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The Harvard Law Record

Independent at Harvard Law School since 1946

Monday, November 28, 2016

A Vote For Hope

Whom to Blame For Trump? You.

Liberals need to step up or risk more electoral losses. By Jim An ’18

A few days ago, I spoke to a Harvard Law alumnus, inter alia, about the recent presidential election. The alumnus had supported Barack Obama, worked as a plaintiff-side civil rights litigator, and also happens to be black. Ordinarily, he votes Democratic. Yet this year, he voted for Donald Trump. There are many people to blame for Trump’s victory.1 But one among the blameworthy is you, dear reader. The Democrat. The liberal who’s too cool to be a Democrat. The leftist who’s too cool to be a liberal.2 When the American Left has lost a black Harvard-Law-educated civil rights attorney to Donald Trump,3 it has done something very, very wrong. For years, liberals valued being self-righteous and telling others that they were racist and wrong above changing hearts and minds and above getting votes. Now we all suffer the consequences of what is not just mere

smugness, but unalloyed callousness and hypocrisy. Now, most of the members of this community have not unnecessarily insulted a Trump voter or blindly hurled accusations of racism like spaghetti in a food fight (though there certainly have been exceptions). So, perhaps some of you are upset that I lumped you in with people who incessantly rage about privilege and laugh at white tears memes, but that’s my point exactly. That is the same kind of upset that ordinary white voters feel when liberals lump them in with Klansmen.4 In any case, we now all bear responsibility. In another world, I might be content to simply rhapsodize about how liberals should countenance more open-minded conversations, even when other people are wrong.5 But with Trump’s election, the urgency of the situation has mushroomed. It is no longer enough to be a good example. Now we must all speak up when we see other liberals talking and writing wrongfully and irresponsibly about others. Trump continued on page 3

We Remember After Trump’s victory, Jewish students pledge to support marginalized groups. By The Progressive Jewish Alliance Like an exclamation point to his entire campaign, Donald Trump appointed Steve Bannon – a man who, at the very least, has perpetuated anti-Semitism – to be his chief strategist. A message that so many Jewish children in the United States grew up with now rings truer than ever. That message? Don’t get too comfortable. It is something our parents tell us again and again – you are accepted now, but you never know what tomorrow holds. We are raised on stories of neighbors who turned against our grandparents, of friends who looked away, and a government that did the unthinkable. For Jewish people who can pass as ‘white,’ these stories make us hyper-aware that whiteness granted can be revoked at any time, and that control of that decision always belongs to someone else.

We have spent the last year watching the most blatantly bigoted, racist, xenophobic, sexist, Islamophobic, and anti-Semitic presidential campaign in decades. In the wake of that campaign, Donald Trump’s election feels like a personal threat made against our communities. It rings out as a reminder – you are only safe, so long as those with power allow it to be so. Most Jewish Americans – around 71% – voted against Donald Trump. Yet too few national Jewish institutions have repudiated Trump’s tactics, or his refusal to denounce the bigotry perpetrated in his name. Too many Jewish people and institutions enabled Trump’s rise by treating him like a ordinary candidate. Now, we are left wondering, as the Jewish sage Rabbi Hillel did, “If I am not for myself, who will be for me?”

HLS students are in an advantaged position to advocate for justice. By Tyra Walker ’18 Many of us feel this week that, in the words of Aaron Sorkin, “hate has been given hope.” Emerging from this post-election frenzy, I want to offer some thoughts that have made me feel more hopeful today than I did yesterday.

What remains as unequivocally true today as it was before November 8?

Photo by Gage Skidmore

President-elect Donald J. Trump.

Rabbi Hillel’s quote continues, “But if I am only for myself, who am I?” As Jewish students on this campus, we write to denounce the bigoted rhetoric of Trump’s campaign against women, people of color, Muslims, and other minorities.

We see you, we care for you, and we will work to protect you. We also dedicate ourselves to holding Jewish institutions accountable, if they appear to forgive Donald Trump’s enabling of anti-Semitism in return for, or on the basis of, his support of the policies of the right-wing Israeli government. We will never trade the safety of other communities – Muslim, Arab, Palestinian, or others – in a misguided and futile attempt to advance our own. We flatly reject the idea that our freedom can ever come at the expense of another. As the KKK in the United States, and white supremacists around the globe, celebrate Donald Trump’s victory, we, as a group of progressive


An Interview with Dean Minow By Jim An ’18 and Brianna Rennix ’18

In October, The Record interviewed Dean Martha Minow for her thoughts on the Law School, women in the profession, and the Cubs. We were initially informed by the communications office that they objected to our publication of the interview, and we met with them and Dean of Students Marcia Sells last week to discuss the issue. Following that meeting, the communications office withdrew their objections. We are pleased to present our interview with Dean Minow, condensed and edited for clarity. The Record: This is the first year in Harvard Law School’s history in which the entering JD class was more than 50% women. How did that end up happening and what do you make of it? Dean Minow: We’ve made a lot of

outreach efforts, and I’m happy with the results. These things do change from year to year though: last year’s LLM class was majority women, but this year it’s majority men. R: Women still make up a minority of spots in the upper echelons of the legal profession. What do you think has to change before we make progress there? M: From partnerships to professorships to the federal judiciary, we see this consistent low percentage of women, and it’s concerning. With the federal judiciary, President Obama has made a difference, but the numbers are still disappointing, and one of the problems is that the Senate won’t confirm his nominees. At firms, there’s still a focus on who are the rainmakers, and we need to push firms to recognize that excellence shows up in many ways.

R: HLS has changed the 1L orientation to focus more on issues of diversity, but one of the hardest things for people to do is to have those conversations with one another. How can students and HLS improve?

“We need to push firms to recognize that excellence shows up in many ways.” — Dean Martha Minow M: This is a question dear to my heart. I recently met with students from my constitutional law class to talk with them about this. And I don’t have all the answers. It’s a difficult time in this country, and people are worried they’re going to be charged with prejudice if they say the wrong thing. Or they might not want to say something because they Minow continued on page 7

Fear Not: I Have This All Under Control By Fenno

I have observed in recent days that many people on this campus seem shellshocked by the election result. Not so me. As careful readers of my previous columns will note, I have always assumed that Donald Trump would

be our 45th president. To the halfa-dozen of you who read my previous columns, and failed to heed my warnings, you have only yourselves to blame. How many times did I try to tell everyone — the Dean, my fellow-classmates, the professors in whose classes I am nominally enrolled — that this day was at hand? How many times did

Gordon Arkin ’70 shares more advice with the next generation of lawyers p. 2

they say to me, “Oh no, Fenno, you’re crazy!” Oh, I’m crazy, am I? I’m crazy? Would a crazy person LAUGH LIKE THIS????!!!!!! No. No one is laughing now. This is serious. “Oh no, Fenno,” they said, “he can’t win! Look at the polls!” Look at the polls! Only an idiot

Read more reactions to Trump’s election from HLS students p. 3 – 5

We’re in a better position … to stop mourning and get to work.

Jewish law students, are coming together to stand unequivocally with all those who will be, and who already have been, made vulnerable by his election. We write to say – we are with you. Today, the Jewish community remains safer than many other communities. We will not be the friends or neighbors who look away. In the coming years, we commit ourselves to protecting all those whose rights are threatened by the new administration. This includes Jewish people, and especially the most vulnerable in our own community – women, Jews of color, Mizrahi Jews, queer, disabled, and economically marginalized Jews. To all of our partners in this fight, and especially to our Muslim cousins – we see you, we care for you, and we will work to protect you.

People will also keep fighting for progress today as hard, if not harder, than they did before. For HLS students who were not pleased with the results of this election, we should seek to use our legal reasoning as a tool. Where individuals in our lives attempt to proffer the explanation “you’re just upset because you lost,” we have the tools to distinguish the rise of Trump – to explain why the election of this candidate is different, and transcends the typical concerns associated with elections as a competitive sport. Also true is that we’re in a better position than 99% of the country to stop mourning and get to work. Big league. Having the “H” shield for protection is a privilege no matter where we came from before arriving at HLS. Like the Sorkins, we as students are “fairly insulated from the effects of a Trump presidency,” and thus are uniquely primed for resilience.

Leora Smith, Jake Meiseles, Roi Bachmutsky, Hannah Belitz, Rebecca Harris, Grace Wallack, Jacob Glick, Lauren Kuhlik, Lauren Godles, Brian Pilchik, Daniel Levine-Spound, Edward Delman, and Annie Kurtz are members of The Progressive Jewish Alliance at Harvard Law School, a new student group.

Walker continued on page 4

Two Practical Steps Forward We all should commit to concrete action in upholding our ideals. By Pete Davis ’18 My favorite high school teacher has this poster in his classroom: “Don’t just do something, sit there.” It’s a wise message for the first week after the crisis: I worry if we jump into “The Response Plan” too early, we will repeat the same mistakes that brought us here. You can already see it happening in our newsfeeds, as everyone’s plan for the Age of Trump seems to be: “Everybody just needs to double down on my worldview.” Carving out time for reflection in spaces outside of campaign politics — reading spiritual books rather than pundits’ hot takes, watching a play rather than a cable news show, reaching out to real people rather than ranting about the trusts polls. Who among us has never lied on a survey? Who among us has never been cornered on the Science Center plaza by an undergraduate doing a mental health study for a psychology class, and rated yourself as “very happy,” because you’ll be damned if this snotnosed millennial parvenu peeks at your answer and finds out that you are in fact teetering on the brink of complete psychosis?

Joshua Komorovsky ’18 compares apples to humans p. 5

Although the results of this election may have shocked the conscience of our country’s founders, they are not inconsistent with the design of democracy. This vibrant, rowdy, sometimes unruly process of democracy envisions wins and losses, new ideas, and even candidates that we never expected to rise to the fore.

latest stranger’s horrible comment thread — is crucial if we hope to shine a path out of here. I also, however, believe in Roberto Unger’s insight about hope and action: “It is a common mistake to suppose that hope is the cause of action. Hope is the consequence of action. You act, and as a result, you begin to hope.” So, this week, what then should we do? My proposal: alongside carving out time for reflection and offering immediate care to our neighbors, we should spend this week making a commitment. Concretely, we should make a commitment to a certain amount of time and a certain amount of money that we are ready to consistently give to our country in the coming years. Very specifically, we should each commit to a number of hours we are ready to give each week and a percentage of our paycheck we are ready to give each month. See, in the end, the projects we care about survive on time and money. Some projects are more time-based and some projects are more money-based, but the same rule applies to all civic projects: if they lose hours and lose cash, they die. If they gain hours and gain cash, they grow. We have a choice of how we want Davis continued on page 4

Who among us has never lied on a survey? For that matter, who among us, when we were ourselves undergraduates, never conducted a mental health study for a psychology class, Fenno continued on page 3

HLS student groups celebrate diversity in the legal academy p. 6


The Harvard Law Record

November 28, 2016

The Harvard Law Record

Independent at Harvard Law School since 1946 · November 28, 2016 · Volume 143, Issue 3 1585 Massachusetts Avenue · Cambridge, MA 02138 Winner of the 2016 American Bar Association Law School Newspaper Award Editors-in-Chief Jim An ’18 Brianna Rennix ’18 Online Editor Pete Davis ’18 Copy Editor Katherine Thoreson ’19

Opinion Editors Nic Mayne ’18 Namita Dhawan ’18

Contributors Andrew Langen ’19 Jimmy Chalk ’18 Evelyn Douek, LLM ’17 Tyra Walker ’18

The Record always welcomes new writers, editors, and designers. Contact us at

More Unsolicited Advice

Retired HLS attorney Gordon Arkin shares wisdom from his four decades of practice. By Gordon Arkin ’70 I retired from the practice of law in 2013. I spent 43 years as a transactional attorney, mostly as a partner with Foley & Lardner LLP. Neither of my children decided to become lawyers, so I never thought to share much with them the lessons I learned during my years of practice that helped me succeed as a partner in a large law firm. Since I believe there is some wisdom to be gained from my experiences, I decided to share some of them with you in this multi-part series.

Try To Become Indispensable

If you want to become a partner, try to become indispensable to the partners you are working for. Ask what you can do on a transaction to ease their burden. As you become more experienced, go to them and suggest a course of action that you believe will advance the transaction and allow the partner to do something else with his or her time. Don’t be too pushy. Just make it clear that you are interested in taking on more responsibility if the partner thinks you are ready to do so. When senior associates or senior counsel are considered for partnership, the ones that have made things easier for the partners they work for are likely to have the easiest time.

Think Like a Partner

Think like a partner even before you are one. A law firm is a business, and it survives by making enough money to attract and retain really talented attorneys. There are lots of ways an associate can help a law firm prosper. You can work hard and bill your time promptly. You can do a great job for the clients you are working for, since the easiest ways to get more business are from existing clients of the firm, from new clients who come to you because they have heard great things about you from these existing clients, and from clients on the

other side of a transaction who were impressed by the work you did for your existing client. For example, I was retained to represent one of the largest banks in the world in transactions involving billions of dollars in financings for state-created insurance companies in Florida and Louisiana to repair damage from hurricanes because the bankers were impressed with the way I had represented one of my public agency clients in a complicated financing involving that bank. You can get involved in the network that serves your existing clients, like their trade association, and in charitable and community activities in the community where you live or work. Your success will add to the firm’s success, and you will both benefit.

Try to become indispensable to the partners you are working for. When I left New York City in 1975 and moved to Florida to join the small firm that merged with Foley in 1985, I got involved in what was then a novel bond transaction representing the City of Orlando. The senior partner had agreed to do the legal work for $2,500. I knew the firm would lose money if that were all it was paid, but I was a brand new associate, and the fee had been agreed to without any input from me. The day before the closing, the underwriter called to ask me if there were any unresolved issues that needed to be addressed before closing. Without any authority from anyone, I told the underwriter that we had done far more work on the

transaction than originally contemplated, that there wouldn’t be a closing if we hadn’t been willing to do that work, and that the $2,500 fee was inadequate. He asked what we should be paid and I said “$10,000.” He told me that he could pay us $7,500 on his own authority, but that he would have to ask his boss to pay us more. I told him that I would speak to my boss and get back to him. When I told the story to the senior partner, he laughed and said, “take the $7,500 and run.” Needless to say, I did. After I became a partner, I was told how impressed the partners were that I cared about getting the firm paid a fair fee even though I had absolutely no financial interest in the outcome. The Art of the Deal

I spent my entire legal career trying to become a better writer. I have rarely reread something that I wrote more than a few months ago without thinking that I could have made it shorter or clearer. Legalese is the enemy of good writing. Trying to document a complicated transaction using plain language can be hard work. Transactional attorneys spend much of their time listening to their clients, negotiating the terms of the deal with opposing counsel, and then reducing those terms to writing. Always trying to get better at this, and finding personal satisfaction in a job well done, is the true “art of the deal” for a transactional attorney. In 1975, the last year that I practiced law in New York City, I was asked by my firm to negotiate an agreement to put a famous awards show on television for five years. It was a three-party negotiation among the producer of the show, the owner of the awards trademark, and the client. My client told me that it was critical that it retain ownership of all of the intellectual property rights to the shows that would be broadcast on television. It was a contentious negotiation that took almost six

Voting While Mobility Impaired Despite accessibility laws, voting remains a challenge for those with disabilities. By Valerie Piro When I didn’t vote in the 2012 presidential election, I made up a bunch of excuses to tell my friends and classmates when they asked me if I’d voted. I told them I wasn’t registered (I was), that I figured Massachusetts was going to go blue anyway (it did), and that I didn’t have time to wheel over to a voting area (I did). Why did I tell my friends such nonsense — or, better, why didn’t I just lie and said that I had voted, particularly when all of them gave me hell for not voting? The reason I didn’t vote in 2012 was because the first time I voted post-injury, in 2009, there wasn’t a wheelchair-friendly voting option available. At that time I was living in New York. My dad brought me to the nearest voting area, which was a school about a block away from our house. We found the main entrance easily, but it had steps, so we followed a series of signs with handicapped symbols and arrows on them. These led to a creaky and narrow ramp (which I’m pretty sure was not up to code) through a back entrance into the school. Once we got to the voting booth area, we realized that my dad would have to vote for me, because I couldn’t reach everything in the voting booth. Someone who worked at the voting center offered to help me vote, but I felt far more comfortable with my dad voting for me than with the voting center person. I know that they’re supposed to be unbiased (heck, my uncle has volunteered at voting centers before, and he’s told me all about how they have

to be objective), but you never know. Although I was annoyed about the whole situation, I was okay with this particular instance. My dad knows my political views pretty well, and I had expressed my interest in voting for “The Rent is Too Damn High” party on multiple occasions (because it’s NYC, and the rent really is too damn high). He helped me vote, and then we went back down the sketchy back entrance of the school, down the rickety ramp, and back home. But I didn’t want to do this three years later in Massachusetts. I didn’t want to bring a friend into the voting booth with me and: 1. Tell them who I was voting for, and 2. Have my ballot no longer be a secret just because I couldn’t reach some parts of the voting booth. If you think this is a violation of my privacy, it is. Who I vote for should be nobody’s business except my own. And so I didn’t vote in 2012. No Obama. No Romney. None of that. I saw all of my able-bodied friends with their patronizing “I Voted” stickers, and decided that it was best to hide in my dorm room until the polls closed. I didn’t do my part as a citizen (sorry, America), and looking back, perhaps I should have tried voting. Just because one voting area is inaccessible doesn’t mean that they all are. If a place is going to be set up as a voting area, the people setting it up can access a handy ADA checklist to check their accessibility. Do places actually follow these guidelines? It’s not clear. The place I went to in 2009 certainly didn’t. But polling places need to follow the ADA checklist, because my disability should not prevent me from voting. Seriously, it’s the law, and it’s been that way for decades. If I may provide a super brief legal history of voting with a disability (which basically paraphrases information from the link above):

The Voting Rights Act of 1965: Among other things, this law permits assisted voting (this is basically the term for what my dad did for me when I voted in 2009).

My disability should not prevent me from voting. The Voting Accessibility for the Elderly and Handicapped Act of 1984: Requires accessible polling places in federal elections for the elderly and disabled, or some alternate means of voting. The National Voter Registration Act of 1993: Encourages people with disabilities to register to vote (so, not much to do with accessible polling places, but lots to do with getting people with disabilities to be in a position where they can vote). The Help America Vote Act of 2002: Requires at least one accessible voting system for people with disabilities at each polling place in federal elections. I love laws like these, because while they sound great, I have absolutely no idea how they’re enforced. Are they similar to the Americans with Disabilities Act, where people with disabilities are responsible for suing a location for non-compliance? It appears so. According to, “The ADA requires that public entities ensure that people with disabilities can access and use their voting facilities.” This means that there is no federal agency that actively goes around and checks facilities for access compliance. Rather, people with disabilities need to check their nearest polling places to ensure that they’re accessible, and are relied on to sue these locations if they are not. (Note: Although I’m mostly discussing issues that pertain

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months to complete. When the agreement was finally signed, and I watched the first awards show that had been produced and broadcast under the terms of that agreement, I was relieved and a little proud of the work that I had done. Twenty-five years later, I got a call from a partner in the law firm that I had worked for in New York City. He told me that the client and the producer of the awards show were in litigation over whether the producer had the right to stream over the Internet the entertainment portions of the awards shows that he had produced under the agreement I had negotiated. He also told me that the producer’s attorney wanted to take my deposition.

You should treat everyone fairly and with kindness and respect. I reminded the partner that the Internet had not been invented until many years after that agreement had been signed. I also asked him to send me my old file so I could review that agreement. He did, and I was relieved to find that I had listened to the client’s concerns and had drafted a provision that was broad enough to cover technology that did not exist at that time. The partner told me after my deposition that my testimony was extremely helpful to the client. I remember being quite grateful to the mentors who had taught me so much about good drafting. The producer died a week later, and his death ended that litigation before any decision had been rendered. Treat Everyone Fairly and With Kindness and Respect

In life in general, and in the practice of law in particular, you should treat everyone fairly and with kindness and respect. If you can’t do this simply because it is the right thing to do, then do it anyway out of pure self-interest.

to wheelchair users, those with non-mobility impairments also deal with inaccessible polling places. I’m not forgetting about you; I just don’t know enough about the situation to write confidently about it.) What’s a wheelchair-user to do when they want to vote, don’t want to deal with litigation, and know that the nearest polling place isn’t going to get their accessibility act together? Assisted voting: It’s not glamorous and it violates your privacy, but at least it gets your vote in. Fill out an absentee ballot: While this is a perfectly acceptable option, it has to be done ahead of time. It requires sending an application to your County Election office, and then mailing that ballot once you receive it. Again, totally fine, plenty of people do it (1 in 5 as of 2014), but there are some risks. NPR reported in 2014 that over a quarter of a million of absentee ballots were rejected in the 2012 election. The reasons for this range from the ballot not arriving on time (either the voter’s fault or that of the postal service) to issues with the voter’s signature not matching the one on file at the DMV. If I want my vote to be counted, I have a much better shot if I just go to the polling center on Election Day. “Curbside voting”: In some cases, if a polling place isn’t accessible, election administrators will allow someone, who would otherwise be unable to enter a polling place, to vote outside the building or in their car. This process has so many steps that I’m just going to copy and paste this from the ADA website: “In order to be effective, however, the curbside voting system must include: “(1) signage informing voters of the possibility of voting curbside, the location of the curbside voting, and how a voter is supposed to notify the official that she is waiting curbside; “(2) a location that allows the

If you do this, the rewards can be significant. When you need assistance on an emergency basis from associates, legal assistants or secretaries, people who you have treated this way are far more likely to offer their help willingly, even late on a Friday afternoon or over a weekend. If you have a reputation for treating people this way, clients are more likely to send you additional business and to become a referral source for you. If you have a reputation for being unfair, rude and disrespectful, the collateral damage can be significant. When I was 54, I lost my most significant client because of a change in political control of that public agency. This devastated my practice, and I spent the better part of the next year trying to rebuild it. I believe that I succeeded in that effort in large part because of the kindness shown to me by the potential clients that I was reaching out to. The in-house counsel of one significant new public utility client that retained me after a competitive selection process told me that he knew of my reputation in the community, thought I had been treated unfairly by my former client, and wanted to help. The senior living practice that I developed as part of my rebuilding effort came from a referral made by the head of a national hotel chain that had been on the opposite side of a transaction that I had negotiated. The reason for the referral, as I recently learned, was that I had gotten my client a very good deal while treating the other side with kindness and respect. This proves that in any negotiation, you can disagree without being disagreeable. If you take any of this advice, and it helps you become a partner, please “pay it forward” and become a mentor to one or more young associates who will benefit from your wisdom. Thanks for reading this. Gordon Arkin is 1970 graduate of the Law School. He is a retired partner of Foley and Lardner LLP. The first part of this piece was published in the previous issue of The Record. curbside voter to obtain information from candidates and others campaigning outside the polling place; “(3) a method for the voter with a disability to announce her arrival at the curbside (a temporary doorbell or buzzer system would be sufficient, but not a telephone system requiring the use of a cell phone or a call ahead notification); “(4) a prompt response from election officials to acknowledge their awareness of the voter; “(5) timely delivery of the same information that is provided to voters inside the polling place; and “(6) a portable voting system that is accessible and allows the voter to cast her ballot privately and independently.” If all polling places were accessible, then we could avoid these messes. Also, I thought about including affidavit ballots in my list above, but those are really more for registration issues (e.g. your name doesn’t appear to be registered when you go to your designated polling place) than accessibility ones. This year, I’ve sent in an absentee ballot, and am praying that it gets counted in New York. Although I could have, I suppose, voted in person in Massachusetts. Regardless, I am determined to have my ballot counted (because let’s be real, this election could have some terrifying consequences). If I had voted in person, I would have demanded an accessible booth so that I could have cast a private ballot, but it’s entirely possible that the voting place (if it was accessible) would have lacked the booth I required, and the empowering feeling of civic duty that I have right now would vanish. In that case, I would have probably resorted to assisted voting again. But I hope that our next president will care about the accessibility of voting booths. Valerie Piro is an Ed.M. candidate at the Harvard Graduate School of Education, where she studies disability in higher education.

November 28, 2016

The Harvard Law Record

Reconstruction in the Age of Trump By Izaak Lustgarten ’19 The United States of America voted, and the country’s 45th President will be Donald J. Trump. Throughout the gory, gruesome, and seemingly never-ending primaries and general election, each side insulted the other. Various times. Aggressively and belligerently. In the days after the election, no matter where you stand on the political spectrum, it seems incredibly difficult to follow through with our nation’s historic, respectable, and peaceful transition of power. How can the country reconstruct itself after the civil war that was the 2016 election cycle? As a proper Millennial, I check my various social media accounts multiple times daily. I see what my “friends” are up to and read about current events. What I witnessed on November 9 during my routine scrolls was hate, ignorance, and false


Continued from page 1 A favorite pastime among liberals is to rage about how poor (and middle-class) white folks vote Republican against their own interests. Yet somehow, these same liberals missed that screaming at these same folks that they’re stupid and racist and misogynistic beyond repair was pissing into a gale.6 It seems that many liberals preferred that the objects of their vitriol vote Republican than vote Democrat if they weren’t doing so with contrition and shame. And now we all get to enjoy the fruits of that conceit. Despite prognosticators’ handwringing, Donald Trump did not win because people who were downand-out truly believed his promises of a brighter economic future. Exit polls7 show that 1) people for whom the economy was the most important issue went 52-42 for Clinton, a +14 shift toward Democrats compared with 2012; and 2) people who thought the economy’s condition was “poor” shifted +9 toward Democrats, while people who thought the economy’s condition was “good” shifted +24 toward Republicans. That said, this was indeed a race about race. However, it was not about racism as liberals have framed it, or at least, not in a way that benefited Trump. Many people, like the alumnus I spoke to, voted for Trump not because of his racism, but in spite of it.8 Consider that 15% of Trump voters had a negative opinion of him, compared with 5% of Romney voters in 2012, indicating low faith among many of Trump’s own voters that he represented their values or their interests.9 I tutored for a while, so I can assure the reader that telling a student they’re an idiot does not, in fact, teach them calculus or biology or bestow any knowledge or intelligence whatsoever upon them. And likewise, telling people they’re racists and misogynists does not do a damn thing to change their minds.10 Does anyone believe differently?11 Look, I’m not saying that Trump voters aren’t at least sometimes selfish doofuses or obnoxious racists, but only that incurable bigots are not the whole of Trump’s support and that liberals have often been even more alienating than Trump. Instead of doing the hope-y change-y stuff Obama asked for, liberals spent the past few years telling ordinary people12 that they


Continued from page 1 and ended up inventing all of the final data, because we vomited up a bottle of Jack Daniels onto the stack of half-completed forms on the morning the assignment was due? Knowing the profound level of self-deception of which you yourself are capable, do you really think the rest of America is better and purer than all that? No. Everything you trusted was a mirage, and you ought to have known better. Now, of course, everyone is on the warpath for some individual or some demographic to hold accountable for all this. I would like to make it perfectly clear that what happened on November 8 was in no way my fault. Yes, yes: I am a student at Harvard Law School, one of the wealthiest private institutions on the planet, with a $35.7 billion dollar endowment, every hoarded-up dollar of which is, when you trace it all the way back down to its origin, a dollar snatched from the mouths of the global poor. But I have made a point of never reaping any personal advantage from my institutional connections. Indeed, I have been careful to sabotage all my opportunities, and to squander any accidental accruals of goodwill. As of this year, I have been blacklisted from every HLS BigLaw interest event, due to my lavish enthusiasm for their

hope. The animus towards President-elect Trump and his supporters was unprecedented – worse than it seemed during the election. I found this ironic, given what Secretary Clinton gracefully espoused in her concession speech earlier that morning. She said that we, all Americans, owe Trump “an open mind and the chance to lead,” and that “our constitutional democracy demands our participation . . . all the time.” The relentless hate I saw the day after the election was aimed at Trump supporters. People expressed “disgust,” a “lack of hope,” an unwillingness to engage in meaningful conversation with a group that consists of nearly half of American voters. How can we expect to move the nation forward without engaging (or worse, actively alienating) 47.5% of the electorate? How can we bridge the divide if we are ignorant as to the views of others? How can we reconstruct if we continue to promote the

hate we are trying to overcome? In order to be “Stronger Together,” we need to first actually come together.

needed to repent for slavery. Instead of building a permanent coalition, liberals prattled on endlessly about white privilege. The American Left drove away millions of voters just so they could feel morally superior.13 For a group that often derides others for fearing change, liberals seem mighty fearful of the changes happening around us. So could you imagine for a second that some of your moderate and conservative fellow Americans were similarly frightened when they saw their friends, acquaintances, and countrymen lose their jobs, their homes, and their lives? Yes, their fears of terrorism are probably disproportionate to the threat, and their other fears of economic14 and social change are not directly comparable to fear of bodily harm, but can you imagine for even a moment that they could hold such fears without active hatred toward other Americans?15 Would you want to be one of these people that liberals have denigrated? Would you trade bodies with a high school dropout living in Glenville, West Virginia or a sales manager in Overland Park, Kansas? Would you rather be a Muslim, gay, Asian, black, woman, you-name-it Harvard lawyer living in New York City, or the richest white man in Morgantown, Kentucky? (And don’t think that a Trump voter wouldn’t necessarily make a similar choice.) I’m not saying you have to agree with all Trump voters’ beliefs or even accord them particular respect to get a liberal elected to the White House. Donald Trump sure doesn’t have any respect for his supporters. But you have to at least respect the fact that these people have 62 million votes amongst themselves, and if you want to win, you have to bring at least some of them to your side. Stop being jerks to them. Stop calling them racists. The opinions of a man from Rockwood, Pennsylvania on Eric Garner, Syrian refugees, or frankly, anything else, does not affect any of you but through his vote. So why get so caught up in telling him his opinions are wrong if they not only won’t change his vote but will actually push him to vote against your interests? Now, politics and elections are not football games. We do not pick the side we want to defend just because the wind is blowing a particular way. That would render the entire enterprise moot. There are real values and outcomes at stake, and on important

matters, liberals (and conservatives) can and should say, “this is what we believe in, and we will not retreat from this hill.” But the ideas that all Trump voters are unrepentant racists and that all white people are sublimely privileged (and that both groups need to be informed of these things) do not count as such important matters.16 Liberals are often complaining that conservatives don’t care about the impact of their actions. Well, it’s time for liberals to prove they aren’t hypocrites of the highest order. If other people matter to you, then suck it up. If you truly care about others like you all say you do, then suffer through the pain of not telling someone they’re wrong just because you can. If you really think that Hillary or Bernie or whoever would have been a better president for all Americans, then live up to your supposed beliefs and do what it takes – including asking other liberals to refrain from making unhelpful accusations and unfair claims – to get people to vote blue. You know who got Trump elected? You did.17 Now fix it.

complimentary libations. OPIA, meanwhile, has refused to have anything to do with me since 2011, because apparently, “jailbreaking and smuggling expenses” is not an appropriate use of SPIF summer funding. You will find no one at Harvard Law School with a good word to say about me. “But Fenno,” I can hear you all crying now, “since you were the only man among us who saw clearly what was happening in this country, shouldn’t we look to your as our natural leader in this new era? Fenno, Fenno, help us! Tell us what we should do!” Ha! How like you, you worms! Well, you are in luck. I have not been idle during this election cycle. I have made a plan. Fenno’s Plan to Save American Democracy

Now, I can’t tell you the plan, because you people are guaranteed to fuck it all up if I do. But you can rest assured that it is a good plan. If you shut your mouths and do exactly what you’re told, we will rescue our country, solve world hunger, colonize Jupiter, and develop a viable medical procedure for male pregnancy within the next 6.5-11 years. All I need each of you to do is sign on for one of the following roles, and await further orders.

Civil service sleeper agents.

Civil servants are key to any effective resistance of tyranny. Any idiot

It is time to … show the world what our country can accomplish together. Millennials suffer from a generation-specific dilemma that comes from substantial dependence on social media. Harvard Law School professor Cass Sunstein described it best when he said Facebook encourages users to “choose and share stories containing messages they accept, and to neglect those they reject.” This leads to the formation of “homogeneous, polarized clusters,” as social scientist Michela Del Vicario explained in a 2015 study.

1 There are many people and things more blameworthy (e.g., the electoral college, Mark Zuckerberg, etc.), but many of those things are par for the course and in any case, the fact that they are also factors do not preclude what I’m talking about from being a but-for cause of the election outcome. Furthermore, one generally ought to take the log out of one’s own eye before taking the splinter out of one’s brother’s eye. 2 I will generally use the word “liberal” in this piece to refer to all three groups, but to be quite clear, Mx. Anarcho-Syndicalist, I am speaking to you. 3 The alumnus I spoke to did not for a moment doubt or try to explain away President-elect Trump’s racism. Yet Trump got his vote. 4 Or, as the analogy has often been drawn, when ordinary Muslims get lumped in with ISIS or al Qaeda. 5 Unsurprisingly, that piece did not seem to convince too many people. 6 There’s been a number of pieces saying that Republican voters are not reading recent outreach pieces in liberal-leaning publications and thus such outreach is therefore pointless. To that I ask, what was the point of calling these voters racist in the first place if such voters would never encounter such screeds? Either calling

can carry a gun, but it takes a special mettle to sit at a desk job for years and years, slowly and silently unfiddling the tightly-wound lugnuts of a corrupt institutional bureaucracy. We will need some people to do paperwork/visa-type things, à la Chiune Sugihara. We will need other people to simply clench their buttocks and wait for my signal to burn down the Utah Data Center. Still others will be needed to move their diabolical DHS supervisor’s coffee mug to a different part of his desk every time he leaves for a cigarette break, leading him to believe that he is slowly going insane. Poets who are in over their heads.

History tells us that anybody who starts writing inspirational political poetry right now is guaranteed to have a command post in a resistance organization within six months. (Admittedly, “poetry” is a mostly dead art form at this point, and I am not quite sure what its 21st-century artistic analogue would be. Twittering? A compilation of topical GIFs? A novel-length fanfiction in which a time-travelling Alexander Hamilton runs for president in 2020 — not, you know, the historical Alexander Hamilton, but the hip, progressive, second-generation Puerto Rican Alexander Hamilton from that musical?) Where you take things from there is up to you. Most poets either

3 By editorializing their news feeds, young people refuse to accept, listen to, or even debate ideas or views that are unlike their own. And, as a consequence, they experience an extreme form of group-think, enclosing themselves in a vacuum of like-minded individuals. This is not a purely academic or theoretical phenomenon – half of the posts I read on November 9 ended with a variation of “and if you disagree, feel free to block me from your feed. I probably blocked you already as well.” I understand the need to block a certain few, specific people. But systematically blocking and avoiding people with whose views you disagree fosters the very hatred and ignorance we as the next generation of American leaders should be trying to avoid. In school, we are taught the importance of tolerance and diversity; we learn about the melting pot that is the United States. We teach our children that the reason we are a world power and one of the most innovative countries in the world is because of the heterogeneity of our populace,

If you care about others, then suffer through not telling someone they’re wrong. people racist and misogynistic for the last several years was a huge waste of time that had no purpose or effect but to boost liberals’ egos, or conservatives and moderates are in fact capable of sensing liberals’ attitudes toward them. (And this is in addition to the fact that such pieces seem to suggest that all Trump voters are Klansmen or worse. I can’t imagine why that would upset anyone…) 7 Some might say that polls are unreliable in this brave new world, but I am not aware of data that indicate that exit polls, as opposed to pre-election polls, suffer from the same weaknesses. Furthermore, we’re talking about major shifts of 10% or 20%+, not a bias of 2-3%. 8 While that alumnus made a choice different from mine, it’d be facially absurd to claim that he is racist or uncaring. Some (ignorant and rude) people might say he is merely stupid, but if such a person, who has passed all the intelligence tests of modern liberalism – save for voting for Clinton, is stupid, then who among us can stake a reasonable claim to intelligence? 9 Also, Trump won proportionally more voters from every racial minority than Romney did. 10 To the extent that they are all racists and misogynists, which I strongly dispute. 11 And if not, why did you all say these things anyway? Why was it more important for you all to beat these people over the head with how bad, wrong, and uncaring they were rather than win their vote? Why was it more important to stay on your moral highhorse than win some votes? And by the way, how’s the view from up there? Can you see what 2020 looks like? Because I’m pretty ambivalent that these voters will necessarily turn against Trump even if he fails to deliver on his economic promises so long as liberals keep up their divisive rhetoric that Trump voters are scum (which certainly they haven’t disappointed on so far). 12 Consider that the ancestors of many

perish quickly in some sort of doomed, romantic uprising, or else spend the next decade systematically hollowing themselves out until they wake up one day and realize they have become the very thing they once despised. The choice is yours! Someone to handle the group Google Docs.

Self-explanatory. This is not really my area, so I’d appreciate the help.

The mob.

Every resistance needs a good mob. There’s a place for everyone; and on the whole, your survival chances are quite high, so long as you keep your head down. On the other hand, if you say a line of dialogue, or allow the camera to zoom in on your face as you roar and shake your fist, you’ll probably be killed. Fair warning. (There’s an outside chance you may become a minor protagonist later, but I wouldn’t bank on it if I were you.)


This is what our movement needs most of all: people who are willing to fail. The ambitious are of no use to us. What we need are people who are willing to disappoint their families, and alienate their friends. We need people who are willing to give up their dream of the corner office, the cushy post, the prestigious publication. We need people who are willing to blow their life’s savings on some harebrained scheme

and the freedom for all Americans to believe in what they choose to believe and participate in progressive (little ‘p’) national discourse. It is time to practice what we preach. It is time to experience, listen, debate, construct, and peacefully argue about substantive ideas that will bring the United States forward. It is time to reconstruct, show the world what our country can accomplish together, and come back stronger than ever. Sometimes it takes a seemingly earth-shattering event, like the upset we witnessed on election night, to bring us to reflect and regroup as a nation. If we cast aside our hateful rhetoric, propagate knowledge and curiosity instead of ignorance, and actively attempt to engage with all Americans – no matter their political beliefs or voting record, skin color or sexual orientation, or religion or background – we will come out of this reconstruction period with fresh, enlightened, and innovative ideas, and as one united nation. Izaak Lustgarten is a 1L.

of these people more likely came as poor working-class immigrants in the late 19th century than ever held a single slave in the antebellum South. A center-right white American might seriously dislike Trump and care for minorities’ welfare, but it’s not unreasonable that self-respect would bar people from voting for a party whose members tell them they’re incorrigible racists forever tainted by slavery. 13 I mean, how does it feel to have told poor Appalachians that if they weren’t with you, they were irredeemable moral sewers? How does it feel, sitting in your Cambridge (soon to be New York and D.C.) apartments, armed with your Harvard educations, telling downand-out Nebraskans that they’re a bunch of turd wallets for wanting a better life? How does it feel to know that you put millions (perhaps billions) of lives at risk? Does it feel as good as white tears taste? I certainly hope it feels good, because a lot of bad things are going to happen to a lot of decent people. Oh, and thanks for saying to rural Missourians that they aren’t allowed to have opinions about others, but it’s more than okay for liberals/peopletoo-cool-to-be-liberals to say to these folks that their $22,000 annual household income means they are too privileged to feel threatened by the changing world around them. 14 And look, until the Democrats’ platform is straight open borders, at least to anybody from a war zone, Democrats also put provincial economic interests ahead of an all-encompassing notion of human bodily integrity. 15 Honestly, this seems a bit like projection on liberals’ part: “because I have such antipathy for Republican voters, those voters must necessarily have antipathy toward me.” 16 And not the least because those ideas aren’t true. 17 Some of you may note the irony of writing a not-very-nice piece calling out others for being not-very-nice, but on a meta level, it works both ways: if this piece is prima facie convincing, then I’ve done my job, and if it’s too harsh to be convincing, well, then it ought to implicitly show unconvinced readers that being rude to people is not effective at getting them to go your way. Jim An is a 2L. He is the editor-in-chief of The Record.

This is what our movement needs most of all: people who are willing to fail. to help people more vulnerable than themselves. We need people who are willing to subsist on beans, and sleep in cars. We need people who are willing to look foolish, and who are even resigned to appearing insane. We need people who are willing to die poor and alone, someday, in some shabby place, quietly, in obscurity, unremembered, having accomplished nothing they hoped for when they were young. This, far more than brave last stands on barricades, and far more still than brave election-themed posts on Facebook, is what history demands of the vast majority of ordinary people who would try to do good in dark times — and this world of ours was dark enough before Donald Trump. If you’re prepared for all that, then you need no instructions from me. Good luck, and godspeed. Fenno has been a student at Harvard Law School since at least 1961. He has no current plans to graduate.


The Harvard Law Record

November 28, 2016

How We Can View The Election as a Referendum on HLS

By Martin Drake ’19 and Nicholas Raskin ’19

Although many of us on the left viewed the 2016 election as a referendum on Donald Trump, the exit polls indicate that voters’ views on Hillary Clinton, not Trump, were a more decisive factor in the final tally. Clinton voters were significantly more likely to vote out of enthusiasm for the former Secretary of State, while Trump voters were primarily voting out of dislike for other options. In other words, while bigotry, sexism and downright disgusting behavior undoubtedly played a significant role in the 2016 presidential contest, there was a consequential portion of voters for whom the election was a referendum on what the Democratic

From Despair, Work By Pete Davis ’18 What America needed more than anything from this election was solidarity: the feeling that we are all in this together, that we have a shared direction, that we have found common ground. Instead, the greatest threat in our lifetime to our national solidarity — to our neighborliness, to our decency, to our commitment to shared endeavors — has arrived. We thought we were better than this. But we have been blindsided. And we are confused and afraid. When we are confused and afraid, we are tempted by twin evils. First, we are tempted to quit. We are tempted to run away to Canada, or run away to irony, or run away to fantasy. We are tempted to hide away and build our bunkers. Second, we are tempted to blame. We are tempted to search for our scapegoats and fall guys. We are tempted to tie some people and groups to the whipping posts and place our hurt onto them. Our first task on this dark week is to resist these immediate temptations. Today, we don’t need quitters, we


Continued from page 1 What remains upsetting?

Some conversations that I’ve had in the wake of the election results have literally been iterations of “my dignity feels violated” to which the responses were “let’s just agree to disagree.” This is an incredibly frustrating point at which to arrive within a conversation, because it seems to represent the very disregard of another’s humanity that has reared its ugly head in this election cycle; and I am not too proud to admit that this disregard of others’ humanity has been present across the political spectrum. We all need to come forward in defense of truth and dignity and affirmatively assert that there are issues about which we must refuse to be neutral. On issues of “isms” and “phobias” that affect our fellow human citizens, we must reject the narrative that these are areas for a difference of opinion. President Obama made efforts to console many in the nation by explaining that we are Americans first before being on either side of the aisle. But I’m going to say something that really shouldn’t be so controversial – that we’re humans before we’re Americans, and that we’ve allowed ourselves to prioritize certain social interests over recognizing each other’s humanity. Trump’s presidential campaign allowed well-meaning people to compartmentalize the social consequences of their choice by validating the notion that economic concerns trump a concern about the humanity of our fellow citizens. Whittling away the repercussions of this narrative is going to mean standing up to people we respect and explaining how they’ve crossed this line. To the Trump supporters who say, “Racism, sexism, antisemitism, homophobia, Islamophobia, etc. are awful… But what does that have to do with me?” Consider this: You can’t be neutral on a moving train. I used this analogy prior to law school when I served as a panelist for a high school colloquium on race. The colloquium, first and foremost, was geared towards getting high school students to understand how racism is not just an “ism” that is advanced individually. Americans love to see culpability in the framework of individual acts, which is convenient for avoiding cognitive dissonance at the end of the day. However, concerning social forces, this

Party represents to them. To many voters Clinton, Obama, and our other Democratic leaders represent public institutions — institutions that HLS holds a unique responsibility towards. The executive, legislative, and judicial branches of government are largely a manifestation of our legal system. The nation’s highest ranked law schools, like HLS, are idolized in the legal profession and have a large role in defining the norms in that legal system. Indeed, an overwhelming proportion of our Democratic leadership graduated from these very schools. In this light, there is a lens through which the election can be viewed as a referendum on HLS itself. One interesting thing about HLS, where we train the wardens of our

public institutions, is that the majority of its graduates don’t actually serve the public. Although law is an inherently public profession, and lawyers are the only way most of the public can interact with the institutions that represent them, somewhere around 70% of our graduates go into corporate law, where they solve legal puzzles for some of the wealthiest corporations and citizens in the country. If voters are discontented with our public institutions, it could be, at least in part, because those who staff these institutions are part of a profession which largely seems to serve the wealthiest in our country, rather than the interests of the public. The legal profession in particular is inherently a public service. In our courts, we’ve set up a public system

to resolve disputes, with the idea that this is better than people “taking the law into their own hands.” But the schools that train the most crucial aspect of that system (lawyers, who staff every part of it) frame the choice between serving society’s most powerful versus serving the general public as simply hinging on a personal preferences, with no normative stance one way or the other. Yet, our profession’s unique job is to provide access to justice — and somewhere I read that justice is supposed to be “for all.” Maybe schools like HLS have a role in telling future lawyers who they should be serving. Maybe being a part of this profession comes with a duty (rather than just an option) to serve the public. As students going into a profession

that is the public’s only access to justice, we have a unique responsibility to discuss how our profession should address the gap between voters and their own institutions. Here are two questions that can help frame this discussion: 1. Should HLS, as a leading norm-setter in our profession, be pushing public service as a norm for its graduates, rather than framing the “public versus corporate” decision simply as one of personal preference? and 2. If you’re a law student who is concerned about the state of our public institutions, and the state of the public’s access to justice, how should that affect your career choices?

need patriots. Before we are activists, we are citizens. Before we are citizens, we are neighbors. Before we can change a community, we must be a member of it. And to be a member of a community is to love it: to not quit it when it needs you the most. Today, we don’t need blame, we need direction. We know one way these next few years could go: with every Trump scandal, we could re-litigate the campaign, going back and forth on whether Hillary Clinton or Jill Stein, Julian Assange or James Comey, Bernie Sanders or Debbie Wasserman-Schultz is the most to blame. But if we want to get out of this mess, we need to go another way: to take time to reflect on these past years and develop a positive direction towards a better Democratic Party, a better progressive movement, and a better liberal culture. Our second task on this dark week is to remember the message that gave us Hope almost a decade ago: “Change will not come if we wait for some other person or some other time. We are the one’s we’ve been waiting for. We are the change that we seek.” Next week, we still have many of the same challenges that we had last week. Our economy still leaves a quarter of our children in poverty. Our criminal justice system still cages two million human beings. One in four Americans still say that they have “no one with whom they can talk about their personal troubles or triumphs.” Our Congress is still being corrupted by monied interests. And our climate is still changing.

Even in the Age of Trump — especially in the Age of Trump — we must not cease being the change that we seek in these arenas. These projects — of turning strangers into neighbors, of making the economy work for everybody, and of freeing our democracy from the grip of money — need more of our hands and hearts and heads. If you have never participated in civic life before or devoted a couple of hours a week to public projects before, now is the time to step up. Additionally, of course, over the coming months and years, there will be more grave challenges that arise out of the Age of Trump. Brave patriots will set up projects of resistance to secure the protection of the vulnerable, the empowerment of the marginalized, and the preservation of our precious inheritances. These projects of resistance will especially need our help. Now is the time to report for duty. Our final task on this dark morning is to commit to live out, in our own lives and communities, our vision of what we believe the Good America could look like. We have lost the White House, the Congress, and the Courts. But we have not lost our lives, our neighborhoods, and our communities. We have not lost the example we can set with ourselves, our friends, and our neighbors of the type of country we want to live in. If we believe in a welcoming America, we can practice hospitality with all our hearts. If we believe in a decent America, we can practice decency with our hearts. If we believe

in a fair America, we can practice fairness with all our hearts. We can bind together with others who believe in that same America– the America that sees itself as Great only when it is Good. President Trump can’t stop us from showing this country what the politics of joy and justice looks like. President Trump can’t stop us from showing this world what the Good America — the America of extraordinary ordinary citizens practicing open-hearted devotion and practical creativity in neighborhoods all across the country — looks like. It is through our example that we will overcome the Age of Trump. This week, we should think about how we, personally, want to live out the Good America during the next four years. In my own path towards living it out, I turn to Francis– the pope and the saint. Pope Francis once said that the thing he thought his church needed most was “the ability to heal wounds and to warm the hearts of the faithful… nearness, proximity.” He said he wanted his church to be “a field hospital after battle.” He explained: “It is useless to ask a seriously injured person if he has high cholesterol and about the level of his blood sugars! You have to heal his wounds. Then we can talk about everything else. Heal the wounds, heal the wounds… start from the ground up.” There are a lot of wounds in this country. There were wounds before last night and there sure as hell are a lot more wounds after last night. In

the Good America that I believe in, we would be like Francis’ field hospitals for each other: we would draw nearer to each other rather than fear each other; we would tend to each other’s wounds before we sneer at each other’s deficiencies. In the Age of Trump, I hope we can show our country what great field hospitals we can be. St. Francis put it even better, centuries ago: Lord, make me an instrument of your peace: where there is hatred, let me sow love; where there is injury, pardon; where there is doubt, faith; where there is despair, hope; where there is darkness, light; where there is sadness, joy. O divine Master, grant that I may not so much seek to be consoled as to console, to be understood as to understand, to be loved as to love. For it is in giving that we receive, it is in pardoning that we are pardoned, and it is in dying that we are born to eternal life. Amen. What America still needs more than anything is solidarity. I have immense faith that we can build it. But, now more than ever, we are reminded that it will take hard work. Our generation’s greatest challenge begins today. In these next few years, we test our mettle. Let’s get to Work.

is simply not how culpability works. Electing into office the candidate who is supported by bigotry and intolerance allows those forces to gain traction. For anyone who thinks that they are not implicated by such intolerance because of the reason for their individual vote, I beg you to ask whether the vulnerable peoples who are in fear of their safety and livelihoods as of Wednesday morning are affected by your vote any less than the vote of someone who believes in the phobias and -isms you purport to denounce?

systems writ large. Obviously included in this picture are southern states, but to see the South as exceptional is somewhat misguided. I think we’ve readily allowed ourselves to lose sight of just how segregated are the communities in which many of us have come to live. Perhaps this complacency is because we are afraid to grapple with the insufficiency of the civil rights movement in effectuating the true vision of desegregation its proponents sought. Moreover, in the aftermath of Trump’s ascendancy we can no longer ignore the question at hand: Will we be an America united or an America divided? Looking at exit polls, peoples of color irrespective of gender overwhelmingly cast their vote against the winning candidate of this election. This means that voters of color cannot fight this battle alone. We can redouble efforts, increase voter turnout, and preach to the choir the best sermon they’ve ever heard. But the choir has already sung with full force, and while this effort helped to win the popular vote, it still ultimately lost what mattered. Thus two options remain: start finding common ground or start preparing for the traction of movements like Calexit and Texit. And it only seems fair to give finding common ground a damned good try first. In considering the most effective vehicle for finding this common ground, we must remember that the Constitution’s charge was never to form a perfect union – only a more perfect one. We must heed the Declaration signers’ caution that “[a]ll experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed,” (emphasis added). But we must also allow ourselves the space for critique: for instance, I can only imagine those whom the signers were ostensibly comfortable with allowing to bear the suffering of these evils. I don’t purport to have answers for the road ahead. But if many of us saw before Tuesday what made America already great, then I’m inclined to be audacious enough to maintain hope. To those for which this audacity remains: nobody ever promised us that the path would be easy, so Wednesday shouldn’t give us more reason than any other day to be deterred.

You can’t be neutral on a moving train. So what’s next for those who are disappointed?

Be brave enough to have difficult conversations and don’t be discouraged by discord. Focus on the people you love. In the words of James Baldwin, “If I love you, I have to make you conscious of the things you don’t see.” Don’t just commit to unity, for unity without truth only has the effect of silencing. Commit, instead, to the pursuit of legitimate truth and reconciliation for this country. Recognize the fallacy of attempting to build something strong on a compromised foundation. Partake in serious efforts to rethink the efficacy of the electoral college. Although the liberal media was certainly misguided with its predictions, it was hardly wrong in that Clinton won the popular vote. What does this mean for future politics? And is this the system that represents true demokratia – literally “people power” – when the popular vote points otherwise?

We’re a divided country? I hadn’t noticed…

Barring the occurrence of any major atrocity that happens under his watch, many of us may one day thank Donald Trump if this election pushes individuals who were disillusioned about how much was at stake until this week to fight for the people who have been calling for help for decades. In a country where we have failed to recognize how divided we are under the guise of color-blindness and unity, a Trump presidency may just push the realities of these divisions back to the surface where we can see them. I’m talking about so-called “progressive” northern cities, for example, who are living with segregated school

Tyra Walker is a 2L.


Continued from page 1 to primarily express our citizenship in the coming years: through virtue signaling or through civic work. The Age of Trump will give us endless opportunities to signal our virtue. Each scandal will give us an opportunity to broadcast our rejection of Trumpism and validate our place among the redeemed. Vocalized resistance to Trumpism is part of the path forward, but it is only a small part. The idea that there is an elect few who are aware and innocent of social sin is wrong and dangerous. We all are susceptible to the patterns of thought and action that produce our social ills. To think that it is only the others, over there, who have fallen to racism and materialism and militarism is to ignore our own weaknesses and to distract ourselves from preventing our own worst impulses from festering. The greatest atrocities in human history have been committed by those who believed themselves to be the chosen moral few, set apart from the “vulgar mob.” That’s why the center of our citizenship in the Age of Trump must instead be civic work: real time and real money being given to real groups working on real projects aimed at ameliorating real problems. The rate at which these projects will grow and these problems will be addressed — the rate at which we will overcome Trumpism and get back on track towards that kind and welcoming America we believe in — will be determined by how much time and how much money we give: by how many hours we give each week and by how much of our paychecks we give each month. So, what then should we do this week? Here’s two concrete steps: 1) This week, get together with your friends and family to make your patriotic commitments: pledge to each other how many hours each week and how much of your paycheck each month you are ready to give. If you can, lock in a specific time each week (“Saturday mornings” “Wednesday and Thursday nights”) for your hours at first: you’re more likely to keep your pledge if you develop a weekly routine. 2) Next week, spend the first hours of your time commitment thinking about which civic arena you want to serve and act in. If you

Martin Drake and Nicholas Raskin are 1Ls.

Pete Davis is a 2L. He is the online editor of The Record.

are lost as to where to get involved, one way to orient yourself is to think about three different types of civic arenas: communities, issues, and institutions. One way to get involved is to draw closer to a community: to get more deeply involved in the lives and struggles of, say, a neighborhood or a town, an immigrant community or a religious community, an age group or a special affinity group. It’s to become more invested in your town’s Iraq War veterans community or Somali immigrant community or small business community. It’s to step up in your church or at your school or on your block. It’s to think about the hopes and needs of the elderly or of foster kids or of prisoners in your state. A second way to get involved is to draw closer to an issue: to become obsessed with a public policy area. You’d be surprised how much of an impact you can have by spending a year getting into the weeds of an issue, keeping up with the issue in the news, raising awareness about it with your community, and getting involved with political action surrounding it. The more narrow you get with the issue you choose, the more national your scope can be. The more local you get with the scope you choose, the more broader your issue area can be. A third way to get involved is to draw closer to an institution: to play a part in crafting how, say, our press, our universities, our government agencies, our school systems, our religious institutions, our unions, our political parties, our legal systems, or our medical systems can better live out and extend their missions of serving the public interest. We need civic innovators and institutional revivalists now, more than ever in our lifetimes. Now that you have hours committed each week, you have time to take test-drives to find which of these civic arenas is the best fit for you. Civic action has a momentum to it: dip your toes in and you will be swept up. It is through our example — our example of what the Good America looks like — that we will overcome the Age of Trump. They shall know us by our fruits. Pete Davis is a 2L. He is the online editor of The Record.

November 28, 2016

The Harvard Law Record


Moving Forward and the Power of “Us” By Byron Ruby ’17 It was 6 a.m. on November 8. Somehow already in a rush, I packed some water and snacks into my backpack and grabbed my jacket as I darted out into the chilly autumn air of Cambridge. I walked down to the Coop and met up with a couple of 2Ls, who I hadn’t met before, to road trip two-and-a-half hours up deep into New Hampshire to knock on doors and get out the vote. This wasn’t my first rodeo by any means. I, along with countless other Harvard graduate and professional students, had been saturating New Hampshire’s pavement for months. Once we arrived to the field office, we wasted no time. Breaking for as little as 15 minutes between “turfs,” our group spent the next eight or so hours knocking on doors, talking with voters, petting dogs, leaving friendly Post-It notes to remind folks to vote before the polls closed, and even discovering a gas leak (and

alerting a neighbor). When all was said and done, our crew took a few pics, posted a few shoutouts on Facebook, and got in the car to go home.

We are far more powerful and can do far more good when we act as a “we.” What happened next devastated us. As the results came in, I saw my friends become anxious, then agitated, and then finally succumb to some form of anger, dejection, or numbness. But when the Electoral College dust settled Wednesday morning, there was a silver lining. New Hampshire had pulled ahead for Hillary Clinton, as well as pulling ahead for the Democratic Senate candidate Maggie Hassan and both

The Guardian Angel for America’s Motorists By Ralph Nader ’56 America’s motorists are less safe today with the passing of their Guardian Angel — engineer/lawyer Clarence Ditlow, the Director of the Center for Auto Safety. The generating force behind the recalls of millions of defective motor vehicles, Mr. Ditlow pressured the federal auto safety agency and the auto companies with meticulous advocacy that was technically deep and morally powerful. Calm, deliberate and a man of few words, this graduate of Lehigh, Georgetown Law and Harvard Law School bore down on wrongdoing, negligence and bureaucratic passivity with jack-hammer intensity year in and year out. While culpable auto executives were on the golf links, he was at his office on weekends

assembling evidence about the causes of crashes and their human casualties, and preparing formal petitions and lawsuits demanding action. I recruited this remarkable man about 45 years ago to work on auto safety. It took no more than fifteen minutes for me to invite him to work with us full-time. That’s the kind of first impression he made. He was serious, committed and answered every question with clarity and brevity. His ability to distill and convey information resulted in reporters regularly tapping him for television, radio, and newspaper interviews. Over the years he was the “go-to” person for hundreds of reporters, columnists, editorial writers, researchers, and legislative staff. Patiently, he would walk them through the details of motor vehicle failures and

The Blood Price

By Joshua Komorovsky ’18

The battle-cry of the American Revolution: “give me liberty or give me death!” Reflecting upon my first year living in America and upon what I have learned in criminal law, I find it hard to believe that Americans truly value liberty. What I see is the human spirit crushed under the yoke of an overly oppressive criminal justice system. I fail to understand how to logically reconcile over-criminalization and mass incarceration with the famous American love of freedom. The rhetoric justifying this draconian criminal system does not help. Classmates speak of deterrence and signals – which is simply a way to sugar coat what is truly happening: we are scaring people into submission. But is this the sort of human we wish to foster? A being whose conduct does not flow from virtue but from fear. This is our vision of humanity’s highest form or greatest potential? Do we want a society of craven and vindictive worms that curl up lest they get stepped on? The idea that we must design our society according to such a vision reveals a troubling pessimism regarding human nature and a profound lack of ambition regarding the possibilities for society. And this is all for the laudable (and supposedly necessary) goal of self-preservation. But the emphasis on

preserving society neglects the more important antecedent question: is it the sort of society that is worth preserving? What if the methods through which our society ensures its survival creates the sort of society that is undeserving of survival? We bear a heavy burden. Human life is a great luxury. As a species, we are unparalleled in our consumption of space and energy. Yet it is other creatures who pay the predominate share of the butcher’s bill. As our modes of production become ever more sophisticated, our civilization conducts an increasingly escalating scorched-earth battle against Mother Nature in pursuit of ever more resources to fuel further development. Only by considering the totality of destruction wrought by our civilization can we appreciate its true cost – its “Blood Price” so to speak. And we can only honestly answer whether our society has justified its existence only after measuring its accomplishments against its Blood Price. Moreover, our history is the history of atrocities. The edifice of our civilization is built upon a mountain of corpses. To create the current technological society, multitudes had to die in the burning furnaces of industrialization and the savageries that were its preconditions. We wasted away the lives of countless more in pointless drudgery. And yet the bodies haven’t stop piling up. The calculus of rational

Democratic candidates for the House. Clinton won the state by a mere 1,437 votes — fewer than the entire HLS class combined. Hassan won by an even slimmer margin, only 716 votes. I will pause here and acknowledge that some of our readers are not Democrats, let alone even Republicans or independents that voted against Trump (for those dear readers that supported Trump, I congratulate you and pray to Heaven this ends well). I acknowledge this fact not because my point is to pat Democrats on the back for some electoral “moral victory” points scored in garbage time, or somehow lead you to conclude that The Record is no more than a liberal echo chamber where I know talk of Democratic down-ballot victories will be well-received. Rather, I bring this up because I want to underscore what is possible when we get involved and the “I” becomes part of the “us.” Within our law school world of

résumés and incessant professional development, it can be easy to fall into the habit of only thinking of yourself as an “I.” What grade will “I” get? What can “I” do better? How can “I” succeed? Through its repetition at nearly all stages of law school, we lose sight of the opportunity of collaboration, cooperation, and organization. After all, there is no resource like the human spirit, and when combined, the sum can be far greater than the parts. And what happened in New Hampshire is without a doubt an allegory not only for the principle that every vote counts, but that together we really can make a difference. The Harvard graduate student community alone knocked on 8,905 doors in New Hampshire, and I am confident that some of those conversations undoubtedly led to votes being cast for Clinton that would not have otherwise been done so. People such as Josh Friedmann ’17, Jacob Glick ’18, Wilson Tong, HKS ’18, and Brynna Quillin, HKS

’17, embody this idea and deserve special recognition, as they and others worked relentlessly to organize phone banks and get-out-the-vote trips every weekend to New Hampshire and other key battleground states. There are even more unsung heroes — including those not part of the Harvard community — and you know who you are, and I hope this paltry acknowledgment provides you some well-deserved consolation. Whatever political party you may belong to, or whichever your political leanings, I hope our law school community realizes that we are far more powerful and can do far more good when we act as a “we” rather than as a collection of “I’s,” when we listen to each other, learn from each other, and support each other. Look into the eyes of your fellow classmates as you walk down the hall and know that there is great potential here. Hope is far from lost.

engineering deficiencies, the derelictions of management and the inaction of government regulators not doing their job. He took his work beyond auto safety to include fuel efficiencies, emitted pollutants, and sloppy vehicle construction and design. The son of a service manager in a Chevrolet dealership in Pennsylvania, this cheerful fighter for highway safety knew about inside relationships between dealers and their auto companies that cost the consumers so much. Consider how he made concrete the ethics of prevention touted by the engineering and legal professions: Illustrative of many other previous major recalls, Mr. Ditlow’s Center was the primary force behind recent recalls of 7 million Toyotas for sudden acceleration, 2 million Jeeps for fuel tank fires, 11 million GM vehicles for defective ignition switches, and more than 60 million faulty Takata airbag inflators. He and his Center staff were leaders

in pressing for Congressional passage of the 1975 Magnuson-Moss Warranty Act, the fuel economy provisions of the Energy Policy and Conservation Act and the disclosure of hitherto secret automotive technical service bulletins sent to dealers by auto manufacturers alerting them to hazardous defects in their cars. After the passage of each law, Mr. Ditlow watchdogged the implementation, or lack thereof. He even conducted seminars for lawyers to learn the intricacies of the Magnuson-Moss Warranty Act to help them represent motorists who have been ripped off by the automotive industry. A little known side of this safety advocate was his view of the auto insurance industry’s responsibilities to engage in loss-prevention activities. Fewer crashes, fewer injuries, mean fewer claims on these companies. Years ago he persuaded some of them to work with his organization to advance safer road and highway engineering.

You could hardly have imagined a more perfect blend of knowledge, compassion, persistence, resilience, extraordinary strategic and communication abilities and factual diligence as was embodied in such an amiable man. He was a civic personality par excellence who never wavered in his many fights with wayward corporate adversaries. Self-effacing and ethical, he did not ask anything for himself, receiving a very modest salary, living a simple and courageous life, as his wife, Marilyn Herman recounted in his final days. Even those close to the auto industry had great respect for Clarence. Keith Crain, editor-in-chief of the renowned Automotive News, told me today: “Clarence Ditlow should be remembered for saving thousands of lives. That was his most important contribution to society. He cannot be replaced.”

sacrifice is built into the fabric of the logic of social organization – a logic whose primary imperative is to guarantee its continued reproduction. Are we not obligated to justify the wastefulness of our existence and redeem the sacrifices of our ancestors by aspiring and achieving a higher purpose/value than mere self-preservation? A much cheaper form of life, such as an apple, is capable of realizing mere existence. And yet the strain it places upon nature is incomparable. Furthermore, it accomplishes mere existence in a manner that is more complete than any human. Apples never have to deal with sado-masochistic impulses, depression, anxiety and the plethora of other ailments that torture human life.

if the costs of preserving society is clipping the wings of human freedom, then it is not a society worth preserving. We must thus gamble our future on the human potential and risk our self-destruction. We must move past the view of humans as a creature to be dominated and disciplined. Our society’s unhealthy fixation with self-preservation is reflected in the elevation of wealth (comfort) as the highest measure of success. But this “ambition” is no more than valorized and reinterpreted mediocrity. The mediocrization of social values is then secured through excessive disciplining that fatally arrests the development of the human spirit with its full potentialities. In light of the exorbitant Blood Price of reproducing society, the mediocrity of current civilization repudiates the value of its preservation. Thus, we reach the paradoxical conclusion that society, in its current form, is unworthy of preservation as a result of the very methods deployed to assure its preservation. Only by completely eliminating punishment, both as a legal and a social tool, can we hope to transcend this mediocrity that consigns us to mere life – to a cheap imitation of an apple. A plausible alternative would be one that abandons the fixation with punishment and is rather premised on community therapy and rehabilitation. This would require the renouncing of guilt and blame as legitimate categories and instead engage with violence on the basis of mutually shared responsibility – for all violence is ultimately

the result of community failure and thus everyone’s responsibility. In light of this observation we can see the penal system as means of deflecting away from the general omnipresent violence by focusing on very specific manifestations. Following up on this train of thought we are lead to the conclusion that renunciation of punishment will most likely result in a lesser need to punish. Punishment is interwoven into a generally inhumane society and thus participates in perpetuating a culture that is based on violence. Punishment does not transcend violence – it merely determines its legitimacy and is thus regressive. Finally, I think that the question of practicality is at least partially circumvented if we agree that our society is unworthy of preservation. If the result of abandoning punishment is social collapse then it is a worthwhile risk given the totality of the cost of society’s reproduction. My happiness is a fighting happiness, My happiness is a struggler’s battle. Its fuel is the burning desire To face the world and survive! To live without fear Free and unspoiled. All other happinesses Are a viper’s nest. The last refuge of the craven, In his unfreedom, That perpetuate all unfreedoms. This is my arrogant boast. Higher than all the timidities In the face of gross injustice.

that is the nature of facing the prevailing structures of oppression. But as liberalism became the prevailing ideology, it calcified. Its language became dry filler that lost its revolutionary and transgressive edge, and it instead turned into a commonsense lexicon that demanded nothing and committed nobody to anything. That is why the liberals can, with a good conscience, work their lives away for Cravath. But while the language of liberals remained static, the world continued in its inexorable movement; because for the subaltern, struggle does not end. Every day the subaltern are pitted against their oppressors and are forced into violent contestations – contestations that continue to re-mold society. Opposing these tendencies, we witness a trend towards unchecked power – an aggregation of wealth in massive conglomerates that have made a joke of the executive and legislative branches. Meanwhile, liberals take a hands off approach, chirping

mindlessly about pseudo-reforms while reaping the benefits of exploitation. Sure they propose a modification here and there, but they do not question the general arrangement – first and foremost by their steadfast refusal to renounce the benefits of exploitation and the logic upon which it is premised upon. Is it so surprising that liberalism is suffering a crisis of legitimacy? That its message fails to resonate with the millions who reap no benefits from its false promises? But that is not all! Liberalism is a cancer that robs genuine left-wing politics of its platform and energy with its monopoly on discourse coupled with its non-confrontational posture. Genuine progressive politics shoots towards a higher future by creating a language that transcends the presents and opens up the realms of political possibilities. A politics that no longer does this has become so many fetters. It must be burst asunder.


[An apple] accomplishes mere existence in a manner that is more complete than any human. What is the point of being human if all we can achieve is mere existence – and that poorly when compared to the humble apple? If human life only accomplishes this much, then it would behoove us to step aside and make way for other life forms – life forms that self-preserve in a manner that is more stable and less destructive. I posit that

The Death of Liberalism By Joshua Komorovsky ’18 The liberal is truly a surprising creature. A liberal believes in reform but does not wish to confront the fact that the problems in our society implicate its very constitution – capitalism, patriarchy, etc – despite speaking the inherited language of “human rights,” “equal outcomes,” and so on. They believe they can endlessly feast on hypocrisy without getting indigestion as though the rest of society will tolerate their nonsense indefinitely. Trump’s election demonstrated how out of touch Harvard’s liberals are from the realities of the society they presume to lead. During the election watch “party” in Belinda Hall I witnessed students’ reactions as a Trump victory became more certain by the hour. Some drifted listlessly around the lounge. Others drank themselves to a stupor or cried. Yet just the day before, many

of them were utterly apolitical and content with the general direction and organization of America – many the same kids who didn’t breathe anywhere near a picket line when HUDS was on strike. The harsh truth is that most Harvard liberals orient their ambitions toward a lucrative and comfortable life – a sort of life that is only possible within the context of a general system of exploitation. As such, the Harvard liberal is totally complacent in perpetuating the sort of society whose immanent tendencies produced a Trump presidency. Thus, what truly happened on election night wasn’t really so much disgust at the nasty state of affairs in the country but terror in realizing that the accustomed logic with its rewarding prerogatives for the Harvard liberal is not guaranteed after all. For I refuse to believe that those who already stomach so much

injustice and yet proceed toward their sweet corporate gigs are genuinely revolted by a Trump presidency. Anybody with half a brain knows that the injustices Trump represents are injustices that are constantly reproduced in throughout the country (and world). Liberalism was a progressive ideology when it first emerged. It courageously faced the absolute authority of the monarch and church, and it declared itself in opposition to these powers. Resolutely it created a new language of justice that transgressed and pushed for a better world – in a way that had potential for universality. The revolutionary liberals knew that a higher future required sacrifice, and they put their freedom and bodies on the line for a better world. For nothing worthwhile has ever been accomplished in the realm of struggle for freedom without blood and tears;

Byron Ruby is a 3L.

Ralph Nader was the Green Party candidate for president in 2000 and a former editor of The Record.

Joshua Komorovsky is a 2L.

Joshua Komorovsky is a 2L.


The Harvard Law Record

November 28, 2016

Honoring Diverse Voices in Legal Education By Stephanie Jimenez ’17, Kristin Turner ’17, Amanda Lee ’18, Amanda Chan ’18, Mariel Hooper ’17, Julian SpearChief-Morris ’18

This past election season was wrought with division and attacks on the racial, religious, cultural, and gender identities that are integral to the lives of so many Americans. These attacks on our communities and core aspects of our identities are not new. Nearly one year ago, on November 19, the portraits of African-American tenured faculty in the halls of Wasserstein were defaced with black tape. Then and now, in the face of discriminatory acts, our student body gathered to discuss the importance of awareness, to recognize that racism and oppressive actions are not condoned by our community, and to value diversity both in the legal profession and in legal education. To continue this conversation about

diversity in the law, a group of affinity groups, including APALSA, BLSA, La Alianza, Lambda, NALSA, and WLA, with support from DOS, came together to sponsor a “Diverse Voices in Legal Education” exhibit. The exhibit ran from Thursday, November 17 to Tuesday November 22 in Wasserstein Hall. It featured talented scholars who give voice to marginalized communities. The goal was to commemorate and celebrate the need for different backgrounds, scholarship, and voices that shape our discussion of legal theory and services in legal education. The professors we celebrated hail from all over the country and the world and study a varied range of legal concentrations. They are skilled and accomplished legal scholars who have used their law degrees to support causes ranging from immigrants’ rights to indigent criminal defense and racial justice. These trailblazers have used their voices to broaden the scope of understanding and addressing

different perspectives in institutions such as our own and the legal profession at large. The exhibit featured UCLA and Columbia professor Kimberlé Crenshaw, who has called for more gender-inclusive approaches to racial justice interventions. University of Hawaii professor Mari Matsuda is one of the founders of critical race theory. University of California-Irvine professor Jennifer M. Chacón has written dozens of law review articles, book chapters, expert commentaries and essays discussing immigration, criminal law, constitutional law and citizenship issues. Northwestern professor Karen Daniel is the founder of the Women’s Project at Northwestern’s Center on Wrongful Convictions and women. Daniel has helped free wrongfully convicted men and women in state court, federal court, and executive clemency proceedings, and encourages law students to use their training

Crystal Yang Expertise: Law and Economics, Criminal Law and Procedure Harvard University

Kimberlé Crenshaw Expertise: Civil Rights, Black Feminist Legal Theory UCLA & Columbia University

Professor Yang uses the tools from economics and statistics to understand the sources and consequences of inequality in the legal system. In particular, her research has focused on analyzing disparities in criminal justice outcomes, chances for reentry among exoffenders, and debt forgiveness for lowincome individuals. Her current projects seek to understand the long-term consequences of pre-trial detention on defendants’ outcomes. Professor Yang’s research has been cited in various media outlets and by the Supreme Court. She is also committed to public service and worked as a Special Assistant United States Attorney in the U.S. Attorney’s Office in Boston.

Professor Crenshaw’s groundbreaking work on intersectionality was influential in the drafting of the equality clause in the South African Constitution. Domestically, Crenshaw has researched violence against women, structural racial inequality, and affirmative action. She also founded the African American Policy Forum to house a variety of projects designed to deliver researchbased strategies to better advance social inclusion. She is a leading voice in calling for a gender-inclusive approach to racial justice interventions, having spearheaded the Why We Can’t Wait Campaign and co-authored two books.

Jennifer Granholm Expertise: Law and Public Policy University of California, Berkeley

Ariel Dulitzky Expertise: Human Rights Law University of Texas at Austin

Professor Granholm became the first woman to be elected as governor of Michigan in 2002, and in 2006 she was re-elected with the largest number of votes ever cast for governor in the state. Prior to her tenure as Governor, Granholm served as Michigan’s attorney general, from 1998-2002. After her last term as Governor, Granholm joined the faculty at University of California, Berkeley, where she teaches courses in law and public policy. Granholm is a senior research fellow at the Berkeley Energy and Climate Institute and a political commentator.

Karen Daniel Expertise: Indigent Criminal Defense Northwestern University When Professor Daniel delivered her first oral argument as an assistant appellate defender, one of the three white male members of the panel remarked that she seemed like a “nice little girl.” Daniel had originally aspired to become a math professor, but changed course largely because her undergraduate math department had no female faculty members. She graduated from Harvard Law School in 1981. In 2012, Daniel helped establish the Center’s Women’s Project, the nation’s only legal project focusing on factors leading to erroneous convictions of women. Daniel has helped free wrongfully convicted men and women in state court, federal court, and executive clemency proceedings, and encourages law students to use their training to tell the stories of the voiceless and powerless.

to tell the stories of the voiceless and powerless. And our very own Mark Wu, who comes from the blue-collar immigrant family past that many of our students share, was a Rhodes Scholar and works with the World Bank and WTO, while also teaching international trade law. These are just but a few of the professors that we celebrated this past week. Despite the notable accomplishments of the featured legal scholars and our hope for continued commitment to diversity, the statistics in legal academia remain dismal. In the United States, 37% of legal professors are women and only 15% are professors of color. In total, tenured and untenured women of color make up only 7% of the legal profession. At HLS, there are more than twice as many full-time male faculty members compared to full-time female faculty members. The statistics highlighting the discrepancy amongst scholars representing other

Mari Matsuda Expertise: Critical Race Theory University of Hawaii

marginalized groups are just as bad-if not worse. For example, East Asian faculty members comprise only 2% of all tenured faculty members across top law schools. This underrepresentation is also apparent at HLS, where there is only one tenured East Asian faculty member out of over one hundred total tenured faculty members. By featuring these professors, we strove to highlight the need for diverse voices in the law, not only because they represent our student body, but also because of the expertise these professors bring to their fields. These individuals have dedicated their careers to improving legal thought and legal practice. We are proud to have lined Harvard’s hallways with their portraits and honor their contributions to representing diverse voices in the law and engaging vulnerable voices through scholarship. The authors are leaders of various HLS affinity groups.

Jennifer M. Chacón Expertise: Immigration Law, Criminal Procedure University of California, Irvine

Professor Matsuda is among a handful of legal scholars credited with the origin of critical race theory, which posits that voices from the bottom have the power to open up new legal concepts of even constitutional dimension. Bringing in the voices of outsiders has helped to make Matsuda’s work central to the legal canon. For Matsuda, community is linked to teaching and scholarship. Her Yale Law Journal article on accent discrimination came out of her representation of Manual Fragante, an immigrant and Vietnam veteran, who was passed over for a clerk position at the Department of Motor Vehicles for his accent, though he placed 1st of 700 applicants on a civil service test.

A graduate of Yale Law School, Professor Chacón has served on the Nominations Committee of the Law and Society Association, chaired the 2014 Immigration Law Professors Workshop Planning Committee, and contributed to projects undertaken by the Immigration and Nationality Law Committee. She is an author of more than 50 law review articles, book chapters, expert commentaries and shorter articles and essays discussing immigration, criminal law, constitutional law and citizenship issues. She was an outside advisor to the Immigration Transition Team of President Obama from 2008-2009.

Professor Dulitzky is a leading expert in the inter-American human rights system. In 2010 he was appointed to the United Nations Working Group on Enforced or Involuntary Disappearances and worked as its Chair-Rapporteur from 2013-2015. A native of Argentina, Dulitzky has directed the litigation of more than 100 cases in front of the Inter-American Commission and Court of Human Rights. His publications focus on the inter-American human rights system, federalism and human rights, enforced disappearances, afro-descendants and indigenous collective rights and racial discrimination.

Kristen Carpenter Expertise: International Human Rights Law, Federal Indian Law University of Colorado

Mark Wu Expertise: International Trade, International Law Harvard University

Professor Carpenter is a graduate of Harvard Law School and a leader in the often overlooked, but extremely important field of federal Indian law. After law school, Professor Carpenter clerked at the Tenth Circuit Court of Appeals. Her work has been published in the Yale Law Journal, UCLA Law Review, and many others. In addition to her groundbreaking research, Carpenter is also an editor of Cohen’s Handbook on Federal Indian Law. She has served as a dean at the University of Colorado Law School and played an instrumental role in advancing indigenous rights at the United Nations.

Professor Wu grew up in a blue-collar immigrant family on Chicago’s North Side. His great-grandfathers worked as migrant laborers in building the West but left after the Chinese Exclusion Act. His father worked early-morning shifts as a factory machinist and was a union negotiator, and his mother worked two full-time jobs. Professor Wu attended Harvard College, where he was a work-study student. His family’s background contributes to his academic interest in international economic issues, development, and globalization’s impact on workers.

Angela R. Riley Expertise: Federal Indian Law, Property University of California, Los Angeles

Jenny Martinez Expertise: International Human Rights Stanford University

Margaret Montoya Expertise: Critical Race Theory, Health Equity University of New Mexico

Professor Riley (Citizen Potawatomi Nation) is a graduate of Harvard Law School and a leading scholar in the field of Federal Indian Law. She is the Director of UCLA’s J.D.-M.A. program in Law and American Indian Studies and the Native Nations Law and Policy Center. She serves as Chief Justice of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma and Co-Chair for the UN - Indigenous Peoples’ Partnership Policy Board. Her work has been published in the nation’s most elite legal journals, including Yale Law Journal, Columbia Law Review, California Law Review, and Georgetown Law Journal. Professor Riley clerked for Chief Judge T. Kern of the Northern District of Oklahoma.

Professor Martinez is Professor of Law at Stanford Law School. A Yale and Harvard Law School graduate, Professor Martinez clerked for Judge Calabresi on the Second Circuit and for Justice Breyer on the Supreme Court. She also served as an associate legal officer in the chambers of Judge Wald at the U.N. International Criminal Tribunal for the Former Yugoslavia. Prof. Martinez teaches constitutional law, international human rights, and civil procedure. Her research focuses on human rights, ranging from her work on the 19th-century international tribunals involved in the suppression of the trans-Atlantic slave trade through her work on contemporary institutions such as the International Criminal Court. She also maintains an active pro bono practice and has argued in the U.S. Supreme Court.

Soy Nuevomexicana, the daughter of Virginia Alarid Montoya, my Nuevomexicana-Irish mother and Ricardo Montoya, my Mexicano-Indio father. Nací en Las Vegas, New Mexico; my family and I lived in a one-bedroom, outdoor-toilet house while my father worked and attended Highlands University on the G.I. Bill, and my mother cared for us and her parents. I am part of the first generation of Latinas who could dream of a college degree. I am also part of the first cohort of students of color who graduated from Harvard Law School; we were beneficiaries of affirmative action but, so too, was Harvard Law School. I practiced law, and then became a law professor, proudly working in the area of Critical Race Theory and helping to birth LatCrit. Now retired, I work on issues of health equity.

November 28, 2016


Continued from page 1 understand they don’t understand. It’s not a problem that’s unique to Harvard Law School, and we need to keep experimenting to find more ways for people to encounter and discover one another. R: In the Fisher v. University of Texas decision this summer, the Supreme Court upheld affirmative action in universities. How do you see affirmative action’s role at HLS? M: We have an admissions system that looks at a whole person. You can’t look at a whole person and not look at their race. We look at someone’s life experience, we look at what they’ve encountered, and we look at what they hope to do. R: Many people are alarmed by the prospect of a Donald Trump

The Harvard Law Record presidency because many of his statements seem to indicate a willingness to flout domestic and international law, and because he has proposed policies that target specific demographic groups, such as immigrants and Muslims. How do you see the role of Harvard Law School in the event of a Donald Trump presidency? M: I’ve been very open about this. I am a Democrat, but as dean, I’m not going to discuss my personal politics. There are Trump supporters among the students and on the faculty. R: Having been a Harvard Law professor for many years, what have you learned since becoming dean? M: I have much more compassion for people in other positions of power now. People in positions of leadership have to keep much information

confidential. R: Have you read the Harvard Magazine article on “The Purpose of Harvard Law School” that was published this summer? M: I’ve seen it. You can’t really call it an article. It was an editorial, and there were many inaccuracies in it. No law school has done more for the public interest than Harvard. That’s why we have the Low Income Protection Program, that’s why we have the clinical programs. There are arguments for and against a clinical requirement, but the faculty has rejected it. We make the opportunities available for those who want to take advantage of them. I support the pro bono requirement, and we’ve increased our pro bono requirement this year from 40 to 50 hours. The average student does over 500

7 hours, so this is not a hard commitment to meet. R: The 1L international law classes have mixed reviews. What’s HLS doing to improve those classes? M: The 1L international law requirement has been around for 10 years now, and we’re always trying to making it better. We look at the reviews, and that affects who gets assigned to teach. And we’ll be trying to expand students’ options. R: How do you feel about incorporating a history or legal history requirement into the 1L curriculum? M: I don’t know about a requirement, but I believe history is very important. I was a history major myself! We’ve tried to emphasize the importance of history to the law through our hiring decisions. There’s a lot of collaboration and cross-hiring now

“No law school has done more for the public interest than Harvard.” — Dean Martha Minow between the law school and the Harvard History department. R: Are you following the Cubs this year? M: I’ve spent my life being disappointed, and it’s so awesome to finally see them doing so well. Jim An and Brianna Rennix are the editors-in-chief of The Record.


Gilmore Girls Revival Surprises, Delights By Jim An ’18

For many reasons, 2007 was not a particularly good year for me. As I was a teenage boy then, most of those reasons involved teenage girls, one in particular. However, another reason 2007 was lame was because that year marked the end of the original run of Gilmore Girls. Thankfully, Netflix has brought back Lorelai, Rory, Emily, and all the rest of Gilmore Girls in the four-part mini-series Gilmore Girls: A Year in the Life. In total, there’s six hours of fast-talkin’, pop-culture referencin’, Stars Hollowin’ goodness. Look, if you’re reading this and you loved Gilmore Girls, you should absolutely watch A Year in the Life. In fact, you’ve probably watched it already. Write in with your thoughts. If you merely liked Gilmore Girls but didn’t love it, well, there’s no accounting for taste, I suppose. I can’t imagine A Year in the Life will change your reckoning of the series. And finally, there are those who have not had the pleasure of having watched, nay, experienced Gilmore Girls, one of the finest shows of all time. Such innocence of worldly pleasures... Anyway, although nearly ten years have passed since the end of the original series, Lauren Graham

and Alexis Bledel slip seamlessly back into their roles as Lorelai and Rory Gilmore, who are mother and daughter and the best of friends. And as before, Kelly Bishop is terrific as matriarch Emily Gilmore. To wrap up some loose ends, the mini-series revisits many of the friends and lovers of Rory’s youth. They’ve developed (settled is not quite the right word) into, frankly, more or less the people you’d expect. And the ones who have loving families are generally the happier, less confused ones. If Gilmore Girls ever had a message (besides to always talk fast), it’s that family, both the one you’re born into and the one you make for yourself, is the most important thing in life. Returning are nearly all of the strange and wonderful townsfolk of Stars Hollow, the home, or at least, temporary base of the Gilmore girls. (Rory is going through some residential uncertainty as the mini-series opens.) Perhaps most striking is how much the same everyone looks after ten years. If anything, many people look quite a bit better. Two of Rory’s former boyfriends look like they’ve worked out a bit over the years, and others seem rather lighter on their feet. (And of course Bledel is preternaturally ageless. It’s a little freaky.) Perhaps the most notable loss is

Rebooting Cybertorts For The Internet of Things Lawmakers and judges need to reform tort law to protect consumers against defects in cyber products. By Michael L. Rustad and Thomas H. Koenig Harvard Law School has a proud history of being at the forefront of progressive tort law. Chief Justice Lemuel Shaw, who studied law at Harvard College, authored the landmark decision of Brown v. Kendall in 1850, the first judicial opinion to recognize negligence. Oliver Wendell Holmes Jr. studied law at Harvard at a time when tort law was an incoherent ragbag of miscellaneous wrongs still shaped by the writ of trespass. Holmes’ 1873 book, The Theory of Torts, revolutionized tort law by breaking civil wrongs into the triad of negligence, strict liability, and intentional torts. This division is now taught in every law school in the country. Louis Brandeis, who was first in his class at Harvard Law School, along with his law partner Samuel Warren, who ranked second, fashioned the privacy-based torts in their famous 1890 Harvard Law Review article, “The Right to Privacy.” Ralph Nader published the first article about designed-in dangers of automobiles in the Harvard Law Record, drawing upon a paper he had written for a law and medicine seminar. A few years later, Nader’s book Unsafe at Any Speed jump-started the field of strict products liability. Today, we need a new generation of civil justice architects to reboot cybertort law for the Internet of Things. When we were growing up in the late 1950s and early 1960s, radio announcers predicted the number of crash fatalities before each Labor Day and Memorial Day weekend. Americans were told to “drive carefully,” to “look out for the other guy,” and to avoid “the nut behind the wheel.” The focus of accident prevention was on the drunk or distracted driver rather than on defective cars or badly designed highways. We were deeply impressed by the dark magic

used by statisticians to accurately predict the number of fatalities. It never occurred to us, or to the radio announcers, that cars and highways had designed-in dangers. Fifty-one years ago, Ralph Nader documented that GMC and other companies did not include safety features, such as seat belts, shatterproof windshields, and breakaway steering columns, because the manufacturers believed that consumers did not care about crashworthiness. Nader exposed the fact that American automobiles contained hidden hazards, such as the lightweight, rear-engineered Corvair automobile that “would suddenly lurch off the road” because of its defective swing-axle suspension. Before Nader raised public awareness that much of the highway carnage was unnecessary, the American automobile industry was not held legally accountable for the costs of excessive preventable danger in their vehicles. Manufacturers disclaimed warranties and hid behind the harsh privity doctrine. The field of strict products liability gave consumers the right to recover for injuries caused by dangerously defective automobiles, such as the American Motor’s CJ-7 Jeeps, the rollover prone Ford Explorers, and the notoriously flammable Ford Pintos. In our 2002 book, In Defense of Tort Law, we made the rosy prediction that new Internet torts to protect consumers in cyberspace were on the horizon. We were mistaken. Today, the field of cybertorts is largely limited to intentional torts without negligence or strict liability causes of action. Cybertorts have been blocked by Section 230 of the Communications Decency Act, which gives websites a liability shield against torts that arise out of third party postings. Contract law is cannibalizing cybertort remedies for consumers whose privacy is often invaded by inadequate Internet or computer security. The software industry uses

that of Edward Hermann, who died in 2014. Hermann had played Richard, pater familias of the Gilmore clan, and Richard’s death is a backdrop for much of A Year in the Life’s events and tensions, particularly that between Emily and Lorelai. The long-running discord between that mother-daughter pair arguably propelled the original setting of Gilmore Girls by driving a teenaged Lorelai to run away from her parents 31 years before the start of the mini-series to raise Rory as a single mother. As I’ve described the show so far, Gilmore Girls might sound rather like some overwrought melodrama, which of course, is an insane characterization of the show. Fundamentally, the original show was fueled by pop culture, junk food, and talking very fast. The mini-series relies on the same things, plus self-references. (Rory: “I do blood clot prevention foot pumps wearing my Yonah Schimmel Knishery baseball cap while toothpaste dries up a zit on my chin. Wow. Winded.” Lorelai: “Haven’t done that for a while.” Rory: “Felt good.”) Many collaborators of show creator Amy Sherman-Palladino and the lead actors make cameo appearances large and small in the show, from Sutton Foster and Julia Goldani Telles (Bunheads, which Sherman-Palladino created) to Peter

Krause and Mae Whitman (Parenthood, which Graham starred in). Paul Anka and Rachael Ray also make notable appearances. There are a few missteps, however. At one point, Lorelai calls Rory an alumnus, a usage that Rory, a pedant after my own heart, surely would have begrudged. In another episode, Lorelai attempts to begin hiking the Pacific Crest Trail in the fall. While Lorelai was merely attempting a short-term section hike, the episode seemed to imply that several other hikers were starting thru-hikes, which ordinarily take months. And simply put, PCT thru-hikes begin in the spring, not the fall. You will die if you begin a PCT thru-hike in the fall. Do not begin a PCT thru-hike in the fall. Were these sorts of inconsistencies and errors in the original series and I just didn’t notice? I mean, probably. Sixteen-year-old me was not cultured enough to be able to call out slightly-off references to beatnik literature and 80s pop music. The ending to A Year in the Life was apparently what Sherman-Palladino had planned for the original series but did not use after being replaced as showrunner for the final season. Seeing it now after ten years, it was ... something. I was rather surprised, and not entirely pleasantly so, but not unpleasantly so either. Some surprises are like that, I guess. I suppose the fundamental question underlying the evaluation of

one-sided license agreements to reallocate the cost of defectively designed code to end users. Consumers seeking redress for cyberspace harms are stymied by the U.S. Supreme Court’s validation of excessively pro-provider terms of use (TOU) that mandate predispute arbitration and anti-class action waivers. Online businesses routinely employ TOU to redirect consumer lawsuits away from state and federal courts into non-public tribunals, in which privately hired judges decide cases without precedents and with almost no grounds for appeal. Under predispute forced arbitration, the website owner determines the arbitral provider and selects the rules that govern disputes with consumers. Liability limiting clauses are located deep within TOU “agreements” so users almost never notice them. Even if they are read, the TOU are composed of unnecessarily complex terminology, which is often drafted at the comprehension level of a typical college graduate. In this dystopian legal world, consumers must waive their constitutional right to a jury trial and the right of appeal by clicking “yes” to these “take-it-or-leave it” terms of use. The users of social networking websites commonly acquiesce to anti-class action waivers, damage caps, shortened statutes of limitations, “loser pays” rules, and choiceof-forum clauses that are buried thousands of words deep in a poorly indexed boilerplate. American users of social networks are astonished to learn that they may have agreed to litigate in Mumbai, Hong Kong, or the People’s Republic of China. In his 1936 book, Ideology and Utopia, sociologist Karl Mannheim argues that thoughts and beliefs, including judicial ideologies, derive from differences in social location. The social location for most Supreme Court justices reflects their judicial decisions favoring corporate elites. Chief Justice Roberts represented a who’s who of corporate America when he served as a partner in D.C.’s Hogan and Hartson. Senator Elizabeth Warren, who taught at Harvard, cites a study by Epstein, Posner and Landes which found that five of the current Justices sitting on the Supreme Court are in the top ten of the most pro-corporate justices since 1946. Justices Alito and Roberts, appointed by George W. Bush, ranked number one

and two as the most anti-consumer justices. The Roberts Court has been the driving force behind creating this alternative legal universe through their decisions upholding anti-class action waivers and predispute mandatory arbitration. The Court has allowed service providers to cripple tort rights by upholding even the most one-sided predispute clauses and anti-class action waivers. In a 5-4 decision, AT&T Mobility v. Concepcion, the Supreme Court held that the Federal Arbitration Act (FAA) preempts the use of state unconscionability law. Courts had turned to unconscionability to declare some class action waivers unenforceable. In the 2013 case of American Express v. Italian Colors Restaurant, the Supreme Court rejected another challenge to the enforceability of arbitration agreements under the FAA, holding that a contractual waiver of class arbitration is enforceable even if the cost of arbitration exceeds the potential recovery. This unbalanced cybertort jurisprudence has the effect of padlocking the courthouse door to most Internet-related injuries. After Concepcion and Italian Colors, expect even more one-sided consumer arbitration agreements. Such TOU would be rejected in the European Union, which gives consumers the right to pursue justice in their home courts. These mandatory arbitration agreements are essentially an anti-remedy for Internet users because the cost of arbitration will almost always exceed the monetary amount that is at stake. Plus, with class action waivers, there is no aggregation of claims. It is time for Congress to step in and protect consumers in cyberspace from a new generation of defective products — driverless cars and other connected devices that are part of the Internet of Things. Cybertort remedies need to evolve further to provide consumers remedies for runaway cars, inadequate security, and misuses of big data. Driverless cars have the potential to all but eliminate driver error. However, connected cars also raise


What a terrific show.

these latter-day resurrections is whether they recapture what made the original good or merely trade on viewers’ nostalgia. Certainly, A Year in the Life does not skimp on nostalgia for the original series or even nostalgia for other shows. But in the end, Sherman-Palladino and the cast have done a great job of doing all the funny, clever, and heartwarming things that made the original such a classic. ★★★★☆ Gilmore Girls: A Year in the Life, Netflix Jim An is the editor-in-chief of The Record.

numerous privacy and security concerns. If a car manufacturer assembles massive amounts of data, there is an increased risk that this big data may be misused, compromising the privacy of consumers. Security vulnerabilities in autonomous cars may enable attacks on sensors that notify drivers of dangerous road conditions or could be used to disable the vehicles’ steering and brakes. A compromised vehicle could be used to launch denial of service attacks on other vehicles. These are not far-fetched professors’ hypotheticals. A Federal Trade Commission Workshop participant, for example, recently demonstrated that a hacker could gain “access to the car’s internal computer network without ever physically touching the car.” This legal dystopia will arrive soon unless far-sighted legal crusaders raise consciousness about these perils, much like Ralph Nader did for products liability. Car companies are far more likely to continue to monitor their vehicles throughout the life cycle and patch known vulnerabilities if failure to adequately protect consumers could result in compensatory and punitive damages. Cyber products liability creates a necessary incentive to ensure that security measures are tested on driverless cars and are perfected before these vehicles are marketed. A strong products liability regime ensures that not even multibillion-dollar Internet-of-Things manufacturing corporations, such as Google, Apple, Ford or Mercedes, operate beyond the reach of the law. The public interest is best served by extending the well-established principles of tort law to driverless vehicles and other potentially hazardous Internet-connected devices. Tort law must resume its long-standing role as a flexible and forward-looking set of remedies that can evolve to deal with emergent wrongs.

It is time for Congress to protect consumers from driverless cars and other connected devices.

Michael L. Rustad is a professor of law at Suffolk University Law School. Thomas H. Koenig is a professor of sociology and anthropology at Northeastern University.


The Harvard Law Record

November 28, 2016

Dear Heather Mac Donald: A Letter On “The War On Cops” Author and lawyer Mac Donald should reassess her views on criminal justice and Black Lives Matter. By Tyra Walker ’18 Dear Heather Mac Donald, In September, you came to Harvard Law School on the invitation of The Federalist Society to discuss the findings of your new book, The War on Cops. Because the audience was left with a negligible amount of time to engage, I wanted to take this time to respond. Your credentials are very impressive, and you came equipped with a significant amount of data in support of a narrative that there is currently a “War on Cops.” However, I wonder if you have ever read these words from Martin Luther King Jr. in his famous letter written from Birmingham Jail: “You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative,” (emphasis added). I am of the opinion that presumptuousness is generally undesirable, but I hesitate to believe that you have ever truly engaged with King’s reasoning in the context of your work. If you had, I am sure that you would use the platform of your privilege to address the underlying causes of violence in black communities instead of advocating for harsher policing and lengthened criminal sentencing. If you had considered King’s reasoning, I am sure that you would recognize that, just perhaps, roughly 250 years of slavery, roughly 80 years of Jim Crow laws and segregation laws thereafter, the continuing effects of discriminatory housing policies, etc. might have some effect on black communities that is relevant to any proper statistical analysis of crime and law enforcement. Ms. Mac Donald, I generally welcome diverging opinions, but I think your narrative of the War on Cops verges on dangerous for three main reasons: First, both your conclusions about the lack of correlation between poverty and crime, and your insistence that race has no relevance to prison rates promote a belief in the inherent criminality of black people; second, your monolithic account of Black Lives Matter discredits the movement as a significant vehicle for the voices of civil society; and third, your conclusions about the value of so-called “tough on crime” policing minimize the collateral effects experienced by peoples of color, thus implicitly invalidating legitimate grievances about these effects. First, I will address your conclusions about the lack of correlation between poverty and crime. During your presentation, I took issue with your reference to Alice Goffman’s On the Run, namely the chapter of her book entitled “Clean People” that describes working class African American men in Philadelphia who generally do not participate in illegal activities despite having relationships with friends and family who are, to various extents, entangled in crime. You used Goffman’s description of this demographic to make the broad assertion that there is no correlation whatsoever between poverty and crime — a conclusion that dangerously invokes the well-known stereotype of inherent black criminality. I fact-checked the context of this reference since my best friend is currently studying with Alice Goffman in her Ph.D. program at the University of Wisconsin–Madison. Goffman spent six years living in a Philadelphia neighborhood conducting an ethnography of the black communities she studied, and the conclusions of her research are shockingly different from the purpose for which you cited to this chapter of her book. As the description for On the Run reads, “[Goffman’s] close observations and often

harrowing stories reveal the pernicious effects of [] pervasive policing.” Furthermore, after reading the chapter to which you cited, it seemed quite clear that Goffman’s description of this young, black, law-abiding demographic was presented to make the point that, contrary to common perception, there are variations in the extent of legal entanglement between members of black community — and even within members of the same family — in West Philadelphia. As Goffman herself describes, “Given the unprecedented levels of policing and imprisonment in poor Black communities today… simply bearing witness to the people who are avoiding the authorities and the penal system seems worth a few pages.”

Your presentation gave me the sense that you feel some discomfort with… black bodies. Given that Goffman declines to answer the question of why, when exposed to similar stimuli, some individuals end up in prison and others do not, I am curious as to why you felt the need to strip Goffman’s descriptions of their important context in order to support your argument that poverty has no effect on why individuals choose to resort to crime? Although it is certainly not a crime to take a piece of data from another researcher to make an entirely different point than that of the researcher, your presentation, through omitting all of the relevant nuances that this chapter presents, implied that that Goffman’s description was included in her book to support your same conclusion. You failed to mention, for instance, that some of these individuals actually had engaged in crime previously and actively decided to distance themselves after significant life events, such as the birth of a child or having a criminal record mercifully expunged by a judge. This critique is nontrivial. Goffman explicitly notes that “[t]hose who avoid incarceration tend to be better educated, better employed, and better paid.” Reading the chapter in its proper context, Goffman actually demonstrates that despite the correlation between poverty and crime, there are individuals who manage to keep themselves out of trouble, individuals who, in her words, become skilled at “carving out a life apart” from the poverty and violence endemic to certain neighborhoods, thereby “leading clean lives in a dirty world.” In addition to your presentation’s misrepresentation of Goffman’s work to imply the inherent criminality of black people, I also take issue with your book’s assertion that “[a] rigorous analysis of data shows that crime, not race, drives police actions and prison rates.” The variables of crime and race do not have to be mutually exclusive, and anyone with a basic understanding of this country’s history should know that these variables cannot be mutually exclusive. Your shocking blindness to the lingering effects of hundreds of years of racialized policies demonstrates to me that we have not been taught the same history of the United States. Indeed, you seem to fall victim to the same flawed belief that writer Ta-Nehisi Coates shrewdly captures in his 2014 article “The Case for Reparations”: “Indeed, in America there is a strange and powerful belief that if you stab a black person 10 times, the bleeding stops and the healing begins the moment the assailant drops the knife. We believe white dominance to be a fact of the inert past, a delinquent debt that can be made to disappear if only we don’t look.” It may not be politically correct to assert race-based propensity arguments in this day and age (i.e. the argument that since there is no correlation between poverty and crime, it must just be something inherent in black people that accounts for our current crime rates); but to think that asking an audience to read between

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the lines is any better is a dangerous path on which to embark. The second reason I believe your narrative of the War on Cops verges on dangerous derives from some of the central claims you have made in articles surrounding your new book: namely, your discrediting of the entire Black Lives Matter movement. In your book, you seek to deconstruct what you see as “the central narrative of the Black Lives Matter movement: that racist cops are the greatest threat to young black males.” However, I question the accuracy of your analysis. The Black Lives Matter guiding principles page itself describes that “Black Lives Matter is an ideological and political intervention in a world where Black lives are systematically and intentionally targeted for demise.” This mandate is in no way lessened even if police violence is not the “greatest” threat to young black males. After its January 2016 mission to the United States, even the United Nations Working Group of Experts on People of African Descent reported that it “is deeply concerned at the alarming levels of police brutality and excessive use of lethal force by law enforcement officials, committed with impunity against people of African descent in the United States.” Clearly, recognizing police violence as a problem worth addressing is not tantamount to an assertion that racist cops are the “greatest” threat to young black males. Furthermore, your discrediting of the Black Lives Matter movement is logically flawed since you seek to eviscerate the entire movement through equating the rhetoric of isolated subcultures that indiscriminately demonize the police with the movement itself. The abovementioned UN report states in its conclusions and recommendations that “Following the epidemic of racial violence by the police, civil society networks such as Black Lives Matter, together with other activists, are strongly advocating for racial justice, legal and policy reforms, and citizen control over policing …” which it considers a “welcomed” expression of a growing human rights movement in the United States. By denouncing the entire movement as a threat to public safety, you make the mistake of throwing out the baby with the bathwater. More dangerously, you fail to recognize any levels of nuance within the vast segment of civil society that seeks, through this movement, to express its belief in the sanctity of black lives. Lastly, your conclusions about the value of so-called “proactive policing” are incredibly dangerous in that they minimize the collateral effects experienced by peoples of color thereby implicitly invalidating — and encouraging others to invalidate — legitimate grievances about these effects. To this point, I would like to share with you a story that I have shared with few: When I was 15, I was detained by a truancy police officer in New York City over a school vacation for Passover. Luckily, there was no physical violence involved, and there may not even exist a record of this incident since my story was ultimately verified, but only after I was steered into a police vehicle against my adamant protests, dropped off at a nearby precinct, and the officer who detained me walked off, never to be seen by me again. However, I can say that this incident was one of the biggest violations of my humanity, integrity, agency, and voice that I experienced in my teenage life — all because of the distrust of my 15-year-old black body. Although I cannot empirically prove an intent of racial profiling, my experience tells of an incident that could easily have been resolved by verifying my school ID (that I attempted to show) or calling my school’s administrative office (for which I advocated) which, instead, turned into an agonizing interval during which this officer refused to say a single word to me as I pleaded from the back of his vehicle. I cannot recall how long I was actually detained because it felt like a lifetime, but I will never forget the feeling of that day, marked by hot tears welling in my eyes, an unrelenting lump in my throat, and the unfulfilled optimism that, at some point, this officer would admit to me that he had made a terrible mistake. I share this story with you because this adolescent experience inevitably

colored my relationship with law enforcement, amongst other experiences I went on to observe in my 24-year residency as a New Yorker. This remains true in spite of my reverence towards my grandmother, a retired NYPD officer. My problem is not my belief that you lack similar experiences from which to draw, but rather that your search for data takes no account of this type of experience and makes no attempt to understand the feelings of many that there is a war (represented by institutionally-sanctioned physical and psychological violence) against black bodies in this country. Things turned out fine for me, but tragically, other experiences motivated by a similar distrust in black bodies do not. I am sorry to report that since my having commenced writing this article, my friend of nearly 15 years, a black, male, third year Ph.D. Candidate at Rice University with a B.A. and M.S. in Chemistry, was explicitly racially profiled by the NYPD while wearing a full tuxedo after performing at a classical music gala because he allegedly fit the description for a robbery. As he describes the incident, the police abruptly approached him and his brother in a vehicle as they walked the streets of Harlem and instructed them that they remain stationary. After complying, when my friend asked why he and his brother were being stopped while other pedestrians were allowed to continue walking, he was hostilely approached by an officer who allegedly explained, “[T]he description we got was for a black male. Do those people look black to you?”

The variables of crime and race do not have to be [and] cannot be mutually exclusive. After about five minutes, the police received an update over the radio, my friend and his brother were released, and life went on, as it does. My question is whether you are concerned about the targets of racial profiling, like my friend and me, when you galvanize people around “proactive policing,” or whether we are simply necessary and irrelevant collateral damage in your eyes? Do you suggest that we suspend our indignity when we encounter the reality of being presumed guilty before being proven innocent, because by doing so, we keep other black bodies safe? What, then, about our psychological safety? And would you demand the same sacrifice from those whom you love? Ms. Mac Donald, I challenge you to realign the frame through which you are viewing your research. I do not seek to challenge your data, but in shifting the frame, I necessarily challenge the conclusions of the data you proffer. Your book claims to be “a call for a more honest and informed debate about policing, crime, and race.” But if what you are truly calling for is more honesty, then the data you are analyzing should not be observed in a vacuum. I agree that proponents of the Black Lives Matter movement must be willing to accept evidence that is potentially unexpected and that undermines the rationale for painting law enforcement everywhere with broad strokes — for example, as you have cited, a recent study by Harvard professor Roland G. Fryer, Jr. covered in the New York Times suggests that, across the board, there may not be evidence of racial bias in cases of police use of lethal force. However, proponents of the War on Cops narrative, such as yourself, must also be willing to accept the limitations of studies like these — for instance, that the data do not preclude the presence of racial bias in individual cases involving lethal force, and that they do present statistics that should be just as troubling to anyone who cares a lick about black lives. Significant bias is evidenced in police use of force cases outside of deadly shootings. Why should we be any more comfortable with statistics that blacks are 18% more likely to be pushed into a wall, 16% more likely to be put in handcuffs, 19% more likely to have weapons drawn, 18% more likely to be

pushed to the ground, 24% more likely to be to have a weapon aimed at them, and 25% more likely to be subdued with pepper spray or a baton? Your presentation at HLS all too readily suggested that the level of criminality in black communities would easily explain these disparities, but in the data collected surrounding police shootings in 10 cities, “[b]lack and white civilians… were equally likely to have been carrying a weapon.” Furthermore, if we are truly calling for more honesty, then we should be shifting our frame of analysis. The aforementioned UN Report explains its finding that “[k]illings of unarmed African Americans by the police is only the tip of the iceberg in what is a pervasive racial bias in the justice system.” It goes on to say that “[m]ass incarceration, police violence, housing segregation, disparity in the quality of education, labour market segmentation, political disenfranchisement and environmental degradation continue to have detrimental impacts on people of African descent, despite the application of civil rights laws.” If we are truly calling for more honesty, then you should have to reconcile your encouragement to “[m]ake no mistake [that] [a]ssertions about systemic, deadly police racism are false,” with damning conclusions by the Department of Justice, such as the March 2015 report on the Ferguson Police Department, which revealed “a pattern of unconstitutional policing,” “police and municipal court practices [that] both reflect and exacerbate existing racial bias, including racial stereotypes,” and evidence that shows “that discriminatory intent is part of the reason for these disparities.” If we are truly calling for more honesty, then you should understand that behind what you nonchalantly describe as a “handful of disturbing videos” are actual human lives. And, if we are truly calling for more honesty, then we must also take into account the opportunity costs of me having to take time away from my legal studies in pursuit of my advanced degree in order to explain these realities to you due to my feeling that it would be a disservice to my dignity — and the dignity of my esteemed peers — if I did not. To be quite frank, Ms. Mac Donald, your presentation gave me the sense that you feel some discomfort with the notion of black bodies. Please do not take this as a personal attack, because I think that this is an affliction that plagues more Americans than we care to believe. Ultimately, by seeking to reveal “The Myths of Black Lives Matter” and rallying people around your cause as it is currently framed (including advocating, as you did during your talk, to embrace our high levels of incarcerated black bodies), you seem to simply be demonstrating the truth that black lives do not matter to you. I mean this to say that you seem to be far more willing to accept the effects of the “proactive policing” if the burdens fall upon black bodies than you would if they fell upon yourself or upon those whom you love. I can certainly understand how some features typically associated with black bodies can evoke discomfort. The moving power of black voices; the strength of black physique; the endurance of the soul and the radiance of a spirit borne from black bodies that lived through a hell on earth, yet still steadfastly retain a sense of optimism, altruism, and dignity. Given the perpetual exploitation of black bodies for the fruits of their labor throughout history, I could see how the potency of black bodies might, for some, seem — to use a patently non-legal term — magical. Where the discomfort you and others experience becomes dangerous is captured by actor Jesse Williams in his speech at this year’s BET Awards: “[T]he thing is that just because we’re magic doesn’t mean we’re not real.” If you could see me as more than an outlier data point of crime in black communities, if you could see me as a real, living, breathing, black body that exists within an extended trope marked by a relationship with law enforcement inexorably rooted in the realities of this country’s troubled history, I have no doubt that your conclusions about “The War on Cops” would be different. Tyra Walker is a 2L.

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The Harvard Law Record: 2016-2017, Issue 3  
The Harvard Law Record: 2016-2017, Issue 3