SCOTUS, cont’d on pg. 4

Schulte Roth & Zabel - See Back Cover

MINOWOUTLINESPROGRESS, FUTUREOFLEGALEDUCATIONATHARVARD

Harvard Law RecordApril 15, 2010 Vol. CXXX, No. 7www.hlrecord.org — twitter @hlrecord

The Independent Newspaper at Harvard Law School

News• Net Neutrality Threatened• Restoring Afghan Rule of Law• Banned Scholar Returns to US

Opinion• Negotiating Law School• Genocide Debate Ignores Facts• What’s in the Harvard name?

Culture• Film:War Don Don

INSIDEThe HL Record

F I NA L I S S U E O F TH E 2 0 0 9 - 2 0 1 0 ACADEM I C YEAR

DIDN’TWIN YOUR JOURNALELECTION?WE NEED NEW EDITORS-IN-CHIEF!

E-MAILRECORD@LAW

STEVENS RETIRING - SUPREME FEVER FOR HLS DEANS

FORMERWHITE

HOUSECOUNSEL:SUPPORTHOLDER

ONGUANTANAMO

GregCraig SharesViews onTerrorTrials,LooksBack at Service inObamaAdministration

Beyond Curricular Reform

Kagan andMinowBoth onShortlist forObama’s SecondSupremeCourtNomination

VACANCYVACANCY

BY CHRIS SZABLA

Barely hours had passed after JusticeJohn Paul Stevens’ announcement ofhis imminent retirement last Friday –widely anticipated after the 89 year oldSupreme Court judge failed to hire thecustomary number of clerks for thecourt’s next session – speculation beganto swirl about a number of frontrunnersto replace him on the bench – many, ifnot most, with Harvard Law Schoolpedigrees. Foremost among them wasformer Dean Elena Kagan ’86, nowserving as Solicitor General. Not longafter, however, Bloomberg News con-firmed that another recent Harvard LawSchool Dean, Martha Minow, was alsobeing seriously considered for aSupreme Court seat.Kagan, Seventh Circuit Judge Diane

Wood, and D.C. Circuit Judge MerrickGarland ’77 are widely seen as Presi-dent Barack Obama ’91’s top choicesfor the position, but the confirmationthat Minow’s name is on the president’sshortlist leads credence to the possibil-ity she may also be chosen. Tom Gold-

stein, a Supreme Court litigator whoruns SCOTUSblog, told the HarvardLaw Record that he believes Kagan isObama’s top choice, but that Minowwas also likely to be very close to nom-ination.On Tuesday, theAssociated Press was

able to confirm that seven names weredefinitely on theWhite House shortlist,

including Kagan, Wood, Garland,Michigan Governor Jennifer Granholm’87, Homeland Security Secretary JanetNapolitano, Georgia Supreme CourtJustice LeahWard Sears, and 9th CircuitJudge Sidney Thomas, who was sug-gested by Senator Max Baucus for thediversity in geographic and educationalbackground the Montana-raised judgewould bring to the court.Baucus and several Democratic Sen-

ators spoke out against naming anotherIvy League-educated justice, notingthat, with the exception of Stevens, alleight remaining current justices had at-tended either Harvard or Yale LawSchools (Justice Ruth Bader Ginsberggraduated from Columbia Law Schoolafter transferring from Harvard beforeher third year). The Senators went sofar as to say that the recent outcome inCitizens United v. Federal ElectionCommission, which allowed corpora-tions to directly support advertising forpolitical campaigns, was a product ofjustices whose backgrounds put themout of touch with ordinary Americans.That might have come as a surprise to

several of the current justices whoseyouths were hardly privileged, but quitea few other prominent names men-tioned as possibilities for the court heldHarvard Law degrees or connections tothe school, including MassachusettsGovernor Deval Patrick ’82, who saidhe would prefer to fight for reelectionthis year, and HLS professor and TARPoverseer ElizabethWarren, who is pop-ular for her public stance on consumer

BY CHRIS SZABLA

It’s official: both thecurrent dean of HarvardLaw School, MarthaMinow, and her prede-cessor, Elena Kagan ’86,are now being consideredas replacements for Jus-tice John Paul Stevens onthe Supreme Court. Butmostly lost in the tidalwave of speculation thathas accompanied thenews of Stevens’ retire-ment over the last weekwas the role both deansplayed in quietly reshap-ing legal education. LastMonday, just before therecent SCOTUS hypebegan, Minow gave anaddress to the school thatfocused on the past, pres-

ent, and future of the in-stitution she now leads –and particularly on howshe and Kagan jointlyshaped the curricular re-form that transformed theschool’s long-static stu-dent experience.There have been subtle

changes since Minow of-ficially took the school’shelm in the middle of lastyear. The lagging conse-quences of the ongoingrecession led to unavoid-able budget cuts that didaway with many of the“creature comforts” thatendeared Kagan to stu-dents – and the facultyraids that made her fear-some to competing law

BY MATTHEWW. HUTCHINS

“When you have a lawyer for a client,it’s the most difficult experience, and Ihad the best lawyer in America as myclient.” Greg Craig, the first WhiteHouse Counsel to President BarackObama ’91, sat down with Prof.Charles Ogletree ‘78 at Harvard LawSchool on April 6th to discuss theObama administration’s accomplish-ments and his career in public service.“The White House is a remarkableplace to work, and you don’t ever forgetthe significance of working so close tothe President of the United States. Atthe same time, it is also very difficult.”Greg Craig’s career as a litigator

began atWashington basedWilliams &Connolly, where he defended at-

A spokesman for DeanMinow said she was“deeply honored to be

considered”.

StateDept. LegalAdviser LaysOutEmerging “Clinton-Obama”Doctrine

I N T E R N A T I O N A L L AW

BYMATTHEWW. HUTCHINS

For those who criticize Pres-ident Barack Obama ’91 forshowing more continuity withthe Bush Administration’spolicies than change, HaroldKoh ’80 has one word:“Duh”.Koh, who was the Dean of

Yale Law School before enter-

ing the Obama administrationas Legal Adviser for the De-partment of State, says that themassive institutional momen-tum of the federal governmentmeans, “You do not turn theTitanic 180 degrees. Therewill always be more continu-ity than change from one ad-ministration to the next. But

Koh, cont’d on pg. 7

Dean, cont’d on pg. 10

Craig, cont’d on pg. 9

Page 2 Harvard Law Record April 15, 2010

April 15, 2010 Harvard Law Record Page 3

BY STEPHANIE YOUNG

The D.C. Court of Appeals ruled last Tuesday thatthe FCC does not have authority to regulate broad-band Internet service providers, granting Comcast theability to shape its consumers’ use of certain web ap-plications. This is the most recent development in astring of court battles that stems from Comcast’s prac-tice of delaying or blocking certain types of Internettraffic without disclosing the details to its customers.While other companies may also engage in the samepractices, Comcast, as one of the biggest and mostpowerful ISPs, sets the standard for the industry.The saga began in 2007, when one Comcast cus-

tomer who had extensive network experience figuredout that certain applications were being blocked. Herealized that his Internet connection shut down whenhe tried to share his favorite music, public domainbarbershop quartet recordings, via peer-to-peer appli-cations. Because Comcast does not disclose what in-formation they block and when they do it, lesssophisticated users may not know that problems withtheir Internet connections are intentionally inflictedby their ISPs.The Electronic Frontier Foundation andAssociated

Press investigated, and discovered that Comcast pur-posely slowed or blocked peer-to-peer file sharing ap-plications such as BitTorrent. Subsequently, specialinterest group Free Press filed a complaint againstComcast with the FCC in 2007 based on this practice.

Free Press asserted that Comcast’s secrecy constituteda deceptive practice that should be regulated. Com-cast explained that this was merely a “network man-agement practice,” to ensure that no one consumertook too large a share of its bandwidth away fromother customers. However, it failed to regulate someother applications that used more, and restricted otherapplications that used less bandwidth.In 2008, as the result of agency adjudication, the

FCC ordered Comcast to disclose full details of itsnetwork management practices and create publiclyavailable plans for new and nondiscriminatory prac-tices. Comcast appealed this finding on the groundsthat the FCC did not have authority to regulate underits “ancillary” authority. Comcast also claimed thatthe FCC could not make this decision through adju-dication instead of conducting a formal rulemakingproceeding.In the April 6 decision, the D.C. Circuit found that

the FCCmisused its authority in regulating Comcast’snetwork management practices, effectively allowingComcast to inhibit transmission of whatever contentit deems troublesome to its networks. FCC ChairmanJulius Genachowski said that even despite this deci-sion, his agency would look for other means to protectconsumer interests in broadband.As the appeal was pending, several bills introduced

in Congress sought to remedy this issue from a con-sumer protection standpoint. The Internet FreedomPreservation Act, a bill introduced on July 31 of last

year, includes enforcement provisions for noncom-pliant ISPs and creates law directly rather than dele-gating to the FCC for rulemaking. This bill iscurrently in committee but will probably be replacedby the more recent National Broadband Policy. TheBroadband Consumer Protection Bill, introduced onMarch 15, aims to promote disclosure to consumers ofthe actual transmission speeds their ISPs achieve. Theact would spur an FCC rulemaking to ensure thatbroadband marketing includes clear information toconsumers about what speeds they can realisticallyexpect, and to regulate ISPs’ marketing and serviceprocedures.The FCC released details of its National Broadband

Plan, a priority of the Obama administration, onMarch 16, stating multiple goals of increasing thenumber of Americans with broadband connections,improving computer and Internet literacy, and mak-ing access more affordable. It remains to be seen howthe National Broadband Plan will comport with theD.C. Circuit’s decision. Unfortunately, the recentComcast decision means that the FCC may not haveauthority to regulate.This decision left the FCC with lesser regulatory

power over broadband, and consumers with fewerrights against the industry. In order to ensure thatconsumers receive fair terms and competitive prices,either Congress or the courts need to reverse this trendand place broadband squarely under the FCC’s au-thority to regulate.

Comcast Decision Threatens Net NeutralityD.C. Circuit Rejects F.C.C. Authority to Regulate Internet Carriers’ Controls on Data

BY REBECCAAGULE

Afghanistan’s arduous road to the rule of law con-tinues to encounter blockages and delays. In March,Rebecca Gang and Saeeq Shajjan, both Harvard LawSchool LL.Ms, who worked as defense attorneys inthe country’s nascent new legal regime, together withJasteena Dhillon, a fellow at the Harvard KennedySchool’s Carr Center for Human Rights Policy, sharedtheir experience working in the country’s legal insti-tutions.“I found that the pragmatic approach we were fol-

lowing on the ground, if not a complete mismatch,was not an answer to the break down of the rule oflaw,” Dhillon said. Using the example of Bosnia, shenoted that post-conflict judicial institutions are gen-erally not equipped to deal with the unique situationsthey face.Dhillon provided a brief overview of the issues fac-

ingAfghanistan’s legal system, including the interac-tion between Afghanistan’s formal and informaljustice systems, both based in Sharia, and reflectingholdovers from the Roman civil and English commonlaw systems. Within this context the discussiontouched upon whether the international communitycorrectly understands the challengesAfghans face andwhether its presence is a help or a hindrance. She fur-ther explained the difficulty in determining the cycleof policy initiatives, as they may begin on the ground,filter up to policy makers and then circle back down.AnAfghan attorney, Shajjan worked with the Inter-

national Development Law Organization and Inde-pendent National Legal Training Center at KabulUniversity. Prior to returning to the United States forher LL.M, Gang focused on legal assistance and ac-cess with the Norwegian Refugee Council and theAfghanistan Independent Bar Association (AIBA).Shajjan recounted relevant aspects ofAfghanistan’s

history, noting attempts at legal and political reform.Ruling from 1919 to 1929, relative moderate Aman-ullah Khan created the country’s first constitution andcompiled the penal code, as, according to Shajjan,“the state tried to make justice accessible.” With the1973 coup, however, many earlier miseries returnedto Afghanistan. “All the work that was done beforewas nullified,” Shajjan said.

Following the 2001 U.S. invasion, Afghanistanadopted a new constitution, which enshrined severalhuman rights. Article 31 altered the scenario for theaccused, providing that, “Upon arrest, or to provetruth, every individual can appoint a defense attor-ney.”With defense counsel almost a rarity in the country

before, Shajjan recalled entering the courts of judgeswho did not even recognize the idea. He noted thatthe new constitution also includes a prohibition ontorture and an equal protection clause, and he com-pared rights on paper to their effective, real time im-plementation.Despite some shortfalls, and even as he noted that

many challenges extend to the entire country, Shajjanremains hopeful. “I am optimistic that things are hap-pening,” he said, pointing to the establishment of theAfghanistan Independent Human Rights Commissionand the Election Commission. “Afghanistan doeshave certain achievements.”Of Gang, Dhillon said, “We worked in the same

places at different times and both worked withAIBA.In post conflict countries, we put a lot of emphasis onjudges, et cetera, but forget about defence lawyers.”After spending the last four years in Afghanistan,

in part as an advisor to the firstAIBA, Gang explainedher reasons for stepping back into academia.“First, I came to Harvard to give my grandparents

the year off from me living inAfghanistan,” she said.“Secondarily, because I came home from work every-day in tears, or if not in tears, with the feeling of hav-ing spent my day banging my head against the wall.”Gang had begun to question the appropriateness ofthe AIBA’s law and development approach andwhether it would simply entrench more deeply the

very justice sector problems it purported to solve.Law and development emerged as a distinct field in

the 1960s and 1970s, Gang said, as people aimed tomake a transformation from formalism to instrumen-talism. Issues arose, however, when western assump-tions were applied to developing countries. In reactionto this concern, a new model has been in relied uponsince the mid-1970s. In practice, these polices wereenforced by those with access to lawyers, thereby re-inforcing the interests of the elite.“These iterations of level development all circle

around this one concept and say the same thing, thatlocals need to design these programs. It says, ‘as longas locals are designing these projects, all of our prob-lems are solved’,” Gang said.With the Bonn Agreement on the framework for

Afghanistan’s post-2001 government moving for-ward, the International Bar Association (IBA) con-ducted a fact-finding mission inAfghanistan.Withoutstandards for or regulation of the legal profession, andno structure to answer the problems of defense attor-neys, it was nearly impossible to implement Article31. The IBA suggested the creation of a new institu-tion, which led to the AIBA’s formation.Gang said, “The IBA comes in and says, this is the

solution, we are going to set up a framework; we aregoing to look at international best practices. Then youAfghans you fill it in.”Opening its doors in July 2008, the AIBA has met

with both success and failure. Gang noted the accom-plishment of even staffing the office and beginningwork on non-controversial cases. By contrast, AIBAservices have not expanded beyond Kabul, it lacks astrategic plan, and it continues to avoid controversialadvocacy. “All of the problems we set out to fix, theyhave not only not been solved, but the mechanismswe set up to solve them have ensured they won’t besolved,” Gang said.Shajjan tried to temper Gang’s concerns, saying

“this is the first year, don’t expect everything fromthem. They will do this.”Dhillon offered an angle of realism and progress.

“When you are in the field you know that you are notalways doing it right, but you just hope that it fits, andyou push and you push. It’s great to go back and dothis reflection.”

Afghanistan: Successes, Roadblocks to the Rule of Law

“With defense counsel almost ararity in the country before,Shajjan recalled entering thecourts of judges who did noteven recognize the idea.”

BY CHRISTINE LEE

ASouthAfrican Muslim scholar formthe University of Johannesburg, Pro-fessor Adam Habib, was welcomedback into the U.S. early this month aftera ban on his entry was lifted by Secre-tary of State Hillary Clinton in January.Under the Bush administration, Habibwas linked to terrorism. The reasonsfor the link are unclear. A spokesper-son for Clinton, Assistant Secretary ofState P.J. Crowley, stated that Habibwas not a threat to the United States andthat the rationale under which his visawas denied could not be repeated in thefuture. He added that their latest deci-sion was consistent with PresidentObama’s outreach to “Muslims aroundthe world” and that “we want to en-courage a global debate.”Speaking at Harvard Law School,

Habib took the opportunity to open thedialogue on ideological exclusion inone of his first speaking engagementsin the country since the reversal of theban.Habib’s story began in October 2006,

when he boarded an 18-hour flight fromJohannesburg to New York City. AtJFK International Airport, he wasstopped by a customs official and askedto undergo further security checks.“Have you ever been a terrorist?”Habib was asked, to which he replied,“How long have you been doing thisjob? Has anyone ever answered ‘yes’?”Five hours of interrogation later,

Habib’s visa was “prudentially” re-voked and he was deported back toSouthAfrica without any given reason.The visas of his wife and children werealso denied.Speculation into Habib’s forceful re-

moval ranged from racial profiling tohis participation in anti-war protests

during the 2003 U.S.-led Invasion ofIraq. Habib’s own favorite theory isthat the government has a formula:traveler, one point; Muslim back-ground, one point; critical of Americanforeign policy, two points, “and I wentover a magic number,” he muses.

The American Civil Liberties Uniontook on Habib’s case and launched alawsuit on his behalf. By law, theremust be some “facially legitimate andbona fide reason” for a denial of entryinto the U.S., explains ACLU staff at-torney Melissa Goodman. The USState Department eventually explainedthat Habib’s visa application was barredbecause he was “engaged in terroristactivity”, contrary to a provision in theImmigration and NationalityAct. Howor why this link was made, they wouldnot say. After doing a backgroundcheck on Habib’s work and history,Goodman found that there was nothingthat could possibly link Habib to ter-

rorism. Goodman felt that either thiswas a form of censorship or the gov-ernment was “crazy”.Professor Habib hardly comes off as

a terrorist. America is his beloved sec-ond home where he pursued his PhD atthe City University of New York. For

the last 20 years he has come and gonefrom the U.S. without incident, devel-oping enduring personal and profes-sional relationships along the way. “It’sa place where I have memories”, hesays, “It’s the place where my son wasconceived. It’s where I played with himin Central Park trying to feed the ducks… and for me, no government shouldbe able to deny me without any duecourse that I can [or cannot] visit aplace where I have memories.”More importantly, Habib believes his

fight to regain re-entry into the States isa principled struggle for democracy.Ideological exclusion would deny thelegal rights of U.S. citizens to hear di-

verse views. It goes against everythingHabib feels that contemporaryAmericastands for and in fact, exactly what theterrorists of 9/11 would have wanted allthis time. The lawyers involved in hiscase may have agreed or disagreed withhis views, but that didn’t matter, be-cause on principle, they believed thathis views deserved to be heard. “That’sa beautiful thing”, Habib says” “it’s sol-idarity, action and practice that tran-scends national boundaries.”There are also global consequences

whenAmerica practices ideological ex-clusion, according to Habib. It is onething for Zimbabwe to censor ideas atthe border; it is another for the UnitedStates to do it. When the most power-ful country in the world filters outscholars critical of the government, itweakens the message of democracyacross the world and lends credibility tocensorship. The reversal of Habib’sban by the Secretary of State is there-fore a major victory for Americandemocracy and civil liberties. The pro-fessor joins an illustrious list of schol-ars, politicians and thinkers who havebeen denied entry into the U.S. on ide-ological grounds, including SouthAfrican President Nelson Mandela andNobel laureates Doris Lessing, PabloNeruda and Gabriel García Márquez.Nevertheless, Habib recognizes that

most scholars do not garner media at-tention or have organizations litigatingtheir case. “I got lucky,” he says, “there[are] countless individuals” whose bansare still in place. He warns that thisstands at odds against a democratic so-ciety where arbitrary political actionsshould not be made to prevent the ex-change of ideas. According to Habib,it is “incumbent on the Obama admin-istration to do something for the voice-less who have not been heard.”

Page 4 Harvard Law Record April 15, 2010

Banned Under Bush, Muslim Scholar Allowed to Return to U.S.

Photo: ACLU of MA

protection. Obama also faces pressure to name a jus-tice who is not currently serving as an appeals courtjudge, as all eight remaining justices had prior to join-ing the Court.Among the competing pressures weighing on the

president are potential concerns not only about age,experience, and race, which are always factors thatweigh on the names floated to the press as much as inthe choice for nomination itself, but over whether heshould spend political capital fighting for a justicewho embraces liberal ideals or instead favor a candi-date who will sail smoothly through confirmationhearings.Kagan has left little trace of her potential legal phi-

losophy, a fact which helped her win approval fromthe Senate last year, when she was confirmed as So-licitor General. She has also expected to encounterrelatively little opposition from Republicans im-pressed with her efforts to overcome the ideologicaldivide among the faculty at HLS and appoint conser-vative professors such as Jack Goldsmith. But civilliberties writer Glenn Greenwald of Salon.com hasled the charge that Kagan, while presumably to theleft of the conservative justices, would nonethelessbe a less reliable liberal than Stevens, and that her se-lection would shift the court to the right.Assessing Minow’s chances, the Boston Globe also

emphasized her personal ties to Obama, noting thatshe first identified and encouraged his potential inpublic service and that her father, Newton Minow,served as Obama’s mentor at the former’s Chicagolaw firm. A spokesman for the dean told the Globethat she was “deeply honored to be considered” forthe position.

Can the Media Digest Big Legal Ideas?Journalists Have Their Doubts.

BY CHRIS SZABLA

It has become beyond cliché to say that the con-tinuing evolution of communications technology hasdramatically transformed the landscape of journal-ism. And it’s no less the case for writers and re-porters who cover law. But legal journalists facetheir own particular opportunities and challengesnavigating the new formats, sources, and audiencesavailable online.“The vast majority ofAmericans don’t go to court

or engage lawyers,” said Roy S. Gutterman, Direc-tor of the Carnegie Legal Reporting Program atSyracuse University’s Newhouse School of PublicCommunications, a fact which made it even moreincumbent on legal reporters to clearly explain whatgoes on in courtrooms – and judge’s heads.Noah Feldman, Harvard Law School’s Bemis Pro-

fessor of Law, concurred. “The overwhelming waypeople in the U.S. understand legal issues throughwork of people like those here,” Feldman said. “Thelaw not so much what courts say as what media tellpeople courts say.”Feldman, himself a contributor to the New York

Times, was referring to the assembled panelists atthe Harvard Law Review’s spring forum, which fo-cused on the relationship between media and the law– and, in particular, the question of whether themedia could successfully convey legal ideas.Beyond, Gutterman said, the specialized press –

outlets like the National Law Journal, for example –most legal reports tended toward the sensationalisticrather than the philosophical. The media, he insisted,was largely “looking for man bite dog stories”.Dahlia Lithwick, legal writer for Slate.com,

agreed. “The media does very little with legal ideas,”she said. “The media likes crime and disputes”. Ifone clicked on the now defunct law tab onCNN.com, she suggested, one would see “17 miss-ing blonde stories.”Still, Gutterman insisted, such pieces could serve

as conduits to introduce audiences to important legalissues. But Lithwick noted that, during the mediacircus surrounding the Anna Nicole Smith trial, the“probing legal idea” was “does she look good?”Lithwick did agree that engaging audiences with

stories about trends in legal thought to begin withwas as difficult, if not more challenging, than ex-plaining those concepts to begin with. “Most of whatwe do [when writing such stories] is really insidebaseball” to the general public, she said.To successfully convey serious legal ideas, writ-

ers needed thousands of words, a privilege few legaljournalists are allowed. The New York Times’AdamLiptak, Lithwick noted, was an exception: he wasregularly allowed to write long pieces integrating re-cent law review scholarship. But at Slate, she said, itis considered a general rule that readers generallyquit after 1400 words – and attention spans are get-

SCOTUS, cont’d from pg. 1

Media, cont’d on pg. 10

April 15, 2010 Harvard Law Record Page 5

Top row, L to R: A. David Lander, Matthew Walsh, David Roth, Russell Herman.Bottom row: F. Jamal Fulton, Betny Townsend, Kristi Jobson, Aaron Dalnoot

Best Contract Overall:Russell Herman, David Roth, Kristi Jobson

and Aaron DalnootBest Representation of Save Our Square:Fentress Jamal Fulton and Betny Townsend

Best Representation of McMillin’s:Adam David Lander and Matthew Walsh

BY JOHANNA SCHWARTZ MIRALLES

The Winners of Harvard LawSchool’s 57th annualWilliston Compe-tition, Harvard’s annual contract nego-tiation and drafting competition forfirst-year law students, were an-nounced on Monday, April 5.The Williston Competition presents

participants with a complex businessproblem and charges them with repre-senting a client in negotiations, tryingto arrive at an agreement that they thenreduce to writing.This year’s problem involved a ne-

gotiation between a community group,Save Our Square, and an internationalfast-food chain, McMillin’s, whichwere trying to come to an agreementover the terms of the chain’s establish-ment of a franchise in the local com-munity.The competition presented partici-

pants with the opportunity to try outtheir contract negotiation and draftingskills.“We were drafting right up to the

deadline on the last day of the compe-tition,” said Russell Herman, who rep-resented McMillin’s. “It was difficultdrafting the contract so that all four ofus were satisfied with the language.”It was not all work and no play for

the competitors, though. “The mostfun part of the negotiation was brain-

storming with the other side,” Hermanadded. “Both sides brought really cre-ative ideas about how to address eachof the issues, and since we had a goodworking relationship, both sides feltcomfortable sharing them.”His counterpart representing Save

Our Square, Kristi Jobson, agreed.“The four of us worked so well to-

gether,” Jobson said, “and were simi-larly invested in finding an outcomethat worked for both sides.”The Williston Competition is run

jointly by the Board of Student Advis-ers and Harvard Negotiators, under thesupervision of Professor Robert Bor-done, Director of Harvard’s Negotia-tion and Mediation Clinical Program.This year’s competition was judged

by Sarah Jelsema ‘11, Andrew Mad-sen ‘11, and Jonathan Lackow ‘07, anassociate at Ropes & Gray.

Williston Winners Celebrate Negotiated VictoryStudents Simulate Negotiation Between Community Activists and Global Franchise

You Can He lp Fund Pub l i cIn t e r e s t J ob s Fo r S tuden t s !

$1 per day for 1 month from each student at the law school would fund a fellowclassmate to work in the public interest for a year following graduation.The Post-Graduate Student Funded Fellowship is the result of students realiz-

ing there is much we can do to help one another and others in a time of economicand social distress.The immediate goal is to support one of our peers, someone whom we have

shared classes with, whom we have been inspired by, and who is eager to tacklethe problems of the world. The effects of the fellowship, however, will surely ex-tend beyond the HLS community. By funding a year of public interest work, weare confident that we are also funding positive change for the individuals and com-munities with whom the fellow works.Even beyond that, we believe that this Fellowship has the power to positively

influence the school’s culture, building greater community on campus. This iswhy it is important that this fellowship be grassroots, led and supported by stu-dents. The economic downturn has made clear that nothing can be taken forgranted, including the availability of a job for someone both qualified and de-serving. Discussions about post-graduation plans have turned into comparisonsof starting dates, deferral periods, and the latest frustrations of trying to crack intothe public sector. Some of us find ourselves relatively well positioned; others arestill busy networking, mass e-mailing, and polishing up fellowship proposals.And so this time presents a unique opportunity to step back and think about whateach one of us can do to help our fellow classmates in addition to those less for-tunate outside of the HLS community.We have worked to make it as easy as possible for students to donate. Every-

one is encouraged to visit our website at www.law.harvard.edu/students/orgs/fel-lowship, and donate through the online form (by writing in Post-Grad StudentFunded Fellowship in the Additional Comments section). As you may have no-ticed, we are holding weekly bake sales (Wednesdays from 12-1 at the Hark) untilthe end of the school year, and we’d love for you to stop by, chat, get more infor-mation, buy a treat and give back. 3Ls have the chance to direct their class gift tothe fellowship, among the other options. 2Ls will have the opportunity to donate“One Day’s Work” this summer to the fellowship. This is hopefully just the be-ginning. We have selected students with the drive and ideas to lead this initiativenext year. Our goal is to make the fellowship a permanent part of the HLS com-munity.Thank you.

Your Post-Grad Student Funded Fellowship Chairs,Sheila Lopez, Julie Ruderman, Alison Welcher, and Maura Whelan

RecordStill SeekingNextYear’s

Editors. Seriously.YouCouldLiterallyRunThisWholeNewspaper!Get inTouch to LearnMore.

E -MAIL RECORD@LAW

Letters to theEditor

Page 6 Harvard Law Record April 15, 2010

Kagan Konspiracy?

www.hlrecord.org

HarvardLaw

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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

ContributorsNaira Der Kiureghian

Christine LeeSunny LeeElaine Lin

Joanna Schwartz MirallesAndrea SaenzAlison WelcherStephanie Young

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orHarvard Law RecordHarvard Law School

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FACTS AND THE POLITICS OF NAMING

BY NAIRA DER KIUREGHIAN

Part I – Political v. Personal Discussions

The Armenian Genocide took place in the Ottoman Em-pire during the First World War. It was an attempt by theTurkish government to eliminate the Armenians from pres-ent-day Turkey. From 1915 to 1923, 1.5 million Armenianswere killed and many more were deported on death marchesin to the Syrian Desert. Since then, Turkey has denied thishistory and strongly opposed recognition of these events asgenocide.Popular discussions of the Armenian Genocide increas-

ingly focus on the politics of recognition and the rhetoric ofdenial and overlook the substance of these tragic events andtheir legacy.My great-grandparents were survivors of the Armenian

Genocide. Growing up in an Armenian community in Cali-fornia, most of my friends’ grandparents were also survivors.The genocide was an inevitable topic of discussion. It cameup whenever people discussed their families, histories, or theorigins of their names. Many Armenians have surnames de-noting their grandparents’ hometown or occupation in Turkeyprior to the Genocide. Even today, our names remind us ofthe past and a way of life that no longer exists.As a child, I spent a great deal of time listening to my

grandmother and her friends talking about the past. They dis-cussed their lives in Lebanon, where manyArmenians endedup as refugees, and the way their families had struggled to re-group and regain a sense of normalcy in the decades follow-ing the Genocide. Even if it weren’t explicitly discussed, thelegacy of the Genocide was omnipresent.One day I asked my grandmother why one of her elderly

friends had writing on her face. She explained that her friendhad lost her entire family during the Genocide, and that dur-ing the deportations, she was taken by a Turkish family to bea domestic worker. They had tattooed Quranic verses on herface, a practice they perceived as a means of beautification.She later escaped to a home for Armenian orphans, whereshe met and married a young man who was the only othersurviving member from her village.I also learned about the ways in which people dealt with

loss. My great-grandmother’s mother, for instance, went intoshock after she lost three of her children in one week duringthe Genocide. Afterwards, she made an oath that she wouldnever utter any sound outside of prayer. Turning to religion,

she spent the rest of her days in silence.Another friend would never drink any water except rain-

water. She had lost her children to thirst during deathmarches into the Syrian Dessert. She pledged to use onlyrainwater from then on, denying herself the comforts thatwould have saved her children.Though an avid story-teller, my great-grandfather never

spoke of his experience during the Genocide. It was not untilafter he died that I found taped interviews with him in a his-torical archive. In the interviews, he recounted his experi-ences after marching for months in caravans into the SyrianDessert with his mother and sisters. He recalled how duringdeath marches armed gangs regularly attacked theArmenianconvoys, killing indiscriminately and raping women andgirls. My great-grandfather must have been about ten at thetime. In the interviews, he recalls hearing the sounds of girlsbeing raped and the agony of knowing no one could savethem. Once a girl was taken, she was never seen again.Eventually he and his family made it to the outskirts of

Aleppo but were prohibited from entering.Aleppine officialsadopted a policy of refusing entry to all Armenians. Duringthe initial stages of the Genocide, the city had been overrunby an influx of emaciated and disease-ridden Armenians,causing a public health crisis. Martin Niepage, a school-teacher, documented the impact of the arrival of the first Ar-menian survivors in The Horrors of Aleppo Seen by aGerman Eyewitness, in which he beseeched the German gov-ernment to put an end to the persecution. Through deceit andout of desperation, my great-grandfather, his mother, and sis-ters eventually managed to make it inside the walls of thecity. Disguising themselves as workers, they were smuggledinto the city by laborers.

Part II - The Politics of Naming / Recognition

There are countless other stories that I’ve read and heard,but I suppose debates about the impact of recognition on U.S.foreign policy and discussions about the niceties of termslike “civil war,” “deportation,” and “genocide” are easier toponder. The language used to describe the Genocide inAmerican discourse can strike one as absurd.While Obama was still a senator, he had no hesitation la-

beling these events as genocide. On April 15, 2009, Presi-dent Obama, like many presidents before him, opted insteadfor a euphemism out of fear of offending Turkey. Perhaps ina show of solidarity, he used the Armenian epithet, the term

Dear Editor,

I can’t help notice that only oneweek after “General Kagan” de-manded a Supreme Court vacancyopen up in the April Fools’ dayissue of the Harvard Law Record,Justice John Paul Stevens an-nounced his retirement. I can onlyconclude that Stevens and theWhite House thought that the col-umn was written by the real ElenaKagan, and jumped to oblige her.(This wouldn’t be a first, as theRecord April Fools’ day issue hasbeen tricking inattentive media andacademic types since the 1970s.)The Record board should feel justi-fied in claiming complete credit forStevens' retirement.Anyway, count me among the

thousands of HLS students andalums who will be unapologetichomers for our former dean if sheis nominated. I hope this is hertime. But I have to say that there isa major downside if Kagan ascendsto the Court: she will have to weara dowdy black robe all the time in-stead of her famous rainbow of

solid-color blazers. (A Googleimage search provides all the ex-amples you need.) I always wantedto put Elena Kagan Paper Dolls inthe Record, where the basic dollwas wearing a black top, blackpants, and sensible shoes, and thenyou could dress her up in a redblazer, a green blazer, or for a for-mal night out, a black blazer.Lest you think Kagan left this

fashion statement behind at HLS, Iasked a friend who works in theSolicitor General’s office, and heassured me that Kagan has kept theblazer collection even at her loftypost in DOJ. That made me feelgood, like Kagan wasn’t going all“D.C.” on us. Alas, robe beatsblazer every time. Best of luck toher or whatever other HLS grad isnominated for the spot (since thatseems to describe almost everyonebeing short-listed).

Andrea Saenz ’08Editor-in-Chief, Harvard LawRecord, 2007-08

The Editors of the Har-

vard Law Record apolo-

gize to the unwitting

victims of our April

Fool’s Day issue among

both students and the

media (and to Dean

Minow and members of

the administration who

had to deal with them)

for falsely raising hope

for tuition refunds or in-

creased ideological di-

versity among the

faculty. To clarify, these

remain utter fantasies.

Dear Editor,

Following your recent piece "Experts Pon-der Implications of Remote, Robotic War-fare" in the 11 March issue of the HarvardLaw Record, my colleagues and I wish to[point to] the recent publication and launchof the "HPCR Manual on International LawApplicable to Air and Missile Warfare".The "HPCR (Program on Humanitarian

Policy and Conflict Research) Manual" pro-vides the most up-to-date restatement of ex-isting international law applicable to air andmissile warfare, as elaborated by an interna-tional Group of Experts. As an authoritativerestatement, it contributes to the practical un-derstanding of this important internationallegal framework.

Anaide L. Nahikian,Harvard University Program onHumanitarian Policy and Conflict Research

Rethinking the Armenian Genocide

Genocide, cont’d on pg. 8

April 15, 2010 Harvard Law Record Page 7

Sunny Skies Over CambridgeSunny Skies Over Cambridge

Sunny Lee, LL.M. ‘10, took to the skiesfor an Easter Sunday helicopter rideover Boston and Cambridge, catchingpictures of Harvard landmarks alongthe way. Flying out of Hanscom Air-field in a Robinson R-44 Raven, Sunnygained a new perspective on the geog-raphy of Boston Harbor and Harvard.

BYMATTHEWW. HUTCHINS

I almost didn’t apply to Harvard. Tome it was a name and a place far awayand full of vague notions of elitism,and in some sense I saw my own lifeas a less ambitious affair. I wanted togo to law school partly to learn a pro-fession, but I also had a desire to getbeyond the external manifestations ofpower and come to know the systemfrom the inside. And so I applied,knowing that Harvard’s name, net-work, and faculty could equip me forthese goals better than others.When I came here three years ago, I

felt like I had snuck in the side doorby figuring out the secret handshake,and now that I had gotten inside Iwould start to learn other secrets andcrack even more devious ciphers. Bythe end of 1L year, I was fairly welldisillusioned. My classmates nolonger seemed so different from me.My professors were starting to seemless lofty and inscrutable. And thecontours of the law were alreadyforming a sort of a superstructure thatwould later be reinforced and walledin to form a solid body of knowledge.Soon enough, the Harvard name too

had also lost its luster, already lookingmore bizarre from the inside. I real-ized at some point that it was just an-other brand name, this one with an“established” date earlier than othersand with a longer list of successfulgraduates, but essentially just a labelon a product and an institution. I alsorealized that I too could use this brandname like a badge, a shield againstdoubt and scrutiny. Whether it was aresume or this newspaper, promi-

nently placing the Harvard name nextto my own became second nature be-fore long.But Harvard is more than a name. It

is a global symbol of academic suc-cess, but it also serves as a nexus for amassive self-selection process, andthose who are drawn by its name andreputation soon become the corpus ofthe institution and a part of its history.By the time we have crossed the lastthreshold and stand in the halls ofLangdell and Austin, we have by andlarge identified ourselves as holdingparticular values and goals and haveascribed to particular means of achiev-ing our objectives. Thus, whether weknow it or not, the common bonds ofachievement and aspiration that drawus together also drive our assimilationinto the culture of the place and itspeople, where we are saturated withthe Harvardness of where we are andwho we are becoming.Walking back out of the gates I en-

tered three years ago, I can also feelthe inertia that Harvard has lent thecourse of my life. I have a path in frontof me now, a yellow brick road, thatmakes the unpredictability of lifeseem less daunting. We will all landon our feet, that mantra inculcated byour mentors, seems true enough now,despite some bumps and delays for allof us. But the road ahead is not reallyso simple, and the destination is notsome magical crystal city where allour problems will be solved. Life re-mains complicated and full of change.Writing for this newspaper has

given me the chance to speak to theworld as a member of the Harvard

What’s in the HarvardName?

P E R S O N A L R E F L E C T I O N the question is what is the approach,and is the approach the same or dif-ferent.”Koh appeared at HLS as the

keynote speaker for the Harvard In-ternational Law Journal’s 2010 Sym-posium, where he outlined what hesees as an emerging Clinton-ObamaDoctrine of international engagement,as well as his own role in the Depart-ment of State and his conception ofhow government lawyers shape inter-national law. As the Legal Adviser ofthe Department of State, Koh istasked with coordinating a multitudeof U.S. legal affairs, but whether he isacting as the general counsel to thediplomatic corps, buying land in Bei-jing, negotiating contracts inAfghanistan, or advising the Secretaryof State, he sees his primary role as adefender of U.S. interests.From his position as an advisor to

Secretary Clinton, he sees the emerg-ing Clinton-Obama Doctrine as cen-tering around four key ideas:principled engagement with interna-tional organizations and institutions,diplomacy as a critical element ofsmart power and at the vanguard offoreign policy, strategic multilateral-ism, and the conduct of U.S. affairs inline with both domestic and interna-tional law in a way that follows “uni-versal standards, not doublestandards.” As examples of greaterinternational engagement, Kohpointed to the United States’ return tothe ICC, climate change negotiations,the human rights counsel, and numer-ous other international discussions.Although Koh has written widely

on international law, he said that hisown role in the discussion is more thatof adviser and facilitator than decisionmaker or expert. “I am not in the of-fice as Harold Koh the legal expert. Iam in the government as Harold Kohthe legal advisor. Standing up at a lawprofessors’ conference makes no dif-ference. Legal advice must be based

on the reasoned opinions of prior gov-ernmental officers.” Given the bodyof statutory and case law, as well aspolicy documents from all branchesof government, and faced with thechallenges of a serious recession, twoarmed conflicts, and earthquakes inHaiti and Chile, Koh said that makingprogress can be extremely difficult. Inaddition, formulating a new govern-mental position can be painfully slowas a document progresses through theinternal clearance process, the intera-gency process, the legislative process,the governmental lawyering process,and the intergovernmental process.Despite all the barriers to change

and inevitable delays, Koh believesthat government lawyers are crucial tothe process of internalizing interna-tional norms. Among the importantfunctions government lawyers serve,Koh elaborated upon their role in cre-ative generation of lawful options,channeling actions toward what islegal under international law, deter-mining the applicability of interna-tional rules, evaluating customs,nominating international experts, ne-gotiating international texts, and par-ticipating in international disputeresolution. Of these, he put particularstress on option generation as a meansof providing advice beyond the mereevaluation of legality. He said that onjoining Secretary Clinton’s staff hemade it clear that, “If I am to be yourgeneral counsel, I must have the free-dom, after I have told you whethersomething is lawful or not, to go onestep further as a policy matter to tellyou whether this is lawful but awful.”Koh sees this as an indispensablefunction that lawyers can provide intheir capacity as trusted advisors whotake part in important discussions ofpolicy. “The international lawyer isnot a potted plant. In a crisis, your jobis not just to sit there. When the mo-ment arises, speak up! Speak law topower!”Harvard, cont’d on pg. 9

Koh, cont’d from pg. 1

BY JESSICA CORSI

Of all the starts and finishes we’vegone through and are about to gothrough in our lives, the difference be-tween the beginning of the JD and theend of the JD is particularly, spectacu-larly, pronounced. Think back to thefirst few days of 1L, when you met yoursection mates, the people you would seeday in and day out for years. You satthrough the mock class and had dinnerwith the Dean in the “Trophy Room” atthe library; you posed for your sectionphoto and it was still sunny and warmand fall hadn’t technically begun yet.Or go back even further—think back toadmitted students day and the way youfelt walking through the buildings forthe first time as someone invited to bethere—someone who was supposed tobe there. I’m guessing that those on theeve of graduating with a JD are feelingvery far removed from those early days.The transformation that takes place at

both the individual and the group levelover the course of the JD is rapid anddramatic. The beginning and the endpoint of your Harvard JD are pro-foundly distinct. And like any change,it is unsettling. As we prepare to grad-uate, it is worth nothing that the disrup-tion in front of us is not just a change inlocation or community or title or in-come. It is also a change in identity andself, and it has been occurring through-out the course of the JD.Whether you suffered through 1L,

deeming it the worst year of your life,or whether you loved it, it was likely asea change moment. 1L begins with lit-tle context. Nothing you’ve ever donebefore could likely prepare you suffi-ciently for law school. You have noidea what to expect, and depending onyour personality, this is either terrifying,or exhilarating, or some mix of the two.Like anything unknown, 1L producesfear in those living through it. Whenyou don’t know where you’re going—you have the address in your hand butyou’ve never been before—the walk orthe ride feels longer and harder andmore uncertain. You’ve never read any-thing like this, you’ve never been askedquestions like this, you’ve never en-gaged in a process of reasoning likethis.Add the competition inherent in both

a curved grading system and at an envi-ronment like Harvard Law School andyou have compounded the fear. Theperceived sense of competition coupleswith the fear of looking like an idiot infront of 80 other people that you’re de-cently certain are pretty smart and100% certain that you are seeing again.Everyone is so darn motivated—doesthat make you lazy? If you thought ofyourself as a hard worker before butyou chafe at the amount of work you areassigned, while others seem to get downto it without hesitation, what does thatsay about you and how you had previ-ously perceived yourself? If you’restruggling to stand out in a sea of over-achievers, you are likely incapable ofdoing so without a hefty dose of stress.It doesn’t help that the adversarial

system ofAmerican legal reasoning pitsus against each other: we are taught totear each other’s ar-guments apart andpick out all of theflaws. The class-room divides as peo-ple take sides. Thefeeling is that it ispersonal: you made a mistake; you’reon the wrong side.Throughout it all, you are being

forced into a specific mold. You are in-structed to read in a specific way; to re-peat and analyze what you’re read in acertain way; and to write and argue in aspecific way. You are being shaped andremade, and maybe you don’t like whatyou’re being turned into. Maybe the re-shaping cuts off pieces of your formerself that you didn’t want to let go.The intense growth experience of 1L

is mixed in terms of the feelings it pro-duces: 1L might have been the most in-tellectually stimulating year of your lifeto date, but likely the pressures andprocesses involved in pushing you tonew heights and new understandingswas also significantly uncomfortable.You may have had to work harder inyour life than ever before, and this chal-lenge may have been exciting, but it isalso fatiguing. This process, too, cutsyou off from your former self. 1L is ayear when people lose time; their daysare swallowed up with law school. Youmay have talked to your family moreprior to law school, you may have hadmore time for hobbies that addressed

the non-legal, non-rational parts of you.Students can wind up with an extremelyheavy load of classes even in the verybeginning—17 credits in one semester?It happens. In addition to the volume,there is the lack of experience holdingyou back: you will never read legal ma-terial more slowly than you read it 1Lfall. As a result, in 1L we are oftenforced to give up many of the thingsthat had made us happy prior to enteringlaw school.For many people, 1L is the first time

they have felt a sense of purpose andthat what they do or say matters. Fi-nally, what you’re studying will havesome practical consequence for yourlife and your career, and your career isgoing to have consequences for otherpeople. You can “do” something now.You can win a case; you can change alaw; you can produce real outcomes that

could affectdozens, thousandsof other people.That is meaningful,but it is intimidat-ing. Now you haveto take your work

more seriously. Now a mistake is moregrave, a failure more significant.Fast forward to the eve of graduation

and those early moments of the begin-ning year seem a million miles away.The change we’re about to experiencein leaving Harvard Law School cannotbe understated. For several years we’vebeen ensconced in this community, andwe’ve been enriched by it, and we’vebeen protected by it. On the one hand,we’re lucky simply to have communi-ties. Americans live increasingly atom-ized lives, and are less and less likely asthe decades progress to be a “member”of anything. Not only are we membersof the law school, we’re members of theHarvard community generally, and wethen join all sorts of sub-communitieswithin the schools, based on religious orpolitical or other affiliations, or focusedon specific projects or activities. Thereis always something to join or do here,and even if you didn’t take any actionto join or participate in anything, yourdefault community is large, diverse, andpositive. Few people if any would thinkthat membership in the Harvard Lawcommunity is other than an exceedinglygood thing. You don’t lose this mem-

bership by graduating, but you lose thealmost daily interaction that it provides.We’re being scattered around theworld—how will we find each otheragain? What will our days and weeksbe like without the support we feelhere?Graduating in 2010 presents an added

wrinkle: this is not the world we ex-pected we’d be graduating into. Part ofwhat makes Harvard great and whatmakes it tough to bear is the loftiness ofthe expectations all of us bring to thetable. Clearly, we can be the next pres-ident of the United States! Obviously,we can be the next Supreme Court Jus-tice! When you’re here, there is no ceil-ing to your aspirations. But, the worldis being remade in front of us. MostHLS graduates target jobs at large, fa-mous law firms in big cities for theirfirst post-graduation job. Those typesof firms are still reeling under thepresure of the economic downturn thathas afflicted the entire world, and as aresult, they’re not hiring nearly as muchas they were when this graduating classentered law school.Still, I don’t think I’d be going out on

a limb if I said that I believe that every-one in this graduating class is going tofind a job. But a big difference between1L expectations and end results now,though, might be the job you end upfinding. In the years we’ve taken tocomplete our JD, our opportunities havechanged. Our expectations and wishesmight not have. Now, they might notmatch. This is unsettling, and disturb-ing, and definitely not what we signedup for.I’m willing to bet, though, that what-

ever we’re feeling in the weeks leadingup to graduation, and however we viewour 1L experience or our JD experiencegenerally, that we wouldn’t trade it forthe world. I think that even the mostmiserable graduate would answer thatthey would do it all over again, andhave a host of reasons for professingthis. Something with that powerful ofa draw, and that huge of an impact onour lives, is very hard to leave.

Jessica Corsi is a graduating 3L andOpinion Editor of the Harvard LawRecord. This is the last of her two yearlong series of columns for this paper.

Page 8 Harvard Law Record April 15, 2010

From 1L to 3L and beyond,the intimidation, trepidation,and opportunities of change.

Medz Yeghern, or “great calamity.” Like many Ar-menian terms, it’s rich with consonant digraphs, yeteasier to pronounce than the term we use much morefrequently, Dzeghaspanutiun, or genocide.Ironically, Raphael Lemkin, the jurist responsible

for creating the term “genocide,” first developed theconcept with the Armenian Genocide in mind. Win-ston Churchill referred to these events as a “holo-caust” in his history of the First World War. In 2000,Robert Fisk expanded on the politics of naming bywriting about his struggle with his editors at The In-dependent who insisted on using a lower case “h” for“Armenian holocaust.” They said common usage dic-tated that the capital “h” be reserved for the JewishHolocaust. When pressed further, they said the JewishHolocaust warranted capitalization because it was Eu-rope’s genocide, and therefore, had a particular placein their culture and language.In recent years, an increasingly absurd rhetorical

game has overshadowed meaningful discussions ofthe Genocide. One can easily find reports insisting onthe impracticability of official congresional recogni-tion of the Genocide and criticizing House discussionsof recognition for their “interference” in the precari-ous reconciliation process between Turkey and Ar-menia. In October 2009, Turkey andArmenia signeda protocol, under the close watch of Hillary Clinton,agreeing to begin the process of reestablishing diplo-matic ties. The agreement reached an impasse aftertheArmenian Constitutional Court held that the agree-ment could not prevent theArmenian state from seek-ing international recognition of the Genocide. Neitherstate’s parliament has ratified the agreement.Although federal recognition has been controver-

sial, forty-four U.S. states have officially recognizedthe Genocide. So have a number of countries, includ-ing Canada, France, and Russia. These are examplesof how Turkey’s relationship with its allies has sur-vived and even been strengthened despite recognition

of the Armenian Genocide.During the drafting of the current protocols, Turkey

insisted that the issue of the Armenian Genocide beresolved at a later date by a team of historians.Though such solutions seem reasonable, they over-looks the fact that the question of whether the eventsconstitute genocide is beyond debate. Historians havereached a consensus in favor of the label of genocide.In fact, many Turkish academics and intellectuals,such as historian Taner Akcam and publisher RagipZarakolu have called on Turkey (and the U.S.) to rec-ognize the Genocide, at great cost to their own libertyand safety. Both the International Association ofGenocide Scholars and the International Center forTransitional Justice have officially recognized theevents as genocide.Ultimately, we must not allow Turkish denial to

shift the conversation from the legacy of this Geno-cide and its impact on history to the banalities of nam-ing.

CC AA MM BB RR II DD GG EE ,, UU SS AA

BEGINNINGS AND ENDS, STARTS AND FINISHES

Genocide, cont’d from pg. 6

BY REBECCAAGULE

Filmmaker and HLS graduate, Re-becca Richman Cohen ‘07 first ob-served Issa Sesay in 2006, through thebullet proof glass of the gallery at theSpecial Court for Sierra Leone. Whileassigned to a different defenceteam for her 2L summer, Cohenfelt drawn to the trial of the formerInterim Leader of the Revolution-ary United Front, the rebel armythat had waged and lost a decade-long civil war against the govern-ment of Sierra Leone. Four years later, as the Court

concludes its cases, the first majorwar crimes tribunal to do so sincethe Trials at Nuremberg over sixtyyears ago, Cohen presents “WarDon Don”, the jarring product ofher legal education and three yearsof filmmaking. In Krio, the linguafranca of Sierra Leone, “war dondon” means “the war is over”, andCohen’s film offers an insider’s nu-anced examination of the roleplayed by international criminaljustice once hostilities have for-mally ceased. Winner of the Special Jury Prize

at the South by Southwest Festival,“War Don Don” forces its audience tochallenge preconceived notions ofrighteousness, justice and retribution.Even the seemingly secure concept oftruth is quickly muddied, creating the

most satisfying intellectual and emo-tional discomfort. “War Don Don” opens with the Spe-

cial Court itself, a fortified structuresurrounded by the ubiquitous blue-hel-meted United Nations guards. Withevery act, the film shifts its focus, never

allowing the viewer to simply take apassive role. Harrowing images war’scasualties, including the dead, themaimed and the child soldier, as well asgraphic victim testimony and the vehe-mence of Chief Prosecutor David Crane

make Sesay’s guilt a seemingly fore-gone conclusion. For Crane, only the Devil himself

could have created Sesay and his co-de-fendants. “These dogs of war, thesehounds from hell…These were theleaders, the commanders of an army ofevil, a corps of destroyers and a brigadeof executioners bent on the criminaltakeover of Sierra Leone, once theAthens of West Africa,” he says“Today, due to these indictees, a soddenbackwater, marred and broken, lappingagainst the shores of civilization.”But, just as the most dovish of viewer

considers tying the noose herself,Cohen opens the backstage door to thejustice system at play, and all such as-sumptions begin to splinter. Despite representing a man described

by Crane as soulless, the Sesay teammanaged to avoid caricaturing itselfwith criminal defence stereotypes. In-stead, Lead Defence Council WayneJordash and Co-Counsel SaretaAshraph humanize Sesay, re-introduc-ing him as a relatively moderate soldier,trapped first by horrific circumstance,and then by the inappropriate applica-tion of strict conceptions regarding mil-itary structure and commandresponsibility.Perhaps Sesay himself throws the

most eloquent wrench into any simplis-tic notions international criminal jus-tice. “Just because I’m an RUFcommander, that’s what I’m convicted

for,” he says. “If I was to be judged asan individual, I think they would notconvict me on many things”This lack of consensus regarding

Sesay, specifically, and justice, gener-ally, is not confined to the Court.Cohen’s crew follows the Court’s Out-reach Team as it meets the with com-munities throughout Sierra Leone,speaking to many who lack basic ne-cessitates such as water, shelter andfood, about the Court’s mandate to pro-vide truth, not aid. The millions of dol-lars expended to fund the Court locatethese words somewhere between ironicand cruel. The film’s aesthetic, simultaneously

stunning and disturbing, matches thetenor of the issues at hand. Refrainingfrom voiceover and allowing the war,the court and Sierra Leone itself toserve as much of the soundtrack, Cohendeftly removes herself from the film.Instead, she elegantly allows the vio-lence, the individuals involved, and, inthe end, the lingering questions to hauntthe viewer. “War Don Don” will screen at the In-

dependent Film Festival of Boston(IFFBoston) on April 24, 2010, at 2:30pm, at The Somerville Theatre, 55Davis Square. Tickets, $9, can be pur-chased online athttp://iffboston.bside.com/2010/films/wardondon_iffboston2010. More infor-mation and the trailer can be found athttp://www.wardondonfilm.com/.

Source: wardondon.com

April 15, 2010 Harvard Law Record Page 9

“War Don Don” Probes the Reality of International Justice Film Forces Viewers to Question Their Assumptions About Guilt, Innocence, and War Crimes Tribunals

tempted-assassin John Hinckley, Jr., but he hasgone in and out of public service numeroustimes, working for key Washington figures likeSenator Edward Kennedy, Secretary of StateMadeleine Albright, and President Bill Clinton,whose impeachment defense he coordinated.Despite his previous service in the Clinton ad-ministration, Craig was an early supporter ofObama, joining his campaign as early as 2006and bringing with him the wealth of foreign pol-icy experience he gained under Senator Kennedyand at the Department of State. He said that hefound Obama’s early public appearances “trans-formative” and recognized his potential as a pres-idential candidate after his Robert F. KennedyAward speech in 2005. Craig departed the White House in January of

this year due to growing concern over the han-dling of the administration’s policy regarding thedetention of combatants at Guantanamo Bay.“Trying to unwind the Bush Policies while tryingto manage two wars was not easy,” said Craigduring his appearance at HLS. Apparently, ten-sion mounted between Craig and White HouseChief of Staff Rahm Emanuel as Craig’s desire topush for decommissioning the facility came inconflict with other priorities on the President’sagenda. Craig said that Rahm Emanuel used theanalogy of a crowded airport to illustrate the dif-ficulty of the situation. “We are trying to bringin two huge 747’s [the wars in Iraq andAfghanistan] at the same time we are trying toreform our national health care system, and rightin the middle you want to send up a flock ofCanadian geese, which is Guantanamo, whichcould take down one of those 747’s.” Aside from the delays in the Guantanamo clo-

sure, Craig said that the Obama administrationhas achieved an impressive measure of changein its first year, with particular examples includ-ing the abolition of enhanced interrogation, theshutdown of CIA black sites, the completion of afull review of detention policy, the release of pre-

viously confidential memos, a reevaluation of theexecutive use of the state secret doctrine, and theannouncement of an intention to end the “Don’tAsk, Don’t Tell” policy. He expressed regret thatthe decision by Attorney General Eric Holder toseek trial of Khalid Sheikh Muhammad in Arti-cle III courts has been framed as a civil libertiesissue, pointing to the proven efficiency of gov-ernment prosecutors, federal judges, and criminalprocedure rules as a sure means of obtainingsolid convictions. He warned that military tri-bunals have suffered from a debilitating effort toaccommodate the procedural needs of defendantsand remain an uncertain venue that may be sub-ject to reversal on appeal. He also noted that sup-port for military commissions is particularlysurprising in light of the fact that they are not al-lowed to sentence detainees to capital punish-ment. “If you care about capital punishment forKSM and these individuals, then you would sup-port what Eric Holder recommended.” Craig also identified some of the logistical

challenges that will make the closure of Guan-tanamo a difficult issue. He said that of the ap-proximately 240 remaining detainees, some40-45 will be prosecuted, another 40-50 are dan-gerous individuals who will be held indefinitely,many of those remaining will be transferred orreleased. But one of the biggest problems at thepresent moment is determining the proper courseof action with respect to the 98 Yemeni detainees.“People do not want to send them back toYemen, although Yemen would take them,” saidCraig. “Until we solve the problem of what to dowith the Yemenis, it is going to be very hard toclose down Guantanamo.” Craig anticipates thatthe plan to transfer inmates to Thomson prisonhas potential, but that after the most recent up-grades to the Guantanamo facility, human rightsadvocates are concerned that conditions couldactually be worse at the Illinois facility. “Oncewe go to Congress to get appropriations forThomson, it opens up negotiations about Guan-tanamo.”

community and define the reality of this place for out-siders. Now, I too will become an outsider to the place andits institutional forces. Leaving here I will lose thatuniquely local attitude to Harvard as a place that comeswith being a student, but I will retain a share of the name,a right to stand in as an ambassador to the world and partof the extended Harvard family. So in a certain sense, asan alumnus I will no longer be a part of the institution, butI will shape the perception of it by the outside world bywielding its brand name. Thankfully, this does not mean that I will be required to

proselytize a set of orthodox views, nor will I be penalizedif I decide to file away my degree and keep my educationa secret. I can choose on my own whether or not to be as-sociated with the Harvard name and community, but thelegacy of my time here will shine through in ways I willprobably not even recognize. The tools I have acquired,the attitudes I have accepted, and the friends I have grownclose to during my time here will stay with me after I haveleft here and influence the course of the rest of my life. I am thankful that I could study at such an interesting

and challenging school, and indeed I am proud of having“attended Harvard.” Nonetheless, I remain suspicious ofthose who would make too liberal use of the Harvardname. I do not believe in treating Harvard like a label thatcertifies quality or an icon of an exclusive club. Harvardis a place to which we chose to come to be amongst like-minded individuals and an institution that has gathered ex-ceptional people who have now passed on to us some oftheir collected wisdom. Now we each must make thechoice of how to direct our efforts in the world, and it is thefruit of those efforts that will some day serve as the scaleby which the world measures Harvard.

Matthew W. Hutchins is a graduating 3L and Co-Editor-in-Chief of the Harvard Law Record.

FOLLOW HLRECORD ON

Harvard, cont’d from pg. 7Craig, cont’d from pg. 1

Page 10 Harvard Law Record April 15, 2010

ting even shorter.Still, Lithwick occasionally has the freedom to

write such stories, though she said more legal jour-nalists were turning to amicus briefs, books, and legalblogs than law review articles. The ability to link tocases directly freed legal writers from having to re-port on their mere facts and holdings. And blogging,she said, has “transformed the way the academy hascome into our lives”. For professors, she noted, it was“no longer silly and trivial to write online,” a “seachange” from just a few years ago. Still, she said, itwas frightening, giventhe internet’s vast re-sources, that so manywriters were pullingsources from just afew major portals.Jeffrey Rosen,

George WashingtonUniversity law profes-sor and legal affairseditor of the New Republic, had an even less sanguineperspective on the rise of blogging about legal acade-mia and its ideas. Hired to his position in the early1990s, he was able to shape a magazine which, at thetime, was “the only game in town” for legal ideas. Bythe early 2000s, his monopoly “suddenly vanished”and he began to face mounting criticism from blog-gers. One “cannot have any sense of entitlement inthe age of the web,” Rosen said, where one is “only asgood as your last piece and arguments”.

There was a “real question about whether the eco-nomic model” for the sort of journalism practiced bythe New Republic would continue, Rosen said, echo-ing a concern that has been felt throughout the jour-nalism industry. He dismissed the idea of forcingreaders to pay for content online, saying that it woulddissuade authors. Harvard Law’s Jack Goldsmith re-portedly said that it was not worth writing a piece thatfewer people would read behind a New Republic pay-wall, Rosen said. In addition, the professor and editorobserved that it was harder to break ranks with polit-ical factions online, where, as Cass Sunstein ’78

pointed out in his book Re-public.com, opinion tendedto the extremes.Of course, the central and

difficult task of legal journal-ists – conveying complexlegal arguments to lay audi-ences – has been an issue inmedia since long before theintroduction of the internet.

“Laws are public, legislatures meet in public, butwhere do people really learn about the law?” askedGutterman. His answer: “television”.Gutterman observed that crime dramas composed

25% of all television programming in the 1980s, andthat the current most popular legal drama, Law &Order: Special Victims Unit, could count on 57 mil-lion viewers a week. 5.7 tune in to each Judge Judyepisode alone. By comparison, Gutterman noted, only

one million viewers read the New York Times home-page on an average day.The panelists did not think major legal ideas

emerged from the one televised event during whichone might expect them – Supreme Court confirma-tion hearings. Feldman insisted these were being in-creasingly hollowed of any meaningful content,leading to unnecessary drama over such minor inci-dents as now-Justice Sonia Sotomayor’s controversial“wise Latina” comment, which she had made as anoffhand joke. Lithwick said that the hearings were“where big ideas fall down”.Lithwick also thought it was unwise for the sitting

justices to try to humanize the court by making mediaappearances, a strategy she thought backfired by mak-ing them seem too relatable and less authoritative. Shebelieved televising the court’s oral arguments mightallow the public to admire their intellectual capabili-ties, but Feldman disagreed, saying it would risk thecourt’s authority by bringing out the justices’ show-boating tendencies.Neither the ultimate authorities on the nation’s laws

nor the journalists who effectively create the publicperception of their opinions appeared capable of find-ing ways to make legal ideas publicly accessible. ButFeldman insisted the wit and erudition of the writerson the panel had at least drawn one group of readerswho wouldn’t normally read about legal ideas – prac-ticing lawyers.

schools. But Minow’s deanship has quietly led theschool in a more international and even artistic direc-tion. Appearances by leading figures in the interna-tional human rights world have become more frequent– or at least better advertised and attended – and thedean sponsored a series of law-related film screeningslast semester. So it was unsurprising that Minow’s address to the

school was different – both in style and content – fromKagan’s. The former dean, who is now serving as So-licitor General, had a tendency to give presidential-style “state of the school” speeches. Minow gave anexplicitly different form of address; focusing far lesson the day-to-day operations of the school, she de-cided to speak about its pedagogical philosophy: itsintellectual roots, recent reforms, and the curriculum’sfuture. “It’s an exciting time in legal education,” the dean

observed, noting that it was a time of “innovation andrenewal”. Some countries were founding law schoolsfor the first time, creating new types of law schools,or retooling the focus of their legal education systemsto produce lawyers who could practice worldwide.The changes came at the end, Minow explained, of

a long line of developments in legal pedagogy. Thehistory she told wound through the pre-industrial pe-riod in which lawyers learned their skills through ap-prenticeships to the establishment of university lawschools. When Harvard was provided with a donationfor either a chair in medicine or law, she said, it choseto fund the teaching of law – because medicine wasalready funded. The reputation of the law school wasnot always so high; no less an authority than the tow-ering jurist Oliver Wendell Holmes, Jr., Class of 1866,said that the school was a “disgrace to the Common-wealth” because students could obtain degrees with-out even attending class.That approach led to the hiring of Christopher

Columbus Langdell, Class of 1854, and the imple-mentation of his rigorous – if not immediately practi-cal – case method of teaching. In the divorce ofLangdell’s notion that the law could be studied like ascience, developing analytical skills in the process,were the seeds of the notion that a global idea of lawcould be taught today, Minow observed. But chal-lenges plagued the curriculum – particularly the riseof the administrative state – and even as it raised theschool’s academic standards, it was critiqued as in-creasingly out of touch. Until HLS’ curricular reform effort was launched in

2003, Minow said, refinements to Langdell’s curricu-lum followed shifting temporal interests and did notfundamentally alter its character. The focus on privatelaw classes taught using the case method remainedparamount. But at the turn of the millennium, debatesover the effects of globalization, the growing clout ofinterdisciplinary research, and an increasing focus onalternative dispute resolution techniques begged in-clusion in an ossifying law school curriculum.These debates ultimately helped launch the Harvard

effort at curricular reform, the first of its kind – or atleast the first to be successful. Minow said that whenshe agreed to lead the project at then-Dean Kagan’srequest, she set down several ground rules to ensurethe effort did not wind up like others in the past. Therewas, for example, no final report at the end ofMinow’s review, sinceshe had “watched fac-ulty use” final reports“as target practice”.The review processalso took the novelstep of looking at ap-proaches used by otherprofessional schools – and discovered that law schoolcurricula were relatively static by comparison to dis-ciplines like medicine, which had introduced muchmore hands on learning techniques.In 2005, the effort paid off: the new curriculum was

approved. It not only added new classes to the largelyunchanged core curriculum developed for first yearstudents by Langdell – a change considered so revo-lutionary at the time that, according to Minow, “peo-ple said they would leave the school,” acting as if“God created the contracts class as it is” – but allowedstudents, for the first time, to take different course op-tions in their first year. But because of contention thatstudents required guidance, the school developed analternative to an undergraduate major system – se-quences of recommended classes known as programsof study.Substantively, the new curriculum included not only

the popular new class in legislation and regulation,but an elective in international law – one which hadthe desired effect, according to Minow, of unsettlingstudents’ assumptions about law. The problem solv-ing course for 1Ls during January term was finally in-troduced early this year as the final piece of thereform, and has drawn the most attention from prac-ticing lawyers.

Minow’s suggestions for the school’s pedagogicalfuture echo emerging global trends. The financial cri-sis, she observed, accentuated the importance of es-tablishing the notion that lawyers were independentactors with their own set of professional standards thatoperate independent of their interest in representingclients, as well as a need to develop long term analyt-ical thinking about institutional design. Other trends,including new psychological evidence about howolder students learn, the influence of new technology,and questions about financing education and drivingdown the high cost of tuition should also be taken intoaccount. The experiences of other schools should continue

to be considered, Minow said, noting the recentlyfounded University of California, Irvine law school’s

central focus on problem solv-ing as one example. HarvardBusiness School could serveas a model for educational fi-nancing; it does not depend ontuition as its primary source ofincome, she said, but on exec-utive education and publish-

ing. And the tension between public and privatepurposes that persisted throughout the law school’shistory might be addressed by moving decisively toplug the gap in public interest law work by using stu-dent clinical talent in a way similar to journalismschools’ deployment of students to cover local issues. “How can law school feel more like a lab?” Minow

asked, pushing further the possibilities of compara-tive methodology. She returned to the notion that major transforma-

tions made continuing reform of the law school cur-riculum not just a possibility, but a necessity.Worldwide shifts resulting from the growth inbiotechnology, the revolution in information technol-ogy, and increasing global economic ties, as well asthe downsides of these trends, such as resourcescarcity, climate change, mass population growth, andhuman migration, she said, generate fundamentalquestions, begging answers regarding “common in-stitutions and values that can help [people] deal with[those] of different traditions”.This was an “inflection point in world history,” she

concluded. “More than any time in recent memory,lawyers need to lead in creating solutions to prob-lems.”

The experiences of otherschools should be considered,Minow said, asking “How canlaw school feel more like a lab?”

“Laws are public, legislaturesmeet in public, but where do peo-ple really learn about the law?”asked Gutterman. His answer:“television”.

Dean, cont’d from pg. 1

Media, cont’d from pg. 4

April 15, 2010 Harvard Law Record Page 11

BY ELAINE LIN

Recently, I was present at a meeting between clini-cal students for the Negotiation and Mediation Clini-cal Program and a client representing the FederalEnergy Regulatory Commission (FERC). The repre-sentative assumed that we had plenty of opportunityto work in teams at the law school, since that’s whatmost of us will have to do after we graduate. The lawstudents and faculty in the room chuckled at how faroff her assumption was from reality. What are the skills we need after we leave law

school? Surely, a nuanced understanding of constitu-tional law isn’t all there is to legal practice. Perhapsthis is my own bias stemming from how I’ve spentmy time here, but I would add team work, project de-velopment, project management and client develop-ment to that non-exhaustive list. And in HarvardNegotiators, I found all that. Harvard Negotiators (HN) is the main student or-

ganization here at the law school focused on negotia-tion and dispute resolution. Through HN, I hadopportunities to employ the negotiation theory Ilearned in the classroom in a real-world context. Forclients, we create value by providing substantive workin negotiation and dispute resolution. And as stu-dents, we benefit from the opportunity to engage thereal world, develop actual work experience in a low-risk setting, engage our passions and bring ideas toreality. To give you an idea of what all that means, in the

past year HN has…

• Developed negotiation curriculum for thePrison Entrepreneurship Program (PEP), a Houston-based non-profit that provides educational and men-torship programs for enterprising incarcerees. • Developed difficult conversations curriculum

for at-risk youths affiliated with FAIR Fund, an inter-national NGO working in anti-human trafficking, do-mestic violence and sexual assault prevention. • Created best practices manual for renegotiat-

ing child support agreements for the American Acad-emy of Matrimonial Lawyers• Trained outside organizations in negotiation

skills, including Firemen and the Town Administra-tor of Nantucket, elected officials of the MississippiNAACP, and graduate students at the Harvard Schoolof Public Health. • Put our skills to test at the American Bar As-

sociation Negotiation Competition, St. John’s DisputeResolution Triathlon, and the International Negotia-tion Challenge in Leipzig, Germany. • Simulated multi-party bankruptcy negotiation

with other law students in light of the economic crisis

Our work last fall helped incarcerated individualsin the Houston prison system learn how to better nav-igate their business and personal lives after leavingcustody, we helped youths in the DC Metro area learnhow to have difficult life-altering conversations, andhopefully helped a few of the many children in themiddle of the country who are currently experiencinghardship due to the economic downturn. Firemen andother union workers in Nantucket will hopefully beable to secure better contracts, and at a minimum, theanimosity in their relationship with the Town has de-creased. And the list goes on. I don’t mean to say that our organization has all the

answers or that the HLS students at HN are experts,but in the process of finding projects to work on, man-age our work load, and deliver concrete results, Iknow that I have developed my own abilities.I love the fact that HN is organic and interest-dri-

ven. If you have an idea or an interest, the mentalityis – let’s try to make something happen. Given that

negotiation touches every aspect of our lives and isimplicated in almost any field, it seems like every-body has an interest that overlaps with what we do.But HN is not about riding on someone else’s coat-tails or waiting for someone else to act. It is all aboutfiguring out what you want to do and how to do it. Ifeel that everyone who joins the organization has theopportunity to develop marketable skills in projectand client development and management, if you arewilling to do what it takes. With the countdown to the end of law school being

only weeks now instead of months, I confess that Iam extremely jealous of those who get to continue onhere. There are incredible resources here at the HLS,and I feel like I have just begun putting them to gooduse in developing myself professionally and impact-ing the world positively. The students here come from such different back-

grounds and bring a wide variety of experiences andpassions to law school. And as far as I can tell, thepoint of law school isn’t to take those differences andstuff them into nice little conformist boxes, but tobring those differences to the table to enhance the ex-perience – yours, those around you, and the commu-nity beyond. If I could say anything to those not yet staring the

cap & gown in the face – and maybe because I’m agraduating 3L you might afford me the opportunity –it would be to take the opportunity while here to learn,not just from books and cases, but about life and theworld. I know I just said it several sentences ago, butthere are incredible resources here. Being a student atHLS and taking part in an organization gives you theplatform from which to launch new ideas. Find yourown analogue to the Negotiators, or feel free to joinours. It has certainly made my experience here at thelaw school all the more worthwhile.

Negotiating Law School Was Fun, Fulfilling

After graduating from HLS, DavidHornik ’94 went on to work at Cravath,Swaine & Moore before clerking forJudge Altimori at the Second Circuit.He returned to Cravath before eventu-ally leaving in 1997 to join VentureLaw Group, a start-up boutique inSilicon Valley. From there hehelped start Perkins Coie’s BayArea practice and, a decade ago,Hornik joined August Capital tohimself become a venture cap-italist, financing start-ups asan investor. Hornik re-turned to HLS this springto teach a course in En-trepreneurship andCompany Creation,and he sat downwith the Record tospeak about hiscareer and thetech industry.

What took youto Venture Law Group after havingworked at Cravath, and how did theexperience working with start-upsget you excited about venture capi-tal?

Cravath is in many ways the epitomeof the establishment, a firm that repre-sents some of the biggest and most wellestablished corporations in the world.It’s reflected in the attire: you wear --your dark suit, every day, even if it’sjust to hang up your coat on the back ofthe door. I went to Venture Law Group in 1997

when the internet was exploding. Therewas a huge amount of energy and ac-tivity in the start-up world, and VentureLaw Group was only representing start-

ups.One of the reasons I leftCravath and went to VLGwas that friends of minefrom Stanford undergrad

were the guys whostarted Yahoo!,and they werebeing repre-sented by thelawyers atVLG. Itseemed tome that whatthey weredoing wasincrediblyinterestingand that theopportunityto work with

Yahoo as their counsel was also incred-ibly interesting. In retrospect, maybethe thing I should have done was go andwork with them, but it worked out fine.I became corporate counsel to a num-ber of really interesting start-ups, all inthe Internet space, and that really gotme addicted to this idea that companybuilding and start-ups are fascinatingand really fun.

What I discovered was that workingwith startups was exhilarating. I lovedrepresenting them and talking to themabout their business and the ways I

could be helpful to them -- not just as acounselor and in their legal issues, butways in which I could be helpful incompany building. I had the opportu-nity to ask, “have you thought aboutthese things?” and “maybe you shoulddo this?” We would engage in this backand forth about how they were thinkingabout building their business. Some of the fun was in answering

questions about how do you structure acompany if you are engaging in a cer-tain relationship. I remember veryclearly once when a client and I werenegotiating with a guy who was essen-tially Steve Jobs’ right hand man atApple. The conversation was fascinat-ing, because when it came time to dis-cuss what the “look and feel” of thisparticular joint venture was going to be,we were told that Apple would get finalsay, period. I argued that we had neveragree with that and so on, but the an-swer came back that, “No, no, Stevegets final say on how these things look.Period.” That was an incredibly inter-esting moment. It was like, do youwant to push this, or do you want to geta business relationship done. So weagreed to it. In our minds, it was theSteve Jobs clause.

What were your goals when you cre-ated Venture Blog?

When I started Venture Blog therewere no other venture capital blogs.Now there are literally hundreds ofVC’s who are blogging. You look at itnow and you say, “I get it. There is this

opportunity to discuss things that are in-teresting and hopefully engage in a con-versation with other people who findthese things interesting.” But when Istarted blogging there were no investorstalking about the venture capitalprocess, so it was an interesting chal-lenge. To a certain extent, the venturebusiness was seen as this black box, andyou weren’t supposed to talk about thethings that you did as a VC. Youweren’t supposed to talk about yourthought process, because it was viewedas this tightly kept secret. As I sat there as a VC it struck me

that none of what we were doing wasparticularly secretive. This wasn’t therecipe for Coke. It was, “I want to hearfrom really smart entrepreneurs aboutwhat they are working on, and if it issufficiently compelling, then I want togive them money.” It struck me thatthere was no good reason why I would-n’t start this discussion. There are cer-tainly some things that I don’t discuss,things about the companies I have in-vested in and conversations with mypartners that I would be silly to talkabout. But that is only because thoseparticular things are private; their valueis in the fact that they aren’t shared.I wrote about “what is it that Venture

capitalists expect in a presentation?” Itdoesn’t seem like that should be a puz-zle. I want to actually find out aboutyour company, and so I should tell youthe things that are important and inter-esting to me, so that when you presentyour company, you tell me about thethings that matter.

Meet the Alum Who Reshaped Venture Capital Through Blogging

Page 12 Harvard Law Record April 15, 2010