BY CHRIS SZABLA

Polling data over the last several months madeit seem as if Massachusetts Attorney GeneralMartha Coakley was a shoe-in for the DemocraticParty’s candidate to fill the late Ted Kennedy’sU.S. Senate seat. But new numbers show otherDemocratic candidates challenging her lead – andpicking up a number of high profile endorse-ments.With the primary for primary for the state’sspecial Senate election set to be held December

8th – less than a week away – thechances that another candidate maypull off a surprise victory are nowhigher than ever.The good news for Coakley’s chal-

BY MATTHEWW. HUTCHINS

The very visible decline of the Har-vard endowment has had notable im-pacts in all sectorsof the university,and the lawschool has beenno exception.From the unfortu-nate layoffs ofstaff to the uncer-tainty regardingfree coffee, HLSstudents have hadthe woes createdby the frigid job market compoundedby a sense that the economic crisis waspermeating all corners of academic life.Indeed, not long after the installation ofthe highest steel of the Northwest Cor-ner project seemed to have dispelledany doubt as to the solidity of the law

school's vision of the future, DeanMartha Minow announced this weekthat the university's financial woes hadforced the school's administration to

discontinue therecently launchedPublic ServiceInitiative (PSI) tu-ition forgivenessprogram and limitthe amount ofsummer public in-terest funding(SPIF) availableto current stu-dents.

But despite the changes announced,representatives of the school's adminis-tration say students should have nodoubt that HLS has retained its strongcommitment to providing public inter-est funding to all its students and grad-

BY CHRIS SZABLA

After eight years of exhaustingwar in Afghanistan, PresidentBarack Obama ’91 outlined his planTuesday to achieve what he deemedthe U.S. primary goals there and tobring the country’s involvement toan end. Stressing the national secu-rity threat still posed by Al-Qaeda,President Obama said that 30,000new troops would be deployed to thebattle-scarred CentralAsian country,

along with additional contribu-tions from the U.S.’ NATO allies.But he also outlined additional

steps to be taken in the country, in-cluding program to turn some Tal-iban away from the movement, a“civilian surge” to shore up trustin the government, training ofAfghanistan’s police and military,and a closer partnership with Pak-istan. Despite the apparent open-endedness of these goals, Obamadeclared that the U.S. withdrawal

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Opinion• End Blocked Ballot Access• Obama to Earth: Drop Dead• Harvard to Poor: Drop Dead• Swiss Miss on Minarets?• After the Mumbai Massacre• Genocide Denial in Rwanda

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INSIDEThe HL Record

MASS. SENATE RACENARROWS IN FINALWEEK

h a r v a r d a n d t h e c r i s i s

BEHOLD HLRECORD.ORG

Coakley Retains Slim Lead –But Dukakis Backs Capuanoand Globe Endorses Khazei

Down totheWire

Top: Alpha Company, 2nd Battalion, 508th Parachute In-fantry Regiment support Afghan police during a cordon andsearch of Pana, Afghanistan, June 9, 2007. U.S. Army photoby Staff Sgt. Michael Casteel. Above: Pres. Obama and U.S.Army generals salute the remains of soldiers, includingMichael Weston ’97, during a ceremony at Dover Air ForceBase, Oct. 29, 2009. U.S. Air Force photo by Jason Minto.

Dukakis to Dems:Knock on Doors!Grasroots CampaigningCritical to Success

Senate, cont’d on pg. 3INCREASEDLIPP, SPIFMAKEUP FORPUBLIC SERVICE INITIATIVECUT

Financial Aid Reform: $5.2 Million Increase inGrant Funding Despite Endowment Costs

Obama Orders New Strategy: 18 Months and 30,000 TroopsNeeded to Fulfill U.S. Mission, Fight Afghan Corruption

A F G H A N I S T A ND E A D L Y E N D G A M E I N

HLS CLASS OF ‘97 SUFFERS MULTIPLE DEATHS IN WAR

BYMATTHEWW. HUTCHINS

The most important lesson of theObama presidential campaign, accord-ing to former Governor MichaelDukakis ‘60, is that successful cam-paigns are founded upon organizationsthat employ the grassroots power of di-rect person-to-person contact. Dukakissays his own political career as a mem-

?

Photo: Siyuan Chen, LL.M. ‘10

Funding, cont’d on pg. 4Dukakis, cont’d on pg. 3

Afghan, cont’d on pg. 3

Page 2 Harvard Law Record December 3, 2009

BY THERESAAMATO

In October 1958, Ralph Nader, then arecently-graduated, former editor of theHarvard Law Record, co-authored anarticle decrying the monopolistic prac-tices of the Democratic and Republicanparties on state ballot laws and their illeffects on minor parties. In defense ofpolitical dissent and the engagement ofnew proposals, Nader noted the “manytimes in our history” minor parties had“deeply stirred opinion.” It was easierin the 19th century for regional or smallstart-up parties to get on the ballot andinfuse elections with ideas such as theabolition of slavery, a woman’s right tovote, worker and farmer reforms—allof which we take for granted today,though the minor parties first advocat-ing these rights did not win the presi-dency.Five decades later, Mr. Nader, now an

internationally-renowned consumer ad-vocate, has announced his candidacyfor the U.S. presidency three times,twice as an Independent and once onthe Green Party ticket. His prescientwords concerning the suppression ofminor parties and dissenting agendasremain even more accurate today asthey were fifty-one years ago.I have an intimate knowledge of these

ballot access burdens because I man-aged the Nader’s 2000 and 2004 presi-dential campaigns and had to navigatethrough these laws and oversee or in-stigate nearly four dozen lawsuits to de-fend against or seek reform of their illeffects. Indeed, in 2004—motivated bythe 537-vote difference between AlGore, Jr. and GeorgeW. Bush in Floridain 2000—the Democrats and their allieslaunched two dozen complaints in 12weeks against Nader’s candidacy, con-suming the time, energy and resourcesof the 2004 campaign, which was, inaddition to blocking ballot access, theexpressed goal of these major party po-litical bigots and their brethren. Thelitigious onslaught targeted Nader’scandidacy simply because he, like alleight minor party candidates on the bal-lot, received more than 537 votes: buthe received the most and was posi-tioned to appeal to voters again with aprogressive agenda.Today, as in 1958, ballot access for

minor parties and Independents remainsconvoluted and discriminatory. Thoughcertain state ballot access statutes arebetter, and a few Supreme Court deci-sions (Williams v. Rhodes, 393 U.S. 23(1968), Anderson v. Celebrezze, 460U.S. 780 (1983)) have been generallyfavorable, on the whole, the process—and the cumulative burden it places onthese federal candidates—may be bestdescribed as antagonistic. The ju-risprudence of the Court remains hos-tile to minor party and Independentcandidates, and this antipathy can beseen in at least a half dozen cases de-cided since Nader’s article, including,Jenness v. Fortson, 403 U.S. 431(1971), American Party of Tex. v.White, 415 U.S. 767 (1974), Munro v.Socialist Workers Party, 479 U.S. 189(1986), Burdick v. Takushi, 504 U.S.428 (1992), Arkansas Ed. TelevisionComm'n v. Forbes, 523 U.S. 666(1998).Justice Rehnquist, for example, writ-

ing for a 6-3 divided Court in a fusioncase, Timmons v. Twin Cities Area NewParty, 520 U.S. 351 (1997), spells outthe Court’s bias for the “two-party sys-tem,” even though the word “party” isnowhere to be found in the Constitu-tion. He wrote that “The Constitutionpermits the Minnesota Legislature todecide that political stability is bestserved through a healthy two-party sys-tem. And while an interest in securingthe perceived benefits of a stable two-party system will not justify unreason-ably exclusionary restrictions, Statesneed not remove all the many hurdlesthird parties face in theAmerican polit-ical arena today.” 520 U.S. 351, 366-67.This license, in effect, to discriminate

against third parties and Independ-ents—as well as the Court’s general re-luctance to require much substantiationof “state interests” when states profferthat rationale to defend discriminatorylaws—have not made it easy to be anIndependent or the candidate of aGreen, Libertarian, Socialist or Consti-tution Party, not to mention all the oth-ers. Moreover, the Court has leftunreviewed outright miscarriages ofjustice, as Nader knows from his halfdozen unheard petitions to the Courtspringing from his 2004 campaign.The burdens faced by minor party

and Independent candidates are sys-temic. First, there are 51 different setsof Byzantine rules, written the by thepartisan members of the legislatures ofthe fifty states and the District of Co-lumbia. As the major parties are usu-ally automatically on the ballot, thepartisan legislators show little concernfor leveling the ballot access playingfield for challengers to their incum-bency or parties.Second, many of these ballot access

laws are blatantly unconstitutional—asin they have already been held by thecourts to be so, but the administratorsof the elections cannot get their ownstate’s legislatures to bring the electioncodes into compliance with judicial rul-ings. (We found this to be the case inmultiple states, including Alaska,Arkansas, California, NewYork, Penn-sylvania, and West Virginia.)Third, election officials in the thou-

sands of state and local jurisdictions ad-ministering these state laws controllingfederal elections often don’t know whattheir own ballot access laws contain ormean or are reluctant to tell candidatestheir meaning for fear of being sued.Fourth, compliance with the laws

may be overseen by partisan civil ser-vants, commissions, or courts, and weencountered all of the above in the ad-judication of our cases, including egre-gious examples of partisanship—suchas the use of the denial of ballot accessas a partisan fundraising promotion bythe then-Secretary of State of Oregon.Finally, the aggregate of these ballot

access laws, either cumulatively bystate, or even within a state, as alludedto by Justice O’Connor in her concur-rence in Clingman v. Beaver, 544 U.S.581 (2005), may be overwhelminglyburdensome.Of course, ballot access is just one of

the burdens faced by third party and In-dependent candidates. Others includethe federal regulatory system, the lack

of public financing, the often dismis-sive if not derisive media, the Democratand Republican cartel otherwise knownas the Commission on Presidential De-bates, which acts as a debate and mediagatekeeper to millions. Also, thehodgepodge of irregular and inconsis-tent laws can devalue the rights of avoter or candidate (from what counts asa vote to who is entitled to seek anaudit) depending on the particular statejurisdiction in charge of administeringthe peculiar state laws applying to fed-eral elections.Ten years ago, TheAppleseed Center

for Electoral Reform and the HarvardLegislative Research Bureau publishedin the Harvard Journal on Legislation AModel Act for the Democratization ofBallot Access, 36 Harv. J. on Legis. 451(1999). A decade later, not a singlestate has, and the problems remain.I contend in my recent book, Grand

Illusion, the Myth of Voter Choice in aTwo-Party Tyranny, that a better re-sponse would be to federalize federalballot access laws by creating one fed-eral statute applicable to all federalelections. (State laws written to controlthe processes for candidates for Con-gress are often as bad, indeed worsethan presidential ballot access laws,with some voters never having thechance to vote for Independent candi-dates for Congress because of theirharsh state ballot access laws.)Since 1985, a few members of Con-

gress—John Conyers, D-MI (e.g. HR2320, HR 1582), Ron Paul, R-TX (e.g.HR 3600), and Tim Penny, DFL-MN(e.g. HR 1755)—have attempted overnine sessions to introduce federal legis-lation to ease these burdens for either orboth congressional and presidentialcandidates. Congress has shown thatit can exercise control over federal elec-tions where necessary by passing fed-eral legislation to regulate a variety ofaspects including registration (the“Motor Voter”Act), provisional ballotsand state registration databases (theHelp America Vote Act), and most re-cently absentee ballots for those abroad(the MOVEAct (Military and OverseasVoting Empowerment)).The prospect of passing a federal law

(which has been introduced in some in-carnation and voted out of committeeand received a floor vote at least once inthe House in the last two decades) isdim, but greater than the nonexistentmovement for passage of a state modelballot access law, which has seen nosuccess in the last decade.The question we should be asking is

why we continue to permit this injus-tice when no other western country putsits third party and Independent candi-dates through the kind of hazingprocess ours does? The congressionalincumbency rate (routinely in the 90thpercentile) reflects the often uncon-tested or merely predictable-by-landslide-proportions state of ourcongressional elections.These uncompetitive elections can be

impregnable for many reasons, not theleast of which are gerrymandered dis-tricts, a winner-take-all or first-past-the-post electoral system, and the lack of achoice-maximizing vote counting sys-tem, such as instant runoff or rankedchoice voting.

The lack of candidate and program-matic choice are also to blame, and forthat we can look at the still onerous bal-lot access laws Nader warned of in1958 and the ignominious role thoselaws have played in narrowing voters’options by dictating the flipside of thosechoices—candidates’ rights to run on alevel playing field. Improved thirdparty and Independent candidaterights— by invigorating and diversify-ing voter choices—will give citizensmore meaningful elections.

Theresa Amato, a public interestlawyer, is a graduate of Harvard Col-lege and NYU Law, a former Wasser-stein Fellow at HLS and an Institute ofPolitics Fellow at the Kennedy School.Her book, Grand Illusion: the Myth ofVoter Choice in a Two-Party Tyranny,based on her experiences as the na-tional presidential campaign managerand in-house counsel for Ralph Naderin 2000 and 2004, was published thisyear by The New Press.

For more information on ballot accessissues, see links on hlrecord.org

Do Third Parties Have aChance? Ballot Access andMinority Parties (1958)

The following article, by Ralph Nader’58 and Theodore Jacobs ’58, was pub-lished in the HL RECORD on Oct. 9,1958. Mr. Jacobs died Aug. 7, 1998 of aneuromuscular degenerative ailment.

Most people will agree, as a generalproposition, that our democratic faith isreflected in our treatment of minorities.But, as so often happens with nationalprofessions, it is in the translation ofthese declarations into actual practice[...]In state after state there is a practical

monopoly of the ballot by the Demo-cratic and Republican parties. The per-petuation of this monopoly is insuredby laws which subject the entry of newor minority party slates to the ballot toalmost impossible burdens, and by ju-dicial interpretation of these laws whichignore their prejudicial effect on smallparties. [...]What requirements must a small

party or independent group meet inorder to place its candidates on the bal-lot? There are 48 different answers tothis question. Each state has its dis-tinctive statutes, ranging from liberal toharsh, [...]Without taking into account all the

minor variations in the several states,three main aspects of the independentnominating petition may be treated: (1)The number of signatures required; (2)Apportionment of these signaturesthroughout the state; (3) Stipulationsconcerning authentication of signaturesand restrictions on persons who signpetitions.In its Model Election Law, theAmer-

ican Civil Liberties Union urged thatminor parties be required to accumulatesignatures equivalent to only one-tenthof one percent of the total vote cast [...]Compare this standard with the re-quirements of 2 percent in Missouri(36,000 votes), 3 percent in Massachu-setts (71,643 votes), 5 percent in Cali-fornia (259,000 votes) and 7 percent inOhio (259,000 votes).See more at HLRECORD.ORG

Two-Party Ballot Suppresses Change

December 3, 2009 Harvard Law Record Page 3

would begin in July 2011, just 18months from the deployment of freshtroops.Obama’s address atWest Point comes

just weeks after another Harvard LawSchool graduate died inAfghanistan, onassignment with the Drug EnforcementAgency. According to a report in theNational Law Journal, Michael Weston’97 had already been deployed toAfghanistan as a Marine three timeswhen he was sent in on a DEA raid ona Taliban drug and weapons bazaar. Theraid was successful, butWeston did notmake it home: his helicopter crashedwhile attempting to take off in thickdust.Weston’s wife, Cynthia Tidler ’97,

had been there before. Her first hus-band, Helge Boes, also died inAfghanistan – working for the CIA– in2003. It was another accidental death –a grenade training misfire. Boes wasalso a member of the HLS Class of1997. "He was selfless in a way thatfew who pass through Harvard LawSchool have the strength and thecourage to be,” Weston, had writtenabout Boes when the latter died. “Hewas the best of us."On the morning of October 29, it was

Weston who was being remembered.His body arrived with those of fifteenothers at Dover Air Force base, where

Obama and Attorney General EricHolder were attending the arrival offallen soldiers for the first time. We-ston’s body was the second off theplane. The iconic photo of Obamasaluting the coffins that passed hassince become iconic.At Harvard, where he, Boes, and Ti-

dler were close friends, Weston hadconsidered becoming a patent lawyer.His father, StevenWeston, is a land de-velopment attorney at Alston & Bird inLos Angeles, and Weston was flyingback to California for a summer associ-ate position after his first year when heencountered a plane full of Marines.Impressed by their dedication, Westonjoined up while he was still a 2L. Heserved as a judge advocate – never, ifpossible, flaunting his HLS credential –and then deployed to the fronts ofAfghanistan and Iraq.

Obama stayed at Dover until 2:30 inthe morning, speaking with the familiesof the deceased. Eventually, he spokewith Weston’s father. “Mr. President,”the elder Weston told the Los AngelesTimes he’d said to Obama, “my sonwent to Harvard Law School just likeyou did.”

The president now faces a criticaltest of his leadership in hisAfghanistanplan. Thirty thousand more Americanlives – not to mention those of the U.S.’

allies and of Afghan civilians who willsuffer from the escalation of the war ef-fort – will be on the line. And the pro-posal itself appears to be a gamble –that the additional troops can help sub-stantially weaken Al Qaeda beyond itsability to strike the U.S. again, that theTaliban can be significantly weakenedto the point at which it is in no positionto threaten overthrow of the Afghangovernment, that the “civilian surge”will help restore credibility to the em-battled and corrupt Hamid Karzai gov-ernment in Kabul, and that closerpartnership with Pakistan will reduce itsambiguous stance toward the Taliban.All this must occur before 2011, whenObama has promised to begin with-drawing troops.

Already there is deep skepticism. Inhis address at West Point, Obama at-tempted to dispel fears thatAfghanistanwould be “another Vietnam” by point-ing out three critical differences – theU.S. is supported by more allies inAfghanistan, is not facing a national re-sistance, and has a legitimate casus belli– the attacks of September 11, 2001.

But the terrain on the Afghan-Pak-istan border, where Al Qaeda is said tohave its base of operations – is even lessforgiving than Vietnam’s. U.S. troopswill deploy in greater numbers toAfghanistan without a new strategy for

fighting on the ground. Obama’s at-tempt to woo low-level Taliban wholack ideological commitment to thecause is hobbled by a lack of existinginfrastructure to incentivize or supportsuch defectors. And Obama may be ig-noring the regional element to the con-flict: one of the reasons Pakistan has nothit the Taliban harder, some say, is itslongstanding policy of using jihadistmilitias as proxies against its perennialSouth Asian rival, India.

Obama’s goals are certainly clearerthan those that seemed to be guiding theU.S. inAfghanistan before. But they arestill somewhat vague, and it remains tobe seen how committed he will be tothem.At the close of his speech atWestPoint, he noted that the cost of the warsinAfghanistan and Iraq was hamperingthe U.S.’ economic recovery, a prosper-ity, he said, that financed its power.

The balance he draws between thisconsideration, the deaths of Americansoldiers, and the diminishing returns ofpursuing Al Qaeda into the deepestmountains of the Hindu Kush, or up-holding even the sparsest nation-build-ing program inAfghanistan, is likely todetermine whether the withdrawal thatbegins in 2011 marks a quick U.S. exitfrom one of the longest wars in its his-tory, or merely the beginning of its longdenouement.

lengers – who include House of Representativesmember Mike Capuano of Massachusetts’ 8th Dis-trict, Boston Celtics owner Steven Pagliuca, andCityYear service organization founderAlan Khazei’87 – began on November 18, when a BostonGlobe poll showed Capuano appearing to gain sup-port among undecideds. His numbers shot up from16 to 22% within a ten day period. The trend ac-celerated with the release of a Rasmussen pollshowing Coakley’s appearing to be chipped awayby Khazei, who gained 8 percentage points be-tween the Globe poll and the November 23 tally.That was before the Boston Globe, in a surprise

move, offered its endorsement to the now-darkhorse candidate Khazei. The weekend endorsementcame with surprising rebukes against the other can-didates – the firey Capuano, the paper said, was“too populist,” Coakley “too cautious,” and Pagli-uca, a Harvard Business graduate who made hisfortune in consulting, not experienced enough inpolitics to inherent Kennedy’s mantle. CitingKhazei’s bold stances on the issues and experiencewith grassroots organizing, the Globe called him“Massachusetts’ best chance to produce anothergreat senator”. Khazei has also rolled out a list ofendorsements running fromAOL CEO Steve Caseto New York Mayor Michael Bloomberg to MaxKennedy, a scion of the Kennedy family itself.No more than a day later, Capuano picked up a

major endorsement from former Governor and1988 Presidential candidate Mike Dukakis ’60 –Dukakis’ first endorsement for a statewide positionsince 1990. Capuano has also been endorsed byDiane Patrick, the wife of current Governor DevalPatrick ’82, though the Governor himself has notendorsed anyone in the primary.Advertising for the Pagliuca campaign has been

copious over the last few weeks, with ads for hiscampaign flooding television and computer screensacross the Commonwealth. But the businessman’snumbers have been stagnant: after an early surge inlate September, they have stabilized at around 15%.After the Globe’s endorsement, Khazei appeared tobe in position to overtake him as the third placecandidate.The tightening of the race was reflected in sharp

words exchanged between the candidates at a de-bate sponsored by Boston’sABC affiliate, WCVB.Each of the candidates fiercely defended their back-grounds – Capuano appeared particularly con-

cerned that the other candidates would try to spinCongressional act and White House policy againsthim: he is the only candidate in the race with ex-perience serving in elected federal office. Morethan once he was forced to point out that the Trou-bledAssets Relief Program (TARP), the unpopular“bailout” of major banks, was not equivalent to thestimulus pushed by the Obama administration ear-lier this year.Khazei and Pagliuca, for their part, tried to get

past the barrier of inexperience. Pagliuca pointedout that he was highly active in Democraticfundraising and had opposed the Iraq War withinthe business community, but commenters textingWCVB pointed out that he had also donated moneyto GeorgeW. Bush. The same commenters seemedsurprised by the appearance of Khazei who, despitehis Globe endorsement, lacks for name recognitionin the state. Khazei emphasized the twenty years hehad spent working inWashington, pointing out thathe had played a role in passing several major piecesof legislation with Ted Kennedy.Martha Coakley’s reputation as a safe and per-

haps even overcautious candidate was borne out byher performance that evening, as she continued toassert that a “second stimulus” aimed at job cre-ation may not be as much of a priority for her as anevaluation of the first economic recovery measure.But the Attorney General revealed passion whendiscussing her stance on whether abortions shouldbe covered by health care.Although the House health care bill includes an

amendment substantially restricting access tohealth care funds for abortions, Pagliuca said thathe would vote for it. In the sharpest exchange ofthe evening, Coakley declared that the issue was“not political, but personal”. Capuano quicklybacked her up with a severe jab at Pagliuca: thebusinessman would “sendAmerica’s women to theback alleys” for abortions by voting for the currentincarnation of the House health care bill.The candidates claimed the mantle of Kennedy,

but each displayed a slightly different side of thelate Senator’s personality: his sometimes brash,righteous anger (embodied by Capuano), his will-ingness to compromise (a trait that seemed to be-long most to Coakley) and his dedication to publicservice (the mantle clearly inherited by Khazei).Asvoters learn more about the four, they seem lessable to choose between these qualities , which theyso admired, together, in the late Senator Kennedy.

ber of the town meeting of Brookline began with the com-mon sense step of knocking on doors and asking for thesupport of voters. When he ran for the governorship in1972, he made sure to have a captain in every precinctacross the state, working to make sure every voting house-hold would be directly contacted, and he managed to defeathis opponent, the incumbent state attorney general, whilespending only $25,000 on mass media.Dukakis admits that he made many mistakes in the 1988

campaign for the presidency, but he says that in retrospecthe should have gone with his instinct and mobilized grass-roots support across the country. The Obama campaign,which succeeded in Iowa through grassroots, falteredbriefly before recognizing the potential for the internet toopen access to a broad base of support. The result wasfundraising of over $750,000,000 from 4,000,000 support-ers, shattering all the records.But despite the phenomenal success of the Obama orga-

nization’s grassroots strategy on the national level, localcandidates have reverted to reliance on mass media and ig-norance of the person-to-person organizational strategy.The only candidate employing the tried-and-true methodsin the present Massachusetts senate race, says Dukakis, isAlan Khazei ’87, but unfortunately the compressed sched-ule of the special election will likely minimize the benefitthis provides.To Dukakis, a serious candidate will start organizing 18

months ahead of the election. The process begins with theselection of an experienced organizer who can work thefield tirelessly and appoint a captain in every precinct.Once each precinct is staffed by local block captains, theprocess of knocking on the door of every voting householdbegins, and it doesn’t end until each house has been can-vassed multiple times.The most obvious proof of this strategy’s success is, for

Dukakis, the victory of Governor Deval Patrick ’82.WhenPatrick came to Dukakis in 2005, he was an unknownacross Massachusetts. Dukakis told him to get a captain inevery one of the 2,157 precincts across the state and beginorganizing a direct appeal to voters. “And this neophyte,who had never run for elected office before and who veryfew people knew, not only beat two much better known andquite capable candidates to win the nomination, but hewent on to win the election over the incumbent lieutenantgovernor by 20%. How did he do it? It was all grassrootsorganizing.”Red-states and Blue-states, Republicans and Democrats,

he believes an aggressive candidate should reach out toevery voting household and make a direct appeal using thevoice of members of the local community who have joinedthe campaign organization. Do this, and you will win.

Afghan, cont’d from pg. 1

Dukakis, cont’d from pg. 1Senate, cont’d from pg. 1

Page 4 Harvard Law Record December 3, 2009

uates. Dean Minow's announcement expressed a shift instrategy to emphasize the Low Income Protection Program(LIPP) as the preferred method of post-graduate public in-terest funding, indicating that the gross funding of the pro-gram had increased by $1.1 million and that eligibilitywould be extended to unpaid public interest workers, whohad previously not qualified.According toAlexa Shabecoff,head of the Office of Public Interest Advising, the strategychange was necessitated by the double-bind of decliningendowment funding and increasing demand for funding dueto the troubled job markets. “The world has changed in thelast year and a half,” said Shabecoff, who spoke with theRecord along with the head of Student Financial Aid, KenLafler. “When the economy is bad,” said Lafler, “there ismore need for financial aid.” The result has been a netdeficit of $5.2 million for the law school's existing com-mitments to provide public interest funding, the combinedeffect of a $2.5 million decline in endowment funds and a$2.7 million increase in program needs.

According to Lafler, the LIPP program has this year re-ceived more applications, only halfway through its fiscalyear, than it did during the prior twelve month period. Laflersays this is partly because of the safety net structure of theprogram itself, which has no requirement of years of serv-ice and is designed to allow free movement of alumni inand out of public service positions. With more graduatesmoving directly into public service after school and a largenumber of private sector attorneys being forced to pursuealternative pathways, estimating the program's total costswill be difficult until the job market begins to recover. Infact, the large number of deferred first-year associates ex-posed the program to a problem of under-inclusivenesswhich the administration hopes will be adequately ad-dressed by the promise to include unpaid graduates who areat least employed.

But in order to support its expanding commitmentsunder LIPP, the PSI pilot program could not be continued.Contrary to the facts reported by the Harvard Crimson,Lafler says that enrollment in the PSI had been in line withthe administration's projections of 60 students for the firstyear and 80 students in the second year, with final enroll-ment reaching 58 and 73 students respectively. Even withthe PSI available, some students he advised made the in-formed choice to accept only LIPP funding, preferring theflexibility of not making a definite commitment under thePSI framework.And although the PSI program helped over-come the psychological aversion to debt, many studentshave already seen complete protection from exposure todebt payments under LIPP.

Shabecoff, who was involved in the design of the PSI,says the program was also partly an effort to create an an-nual cohort of students that resembled her alma mater'sRoot-Tilden-Kern scholars program, with a kickoff banquetaimed at establishing collegial connections among partici-pants. She remains convinced that the funding availablethrough the LIPP and SPIF programs provide unparalleledopportunities to HLS students and hopes that a new pro-gram will be developed that captures the best aspects of thePSI's design. In the meantime, she is relieved that theHolmes Fellowship program will provide employment op-portunities for a dozen new graduates each year.

For current students, the total evaporation of 1L em-ployment at law firms and the imperilment of 2L opportu-nities have swelled SPIF applications from 495 students lastyear to more than 600 this year, an increase of over 20%.To accommodate the increased volume, the program hasbeen limited to an 8-week funding period, which Shabecoffsays was a necessary trade-off in order to protect open ac-cess. Lafler declined to say that the program would be ex-tended again when the economy recovers, saying only thatevery dollar available for public interest funding will con-tinue to be directed whatever program is deemed to providethe most benefit to students and graduates.

In a time of severe limitation in private sector employ-ment opportunities, both current and prospective studentswill be focusing close attention on the funding law schoolsprovide to pursue public interest employment. BothShabecoff and Lafler urged students to consider the flexibleand open structure of the LIPP program as a continued tes-tament to the commitment Harvard has made to provideloan repayment assistance no matter what causes an em-ployed graduate's financial need.

BY CRAIG ALTEMOSE

From December 7 to 18, the representatives of192 nations will gather in Copenhagen, Denmark,to decide the fate of the human race. Will we con-tinue to live in a world with a stable climate, orwill we condemn ours and future generations to aworld with steadily decreasing amounts of foodand water as the population is set to dramaticallyincrease?Among the attendees will be President Barack

Obama ’91 and the heads of state of close to 100nations, including Australia, Brazil, Canada,China, France, Germany, and the UK.The original goals of the summit was to try to

reach an agreement to keep temperature increasesto less than two degrees Celsius; thereby fore-stalling what scientists said would be the worstconsequences of global warming. This two degreegoal was based on a report by the Intergovern-mental Panel on Climate Change, the Nobel-win-ning body charged with summarizing all of theavailable scientific literature on global climaticdisruption.This body was not empowered to make recom-

mendations, but their analysis revealed that tohave a 50% chanceof avoiding two de-grees, we would needto stabilize emissionsat 450 parts per mil-lion (ppm) of CarbonDioxide in the atmos-phere.In order to earn that

50% chance, devel-oped nations like theUS would need to re-duce their emissionsbetween 25-40%below 1990 levels of emissions by the year 2020,and by 80-95% by 2050. Since most heads of statewill not be in office in 2050, the 2020 goals aremuch more telling of the current state of affairs:The European Union has pledged to reduce

emissions across the block by 20% below 1990levels by 2020, and increase that pledge to 30% ifother nations similarly follow suit. Some Euro-pean nations have pledged even more: Norwayhas pledged to reduce its emissions a full 40% by2020 (what most developing nations are now call-ing for); and our strong ally the UK has pledged toreduce its emissions 34% below 1990 levels by2020. Japan, too has stepped up, with a 25%below 1990 levels pledge by 2020.So how is Obama ‘reclaiming’ American lead-

ership and returning us to good-standing in the in-ternational community? He is going with a pledgeof 17% below 2005 levels by 2020. While thissounds fairly close to what other nations are doing,it is indeed a national embarrassment. In 1990 lev-els, when most of our rich peers are in the 20-40%range, Obama is going to Copenhagen with apledge to reduce emissions by only 3% below1990 levels by 2020.Canada and Australia are using U.S. intransi-

gence as an excuse to refuse to be less aggressive,but they would quickly fall into line if we steppedup to the plate. But more frustrating and damningis that developing nations can also use our failureto lead as an excuse.All observers recognize that China, India, and

other major developing nations will have to agreeto binding emissions reductions if we to avert ca-tastrophe. Yet with Obama coming to the tablewith such a measly pledge, it is hard for those na-tions to go back to their people having made anysubstantial commitments themselves. So, despitethe courageous leadership of developing nations

like the Maldives, Brazil, Mexico, Ghana, and oth-ers, which are willing to make significant emis-sions reduction pledges, China and India arelooking to only pledge to reduce the rate of growthof their emissions.To make things even worse, leading scientists

now believe that the 450 target that countries arefailing to even have a 50% chance of hitting is out-dated and overly conservative. NASA’s leadingclimate scientist, Dr. James Hansen, Director ofthe Goddard Institute for Space Studies, has de-termined that the highest safe level of CO2 in theatmosphere is 350 parts per million (ppm). We arenow at 390ppm and climbing quickly, on pace tohit over 900 by the end of the century. The worldhas not had CO2 levels stabilize at 400ppm forsome 13 million years, long before human beingswalked the planet, much less rode on it in carts orcars. This goal has even been endorsed by thechair of the Intergovernmental Panel on ClimateChange.So, basically, the world is screwed. Almost

every major environmental organizations in theUnited States is so excited to have PresidentObama actually doing something, after decades ofinaction in the hands of Reagan, Bush, Clinton,

and another Bush, thatthey forget that sci-ence actually doescare about the num-bers. We are not ne-gotiating withRepublicans, we arenegotiating withPhysics and Chem-istry, and they do nothandle negotiationswell. We get no creditfor recessions, for fil-ibusters, or for good

intentions.Copenhagen will fail to reach a deal that will

safeguard your future. If you are planning to havechildren, you might want to reconsider. Some sci-entists estimate that we may have enough food andwater left on the planet for less than one billionpeople by 2100. A recent report funded by theUnited States Army, the World Bank, and UN-ESCO stated that, without dramatic action “bil-lions of people will be condemned to poverty, andmuch of civilization will collapse.” Scientists es-timate that as early as 2035, melting glaciers in theHimalayas would see the water supply of over 400million people (more than the entire populationsof American and Canada combined) completelydry up, leaving the nuclear-armed nations ofChina, India, and Pakistan scrambling to find, buy,or steal enough water to quench a thirst the size ofNorth America.Here in Massachusetts, the Leadership Cam-

paign is leaning on the state government to em-brace the goal of 350 parts per million bycommitting to repower Massachusetts with 100%Clean Electricity in ten Years. The campaign isled by students at over twenty schools across thestate, but is conducted in partnership with the Mas-sachusetts Council of Churches, the MassachusettsClimate Action Network, and the SustainableBusiness Network. Twenty-five legislators (rep-resenting 1/8 of the entire state legislature) havealready pledged their support.

Craig Altemose is a 3L pursuing a joint degreewith the Kennedy School and a member of theLeadership Campaign, online at www.theleader-shipcampaign.org. Thosewith a desire to assist hiseffort can contact him at caltemose@jd10.law.har-vard.edu.

Climate Depends on CopenhagenUpcoming Climate Agreement Will Change the World,

But the United States is Not Taking the Lead

Iceberg on the Thames. Photo: flickr user IanVisits

Funding, cont’d from pg. 1

December 3, 2009 Harvard Law Record Page 5

BYMARIA VAN WAGENBERG

About a third of the world’s population, or roughlytwo billion people, lacks even the most basic access toessential medicines. Each year an estimated 25 mil-lion individuals, 10 million of them children, die oftreatable and preventable diseases. A large share ofthose deaths could be averted by low-cost access topharmaceuticals developed and patented by U.S. uni-versities. University patents are found in a quarter ofHIV/AIDS drugs and a fifth of high-impact drugs ap-proved between 1988 and 2005. The number of uni-versity patents has been on the rise since the 1980passage of the Bayh-Dole Act, which gave universi-ties title to patents arising from federal funding. Oncea university obtains a patent, it will typically licensethe patent to pharmaceutical companies for further de-velopment and commercialization. However, unlikepharmaceutical companies, which are tied to profitmargins, universities are non-profit actors whosework is largely financed by public funding. Therefore,universities have a special obligation to ensure accessto their research.In 2001, a group of Yale students learned that d4T

(stavudine), an HIV antiretroviral drug patented byYale and licensed to Bristol-Myers Squibb, was beingsold at outrageous prices overseas, blocking off ac-cess for HIV patients living in SouthAfrica and otherdeveloping countries. Troubled that Yale-developeddrugs were being priced out of reach for HIV patients,the students joined in a publicity campaign that even-tually pressured the university and pharmaceuticalcompany into reducing the price of the drug and mak-ing it available for generic production in SouthAfrica.Today, the organization those students founded, Uni-versities Allied for Essential Medicines (UAEM),continues to advocate making university-developeddrugs available to poor countries at low cost.On November 9th, the campaign for increased ac-

cess scored a significant victory when Harvard andfive other research universities signed a statement ofprinciples pledging to “promote the availability ofhealth-related technologies in developing countriesfor essential medical care.” The policy represents animportant step forward for Harvard, which is both aresearch powerhouse for diseases such as AIDS andmalaria, as well as a leader in the global technologyaccess movement. However, the policy does not gofar enough in several important ways.First, it is not clear the new policy represents an im-

provement over current licensing practices. Harvardhas included global access provisions in only 5 of the62 licenses concluded over the past two years. How-ever, these licensing agreements are secret, so the na-ture of the access provisions, the number of medicallicenses, and even the identity of the drugs covered,remain opaque. The new policy promises that Har-vard’s intellectual property will not pose a barrier toessential medicine access in the developing world. Italso commits to applying “meaningful metrics” toevaluate the success of its efforts. This commitmentis extremely vague. It does not address what the met-rics are or how they will be applied in the context ofindividual agreements. Howmeaningful will the com-posite, retrospective metrics be, especially when sofew agreements are concluded each year?Second, while the policy also sets out a menu of li-

censing options, it does not assemble these optionsinto a coherent plan that would facilitate access toHarvard licensed drugs. University licenses can im-pose global access conditions on pharmaceutical li-censees in a variety of ways. Some of the mostdiscussed options include: (1) Requirements thatNGOs receive the rights to distribute discounted ordonated drugs for humanitarian purposes (thoughNGOs rarely have the capacity to meet the needs of allpatients in poor countries). (2) Tiered pricing for low-income and high-income patients in countries with asignificant income gap, such as China or India (a dif-ficult policy to administer and enforce). (3) “March-in rights” which allow the patent holder to revoke the

licencee’s rights and license the patent to anothercompany, if, for example, a global access condition isbreached. (4) Financial incentives, such as forgive-ness of university royalties, for licensees in exchangefor providing low-cost drugs in the developing world.(5) Mandatory sub-licenses to specific generic manu-facturers in developing countries. (6) Non-patentingpolicies, where the university simply does not patentin poor countries, allowing any manufacturer to makegeneric versions of the drug without a license.The new policy requires universities to select

among these options with the goal of “align[ing] in-centives among all stakeholders.” This is a vaguestandard. Future policies should instead guarantee thata minimum level of access is negotiated into all rele-vant licenses; alternately, universities should committo making access a primary consideration in negotiat-ing global access provisions. A mandatory policywould reduce the need for transparency and oversightand might also give universities greater leverage andcredibility in negotiating agreements with pharma-ceutical licensees. As it stands, however, the policydoes not articulate a clear, access-based strategy.Third, under the new policy, Harvard will continue

the practice of asserting patents in the so-called“BRIC” countries (Brazil, Russia, India, and China),in addition to patenting in developed regions such asEurope and NorthAmerica. The BRIC countries pro-duce over 40 percent of the active ingredients in theworld’s generic and over-the-counter pharmaceuti-cals, and remain the only source of generic drugs out-side the developed world. The effect of patenting inBRIC countries would be to close the “pharmacy tothe developing world,” shutting down all sources ofgeneric production bound for developing countries.Generic manufacturing represents the most sustain-able option for delivering drugs to the poor, comparedto the relatively stopgap measures of sublicensing androyalty forgiveness.Finally, Harvard has stated that the policy will not

apply to drugs for non-communicable diseases, eventhough these diseases are major killers in the devel-oping world. The developing world now accounts for80% of the world’s deaths from non-communicablediseases such as heart disease, cancer, and diabetes.While HIV/AIDS and malaria are often the first thingsto come to mind when thinking about global health,the problem of access extends beyond those two high-profile causes.The policy for non-communicable disease drugs

might be explained by a deference to three pharma-ceutical company concerns. The first concern is “par-allel importation” – the idea that discounted or genericdrugs meant for distribution in the developing worldwill be smuggled back to the developed world andsold through black markets. Unlike malaria or tuber-culosis drugs, non-communicable disease drugs havesignificant markets in both the developed and devel-oping worlds. There is scant evidence that parallel im-portation of donated or discounted drugs exists orposes a threat to industry profits. HHS estimates thatabout 10 million shipments of unapproved prescrip-tion drugs entered the U.S. in 2003; however most ofthese originated in Canada or Mexico. It is not clearwhat percentage, if any, of these imports represented

discounted or donated drugs that were destined forpoor countries.A fair portion of these parallel importsconsist of counterfeit or illegal drugs, rather than le-gitimate generic or brand-name drugs, according toHHS. The European Union allows parallel importa-tion among its member states, but even the EU hasexperienced very few instances of parallel importa-tion of drugs destined for the developing world.Afterincidents like the one in 2002 when GlaxoSmithKlinediscovered a trader had diverted 44,000 packs ofHIV/AIDS medications from five African countries,governments have cracked down on these types ofshipments. Manufacturers have also adopted tech-niques like color-coding and special packaging tocounter smuggling. As long as drugs are sold at alower price in the developing world than the devel-oped world, there will be an incentive for parallel im-portation. However, the solution is not to sell drugsto the developing world at the same price as the de-veloped world, but rather to combat the smuggling.

The second concern is that pharmaceutical compa-nies, and by extension universities, will lose profitsby forgoing potential pharmaceutical sales in the de-veloping world. Pharmaceutical companiess havepublicly stated that they will seek to recoup any prof-its lost as a result of healthcare reform by raisingprices in poorer nations (see, for example, “DrugFirms See Poorer Nations as Sales Cure,” Wall StreetJournal, July 7, 2009). Medications for chronic, long-term diseases like heart disease, cancer, and diabetes,are lucrative pharmaceutical sellers, and thus repre-sent the best way for pharmaceutical companies tomaintain their double-digit profit margins. Howeverthe developing world represents a miniscule portionof pharmaceutical profits. PhRMA, the industrylobby, concedes that Africa comprised only 0.5% ofsales in 2007, with China and India at 0.6% and 0.2%respectively. By comparison, the U.S. represented67.7% of 2007 world sales. With the developingworld accounting for such a small percentage of over-all sales, pharmaceutical companies cannot claim thatglobal access provisions would drastically alter theirR&D incentives or lower their profit margins. More-over, universities rarely make money off of their li-censes. In 2007, Harvard University had about $1.88Bin total research expenditures, but only $12M in li-cense income. Universities will occasionally hit thejackpot with isolated blockbuster drugs – New YorkUniversity and Columbia had the highest licensingrevenues in 2007 with $791.1M and $135.6M re-spectively, each from single deals. These amounts arealmost never high enough to offset universities’ re-search expenditures.The third concern is that global access provisions

will serve as a “poison pill,” discouraging pharma-ceutical companies from licensing with universitiesthat require such provisions. This risk is probablyoverstated. Pharmaceutical companies will still com-pete to license promising drugs. Furthermore, licensesare primarily made with small companies (49.9% ofdeals) or start-ups (16.5%), many of them formed bythe researcher who originally discovered the technol-ogy. These companies take the drug a bit further downthe development pipeline before licensing to a bigpharmaceutical company. Global access provisionsare unlikely to change the first licensee’s decision tolicense, especially if the licensee has discovered thedrug. For the second licensee, often a large pharma-ceutical company, global access provisions are un-likely to discourage licensing for a drug withdemonstrated value.Since these concerns remain unproven, they should

not serve as a basis for unnecessary concessions topharmaceutical companies. If Harvard continues toenforce its patents in a way that prevents generic man-ufacturing of essential medicines, it will create a realbarrier between these drugs and the people in devel-oping countries who need them the most.

Maria van Wagenberg is a 2L.

Harvard’s Pharmaceutical Patent Policy Still LimitsAccess to Drugs by World’s Poor

Photo: flickr user RESchroeder

Page 6 Harvard Law Record December 3, 2009

HarvardLawRecord

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

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

EStabLiShEd MCMXLViEditors-in-Chief

Matthew W. HutchinsChris SzablaStaff Editors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

Editor Emeritus: Ralph Nader

Contributing WritersCraig AltemoseTheresa AmatoPhilipp FischerNicholas Joy

Patrick KaruretwaKonstantinous StylianouKaran Singh Tyagi

Maria van WagenbergStephanie Young

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

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

BY PHILIPP FISCHER

Switzerland’s vote to ban the con-struction of minarets, the prayer towersof mosques, was greeted with a mixtureof astonishment and disbelief aroundthe world. The impact of this decisionwas certainly magnified by the fact that– coincidentally – it occurred on the lastday of the “Festival of Sacrifice” (Eidal-Adha), a holiday celebrated by Mus-lims worldwide. Some commentatorshave already suggested that the votewill spark a backlash similar to the onetriggered in 2005 by the publication ina Danish newspaper of cartoons repre-senting the Prophet Muhammad. Thatmakes it critical to shed light on thelegal and political process that led tothis vote.Switzerland takes pride in a

century-old political systemwhich allows its citizens to havethe last word on almost any im-portant issue regarding their coun-try. The Swiss Constitution grantseach citizen the right of initiative,i.e. the right to propose a consti-tutional amendment which, ifsigned by at least 100,000 citi-zens, is then submitted to a popu-lar vote.In July 2008, a minor conserva-

tive political party announced thatit had collected the required number ofsignatures to force a vote on the prohi-bition of the construction of minarets inSwitzerland. This proposal was imme-diately opposed by three of the fourmain political parties that share powerwithin the Swiss government. Thefourth main political force endorsed theinitiative, but only half-heartedly.At theoutset of the political campaign, a num-ber of Swiss cities, citing concernsunder Swiss anti-racism laws, an-nounced their intent to ban from theirstreets the posters the proponents of theinitiative printed, showing missile-shaped minarets piercing a Swiss flag.This proved to be a costly strategic mis-take by the initiative’s adversaries.From then on, the public debate focusedessentially on the limits of freedom ofexpression and touched only very su-perficially on the significance of this

initiative for the interfaith relationshipin Swiss society.All the polls publishedin the weeks preceding the vote sug-gested that the initiative would besolidly rejected. Sunday’s result there-fore came as a colossal surprise for thecountry and for the entire world.Against this background, it is worth

noting that the initiative does not banthe construction of mosques or the ex-ercise of the Muslim religion as such,but only the construction of minarets onmosques. The four minarets that cur-rently exist in Switzerland are not af-fected by the vote, nor are theapproximately 400,000 Muslims livingin Switzerland restricted in any wayfrom practicing their faith in theirplaces of worship. That being said, this

formalistic approach to the scope of theinitiative fails to reflect the symbolicpower of the message sent by a major-ity of Swiss voters this Sunday.Some commentators have argued that

this initiative might be contrary to theliberty of religion, as guaranteed by theEuropean Convention on HumanRights, to which Switzerland has been aparty since 1974. But the practical con-sequences deriving from the conflictbetween Switzerland’s duties under aninternational treaty and a constitutionalamendment ratified by an overwhelm-ing majority of Swiss voters are un-clear, and are currently the subject of aheated debate among Swiss law profes-sors and politicians.More importantly, this vote cannot

and should not be seen as the ultimateproof of a predominantly anti-Muslimsentiment within the Swiss population,

despite the fact that this decision casts ashadow on Switzerland’s image as anopen and tolerant country. This voterather reflects a sentiment of fear anduncertainty that recently grasped thiscountry. In the past months, some of thefundamental pillars that defined theSwiss society over the past centurywere shaken to the core, particularlyfollowing the disclosure of the dire fi-nancial situation of its flagship banksand the relentless attacks on the Swissbanking secrecy. Furthermore, an on-going diplomatic row with Libya fol-lowing an incident involving theLibyan leader’s son in Geneva may alsohave been on voters’ minds when theycast their ballots.But it is also worth pointing out that ,until recently, the Swiss Constitu-tion contained a provision wherebythe creation of a new Catholic dio-cese was subject to the approval ofthe federal government. Given theProtestant alignment of the Swissgovernment at the time this provi-sion was introduced in 1874, the re-quirement for a prior approval wastantamount to an outright ban. In2001, Swiss voters decided, againin a popular vote, to remove thisdiscriminatory legal provision.Sadly, the blank line left in the textof the Constitution by the 2001 vote

will now be filled with the new provi-sion banning the construction ofminarets.Sunday’s vote will probably be seen

around the world as a step backwardson the road towards the peaceful co-habitation of religions. This notwith-standing, this decision – which wastaken democratically in a sovereigncountry and therefore ought to be re-spected – must be considered as aunique opportunity to initiate a pro-found dialogue with the Muslim com-munities, both in Switzerland andelsewhere in the Western world, inorder to define the necessary precondi-tions of a peaceful and harmonious co-existence.

Philipp Fischer LL.M. ’09 is currently aresearcher at the University of Geneva.

SUNSTEIN NAMEDTOP THINKER

Foreign Pol-icy magazinerecently namedProf. Cass Sun-stein ’78, whois on leavefrom HarvardLaw School toserve as head ofthe Office of Information and Regu-latory Affairs, the #7 thinker of theyear in its list of the top 100 most in-fluential intellectuals of 2009. Sun-stein was cited for his book Nudge,co-written with economist RichardThaler; he had taken the #3 slot onthe Prospect/Foreign Policy rankingof the world’s most prominent publicintellectuals of 2008.With his spouse, the Kennedy

School’s Samantha Power ’99, whois working with the National Secu-rity Council, ranked #80, the D.C.duo were the only married couple toboth be named to the list. We lookforward to the debut of their son, De-clan, on the list around 2045.

SWISS MISTAKE?The World Was Shocked When Switzerland Voted to Ban New Minarets,

But the Decision was About More Than Just Blind Xenophobia

The controversial poster displayed around Switzerland in support of a ban on new minarets. Photo by Flickr user rytc.

A Turkish mosque in Wangen bei Olten, Switzer-land sports one of the country’s four minarets.

December 3, 2009 Harvard Law Record Page 7

BY KARAN SINGH TYAGI

I remember November 26, 2008. I remember,vividly, the smell of terror surrounding Mumbai when10 young jihadis with guns in their hand and hate intheir eyes took over my city and declared war on mycountry. The dastardly events took place in two well-known luxury hotels, a 20-year-old railway terminustraversed by thousands every day, a popular cafe filledwith foreign tourists and locals, an un-known place of refuge, and a commonmaternity hospital. Terrorists openedfire and cut down men, women andchildren of every social stratum of thecity and from every corner of theglobe.The attacks raised a lot of questions

in the minds of Indians. Are we livingin callous times? Are we being run bya bunch of corrupt and inept politicianswho can’t even have in place a basicgame plan to manage a crisis of thismagnitude? Do we need to change ourmechanism of intelligence gathering?Now that the first anniversary of the

attacks is here, it might be a good timeto revisit the same questions to knowhow much has really changed since,Mumbai and India were held ransomby ten terrorists.Sadly, not much has changed. A year down the line

no individual has been held accountable or punishedfor such a heinous act. It was only yesterday that thePakistan Anti-Terrorism Court formally chargedseven suspects, including Lashkar-e-Taiba com-mander Zakiur Rehman Lakhvi, with planning andhelping execute the Mumbai attacks. It is better latethan never, but one only hopes that this indictmentwill be taken to its logical conclusion without any fur-ther delay.In India itself, the trial of Ajmal Amir Kasab, the

lone jihadi captured alive, has been turned into a pro-longed circus that is serving no one. Kasab initiallypleaded not guilty, but later, on July 20th, admittedhis guilt. The court accepted his plea and placed theconfessional statement on record, but dubbed the ad-mission of guilt as a partial admission and let the trialproceed.By all reckoning, Kasab's is an open and shut case.

So why not get on with it and reach the inevitableend? I am not suggesting kangaroo courts and sum-mary trials, but delays like this don’t translate into jus-tice. It is especially distressing to see such problemscontinue to emerge after the discomforting maze ofthe Indian judicial system was so badly exposed to thewhole world when the Trial Court took thirteen yearsto bring down curtains to the 1993 Bombay BombBlast case.In the immediate wake of the attacks, there was a

change in guard at the Ministry of HomeAffairs, withthe appointment of P. Chidambaram, a lawyer and aHarvard Business School graduate, as HomeMinister.Regional hubs of the country’s elite anti-terroristforce, the National Security Guard (NSG), were alsoestablished. ANational Investigation Agency was setup by him to probe and pre-empt any terrorist attempt.But, the fact is that Mr. Chidambaram needs to rec-ognize is that India has never lacked agencies–in fact,it is the multitude of intelligence agencies, and theirlack of cooperation, that has been the reason for thefailure to prevent terrorist attacks like those of No-vember 26, 2008. The lack of co-ordination betweenthe Intelligence Agencies, the Naval Agencies, theCoast Guard Agencies and the local police was whatenabled the terrorists to slip through and land onBombay’s beaches that day.It is the Indian local police that are entrusted with

the duty to implement strategies to prevent terroristattacks at the ground level. The Maharashtra state

government's support for their capabilities, however,has been shoddy, to say the least. Even today, the localpolice are grossly unprepared to deal with terror at-tacks, because of an acute shortage of weapons andammunition. Official records show that for a force ofwell over 180,000, the home department procured ameagre 2,221 weapons, 577 for Mumbai and 1,644for the rest of Maharashtra, in the last six years. In theabsence of a firing range and ammunition for prac-

tice, local policemen have not opened fire in the last10 years. The newly-created Indian Marine Police(IMP) has set up some of the planned seven dozencoastal police stations but, they have only receivedabout four dozen of the total of 20 dozen small five-tonne and 12-tonne-high speed boats. The IMP needsmore than 500 small high-speed boats and about 12dozen coastal police stations for more effective pa-trolling.Substandard bullet-proof jackets are supposed to be

one of the many reasons that caused the death of manybrave policemen during the terror strikes.A year afterthe attacks, the Maharashtra chief minister AshokChavan said last Sunday that he would investigate re-ports that policemen remain easily exposed to bulletwounds. But these reports have been circulating foralmost a year, and the question could well be asked:what exactly Maharashtra’s Chief Minister and HomeMinister have been doing for the last 12 months?

Why is the Maharashtra Government so insensitiveand apathetic? And when will its so-called policymakers stop hiding behind the veil of anonymity?After the last bullet was fired in Mumbai, there was anoutpouring of anger and much dismay at the "politi-cal system": the whole country ranted, raved, and tookto the streets to protest against a political leadershipthat had wholly mismanaged internal security.A year later, the same political leadership has re-

turned to power, and the section of thepopulation that had taken to the streetsone year earlier were nowhere to beseen on voting day. The voter turnoutin Bombay was an abysmal 46% in theState Assembly elections and an evenmore dismal 43% in the Parliamentaryelections. The truth is that the fault liesnot only in our politicians and leaders,but also in us. The low voter turnoutproves that we Indians have started tobelieve that the intangible "politicalsystem" is demonic and that there isnothing that we as common men andwomen can do to change it. What weneed to realize is that it is only the cit-izens that can cause real change. Thecurrent electoral system in India offersno hope and the need of the hour is ur-gent changes that will invite engage-

ment, loyalty and pride from all of us.But the biggest tragedy is that we don’t know how

to respect our heroes. We don’t know how to respect,cherish and immortalize their sacrifices. November26th should mean something for us all. It should meanrecognition of the sacrifices that have been made, andthat are still being made, by policemen, soldiers, theirfamilies and their children. It should mean apprecia-tion for what thousands of brave policemen and sol-diers have done for India - not just on that fatefulnight but in all other wars that my country has foughtand is still fighting to preserve our freedoms. I praythat heroes like Major Sandeep Unnikrishnan, Anti-Terrorist Squad Chief Hemant Karkare, AdditionalCommissionerAshok Kamte, Senior Police InspectorVijay Salaskar, Constable Ombale and several othersshall not have lived and fought and died in vain.

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

MUMBAI MASSACRE: QUESTIONING THE AFTERMATHOne Year After Terrorists’ Deadly Assault on India’s Financial Capital, Mumbai Still Lacks

Security, Justice – or Gratitude for Those Who Fought Back

A candlelight vigil for the victims of the Mumbai attacks. Photo by Flickr user aloshbennett.

BY JESSICA CORSI

The time had come inmy HLS career to showsome school spirit: I wasgoing to Harvard-Yale.I’m not normally a schoolspirit person, and evengrowing up in Texas hadnot made me interested insocializing around foot-ball. But my year atCambridge Universityhad changed me into aperson who enjoyed en-gaging in petty rivalriesalongside hordes of affil-iated University revelers.So, I decided that there wasno time like my last semester to engage in this sup-posedly quintessential Harvard experience. And withthat, we were off to New Haven, dressed in Crimsonand ready to wave our white and red pompoms. I did-n’t even have to feign excitement; I was genuinely

psyched to go.We arrived late. We had

ambitiously promised afriend that we would drivedown at dawn to catch thetraditional 9am Harvard-Yale Law Review game of(flag) football. We wereobviously hallucinatingwhen we said this. We hitthe road around ten, andbegan seeing signs forNew Haven around kick-off time. No problem, wesaid to ourselves. We’llstill see plenty of action, ifthere was any action to beseen; after all, Harvard andYale are not the country’s

premier football schools. But whatever happened, wewere going to be there, screaming and chanting whilejuggling our funnel cake and beer.There is something inherently hilarious about a

CAMBRIDGE, USA: AT HARVARD-YALE

“DO YOU WANT TO GET PUNCHED IN THE FACE?”

Photo: flickr user Kaptain Kobold

Yale, cont’d on pg. 11

BY NICHOLAS JOY

How difficult should it be for em-ployees to form a union? The proposedamendments to federal law embodied inthe Employee Free Choice Act wouldremove some of the hurdles that havehistorically stood between organizers

and collec-tive bargain-ing. Butexperts aredivided onthe questionof whetherthe in-c r e a s e dpower tou n i o n i z ewould actu-ally reflectthe au-t o n o m o u schoices of

employees or if the Act’s proposedchanges would simply increase the co-ercive power of unions. ProfessorThomas A. Kochan, who is the co-di-rector of the MIT Sloan School of Man-agement’s Institute for Work andEmployment Research, debated the

question with former Dept. of LaborSolicitor Eugene Scalia on Monday,November 30th, in an event sponsoredby the Federalist Society and the JohnTempleton Foundation.The new labor law would institute

“card check” unionization, automaticrecourse to binding arbitration whencollective bargaining stalls, and higherpenalties on employers for unfair laborpractices. Scalia, a partner at Gibson,Dunn, & Crutcher, said that the EFCAwould give unions greater power in ex-actly those situations when their inter-ests are not aligned with those ofworkers. “Unions have self interests oftheir own to serve,” he said. “They seea moment to get this through. Theywant this because union membership isdeclining.”Scalia sees card check unionization

as eliminating “the hard won right tovote one’s conscience.” As evidence

that the election model does not giveunionization efforts short shrift, he citedstatistics that unions won more than 68percent of elections last year, the high-est proportion in years. Scalia believesthat the secret ballot is “absolutely nec-essary” to avoid abuse. “It is really notcredible that the reason unions supportcard check is to prevent intimidation,”he said. “Unions want a monopoly onintimidation.”But according to Kochan, the rights

of employees to unionize are not beingadequately respected in the U.S. today.“The evidence is overwhelming thatAmerican labor law is broken.” Underthe current system, employees inter-ested in unionizing must gather at least30 percent employee card check ap-proval, at which point the federal gov-ernment supervises an election bysecret ballot. Card check unionization

Page 8 Harvard Law Record December 3, 2009

BY PATRICK KARURETWA

The recent encouraging news of the arrest in Ger-many of two of Rwanda’s suspected criminals, IgnaceMurwanashyaka and Straton Musoni, overshadowedthe latest development in the appeal chamber of theInternational Criminal Tribunal for Rwanda (ICTR).On November 16, the tribunal reversed a 20 yearprison sentence and ordered the immediate release ofProtais Zigiranyirazo (“Mr. Z”). Based on a findingof ‘serious errors’ in the first chamber’s handling ofthe defendant’s alibi, the decision immediatelysparked a wave of protest and consternation inRwanda and the Rwandan diaspora.The release of a suspected war criminal will not cre-

ate much disturbance in a country where convictedkillers live side by side with their victims’ relatives.The community-based gacaca, a local justice mecha-nism, have tried hundreds of thousands cases. Theyhave also allowed the release of thousands of perpe-trators under a plea-bargaining scheme.But Mr. Z is not your usual genocide suspect. He is

largely considered one of its masterminds. Manyfeared him too much to pronounce his full name, forMr. Z is the brother of Agathe Kanziga, wife of theformer Rwandan president Juvénal Habyarimana.Zigiranyirazo’s reputation as a radical extremist

went beyond Rwanda’s borders. In 1993, he was ex-pelled from the Université de Québec à Montréal –and then from Canada altogether – after being con-victed of uttering death threats against Tutsi refugeesin Montreal. He moved back to Rwanda, where hewas already known as the head of the ‘Akazu’, an in-formal but powerful organization revolving aroundthe former president’s wife, who controlled the omi-nous ‘Zero Network’ death squads.The existence and sinister agenda of the ‘Zero Net-

work’ death squads were revealed as early as 1992 inthe Rwandan press and confirmed in various local andinternational fora throughout the years that led to thegenocide. General Romeo Dallaire, the UN peace-keeping commander, sent a now-famous report toNewYork in January 1994 based on the very detailedinformation and warnings provided by Jean Pierre,one of several defectors of the ‘Zero Network’.Everything Dallaire’s informant told him became re-ality three months later, and close to a million humanbeings were slaughtered. Like all other defectors, JeanPierre had mentioned ‘Mr. Z’ as one of the key actorsin the preparations.Today, Mr ‘Z’ is a free man. The Trial Chamber, be-

cause of serious procedural errors, had led to a find-ing that he is not guilty. The memories of thousands ofRwandans of the vicious anti-Tutsi roadblocks he hadestablished in direct proximity of all his residences inKigali and Gisenyi weigh little or nothing to the court.

It is useful to remember that the ICTR was estab-lished by the UN Security Council Resolution 955with the dual objectives of accountability and deter-rence on the one hand and reconciliation and peaceon the other hand. In the words of Richard Goldstone,the Tribunal’s first prosecutor, the ICTR trial processis “an important means of promoting peace and rec-onciliation in Rwanda, providing catharsis to sur-vivors.”By clearing Protais Zigiranyirazo of any culpability,

the appeal chamber arguably followed internationalstandards of justice. The consequence of that decision,however, is not a simple mistrial. It is the acquittal ofa man whose acts, though not properly documentedby a prosecutor, are not easily forgotten in a countrywhere genocide was committed in broad daylight.How much consideration was given to the assess-

ment of the impact on peace and reconciliation thatthe Tribunal is meant to serve? How locally relevantare the decisions of a transitional judicial body thatapplies rules and processes developed to address fun-damentally different realities than that of a genocide?Most importantly, what are the implications of Mr. Z’srelease for the very concept of Genocide Planning?

No planning = No genocide?

‘Mr. Z’ was reportedly still stunned by the appealchamber’s decision when a news release co-signed byhis lead defense attorney, Jean Philpot, celebrated therejection, for the second time, of the charge againthim of genocide planning. The press release also callsfor “the ICTR trials to be halted, ICTR convictions tobe reviewed by an independent UN Commission, andthe conditional release of detainees”.Interestingly enough, Jean Philpot is the brother of

no other than Robin Philpot, the Canadian politicianwho, in 2007, attracted intense media attention for re-peatedly denying the 1994 genocide of the Tutsis.For Jean Philpot, Peter Erlinder and others, the con-

cept is quite simple: no planning = no intent = nogenocide.But the genocide deniers’ campaign goes beyond

the ICTR trials. A small but very active group of aca-demics, often with ties of some kind to the ICTR de-fense lawyers, does not miss an opportunity topropagate their revisionist views. In the words of Pro-fessor Gerald Caplan: “the deniers’ reach and influ-ence has been spreading, metastasizing like amalignant cancer, thanks to the anarchy of the blo-gosphere and to the embrace of the deniers’ argumentsby a small but influential number of left-wing, anti-American journals and websites. Google Rwanda andyou will quite likely get a deniers’ rant featuring thetiny band of usual suspects.…”Similarly, Oxford University’s Phil Clarck worries

about the increasing influence of deniers in the formof “scholars pursuing the latest academic fads thatrevel in ‘alternative narratives’, no matter how spuri-ous or morally questionable; ‘génocidaires’ seekingto deflect attention from their crimes; and critics ofthe current Rwandan government who try to connectalleged RPF crimes to unrelated concerns with its cur-rent policies.”Despite the lack of evidence for their assertions and

the extensive works of reputable scholars and organ-izations that amply documented the planning of the1994 genocide, this group persists. Could we be wit-nessing their increasing influence over the ICTR?Anincreasing number of genocide survivors apparentlythink so.

International Justice for theInternational Community

“Arusha’s justice is not ours. It is yours. That Tri-bunal was created to cleanse your conscience”.Yolande Mukagasana (survivor of the genocide).November 18, 2009

Yolande lost her three children as well as her hus-band, brothers and sisters. She has devoted her life tosupporting genocide survivors in Rwanda. She hasseen and heard enough. Her cynicism can thereforebe forgiven when she suggests that the ICTR, sittingin Arusha, should imprison the orphans and widowsinstead of the killers. “At least they will have threemeals a day. At least they will have a shelter. At leastthey will get medical care,” Mukagasana writes.International standards of justice certainly have

their own merits. There is, however, room for muchmore thinking on their societal impact in a post-con-flict context.For several years, Rwandan genocide survivors

have been accusing the ICTR of repeatedly neglectingand watering down their testimonies. Today, they areonce again in dismay. They feel ignored and aban-doned, blocked from going to Tanzania and appear-ing in Arusha at the ICTR to tell the terrible truth.Arusha’s justice is not theirs if it considers Mr. Z aninnocent man.The ICTR has spent more than 1 billion dollars and

completed less than 50 cases. With its profound de-tachment from Rwanda’s social realities, the tribunalcould not be further from its claimed objective of con-tributing to national reconciliation.

Patrick Karuretwa is a Rwandan lawyer and army of-ficer. He is currently studying at Tufts University’sFletcher School of Law and Diplomacy as its firstever LL.M./M.A.L.D. joint degree candidate.

MASTERMIND’S RELEASE FUELS RWANDAN GENOCIDE DENIAL

Illusion of Free Choice: Experts Debate Merits of EFCA

Eugene Scalia (left) and Prof. Thomas A. Kochan (right)

EFCA, cont’d on pg. 10

Is the Future of FeminismConservative?

Freedom to Sell Sex?The Debate Continues

BY NICHOLAS JOY

Christina Hoff Sommers is a feministwho believes the women’s movementhas taken “a wrong turn,” and she iswilling to court controversy to say so.On October 28, Hoff Sommers dis-

cussed “conservative feminism” in theAmes Courtroom. The talk was co-sponsored by the Federalist Society andthe Abigail Adams Society.Hoff Sommers’ books include Who

Stole Feminism?: How Women HaveBetrayed Women and The War AgainstBoys: How Misguided Feminism IsHarming Our Young Men. She advo-cates “equity feminism,” which focuseson securing equal legal rights forwomen.Hoff Sommers sees her views as

being rooted in the tradition of classi-cal liberalism.“Equity feminism promotes harmony

between the sexes. It is not new,” shesaid. “I’m not here to ask you to rejectclassic equity feminism.”According to Hoff Sommers, the

modern feminist movement has beenappropriated by “gender war ec-centrics” who want to “knock downdoors that are already open.”“If you looked at men and women to-

gether, it would be hard to say who isbetter off,” she said. “There are still un-resolved equity issues, but the real 21stCentury challenge is outside this coun-try.”This challenge, she said, is the liber-

ation of women in the developingworld, which she called “the humanrights challenge of our time.”“There is something wrong with fem-

inism on campus,” she said. “We needto turn the focus to other parts of theworld.”Hoff Sommers categorized modern

feminist theorists as believing in “whatthey call a sex-gender system,” inwhich “every institution in our societybears the imprint of patriarchy.” Shetook issue with this theory.“I read that and just do not recognize

the society we live in,” she said. “It istoo dramatic and negative about our so-ciety.”Hoff Sommers said that modern fem-

inist theorists have bolstered theirviews with urban myths and “egre-giously false information.” She said shehad found that many commonly citedstatistics, such as that violence againstwomen increases 80 percent on SuperBowl Sunday, did not have any basis.“Over and over again, you could

count on theorists to overstate,” HoffSommers said. “The truth is so muchmore complicated. If you want to helpwomen, help them by using the truth.”According to Hoff Sommers, the

feminist movement has also become in-creasingly hostile towards men, “impli-cating an entire gender.” It does so byfocusing on the bad behavior associatedwith “aberrational masculinity” ratherthan what most men are like.“We get the worst-case male stand-

ing for masculinity,” she said.

This attitude, Hoff Sommers said, ispartly the reason why the increasingplight of American boys has largelybeen overlooked.“American young men are under-

achieving, underperforming,” HoffSommers said. “The gap favoring girlsis getting close to a chasm.”She cited statistics to support the no-

tion that American girls are succeedingwhile boys struggle, saying that leadingveterinary schools are 80 percentwomen and that women have takenover the social sciences and biology.To the extent that women remain un-

derrepresented in areas such as the sci-ences, Hoff Sommers said that, while abetter job could bedone of encouragingyoung women to enterthese fields, generalpreferences betweenthe sexes could be atissue.“I accept the fact that

the sexes are different,different but equal,”she said. “What youwant for women is dig-nity, equality but notsameness.”She cited polling data

that showed that,“under conditions offreedom,” 20 percent ofwomen are “careerist,”20 percent “just want tostay at home,” and 60percent want both. Incontrast, when men arepolled, 80 percent arecareerist, 20 percent wantto balance careers and homemaking,and “a tiny percent want to stay athome.”“Women who embody stereotypes

should not be made to feel bad,” shesaid. “20 percent will defy the stereo-type – that’s why we need equity femi-nism. But 80 percent will embody thestereotype.”When Hoff Sommers first published

her views of the modern feminist move-ment, she said that her “colleagues wereoutraged,” and she was subjected to a“colorful attack” by the feminist estab-lishment.“I am not a backlasher, a traitor, an

anti-woman,” she said. “I am a philoso-pher.”Despite her issues with the modern

feminist movement, Hoff Sommers be-lieves that organizations such as the Na-tional Organization for Women wereintegral to improving the lot of womeninAmerica and can still perform an im-portant role.“Those organizations were essential,

but they’ve been here a long time,” shesaid.Hoff Sommers hopes that the

women’s movement will recast itself inthe future.“I don’t think we should reject con-

temporary feminism,” she said. “Weshould reform it.”

BY STEPHANIE YOUNG

Should prostitution remain a crime?On Monday, November 16, 2009, fourpanelists, Professor Samantha Majic,Dr. Melissa Farley, Ms. Vednita Carter,and Dr. ElizabethWood, gathered to re-frame the issue in their own terms. Theeager audience included Harvard lawand government students, members ofthe Massachusetts and Rhode Islandtask forces against human trafficking,and professors from several schools.Prof. Majic is an assistant professor

of political science at CUNY. Shespoke on the difference between de-criminalization and legalization of sex

work, advocating for decriminalizationso that sex workers could more effec-tively access social services and thelegal system.Dr. Wood, a professor at Nassau

Community College and prolific blog-ger, views coercion and violence as dis-tinct and separable from sex work. Shefound that explicit exchanges of sex formoney do not equate to exploitation orviolence, and described the conflationof sex and rape as “troubling.” Dr.Wood pointed out that women also ex-perience violence within marriages orthe military, but we do not seek to abol-ish these; rather, we try to improve civilliberties for the people within these so-cial institutions. In one of the most con-troversially received comments, Dr.Wood confirmed her support of a state-ment on her blog that bestiality orzoophilia can be noncoercive.Dr. Farley, whose research focuses on

prostitution and sex trafficking, ex-plained that women are forced intoprostitution by a series of “invisible co-ercions.” In her work, she has foundthat the rates of PTSD in prostitutesrival those found in rape victims, tor-ture survivors, and combat veterans.Dr. Farley conceptualized prostitutionas a form of “paid rape,” and explainedthat the conditions for consent simplycould not exist within prostitution. Shecited statistics fromVictoria, Australia,

that showed legalizing prostitution cre-ated a great increase in illegal prostitu-tion and organized crime, althoughProf. Majic disagreed with Dr. Farley’sinterpretation of those statistics.Ms. Carter, a survivor of prostitution,

runs Breaking Free, a center in St. Paul,MN for African-American women es-caping prostitution. She drew parallelsbetween current prostituting ofAfrican-American women and historical en-slavement. Ms. Carter related thedifference between street and “indoor”prostitution to the difference betweenslaves who worked in the field andthose who worked in the “big house.”Although the house slaves were betteroff in some ways, and the conditions ofslavery could be improved, the facts ofenslavement and oppression could notbe changed.Harvard LL.M. student Alejandra

Suero asked about the assumptions un-derlying the panelists’ definitions ofsex, and about the distinction betweensex work and other types of paid labor.Dr. Wood responded that “sex” can in-clude a broad range of activities whichare private and not usually discussed.She drew parallels to nurses’ aides, whoare continually in very physical and in-timate contact with their patients, yetdo not draw the same social stigma assex workers do. Ms. Carter stated thatsex and prostitution are separated bydifferences in process and interpersonaldynamic, in the same way that sex andrape are differentiated. Dr. Farley fo-cused on the prostituted woman’s emo-tional presence, and pointed out thatmany prostituted women dissociateemotionally during their acts, eitherthrough emotional means or throughsubstance abuse.All the panelists agreed on what they

would say if President Obama called toask their advice on prostitution, unani-mously stating that they would decrim-inalize the selling of sexual acts, andincrease social services such as healthcare and housing. However, Dr. Woodand Professor Majic wanted to decrim-inalize both selling and buying sex,while implementing labor laws and reg-ulations on the industry. Dr. Wood feltthat this would help sex workers accesscourts for real violations of their rights,in that the workers would not fear pros-ecution. Ms. Carter and Dr. Farley, onthe other hand, both argued in favor ofholding “johns” or customers account-able, and shifting the criminal burdenfrom supply to demand. Dr. Farleycited research in Sweden that showedcriminalizing the demand side of pros-titution actually decreased sex traffick-ing by a large margin.After two hours of debate, Professor

Glenn Cohen, the event’s moderator,thanked the audience for being “feisty,”but some participants were not yetready to leave. Professor Majic contin-ued to emphasize the importance of thelanguage and terms that frame theissue, but Dr. Farley got in the lastword: “Legalizing prostitution is a fan-tasy.”

December 3, 2009 Harvard Law Record Page 9

P ER S P ECT I V E S ON F EM I N I SM

Theran Prostitute by Shirin Fakhim. Photo: flickr user Joep de Graaff

Page 10 Harvard Law Record December 3, 2009

BY KONSTANTINOS STYLIANOU

This winter, the global telecommunications sector isactive as never before. On November 24, Europe votedon its new Telecoms Package, a set of Directives thatwill serve as Europe’s future network policy. The U.S.is revising its own broadband policy at the same time,commissioning Harvard’s Berkman Center for Internetand Society to compile a study on the current globalbroadband trends. This fortunate conjuncture of regu-latory overhauls both provides a clear vista of wherewe are heading to in terms of telecommunications, andhighlights important differences between the U.S. andEurope, offering lessons, examples and alternatives toboth sides of the Atlantic.The EU’s approach is clearly consumer driven, and

reasonably so. European countries strove hard to instillcompetition in the telecommunications sector over thepast 20 years, and, having succeeded, they can nowshift their attention to enhancing the consumer experi-ence. This did not stop the EU from taking further ac-tion to increase competition, facilitating functionalseparation of national telecoms, requiring more inde-pendent national authorities, overseeing national regu-latory remedies proposed by national regulators andreallocating spectrum. To achieve uniform applicationof these rules, the EU will establish a new oversight au-thority, the Body of European Regulators for ElectronicCommunications (BEREC).But the new directives will also gravely change the

lives of millions of network users directly. The EU willofficially embrace a form of network neutrality: na-tional telecom authorities will set a minimum qualitylevel for all services, while network management al-lows more demanding types of applications to take upthe necessary bandwidth. Customers will also receivetransparency in the form of better information on whatservices they subscribe to and what they can or cannotdo with those communications services.A requirementthat obliges all website operators to ask permission be-fore installing almost any kind of cookie on the user’scomputer is another step towards consumer protection,but this privacy provision is so strict that has attractednegative criticism. Finally, European consumers willalso be able to change their fixed or mobile phone op-erator in one working day while keeping their oldphone number (it currently takes, on average, nine).

Most importantly, though, the EU has declared thatInternet access is a fundamental right and no discon-nection from the internet can take place absent a priorfair and impartial procedure, including the right to beheard, and the right to an effective and timely judicialreview. The provision came as a response to the oppo-sition against France’s infamous three strikes law. EUTelecoms Commissioner Viviane Reding said that “thenew internet freedom provision represents a great vic-tory for the rights and freedoms of European citizens….‘Three-strikes-laws’ could cut off Internet access with-out a prior fair and impartial procedure or without ef-fective and timely judicial review, will certainly notbecome part of European law.” The UK is consideringa similar law, but both countries recognize that theirversion of the three-strike law is not inconsistent withthe new EU requirements.Some of the issues the EU’s Telecoms Package aims

to tackle are common to the U.S. The FCC NationalBroadband Plan taskforce has also identified a “con-sumer information gap” and a “data privacy gap,” whilethe management of the frequency spectrum is also apriority there, especially given the tremendous growthin the smart phone and netbook market. But becauseAmerican telecommuications companies lack an obli-gation to share infrastructure, entry barriers for newcompetitors remain very high, and lack of coordinationbetween firms when laying infrastructure dramaticallyincreases costs. The problems of low rural penetrationand digital divide are more acute in the U.S. than in Eu-rope, and the FCC’s efforts are more likely to focusthereon. In that direction a reorganization of the FederalUniversal Service Fund, to subsidize the broadbandsector more effectively, is under examination.The following months are critical. The FCCmust de-

liver its plan to Congress by February 17, 2010,BEREC is expected to be formed by mid 2010 and therest of the European directives must be transposed intonational law by 2011. The synchronized mobility in thetelecoms sector comes in a time where both the US andEurope need to catch up with more technologically ad-vanced countries, like Japan and South Korea, whichshow the way towards the future: a fast, ubiquitous, in-tegrated network to cover people’s information needs.

Konstantinos Stylianou is an LL.M. student fromGreece

Citizenship and Public Affairs, Cora received herLLM from HLS and worked briefly for Cravath,Swaine & Moore LLP. She left private practice toconcentrate on international research and advo-cate for on women’s issues in both Sierra Leoneand East Timor.In preparing for the event, Cora checked in on

Booker T. Washington, the Baltimore schoolwhere she taught 7th grade. “It was as bad as it waswhen I taught there in 1992. On test scores, itranks at 1 out of 10,” she said. “And it consistentlyranked highest on issues like failure to attend,pregnancy, and guns. It is a nexus of the mostchallenging social problems that schools face.”But Cora later went to Mott Hall, a Harlem

magnet school, where she saw another side of thepublic school system. “Mott Hall is a school forgifted and talented kids. These were kids who hadreally motivated parents and family support, peo-ple who got them into one of the better publicschools.” The contrast revealed to her the stark re-ality of unequal opportunity. “While I was there,I kept thinking of kids I had at Booker T. whowere just as gifted and talented, but who I lost tothe street,” she continued. “In those two experi-ences, I saw the two extremes of public educa-tion.”For Cora, the roadblocks faced by students in

The Wire are tangible and pervasive. “These arenot problems unique to Baltimore,” she said.“These problems exist across this country.” Cora’sdesire to build up her advocacy arsenal led to herdecision to leave the classroom and enter the law.“I wanted to empower myself to fight the stratifi-cation in this country,” she said.Jim readily acknowledged that Cora’s experi-

ences as a teacher informed his performance asPryzbylewski. “When I was reading scripts, I feltlike I was reading the scripts that Cora had beentalking about for years,” he said. He went on toadmit that it felt a bit odd to examine the relevantissues by watching television, asking, “Why aren’twe watching clips of Cora in the classroom?”However, he went on to recognize the value of

popular entertainment as a teaching tool. “Forthose who have seen The Wire, it’s a godsend,” hesaid. “It’s great that those issues have beenbrought to a bigger public arena and a larger au-dience than they usually would be.”A former teacher in Camden, NJ, one audience

member credited The Wire for its depiction of theissues that plague schools throughout the country.She very much saw herself on the screen.“All my friends said, ‘I am Mr. Prezbo’, no ‘I

am Mr. Prezbo’,” she added. David Simon’s writ-ing partner, Ed Burns, brought his own experienceas a Baltimore teacher to the script, deepening theshow’s realism.The audienceeagerly joined the discussion, re-

counting their own joys and disappointments inthe classroom.While watching The Wire, one stu-dent recalled her own frustrations, crediting themwith driving her from the classroom and into lawschool.As might be expected of an educator, Cora

closed by encouraging the audience’s commit-ment, noting several ways to advocate for stu-dents, even outside the classroom. Though notcurrently working directly in primary or second-ary education, Cora remains in contact with for-mer colleagues now working on policy orattempting to open their own schools.“To this day, teaching remains the most impor-

tant job I’ve ever done, the hardest job I’ve everdone. And that includes my time in Sierra Leoneand East Timor.”“Its great to have had teaching be my first pro-

fessional experience, because subsequent placesI’ve been, I knew when it wasn’t fulfilling me, andI knew it was possible to be fulfilled,” she added.Child and Youth Advocates, a Harvard Law

School organization bringing together students in-terested in a range of children’s issues, includingchild welfare, juvenile justice, and education,sponsored the event.

U.S. Can Learn From EU Telecom Reforms

would eliminate the election and make the initialprocess of checking cards determine if a workplace willbe unionized, once a majority has indicated approval.Kochan said that this change is necessary because

many who would like to join unions give up becausethey are “subject to delays both legal and illegal.” Hecited data indicating that a third of those who pass thecurrent card check hurdle never manage to conduct afull election to determine if the workers will actuallyunionize. “You lose an enormous number just in theearly stages,” he said. “The majority never reach theendpoint.” In addition to legal challenges to the pre-liminary steps, Kochan said illegal activity by employ-ers creates an additional set of actual impediments tounionization. According to Kochan, there are approxi-mately 300,000 labor law violations by employersevery year.Another EFCAprovision that the panelists addressed

was mandatory, binding arbitration if a company andunion representatives could not draft a collective bar-gaining agreement within a certain window of time.While arbitrators are generally known for “acting like ajudge,” Scalia believes that labor arbitrators would be“writing the contract” and “acting like legislators”. Hequestioned who the arbitrators would be, whether qual-ified people could be found to perform that role, andemphasized the “enormity” of the implications of thearbitration provision.“When you’ve got an arbitrator sitting down and writ-

ing how you can run a business, that can be life ordeath,” said Scalia. “I think it would be an even greaterdisruption to the economy than card check itself.”Kochan minimized the possibility that contracts de-

termined by arbitrators would have major effects forbusinesses. He said that the scope of arbitration waslimited and that “arbitrations are by nature conserva-tive”. “Arbitrated agreements almost always mirror ne-gotiated agreements,” he said. “I’m a critic ofarbitration for not being as innovative as we would wantit to be.”For Kochan, the arbitration process would provide a

way to ensure that more agreements are completed.Moreover, he believes the threat of binding arbitrationwould lead to 90 percent of contract negotiations end-ing in negotiated settlements, while the success rate cur-rently stands at only about 60 percent. Kochan alsodisputed the argument that it would be difficult to findqualified arbitrators. “There is no rocket science tobeing an interest arbitrator,” he said.Ultimately, Scalia and Kochan differed on the nature

of unions in the U.S. and the reasons for their recentstruggles. Kochan said that the union system has beenresponsible for the success of companies such as South-west Airlines but has been damaged since the 1980’s.“You can see that this process is clearly broken,” hesaid. “We ought to fix the law and fix it systematically.”Scalia, however, described unions as losing traction

because of savvier companies raising working condi-tions and wages, blunting workers’ desire for unioniza-tion, and increasing competition as well as their ownsuccess. Furthermore, Scalia believes that federal enti-tlement and social safety net programs have replacedmany of the core functions unions once served in theregulation of economic activity. “Unions have put them-selves out of business by asking the government to dothe things they used to do.”

EFCA, cont’d from pg. 8

Wire, cont’d from pg. 12

December 3, 2009 Harvard Law Record Page 11

football rivalry between Harvard andYale. The real rivalry between theschools is of course the question of whois smarter, more elite, more prestigious,more likely to take over the world.There’s also the Cambridge-NewHaven rivalry, in which we hate on eachother’s cities. But, fine, let’s pretend itsabout football for a minute. Howeveryou want to classify it, we were look-ing forward to acting like pro-Harvardanti-Yale jerks for a few hours.It was a stunningly sunny day—an

auspicious beginning. We walked intothe stadium grounds (the Bulldog’sden!) and were met by civilized teasing.A golf cart of blue clad men trundledby, clutching Budweisers. “Go back toBoston!” they yelled, laughing. Comeon, that was all they had in them? “Wewill!” I yelled back. “In about fivehours!” As we left the tailgating area, afew couples attempted to come up withsomething witty and harsh and couldonly stutter, “Ew, is that Crimson?” Iturned around. Were we being referredto as a personified color? “Barf!” theygiggled. I waved my pompoms in their

face and they broke out laughing. Onthe way into the stadium, twoYale menasked me to pose for a picture withthem in front of the giant inflatableBulldog. Just to show they meant busi-ness, they attempted to give me bunnyears.This was hardcore rivalry, alright.

Across the stadium, a friend of minedoing a PhD at Yale was at the ForestrySchool’s barbeque. She gushed to methat they were roasting oysters sprin-kled with cilantro.Arriving late was the accidentally

smart thing to do. We loaded up onfried food and piled into our seats at theend of the third quarter. Depressingly,the score was Yale: 10, Harvard: 0, andthe mood was pessimistic. My friendturned to me in angst. “What do youthink they’re going to do?” he said, ges-turing at Harvard’s team. I am not theright person to ask about these ques-tions. I follow the game by mimickingwhat the rest of the crowd is doing. “Ithink they’re going to play football,” Isaid. “I mean what will they DO?” Istared back at him, and then I offered

up a distraction. “Funnel cake?” Hedoes love funnel cake.We tried getting serious about foot-

stomping, but the mood was not conta-gious. A group of our LL.M. friendsabandoned hope just before the start ofthe fourth quarter and left to tour Yale’scampus. What they missed was a sur-prising and triumphant comeback. Har-vard capitalized on poor playcalling byYale to win the game 14-10.This was it! This was the reason we

drove all the way down to New Havenon a Saturday morning! The crowdpoured onto the field. We filed out tothe funnel cake stand, again. No sensein getting in their way.We shuffled back into town with the

masses, high on the victory and sugar,and I was feeling particularly obnox-ious. “Stinks to be you!” I laughed at aman in a Yale shirt. “Do you want toget punched in the face right now?” heasked, glaring at me. Uhm, NO. “Doyou want to learn to take a joke rightnow?” I asked. This man was threaten-ing to punch a girl in the face becauseshe was lording a football victory over

him?He wasn’t backing down. “I play on

the team,” he growled. Well that ex-plained things. I sized him up. Appar-ently, Yale had recruited some verysmall football players that like to punchgirls in the face. But victory had beendestined to be ours from the very be-ginning. “Yeah, okay,” I responded.“So you play on the team. Sorry.” Hekept glaring. “Hey man—don’tworry!” one of my friends reassuredhim, in a cheery voice. “You’ll comeback next time!”Traitor! Why was he even speaking

to him? This little person had justthreatened to hit me! He was psychotic!“Whatever,” the small angry footballplayer spit out, stumbling into the foreston the side of the road.“What the hell was that?!” we asked

each other, before deciding to head forpizza, the one thing that New Havenmay do better than Cambridge. But theday was ours. Victory was delicious,and not even hostile miniature footballplayers could take that away from us.

BY MATTHEW HUTCHINS

The outcome of the trial was predictable if tragic.An industry dominated by corporate titans, seeking tomake an example of an individual who had infringedon their intellectual property, brought suit in federalcourt with the expectation of settlingtheir claims for a substantial monetarypenalty which would deter the public atlarge. Joel Tenenbaum had done nomore than many thousands of otheryoung computer-savvy music listenersby installing and using Napster, but itwas his unfortunate fate to be selectedas a target of opportunity for his copy-right infringement. When his case camebefore Judge Nancy Gertner in the Dis-trict of Massachusetts, she suggested toProfessor Charles Nesson ’63 that heconsider taking the Case. But even abrilliant professor from Harvard LawSchool couldn't win against the stackeddeck of legal authority favoring therecording industry.To Nesson, the final judgment at the

trial, awarding $675,000 to the Record-ing Industry Association of America(RIAA), was both disappointing and ab-surdly excessive. “I got my ass kickedpretty well in this trial.” But Nesson isconfident that the long-shot case was agood opportunity to make a stand.“What Joel did in downloading andsharing songs was what just about everykid in his generation did and which I bet a great manyof you did.”Addressing a room full of HLS students, Nesson ex-

plained his motivations and methods in the defense ofTenenbaum for the innocuous downloading of thirtymp3's. When the case first came to his attention, Nes-son knew that there was little chance of victory on themerits, with the only truly viable strategy at trial beingthe minimization of damages. Nonetheless, Nessonpressed forward with a defense on the merits to thevalidity of the charges, arguing that the behavior as-serted by the RIAA as violating the law was a ubiq-uitous and socially acceptable activity which shouldnot be considered infringement.Young computer users like Tenenbaum, called “dig-

ital natives” by Nesson, grew up in a world where theexplosion of music sharing was a widespread culturalphenomenon. “In a way, if you didn't participate in

Napster, you really didn't know what was happeningon the Net,” said Nesson. “The idea that a whole gen-eration was guilty seemed wrong to me.” Indeed, Hi-lary Rosen, the chairperson of the RIAA, recognizedNapster as, “the most efficient method of distributingmusic ever invented.”

Despite the doubtsof colleagues, Nessonbelieved that the ex-ception to statutorycopyright infringe-ment for “fair use”might be applied toTenenbaum's case.The doctrine was orig-inally developed toprovide freedom forcreative production ofderivative works, andthough Tenenbaum'suse of the music didnot have a creativecomponent, Nessonbelieved that theSupreme Court's pro-tection of VCR homerecording might pro-vide a basis for view-ing copyright law asprotecting the publicinterest of consumers,a category which fitTenenbaum. Butprecedent was

strongly against this theory. Courts had already re-jected Napster's fair use arguments based on previewof music for later purchase as well as MP3.com's“space-shifting” argument that the internet could actas a jukebox for owners of licensed CD's.In fact, Judge Gertner accepted Nesson's theory of

fair use, but only for the “interregnum” period fromNapster's creation in 1999 until the recording industrybegan to offer a legal alternative for purchase of itsmusic online. But by 2004, when Tenenbaum down-loaded the music in his case, the music industry al-ready provided online access to music. Nessonargued, however, that until 2007, when fully trans-ferrable, unencrypted music was available online,there was no full technological substitute that wouldrule out a fair use argument.“The fair use argument then, to a Court, becomes, a

policy argument, in effect, of saying that the law

shouldn't put its weight behind an inferior product.When you have an alternative that is ubiquitous, thatthe industry has been responsible for making so [be-cause CD's were not encrypted], if the law enforcescopyright based on the encrypted product, which isinferior to the available product [which is unen-crypted], then it's acting in a way which is counter toinnovation.”The rejection of this argument by the trial court left

Tenenbaum's fate in the hands of a jury, but the evi-dence presented by the RIAA, which made it look likeTenenbaum blamed others and lied, interfered withhis effort to appear credible and sympathetic. TheRIAAwas thus able to convince the jury that his con-duct was basically, in Justice Breyer's words in theGrokster case, “garden variety theft.”Upon the entry of judgment, Nesson plans to take

the case to the First Circuit on appeal, hoping for areevaluation of the legal theories presented and an in-validation of the damages as unconstitutionally ex-cessive. But in the meantime, there has been anextended delay in the entry of judgment and an ex-change of motions that have led to Judge Gertner tak-ing the matter under advisement. Nesson believesthere may be reversible error due to the exclusionunder Rule 408 of certain parts of a settlement letteroffered as evidence by Tenenbaum, since that rule isintended to protect the party that makes a settlementoffer and the letter should have been admissible, andthat Judge Gertner may hold that the jury's calcula-tion of damages was incorrect and should be reducedto the statutory minimum of $750 for non-willful vi-olation.He believes now, in retrospect, that he should have

treated the case as a criminal case, pleading the FifthAmendment and demanding a bill of particulars, andthat future defendants should treat such cases likecriminal trials. But despite the rejection of his theoryby the trial court, Nesson believes that statutory dam-ages were never intended by Congress to be imposedagainst individuals.Furthermore, he believes that the statutory fair use

defense supports Tenenbaum's case on each of the fac-tors of amount of the work taken, the effect of themarket, nature of the work, and nature of the use. In-deed, to Nesson, sharing music has had a net positiveeffect on the music market by offsetting the harm tolarge record producers with a huge stimulus to inde-pendent music production, and Judge Gertner's ownrecognition of the “interregnum” following the adventof Napster makes the policy arguments in the caseeminently cognizable to a judge and jury.

Trial Judge Sinks Nesson’s Piracy Defense

Yale, cont’d from pg. 7

Page 12 Harvard Law Record December 3, 2009

What will be the result of Obama’s Afghan Plan? Vote now at hlrecord.org!

BY REBECCAAGULE

When Cora True-Frost asked the audience howmany had seen The Wire, nearly all hands wereraised. It was obvious that no one had come for ad-vice on their Legal Research andWriting homework.Everyone was much more interested in learningabout Cora’s husband, Jim True-Frost, and his expe-rience working as a television actor. But while Jim’ssuccess came from portraying a cop working thestreets and schools of Baltimore, Cora’s inspirationcame from hands-on experience in the real class-rooms of Baltimore, where she saw the grim conse-quences of life on the street during her service forTeach for America.On The Wire, Jim portrayed Roland “Prez”

Pryzbylewski, a police officer known for his incom-petence on the street who shines due to an aptitudefor cracking codes and utilizing wiretaps. His char-acter later becomes a middle school teacher at ablighted Baltimore middle school. To provide con-text for the event, Jim played several clips from theshow, depicting Pryzbylewski’s interactions with stu-dents. “It’s amazing when we meet people on thestreet,” said Jim. “They are so touched by the inter-actions between Prez and the kids. But when I try toredirect the conversation to Cora, who actually hasexperience in those schools, they aren’t interested.”Running on HBO from 2002 until 2008, The Wire

garnered critical acclaim and developed an almost

cult-like following for its portrayal of Baltimore’sstreets and citizens. Jim’s work has included numer-ous programs centered on the criminal justice sys-tem. In addition to The Wire, he appeared on severaleditions of Law & Order, CSI: Miami and CrimeStory, as well as Homicide: Life on the Street, basedon the book of the same name by The Wire executiveproducer and head writerDavid Simon. Jim nowserves as an adjunct fac-ulty member with theAmerican Repertory The-ater’s Institute for Ad-vanced Theater Training.“For three years I didn’t

know that I would be any-thing but this misfit cop,”he explained. “Then, latein the 3rd season I got ahint that something seri-ous was going to happento my character. I thoughtI was going to get killedoff. Then they told me,you are going to play ateacher, and it was bizarreand wonderful.”Cora went from her own

Wire experience servingfor Teach forAmerica into

the law, and now her academic research as a Cli-menko Fellow concentrates on case studies in family,trade and criminal law as a means of understandingthe fragmentation of norms at the international level.After completing her JD-MPA at the Syracuse Uni-versity College of Law and the Maxwell School of

The Court Classic, which took placethe night before the Harvard-Yale foot-ball game in New Haven, raised moneyfor summer public interest funding atHarvard and Yale. Coach Mike Lloyd'10 led the HLS team to a victory overits New Haven rivals. The event wassponsored by the law firms of: Paul,Weiss, Rifkind, Wharton & GarrisonLLP; Fried, Frank, Harris, Shriver &Jacobson LLP; Freshfields Bruckhaus

Deringer US LLP; and Davis Polk &Wardwell LLP.HLS also came up victorious at the

third annual Harvard Yale Poker Face-off on Friday, Nov. 20th. The individ-ual results were wins for: JonathanMontgomery ‘10, Jamison Davies ‘11,Ryan Adrian ‘10, Peter Ostrovski ‘10.Joe Ferdinand ‘10 scored a tie due tothe time limit expiring.

Left to Right: David Hamilton '11, Brent Herlihy '12, Jamie Bull '10, Cory Baird '10,Robert Young '10, Jamie Ianelli '10, and Francesca Butnick '10 represented HLS in itsvictory over Yale Law on the basketball court.

Yalies Trounced by HLS Teamsin Basketball, Poker MatchupsCrimson Come From Behind for 14-10Victory in 126th Meeting of The Game

The WireMeets The Streets Climenko Fellow and “Mr. Prezbo”Explore Intersection of TV and Reality

Cora True-Frost LL.M. ‘06 and her husband Jim True-Frost. Cora was a teacher in aBaltimore school; Jim played one on television in The Wire.

Top: The 1Ls of Ames 3rd floor only wear navy blue: Jeremy Troxel,Ben Watson, Sam Kuhn, Big Mike, and Danny McEntee; Bottom, left:1L Brian Wood being very pensive outside the Hark; Bottom, cen-ter: 1Ls Sandra Ray and Greer Libbey at the Head of the Charles;Far right, top: Greer Libbey walking in Harvard Square; Bottom,right: 1Ls Samantha Kuhn and Greer Libbey waiting to board thebus to The Harvard-Yale Game in the B-school parking lot at 6:30am

Fall of 1L Year

Wire, cont’d on pg. 10

You can't contract your way into happiness, but, shhh, no onetell the 1Ls - at least until after exams. For these eager younglawlings, implied warranties of liability begin more friendshipsthan break them up.As fall frosts turn to winter chills, examtidecamaraderie breeds bizarre rituals around campus, like the dor-mmates at left, who got comfortable enough with one another tobegin coordinating clothes.For the upperclassmen among us, it's either heartening to see

first-year students, whose heads are more often found wedgedinside casebook pages, out and about – before submitting, again,to the confinement of the library. Take heart, young ones: yourlives will probably be waiting for you on the other side of Win-ter Break, or at least that newfangled problem-solving course.Oh, and don't worry: 10% of you will get low passes, no matterwhat. Thanks to Sandra Ray for the great photos!