legal History at Harvard Law School and the J. Donald Monan, S.J. University Professor at Boston College Law School, is writing a new history of HLS, to be published in time for the school’s bicentennial—2017. This fall, he gave students an introduction, highlighting ways the school has transformed legal education, but also covering “the rough times and great challenges.” Here are some highlights from his talk, in quiz format. See how you do.

1. What connection does this build-

ing—once situated in Harvard Square

where the Coop now stands—have

to Harvard Law School?

2. And what about this building?

3. Who was the youngest U.S.

Supreme Court jus-tice in history, and what else did he do while he served on

the Court?

4. Who are these three men, and

how did their lives intersect?

5. When is it a bad thing to be a

national school (Joseph Story’s

goal for Harvard Law)?

1

2

3

4 5

6 7

8 9 10

a. b. c.

72-c4_HLB_Winter11_05.indd 72 11/16/10 6:43 PM

A pop quiz with some surprising

answers

1 In 1817, it was Harvard Law School. Called College House Number 2, it was located next to the courthouse for convenience, but it was part of Harvard College. When the school opened, it had 15 students, one teacher, and was the fi rst professional law school within the context of a university to teach people to be lawyers—the school’s fi rst big idea, said Coquillette, at a time when most lawyers were taught through apprentice-ship.

2 This building, which still stands in Medford, Mass., housed slaves of the school’s founder, Isaac Royall. He had owned a sugar plantation in Antigua, and it was the sale of slaves in the Caribbean that allowed him to buy his property in Medford and also to endow the fi rst chair at Harvard Law School.

3 Joseph Story. At 32, he was nominated to the Court, and he continued to serve while he was Dane Professor of Law at HLS, where one of his goals was to transform the school into a national institution. “Here’s the tragedy,” said Coquillette. “To be a national law school, you have to have a nation.” Early on, Story saw that the country’s cohesive-ness was threatened by the divide over slavery. In 1842, he enforced the Fugitive Slave Act in the Prigg case, sending a mother and her two children back into slavery, not because he supported the institution, said Coquillette, “but because he thought it was the price of a nation.”

4 Edward Greely Loring (a) was appointed to teach at HLS in 1852, one of three faculty. He was also a federal magis-trate in Boston, and in 1854 he ordered the return of fugitive slave Anthony Burns (b) to Virginia, under the Fugitive Slave Act. Rioters stormed the streets and the courthouse in an attempt to rescue Burns.

But in the end, a Coast Guard cutter was brought in to take Burns away. Abolitionist Richard Henry Dana LL.B. 1837 (c) had unsuccessfully represented Burns, but his freedom was later ransomed, and he went on to become a Baptist preacher. After the riots, the Harvard Board of Overseers refused to renew Loring’s appointment.

5 Joseph Story had recruited from all over the country, and as the Civil War approached, nearly half of the students were from Southern states, said Coquillette, and “the school was ripped apart.” Oli-ver Wendell Holmes Jr. LL.B. 1866 famously served in the Union Army before attending HLS, but more leaders of the Confederacy were alumni of Harvard Law School than of any other school in the U.S. besides West Point. “There are true stories of people serving in the war, taking a prisoner and discovering it was one of their classmates.” As many as 74 grads may have died fi ghting for the Union, and 54 for the Confederacy.

6 Christopher Columbus Langdell LL.B. 1854, dean of Harvard Law School from 1870 to 1895, revolutionized the teaching of law and had an immediate impact on HLS, but also on Boston University. Famous for introducing the case method and the Socratic approach, Langdell was also responsible for standardizing the curriculum and for intro-ducing rank in class. Accord-ing to Coquillette, Langdell saw many of his innovations “as a way of creating a legal elite based on merit, rather than power and infl uence.” And in fact, Langdell’s meth-ods were so shocking at the time, said Coquillette, that there was an exodus of stu-dents from Harvard, many of whom fl ed to the newly founded Boston University Law School.

7 Langdell was vigorously opposed to the admission of women. His meritocracy was very limited, said Coquillette.

Women started applying in the 1870s, then again in the 1890s and then again in the 1910s. But “gender apartheid” ruled at HLS, said Coquillette, until 1950, when the deter-mined women in this picture were admitted.

8 Roscoe Pound, dean of Harvard Law School from 1916 to 1936, an innovative le-gal scholar and one of the fi rst to focus on internationalizing the law school, held an ad-vanced degree in botany but no LL.B. HLS faculty member and leading progressive Felix Frankfurter LL.B. 1906 lob-bied for his appointment. But according to Coquillette, Pound made one great mis-take, “and it’s hard to know in retrospect why he did it.” He was a great admirer of the German university system, and in 1934, he took an honor-ary degree from the Univer-sity of Berlin—at a time when Hitler had been chancellor of Germany for one year.

9 HLS’s fi rst Asian-American graduates came from Hawaii. The Chinese Exclusion Act (1882) prevented those who were Chinese from becom-ing American citizens, and by 1924 the exclusion had been broadened to apply to all Asians. But when Hawaii was annexed, its residents au-tomatically became U.S. citi-zens, including Hiram Fong ’35, the fi rst Asian-American to be elected to the U.S. Senate and the fi rst U.S. senator from Hawaii.

!0 Coquillette was a 2L in 1970, and he remembers the Harvard Square riots: Some 3,000 demonstrators, protest-ing the war in Southeast Asia, marched on the Square, leav-ing “cars wrecked, trash bins on fi re, windows smashed.” Harvard itself, he said, like campuses across the country, was periodically shut down by strikes. “At times you had to break a picket line to get into the library, and classes were canceled because the students wanted to talk about Cambodia.” P

6. This man is credited with shaping American legal education. What other school besides HLS was most immediately aff ected by his innovation?

7. How would Langdell have reacted to this group?

8. What degree might you expect Dean Roscoe Pound to hold, which he lacked, and what degree might you expect him to eschew, which he accepted?

9. Why is Hawaii especially signifi -cant to HLS?

10. What’s going on in this picture, and what does it have to do with Harvard Law School?

˝

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72-c4_HLB_Winter11_05.indd c3 11/16/10 6:08 PM

Harvard Law BulletinHarvard Law School125 Mount Auburn StreetCambridge, MA 02138

Nonprofit Org.U.S. Postage PaidBurlington, VT05401Permit 347

—dean martha minow on julius genachowski ’91, chairman of the FCC

“ There’s a risk that the chair [of the Federal Communications Commission] simply serves the industry, and there’s a risk that the chair does not understand the needs and demands of the industry. Julius is uniquely suited to understanding the industry perspective while keeping American needs at heart.”

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