Harvard Law Record

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February 11, 2010 www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 3

LESSIG Ukraine’s Orange

LEVELS Revolution Swept
CITIZENS Aside in Vote
UNITED Country Shifts Away From
DECISION West to Pro-Moscow Party
In Wake of Ruling,
N E W S A N A L Y S I S
BY MATT HUTCHINS

Prof. Says Country When Ukraine’s

Must Act to Restore
Trust in Politics
BY VICTORIA BARANETSKY
Last month, the Supreme Court au-
thored 183 pages of opinions in Cit-
izens United v. Federal Election
Commission, fomenting the ire of
Congress, President Barack Obama
’91, and the legal community. Ex-
pressing their own disappointment
last week hosted by Harvard’s chap-
ter of the American Constitution So-
ciety.
In Citizens United, the Court held
5–4 that restrictions on corporation’s
independent expenditures in political
campaigns are unconstitutional,
overruling Austin v. Michigan Cham-
sitting president,
Viktor Yushchenko,
was eliminated from
the first round of the
ber of Commerce and parts of Mc-
elections, garnering
Connell v. FEC. Justice Anthony
less than six percent
Kennedy ’61, writing for the major-
of the vote, he urged KREMLIN MAN?
ity, explained that to rule otherwise
voters in the run-off Yanukovych admires his
would chill protected political
election to vote narrow, but solid,
speech.
against both candi- margin of victory
However, critics like Jeff Clements
dates. That six per- Source: partyofregions.org.ua
were not persuaded. “Kennedy
cent proved to be more than enough to block
dances around the real threshold
Yushchenko’s former ally, Prime Minister

Citizens United
with the decision, for two profoundly issue of ‘What is a corporation?’And
Yulia Tymoshenko, from achieving victory.
different reasons, were Professor he is pretending that there is no dis-
One might expect the President to be totally

v. F E C
Larry Lessig, director of the Safra tinction between corporations and
against his long-time rival Viktor
Foundation for Ethics, and attorney humans, but that is very grave.” said
Yanukovych, for it was he who was impli-
Jeff Clements, who authored an am- Clements. “That is what makes this
cated in the falsification of the 2004 presiden-
icus brief in support of the lower case so profoundly important for this
More Coverage and tial election which was reversed by the
court’s decision. The two offered country.”
Opinion - Page 2 Orange Revolution. Outsiders might be sur-
their independent critiques at a panel Lessig, cont’d on pg. 3 Ukraine, cont’d on pg. 8

Bob Mnookin Deals With the Devil AN OUTLAW WHOSE

In His Newest Book, Mnookin ‘68 Negotiates the LIFE WAS THE LAW
Pitfalls of Bargaining With the Forces of Evil
BY NATHANIEL L. FINTZ ket! They deny wrongdoing, and they
also want to renegotiate your original
You are beside yourself with rage. contract.
Your small research-and-development You are so angry you can hardly think
firm in Silicon Valley has partnered with straight. But what should you do?
a Japanese company to manufacture and Should you bargain with this devil? This
distribute your product. But you’ve just question, which arises in so many situa-
discovered that this company has vio- tions, is central to Bargaining with the
lated your contract by secretly creating a Devil: When to Negotiate, When to
knock-off of the design you licensed to Fight, a new book by Professor Robert
them—and selling it in the Chinese mar-

INSIDE
Devil, cont’d on pg. 7

1L Winter Workshop Heats

Branded a “Terrorist” for Work
With the ANC, Albie Sachs Guided

Up First Year Curriculum

South Africa’s Revolution as Dissident,

The HL Record Then as Constitutional Court Judge

News
• Phoenix Mayor on Immigrants
• Mock Trial Wins Again
Opinion
• Hope for European Rights
• Forrest Gump and Int’l Law
• Citizens United: What Next?
• Citizens United: Nader’s Book
TIRED OF SUBCITING?
NEWS EDITORS WANTED!
E-MAIL RECORD@LAW
BY JENNY PAUL some,” said first-year student
Danielle Singleton. “It taught us
Harvard Law School’s newest very practical knowledge.” All
first-year required course was a first-year students were required to
winter-term success, according to take the course during the law
many 1L students. The Problem school’s three-week winter term.
Solving Workshop was the last of Students separated into small
the curriculum reforms to be im- groups of four or five and were
plemented after a 2006 faculty vote given hypothetical fact patterns that
to change the required 1L courses, they used to address problems
which also added Legislation and lawyers face in daily practice, such
Regulation and an international law as how to effectively interview
elective course to the first-year clients and draft press releases.
schedule. Dean Martha Minow said she
“Problem Solving was awe- was “delighted” with the results.
Problem Solving, continued on pg. 5
RALPH NADER & BRUCE FEIN ON CAMPUS TUESDAY, FEB 23 - SEE BACK COVER
BY REBECCA AGULE
He survived repeat imprisonment, a car
bombing that resulted in the loss of his arm,
and vision in one eye, but through it all, Albie
Sachs counts himself lucky to have played a
pivotal role in his country’s history. And on
February 5, Sachs, recently retired from the
Constitutional Court of South Africa and pro-
moting his new autobiographical book, The
Strange Alchemy of Life and Law, shared his
tales of activism, exile and incarceration at
Harvard Law School.
Sachs began his legal career by advocating
for human rights and representing defendants
charged under racist statutes. This work led to
Sachs, cont’d on pg. 5
 C I T I Z E N S
Page 2
Citizens United v. FEC is the kind of opinion that
deserves fierce and decisive condemnation by the
American public. Indifferent to the threat of unre-
strained economic power, and wedded to a rhetoric of
corporate personhood that only seems plausible in the
realm of disorienting metaphor, it preaches a vision
of free speech that most Americans have rejected for
over a century. Judicially rewiring the First Amend-
ment into an efficient convertor of economic might to
political influence, Justice Anthony Kennedy ’61 et
al. rewrote a major swath of constitutional law in an-
swer to a question posed only by the majority to
itself. As a result, our First Amendment will
spend the foreseeable future frozen in irony – a
status born of the role it now plays in gutting the
very right it exists to champion.
Harm to free speech is only the beginning,
however, of Citizens United’s consequences. As ju-
dicial and legislative elections fall under the vastly
expanded sway of corporate dollars, we can anticipate
a new bevy of creative tax loopholes, deregulatory
initiatives, and pro-business doctrinal shifts in many
fields of private law. And as Prof. Mark Roe ’75 ob-
serves in the Financial Times, Citizens United may
actually reduce economic dynamism by encouraging
incumbent business interests to deploy their new po-
litical muscle against emerging market entrants (who
lack the organization and influence to successfully op-
pose regulatory obstacles).
Citizens United also significantly expands an
incentive structure that was already highly
conducive to actual and perceived political
corruption. Fortune 100 companies reported
revenues of $13.1 trillion during the last elec-
tion cycle, as compared to approximately $745
With the recent Supreme Court holding in
Citizens United, corporations and unions have
first amendment protection to spend directly
on political campaigns – at unprecedented lev-
els. This is not the first ruling to protect speech
rights for corporations – they also benefit from
the Court’s “Noerr-Pennington” doctrine,
which exempts them from antitrust laws when
they combine to influence legislation.
But Jefferson and company might be quite surprised
to learn that “originalists” citing the sanctity of their
original intent would let loose upon our government
hated British megacorporations of the colonial era,
like the Hudson Bay Company, as a “person” with
such rights to combine with other companies and win
political influence. We live in a
world that is increasingly controlled In His Latest Book, Ralph Nader Envisioned
by these horizontal organizations.
They, together with labor and pro- a Different Kind of Corporate Influence.
fessional alliances, dominate Wash-
ington and in state capitals. They After Citizens United, it May Be Our Only Hope.
are euphemized as “stakeholders.”
These tribal structures are often
vehicles that represent the lowest
common denominator of the ethical sensibilities of
their membership. But the problem is not quite related
to the easy demonizing Wall Street or corporate pre-
dation; it is that it is the job of corporations to invest
capital, and then to try to maximize return on that cap-
ital for the stockholders who provided it. That neutral,
understandable task means that they should and must
protect that investment, and if society has created
market flaws that allow external costs in the exhaus-
tion of the earth’s resources, or health costs borne by
others, this is not something they exist to correct.
The problem is that they are now legally able to pre-
vent correction. The “socialist” moniker thrown at
supporters of government intervention applies where
the state excessively owns and operates the means of
production., when the check between private and pub-
lic becomes lost. But what do you call the evisceration
of that check in a system where the means of produc-
tion own and operate the state? Is industrial or special
interest socialism not even more antithetical to Amer-
U N I T E D
Harvard Law Record
million raised by Barack Obama ’91, and averages of
$711,000 and $2.44 million respectively for House
and Senate candidates. ExxonMobil alone reported
profits of $85 billion across this same period. With
unlimited access to funds, these corporations would
wield extraordinary power over the electoral
prospects of our political class – the harms of which
are both obvious (bad policies that favor narrow cor-
porate agendas over the public interest) and subtle (re-
duced popular faith in democratic processes).
It may seem strange to argue that an expansion of
What Happens Next?
By Joshua Matz
free speech will produce this parade of horribles. Jus-
tice Kennedy frames the issue in absolute terms, re-
ferring constantly to the “chill” of corporate speech.
How, then, to square a serious commitment to liberty
with the troubling concerns raised by Citizens United?
As Prof. Larry Tribe ’66 explained to the House Ju-
diciary Committee, “it would be passing strange if the
First Amendment, so central to our system of self-
government, compelled us to choose between free
speech and democratic integrity.” Properly under-
stood, of course, it does no such thing. To reach its
ican notions of check and balance?
The corporate-controlled fate awaiting us is not
confined to liberal gnashing over global warming and
environmental depredations. Conservatives have a
stake also, as the current unfunded liability for social
security, MediCare and the national debt exceeds a
projected $55 trillion. The carrying charge in current
dollars for the debt we are imposing on our children
By Prof. Robert Fellmeth
is over $20,000 per family per year.
Into this evolving and deeply problematical world,
Ralph Nader ’58 released his interesting new book,
Only the Super-Rich Can Save Us (Seven Stories
Press). This novel combines real-world politik with
an imaginative story—a fantasy of what could hap-
pen if 17 of the nation’s wealthiest and most influen-
tial persons combined to move the needle back toward
the middle, accomplishing political reform and eco-
nomic restructuring. Can such a group transform our
long-term future and diffuse interests (the environ-
ment, our children and our legacy) by expanding their
secondary, public relations “fig leaf” roles into actual,
real-world influence?
The prospects would appear dim, but the idea has
more to it than the frustration of a longtime consumer
advocate. Nader has been largely marginalized by the
media as some sort of eccentric, most of whom have
forgotten that many of the mechanisms that protect
modern consumers, from air bags to drug testing to
February 11, 2010
conclusion, the Court piles one questionable assump-
tion atop another – treating corporations as “associa-
tions of individuals,” granting those corporations full
free speech rights, equating money and speech, and
relegating to analytic irrelevance any concerns about
the real-world effect of unmatched corporate wealth.
The combination of these errors leads to a prepos-
terous result, forgetful of the point that the First
Amendment protects democracy by safeguarding self-
expression essential to political discourse. Although
“we the people” still reserve the right to speak, our
relative ability to exercise that freedom in mean-
ingful service to democratic self-governance has
been badly compromised. This result, moreover,
is not required by the Constitution. As explained
by Justice Stevens, the unique advantages and
characteristics of corporations – legal fictions that
we endow with impressive benefits to facilitate eco-
nomic growth – provide sufficient and long-recog-
nized cause for denying them the same rights as
natural persons.
Some commentators, mainly associated with the po-
litical right, tell us not to worry. Citizens United, they
insist, will do little to disturb the status quo. This op-
timistic outlook depends upon at least four doubtful
assumptions: (1) legislatures will act effectively to
limit its impact; (2) judicial elections will not be
meaningfully affected; (3) patterns of corporate be-
havior will remain untouched by an expres-
sive and doctrinal shift in legal culture and
regulatory power; (4) courts will not construe
Citizens United as the basis for further expan-
sion of corporate rights; and (4) patterns of ap-
proximate party in donations to both political
What Next?, cont’d on pg. 3
government transparency – are directly trace-
able to his citizen advocacy. But his point in
the book is not vindication; it is to raise the
possibility of an imaginative alternative. And
with the current elevation of corporate per-
sonae, Nader’s jujitsu idea may become the
only alternative we have.
Much significant human progress occurs be-
cause someone rises above predictable self-advance-
ment, taking on his own elite group. Though this
rarely happens, there have been a few remarkable ex-
amples, such as Mikhail Gorbachev reversing the So-
viet Union’s expected course, ending decades of
bullying and antidemocratic domination. He did the
unpredictable—he replaced defense bluster with dis-
armament and political domination
with Glasnost. And no, it was not
Reagan or rising oil prices or a pea-
cock-strutting United States that
forced the Soviet Union’s course
correction. It was a leader turning
against every expected instinct and
pattern. When such reversals of pre-
dictable self-interest occur, the con-
sequences may be profound. Indeed, the highest
ethical act in the modern world may be to take on
one’s own tribe.
In Nader’s fantasy, that is what these billionaires do.
They get together and find common ground in a
legacy of competition, environmental health, politi-
cal reform, and world progress. Could it happen?
What is interesting is that Nader personally knows
most of the folks he writes about. And his storyline
purports to capture not only their political views, but
also their personalities: Warren Buffet ordering cherry
colas, the clever repartee of Sol Price, and the
charisma of Warren Beatty. And the fact that these
folks do, in fact, care about our planet.
Most of those named in his story currently spend
fortunes on charity—on advancing values not far
from those promoted by Nader. But what they do in
his fantasy is stop spending the vast proportion of it
on direct services. This is not to say that the billions
Corporations, cont’d on pg. 3
February 11, 2010
Lessig, cont’d from pg. 1
Imagining the possible implications
of the decision, he explained that in the
2008 Fortune 100 companies had prof-
its of $605 billion and political candi-
dates spent three billion on their
campaigns. But in the next cycle, if the
top 100 spend even 1% of their profit
through “independent expenditures” on
political campaigns, they will have
more than doubled the federally-re-
ported disbursements of all American
political parties. “These mathematics
are huge especially when we think that
money is already paralyzing public in-
terest in Washington,” said Clements.
“Corporate money has a huge impact
on what comes out of Congress or what
doesn’t as it is.”
“The implications are even more se-
rious,” Clements continued. “They go
to the heart of our democracy. The
question is who gets to participate in
self-government in a democracy? Who
is a citizen?” . To fight the Court’s de-
cision, Clements urged students to peti-
tion for 28th Amendment introduced by
Congresswoman Donna Edwards. The
amendment would overturn Citizens
United.
Harvard Law Record
For Lessig, money’s impact on Con- to do whatever they want,” said Lessig.
gress is the concern – rather than cor- Lessig mentioned Caperton v. A. T.
porations being vested the right to Massey Coal Co. as precedent. In Ca-
speech. In fact Lessig stated, “It would perton, the Supreme Court announced
be fantastic if we could ensure First that the Due Process Clause required
Amendment Speech to the highest de- judges to recuse themselves from cases
gree. I look forward to the day that where independent expenditures have
computers can secure this right – a been given to campaigns. “The court
Blade Runner type moment.” Instead found there was a constitutional re-
Lessig expressed concern that “people quirement that the justice had to shut up
think money buys elections.” because of the appearance of impropri-
In surveys conducted in California ety from the independent funding.” So
and North Carolina, Lessig reported a shouldn’t Congress, Lessig asked, be
ratio of five to one people believed that able to squash corporate speech to
money buys votes in Congress. Unlike maintain its own integrity?
the courts and the presidency, Congress The solution, according to Lessig, is
has lost its integrity among a large ma- not to return to the world that we occu-
jority of people. “It is this institution pied before Citizens United was de-
that is most bankrupt,” said Lessig. cided. Instead he wants to “deal with all
In other words, Lessig is concerned of the other corruption that existed.”
not with corporate speech but with Lessig’s plan is twofold. First, instead
Congress’ ability to safeguard its own of overturning Citizens United, Lessig
integrity. “Congress’ objective was to endorses the Fair Elections Now Act (S.
create a law so that elections were not 752 and H.R. 1826) that was introduced
dependent on corporations but only in the Senate by Sens. Dick Durbin (D-
upon one thing – the people,” he said. Ill.) and Arlen Specter (D-Pa.). Al-
Congress should be able regulate cor- though the title is a proverbial red flag
porate behavior that interferes with the to the bull that is Justice Antonin Scalia
puplic trust in Congress, “Outside of ’60, said Lessig, “the bill would allow
this window corporations are allowed federal candidates to choose to run for
Page 3
office without relying on large contri-
butions.”
Lessig also believes a constitutional
amendment would be helpful, but in-
stead of presenting one platform, he
calls for a form of amendment process
that exists in Article V, allowing a con-
vention to be called to discuss the
amendment. A convention would allow
all proposals for amendments currently
stirring around Washington to remedy
Citizens United to be melded, creating a
hybrid amendment worthy of ratifica-
tion. Many people are afraid of such a
convention, said Lessig. But thirty-
eight states have to ratify it and twelve
states could veto and stop the process.
Moreover, “an amendment process
shouldn’t stop us from a real opportu-
nity for freedom,” said Lessig.
Lessig ultimately posed the question
that political scientists have repeatedly
discounted, “Does money matter?”
“How,” he wondered, in response to his
own question, “could anyone ask that
question? Why is such an extraordinary
amount of money being spent if it does-
n’t matter? No doubt,” he concluded,
“the relationship creates a perverse de-
pendence.”

Corporations, cont’d from pg. 2 What Next?, cont’d from pg. 2

spent on AIDS or malaria abatement have not yielded im-
portant results; the 2009 data from UNICEF shows real re-
ductions in child mortality worldwide. Some of Nader’s
“characters”—all real persons—are largely responsible for
this progress. But their donations are not strongly lever-
aged, as Nader would propose.
What Nader essentially does is imagine a world where
the super-rich seek more than malaria containment—where
they seek leveraged change in public investment and deci-
sions. Interestingly, Citizens United may make that shift
both more needed and more feasible legally. For if corpo-
rations can independently campaign for political candidates
protecting the value of their drilling rights and seek to burn
carbon accumulated over four billion years as if it were a
sparkler lit on the 4th of July, why cannot those who have
wealth, lacking such a sunk-cost bias, do likewise? Why
can’t Soros and Buffet and Gates and the rest – with wealth
freed from direct exploitation bias and able to factor in fu-
ture costs – participate in countervailing political discourse?
Nader imagines that they end their dabbling and “feel
good” dispensation of shots to wide-eyed children and do
the work of changing ground rules so that political candi-
dates are bought by the public, not by special interests, so
that political campaigns have substance beyond ten-second
sound bites and brainless namecalling, so that the many
have access to the courts, so that agencies hear from many
interests regularly, so that no business is too big to fail.
The fun of reading this book is in joining the author’s fan-
tasy, but punctuating it with our own tactics – what we
would do to correct the world’s deviant path had we the re-
sources and visibility of these 17. The characters in this
book seek structural and leveraged change—advocacy for
public budgets and laws and international agreements—that
properly embody more than the exploitation of narrow self-
interest. Now that the U.S. Supreme Court has radically
shifted ground and allowed (contrary to the judgment of the
people’s democratic institutions) many billions of corpo-
rate and union money to directly influence elections, those
interests with capital investment in current profitable en-
terprise – whether it be mining the seas, polluting the earth,
or collecting medical benefits for power wheelchairs and
Cialis on the backs of their grandchildren -- will increas-
ingly lock-in their self-protection and their imposed exter-
nal burden on others. Their free ride, notwithstanding
future costs, will be further and irretrievably calcified into
public law.
Although pathetic, it appears as if these 17 and some of
their friends may indeed be the most realistic hope we have.
Robert Fellmeth ’70 was one of “Nader’s Raiders” and for-
merly worked on the Harvard Law Record. He is now is the
Price Professor of Public Interest Law at the University of
San Diego Law School.
parties will persist undisturbed (the result of
which would be greater corporate control across
the partisan spectrum). This argument is, quite
simply, wrong on its merits. And perpetuation of
the status quo ante – with its perverse incentives
and tendency toward corruption – would not be
cause for reassurance.
At a recent American Constitution Society
event, Jeff Clements and Prof. Lawrence Lessig
offered wider perspective on these issues.
Clements emphasized the important role that
First Amendment doctrine has played in recent
conservative efforts at deregulation. This has
sometimes taken the form of limitations on the
regulation of commercial speech (i.e. cigarette
advertisements targeting children), but, in a more
pernicious form exemplified by Citizens United,
has undermined popular control over elections in
the name of corporate liberty.
Lessig agreed. He observed “a Blade Runner-
like moment in this opinion,” and gleefully ac-
knowledged his excitement that computers, too,
may soon find favor with Justices keen to endow
rights upon non-human entities. But he focused
squarely on corruption. Charging the Court with
hypocrisy, he contrasted its apparent disregard
for congressional efforts to secure electoral in-
tegrity with the concern for judicial purity that
animated Caperton v. A.T. Massey Coal Co. Not-
ing that Congress is widely seen as the most cor-
rupt branch of government, and that political
action committees, lobbyists, and fundraising
events already provide corporations with plenty
of expression, Lessig worried that Citizens
United will further prevent Congress from real-
izing the desires of its one true constituency –
“we the people.”
So what can we do next? Lessig and Clements
both support a constitutional amendment to rem-
edy the decision’s effecys. Lessig ups by the
ante by calling for a full constitutional conven-
tion (from which a more wide-ranging group of
reforms might emerge). Both also urged Con-
gress to quickly pass the Fair Elections Now Act,
championed by Senators Richard Durbin and
Arlen Specter. Other commentators have urged
changes to corporation law, shareholder gover-
nance, disclaimer and disclosure requirements,
anti-coordination rules, and the terms applied to
government contractors. At the state level, Citi-
zens United has emboldened advocates of a shift
from the election to appointment of judges.
Many of these proposals strike broadly at a much
larger pattern of corruption. Although few of
these would truly fix the problem, they would
certainly provide a badly-needed palliative.
All of which brings us to the main issue: Does
American democracy remain sufficiently ener-
getic to face this challenge? That, I must admit,
is an open question. It is remarkable that our
president felt the need to spend part of his State
of the Union address reassuring us that our po-
litical institutions are indeed capable of acting
for the common good. Not that Congress has
done much in recent years to justify such faith, as
evidenced most glaringly by its recent “debate”
over health care legislation. The postmodern air
of unreality that pervades much of contemporary
political discourse, in which astroturf has re-
placed grassroots and partisan pundits occupy
different realities, seems to leave little room for
the kind of meaningful national conversation that
might restore integrity to our electoral process.
Such reform efforts are further complicated by
Citizens United itself, which, unlike previous
Supreme Court decisions that merely denied peo-
ple rights, commits the further indecency of cor-
rupting the very electoral process that might
normally facilitate remedial action. In the future,
any legislator involved in efforts to limit or mod-
ify corporate funding of elections will confront
the multi-billion dollar megaphone of corporate
general treasury funds. Needless to say, the ti-
tans of corporate America might feel strongly
about ensuring their recently secured ability to
flood our marketplace of ideas with PR-friendly
sound-bites.
Completing a process begun decades ago, five
members of the Supreme Court have staked the
future of America’s electoral system on their be-
lief that we previously suffered for a lack of cor-
porate influence. The First Amendment, as
shown clearly by Justice Stevens, did not compel
that result. Now the time has come for the pub-
lic, and our elected representatives, to deal with
its consequences. Any solution worthy of the
name will undoubtedly involve extraordinary
measures, including some kind of landmark leg-
islation. “We the people” must therefore be
brave. Only if the American public stands firmly
behind advocates of reform can we hope to rein-
vigorate the integrity of our treasured political
institutions.
Joshua Matz is a 1L.
 Harvard
Page 4 Harvard Law Record February 11, 2010

FROM STRASBOURG WITH HOPE

Law
As it Celebrates its 60th Anniversary, the European Convention on Human Rights is

Record
Being Reinvigorated With New Signatories and Ideas for Better Enforcement
BY MATTHIAS C. KETTEMANN
In 2010, the European Convention
on Human Rights will celebrate its 60th
anniversary. One might think this is a
EStabLiShEd MCMXLVi
reason to celebate, but for Thorbjørn
Matthew W. Hutchins
Editors-in-Chief
Jagland, the Secretary General of the
Chris Szabla Council of Europe, the Convention’s in-
stitutional mother, it’s not. In Decem-
ber 2009, he warned that the European
News: Rebecca Agule
Staff Editors
Court of Human Rights, which over-
Opinion: Jessica Corsi sees compliance with the Conven-
Sports: Mark Samburg tion, was in a “desperate situation”
and “no longer able to function as
Victoria Baranetsky it should”; some judgments had
Contributors
2008 the U.S. Supreme Court published
just 74 opinions. But the Strasbourg
Court is charged with a mandate that
should give rise to a much higher case-
load: It must ensure adherence to the
Convention by all 47 members states of
the Council, and is, therefore, the court
of last instance of human rights matters
for 800 million people, a little less than
three times the U.S. population.
It’s no wonder, then, that cases before
It is, at the very least, a symbolic one.
Also of substantial symbolic and real
importance is the vote by the Russian
State Duma to finally ratify Protocol 14
to the Convention, which was con-
firmed by the Duma’s upper chamber,
the Federation Council, on January 27.
Russia had been the only one of the
Council’s 47 member states not to ratify
the Protocol, mainly out of political dis-
agreements with Strasbourg over the
Court’s scrutiny of military activi-
ties in Chechnya, which had in-
variably led to a number of
judgments holding Russia respon-

Prof. Robert Fellmeth
Nathaniel Fintz
Matthias C. Kettemann
Joshua Matz
Jenny Paul
record@law.harvard.edu
Submit Letters and Editorials to:
been “reduced to a few lines”, sible for torture and illegal killings
amounted to “little more than an in there. Indeed, complaints against
accounting exercise” and con- Russia account for roughly a third
tained “less than a bare minimum of all cases lodged with the Stras-
of reasoning”. In brief, the situa- bourg Court.
tion was “intolerable and unwor- Protocol 14, which is part of a
thy of our [the Council’s] member larger process of reform of the Eu-
States’ repeatedly reaffirmed com- ropean human rights system, pro-

or mitment to human rights.” vides for substantial procedural

Harvard Law Record In general, the Court, which sits streamlining, by foreseeing, inter
Harvard Law School in Strasbourg, France, has been alia, new judicial formations, such
Cambridge, MA 02138-9984
considered a huge success. What More roads are leading to the European Court of as decisions rendered by single
Secretary General Jagland, along Human Rights in Strasbourg, and they’re getting faster. judges, or three-judge committees.
Letters and opinion columns will be Photo: Richard Cawood
with numerous human rights Further, cases which similarities to
published on a space-available basis.
lawyers and activists over the past the Court take a long time. So long, in already decided cases can be struck off
The editors reserve the right to edit
years, rightly criticized was that success fact, that sometimes the Court’s hearing the record (the famous pilot-judgment
for length and delay printing. All
had been too overwhelming. As the of cases concerning the right to a fair procedure), as can the untested and po-
letters must be signed. Deadline for
Court’s President, Jean-Paul Costa, trial within one of the Convention’s tentially problematic category of cases
submissions is 11:30 p.m. Tuesday.
pointed out in his Annual Report, in just member states winds up violating the where an applicant has suffered no “sig-
The Harvard Law Record is a publication one year 57,000 new applications had right to a fair trial at the Court – due to nificant disadvantage”. The Protocol
of The Harvard Law School Record Cor- been allocated for decision and 35,460 its lengthy proceedings. will also allow the Committee of Min-
poration. All rights reserved. The Harvard applications were decided: 33,065 by Still, there are silver linings to the isters, a political organ, which is
Law School name and shield are trade- relatively brief inadmissibility or strike- clouds that Secretary General Jagland charged with supervising the enforce-
marks of the President and Fellows of out decision, but 2,395 by sometimes saw during a year when the Court ment of judgments, to work more ef-
Harvard College and are used with permis- extensive judgment. should be celebrating. In fact, three sil- fectively with national governments to
sion from Harvard University. To put things into perspective, in ver linings or “reasons for optimism” as ensure compliance.
President Costa put it in a rather While the changes brought by Proto-
more upbeat press conference col 14 have the potential to substan-
Phoenix, cont’d from pg. 8 selves in the name of patriotism and spew on January 28th. Taken together, tially streamline Court proceedings,
criminals and 50 officers embedded under- vile anti-semitism and racist rhetoric.” The these three factors promise to they are not revolutionary. Some proce-
cover in federal operations. The cost to public presence of these radicals has further make 2010 a revolutionary year dural provisions have already been im-
Phoenix of employing these 150 officers, increased the burden on the police, as clash- for what is widely accepted to plemented through Protocol 14bis,
over $15 million dollars a year, is not reim- ing demonstrations of extremists and be the most successful and most which was adopted in May 2009, after
bursed by the federal government and counter-extremists have required police in- advanced regional human rights it became apparent that Russia’s ratifi-
threatens to force volvement to prevent protection system in the world. cation of Protocol 14 would take some
reductions in city violence. “Now Let us consider them in turn. time. The pilot-judgment procedure has
services like li- those individuals First, the Lisbon Treaty, which also been applied, rather successfully,
braries and after who had to hide in finally entered into force on De- through a creative interpretation of con-
school programs. the dark, under a cember 1, 2009, affirms that the ventional procedure rules from 2004
Mayor Gordon rock like a snake, European Union will accede to onwards, when it was introduced in
says that his city’s feel free to come the European Convention of Broniowski v. Poland. Protocol 14bis
police do not oper- out.” But Gordon Human Rights. While there are will become moot when Protocol 14 en-
ate in the same emphasized that his still a number of unresolved pro- ters into force on June 1, 2010, pro-
manner as the sher- city will continue to cedural questions (should, for vided that Russia’s instrument of
iff of Maricopa fight to protect the example, the EU now be repre- ratification reaches Strasbourg by the
County, Joe Arpaio, human rights of the sented by its own judge on the end of February.
and that Phoenix victims of the coyote Court?) and serious substantive The third positive impetus for the Eu-
police officers’ pri- criminal organiza- issues to clarify (especially con- ropean human rights protection system
mary goal is to pro- tions. “With rights cerning the relationship between will have its origin in the idyllic Swiss
tect the innocent come responsibili- the Luxembourg-based Euro- town of Interlaken, where, on February
from being killed or ties, and although pean Court of Justice, which 18-19, a “High Level Conference on the
sold into slavery. those hate-mongers rules on questions of EU law, Future of the European Court of Human
He denied any pol- don’t care about re- and the Strasbourg Court), the Rights” will take place. President Costa
icy of officers sponsibilities, we move will have limited substan- described the conference as a “land-
rounding up day must.” tial impact on the level of mark” event in which states would reaf-
Protesters in Phoenix, AZ urge passers-by to
workers “just be- Nonetheless, Gor- human rights protection in EU firm their commitment to human rights
“Deport Illegals, Secure our Border”
cause of the color of Photo: flickr user cobalt123 don expressed urgent countries. Already under the and, more significantly, “draw up a
their skin” but rec- concern about the pre-Lisbon Treaty framework, roadmap for the future development of
ognized that the county sheriff’s operations state of immigration law in the United fundamental rights, “as guaran- the Court”. A number of Council offi-
had raised cause for alarm. States. He believes that immediate action is teed” by the European Conven- cials have weighed in with statements
Unfortunately, Gordon said the immigra- necessary to reform immigration policy and tion, were “general principles of on what needs to be achieved in Inter-
tion situation has opened the door for right- assist burdened local police. “I couldn’t and the Union's law.” President laken. While differing on the details,
wing extremists to grandstand their hateful wouldn’t stay silent any longer, not only be- Costa described the future ac- the main challenges are clear (though
beliefs without fear. He expressed extreme cause of the economic costs, but also be- cession by the EU as a “major the ways to achieve them are less so).
concern at the presence of “Nazi hate cause of the cost in human suffering.” step towards creating a Euro- President Costa himself suggested a
groups that wrap the flag around them- pean fundamental rights space”. Strasbourg, cont’d on pg. 5
February 11, 2010 Harvard Law Record Page 5
Sachs, cont’d from pg. 1 of mobilizing society. The indiscrim- the National Executive of the ANC. Problem Solving, con’d from pg. 1
his 1963 arrest under the 90 Day inate use of terror was something we Following the first democratic elec-
“The participating faculty took the unprece-
Law, which allowed the government opposed,” he said. “I recall a time tions, President Nelson Mandela ap-
dented step of meeting daily to confer and
to hold political prisoners for 90 days when planes were hijacked as part of pointed Sachs to the new
compare experiences and ideas -- and all
without filing actual charges. Sachs the Middle East conflict. The leader- Constitutional Court.
seven of the teachers found the experience ex-
sat in solitary confinement, only to ship of the ANC said, ‘We are against While on the Court, Sachs presided
citing and rewarding,” Minow said in an e-
be rearrested almost immediately terrorism.’” over the “Case of Mr. Mohamed,”
mail. “We are avidly reviewing now what
upon his release. He described the Sachs describes the ANC’s anti- which involved a Tanzanian who
worked well and what can be improved.”
experience of sitting alone in a cell, terror stance as, in part, strategic. “If took refuge in South Africa after par-
In the last problem set, students took on the
with little light and high windows, al- the ANC went for that, we play into ticipating in the 1998 bombing of the
role of a public interest lawyer. Their client
ternating between staring at his toes the hands of those in power,” he said. U.S. Embassy in Dar es Salaam.
was a tenant who was told he was being
and the wall. South African authorities extradited
evicted from his rental apartment because a
“It’s a strange existence, an inhu- Mohamed before obtaining a guar-
bank was foreclosing on the owner of the
man existence, to be forcibly without antee that the U.S. would not impose
building. Each group of students had to write
human contact. To be without peo- the death penalty. The Court declared
a memo addressing what type of action they
ple,” he said. “A deep deep depres- the extradition unconstitutional, as
would take to try to keep their client in the
sion enters into you. It is a sense of no person may be sent to another
apartment or how they would negotiate a
total utter deprivation.” state when facing a risk of human
monetary settlement with the bank. The
Mental games and songs helped rights violations.
groups then met with practicing lawyers to
Sachs pass the hours. He waltzed Touching upon the death toll in
present the memos and receive feedback.
around his cell, tried to name all of Dar es Salaam, Sachs said, “The fact
“The word we’ve had from the practitioners
the United States, and sang hit tunes. that the offence is particularly egre-
who did that is that they really liked it, and
Irving Berlin’s popular song “Al- gious is no reason to bend the rules.
they thought, on the whole, our students did a
ways” provided the inspiration for a If anything it becomes that much
good job,” said Todd Rakoff, one of the pro-
satirical take on his own situation. more important, you want to distance
fessors who conceived of the course and
Sachs sang his version: “I’ll be liv- yourself. You don’t want to say in ef-
wrote the problems presented to the enrolled
ing here, always. I’ll be staying here, fect, ‘We are like you, but we are
students. “I thought it was a neat thing. We
always. Keeping up my chin, always, During the 1985 ANC conference, stronger than you.’”
sort of sent 500 people out into Boston to
not for but an hour not for but a week Sachs made a presentation regarding “It is easy to have beautiful princi-
meet with practitioners.”
not for 90 days. But for always.” the treatment of captives, and the or- ples when they aren’t being tested,
First-year student Julie Schechter said the
Prison contributed to his philoso- ganization passed several key reso- but isn’t it when they are tested that
practitioner meetings were her favorite part
phy of life and the law. lutions on appropriate forms of they really matter?” he asked.
of the course. “I think we should have done
“I took a vow deep into my deten- struggle. Sachs prefers to think about the
that for all of the problems or at least more
tion, that if ever I was in a position “When it came to the resolutions it long term implications of the Court’s
than one,” she said. “Someone who had prac-
of authority, I wouldn’t do this to became clear: traditional armed opinions and dislikes the idea of
tical experience taught you more than just
anybody. It’s a great power, greater struggle, but no use of terrorism, no judges operating as machines, simply
talking to your classmates.”
than thinking I will get them and do attacking people because they belong processing the information they are
Only one section was led by a practicing
this to them. It’s a superior power,” to a particular group,” he said. “The fed.
lawyer – Bill Lee, a co-managing partner at
he said. oppressed don’t have to learn the lan- “To what extent does life experi-
WilmerHale. “I loved having a practitioner
Sachs also recognized the benefits guage of the oppressors.” ence go into decisions you make?
[as a professor],” said Jessica Lewis, who was
he enjoyed, as compared to others The delegates voted unanimously Once you’ve got your opinion out it
in Lee’s class. “I think every section should
under the same conditions. to ban the use of torture by the ANC. has an impact; it has effects. It is part
have a practitioner. I think it gives you a dif-
“Even being subjected to torture, Sachs explained this decision, “The of the law.”
ferent experience than the typical classroom
my skin gave me privilege, even as ANC doesn’t use torture, as a matter Occupying a unique place history
experience. I have prior work experience, and
an enemy of the state,” he said. of principle, as a matter of the kind and jurisprudence, Sachs appreciates
it seemed much more like a workplace set-
After being released, and then re- of people we were. This distin- the opportunities that befell him.
ting.”
arrested and released once again, guished us.” “I feel I am perhaps the most priv-
Rakoff said he would like to have Lee re-
Sachs could not bear the threat of “More people have died from state ileged person in the world,” Sachs
turn to teach the course next year, but said it
further imprisonment. He moved to terrorism than terrorism from irregu- said. “I have all the privileges that
is unlikely that any other practitioners would
England and began a life with a new lar forces,” Sachs said. “That’s part being a white person automatically
be teaching. “I think probably we will try to
wife and, later, two sons. of the equation, but no amount of gave you. But I also had the privilege
have some more practitioner involvement in
At age 39, while teaching law at state terrorism justifies the use of ter- of being part of a liberation struggle.
individual problems, since, in a lot of sec-
Southampton University, Sachs dis- rorism to overcome the state.” And finally the privilege of being a
tions, people said they found that really valu-
covered his terrorist status, which he Violence reentered Sachs’ life in lawyer. That is three layers of privi-
able,” he said.
earned simply because of his mem- 1988, when a bomb planted in his car lege, and I dare you to find anybody
Rakoff said all 1L students filled out sur-
bership in the African National Con- by the South African security serv- who has had any more than that.”
veys to give feedback on the course. He said
gress (ANC). Sachs applied for a ices exploded. Sachs lost his right The Office of the Dean, Interna-
those comments are still being processed, but
visa to attend a workshop on South arm and sight in one eye. tional Legal Studies, and the Office
he has looked at them in “bits and pieces.”
African development at Yale, only to “I was personally never engaged in of Public Interest Advising collabo-
“There were many favorable comments
be rejected because of this label. the armed struggle, but the armed rated in sponsoring this event. Dean
about the chance to work in groups,” Rakoff
Sachs saw the accusation as the an- struggle came to me.” Martha Minow’s introduction re-
said. “People seemed to think that that was a
tithesis of the true nature of the ANC. Until 1990, Sachs remained in vealed her admiration for Sachs.
nice break from what otherwise happens in
“The ANC was against terrorism. exile, first in England and then in “I don’t think I’ve had as great an
the first year and they thought they had ac-
This was the era of ‘isms,’ and ter- Mozambique. Returning to South honor since I’ve been Dean as this
quired some skill in working in groups and
rorism was an evil thing for the Africa, he participated in the consti- moment,” Minow said. “This is a
also that it was just kind of fun to have a
ANC. Indiscriminate acts of striking tutional negotiations as a member of hero who has written human dignity
group of people to work with.”
down people are not part and parcel the Constitutional Committee and as into the law.”
Rakoff said he and the other professors who
taught the course will meet in a few weeks to
Strasbourg, cont’d from pg. 4 Committee of Ministers to be “dealt with on the basis of discuss possible changes to the course. In fu-
number of obvious and not so obvious long- and short- well-established case-law”. ture years, students might be given fewer
term goals. He proposed, for instance, to develop the idea While the details, as mentioned before, will still need problem sets, because some 1Ls wrote that
of filtering applications by legal secretaries as it was un- to be worked out and the days before the Interlaken con- they would have liked to spend more time
clear whether all applications “should be examined judi- ference are sure to be filled with intensive intra-Euro- working with the same fact pattern, he said.
cially”. Drawing “inspiration” from the EU’s judicial pean human rights diplomacy, one conclusion of He also said the professors would probably
system, he also suggested adding a Human Rights Tri- President Costa is certainly true: Reforms must bear in write some new problems to give to future
bunal subordinate to the Court as a European human mind the “principle of a better sharing of responsibility first-year students.
rights court of first instance, though this would contribute between the Court and the States”. Truly, ensuring human All in all, Rakoff said, he thought the course
to what some criticize as the mushrooming of European rights protection is not a matter that states can leave to a taught first-year students something different
human rights institutions, with largely parallel bodies ex- court alone, especially one as swamped with cases as the than they were learning in their other courses.
isting in the parallel structures of the Council and the Eu- European Court of Human Rights. It is a common re- “[The workshop] has the same core mission
ropean Union. sponsibility. as the rest of the other courses,” he said. “It’s
Among the new ideas to be explored “immediately,” Interlaken literally translates as “between the lakes”. an attempt to show you the mental pathways
President Costa finally counted “class actions” or col- Let us hope that when it comes to reform of the Court that lawyers use, but we just thought there
lective applications (which are largely alien to the Euro- system Europe’s leaders will not get wet feet. were a whole bunch of those mental pathways
pean legal system) and the possibility of referral by the that weren’t covered in the traditional doctri-
Court of purely repetitive cases to member states or the Matthias C. Kettemann is an LL.M. student from Austria. nal courses.”
Page 6 Harvard Law Record
W HAT F ORREST G UMP ’ S M OMMA K NEW A BOUT I NTERNATIONAL L AW
Despite Sweeping Arguments to the Contrary, States’ Adhesion to International Law is Not Predictable. With International Law,
Argues MATTHIAS C. KETTEMANN, Forrest Gump’s Mother Had the Best Theory: You Never Know What You’re Gonna Get
Forest Gump’s mother famously said that life was like a box of chocolates: “You
never know what you’re gonna get.” The same holds true for international law.
Taking the box of chocolate und accepting “what you’re gonna get”, independent
of whether you like the particular praline, is what international law is all about.
Since the famous Peace of Westphalia of 1648, which brought along the emer-
gence of today’s international legal system, states have taken the box and eaten
both the bitter chocolate (i.e., they have accepted their obligations and changed
their behavior accordingly) and the nougat (when they have enjoyed the interna-
tional legal rules that reaffirmed their interests).
Then came along Harvard Law School’s Jack Goldsmith and University of
Chicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits of
International Law, which argued vehemently for what could be termed a “nougat
only approach” to international law. In essence, they posited that international law
does not, in fact, pull states toward compliance. States conform with international
law, they argued, only when it furthers their interests.
The limits of international law
Former U.S. Ambassador to the UN John Bolton, and more influential thinkers
before him, such as Thomas Hobbes, went so far as to question the very
existence of international law. Goldsmith and Posner don’t go nearly
as far. They merely relied on rational choice theory to argue that
international law does not act as an external constraint on state
behavior. The Limits of International Law was widely read and
critically well-received. But some critics, such as international
law and economics expert Anne van Aaken of Switzerland’s
University of St. Gallen, rightly pointed out that there were
limits to the Limits book, as the authors only took account of
the interests of states to conform their behaviour to international
law at one – arbitrary – point in time. More significantly, Gold-
smith and Posner ignored the possibility (and, I would argue,
likelihood) that states have a non-instrumental interest in be-
having in conformity with rules, so as to stabilize the system.
Of course, in keeping with an state interest-focused “nougat” ap-
proach to international law, Goldsmith and Posner could counter that
in so doing states are actually, again, acting in sync with their interests
– their long-term ones.
A stronger observation is that rational states will accept the obliga-
tory nature of international legal rules as rules, based on an ex ante as-
sumption that international rules are legitimate since, by so doing,
they can most likely achieve advantages incuding and beyond their
own self-interest (such as world peace, international security, or the
maximization of their reputation) in the long run. In what Professors
George Norman and Joel Trachtman called a “customary international
law game”, states sometimes choose to disobey a rule, but rarely question the
rule’s legitimacy as such.
To better understand this point, think of a common thief. He will break the rule
against violating another person’s property on an individual basis, but does not
doubt the existence of the more general rule providing for the protection of prop-
erty. Indeed, his risky acquisition of property is made because he implicitly trusts
the state’s legal system to protect his property, even if it was illicitly obtained.
Even thieves hate thieves. Similarly, in international law, it is often the rogue states
that, while breaking international legal rules on an individual basis, believe (and
only sometimes abuse) the international legal system in toto. Think of Iraq, con-
sider North Korea, and look at Iran. In fact, the choice by a state to ignore an in-
ternational rule, or to question the validity of this rule, might, in fact, contribute
to an increase its power to oblige – by making others states voice their opposition
to the violation. The real difference between theft and the violation of interna-
tional legal norms by rogue states is that, while we see the consequences of the for-
mer on “Cops”, we have to wait for some years to see the outcomes of the latter
– as “Breaking News” on CNN.
Does Europe believe in international law?
In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner apply
their theory on the limits of international law to Europe. They write that “[l]ike the
Bush administration, Europeans obey international law when it advances their in-
terests and discard it when it does not.” In essence, they argue that even Europe,
which professes to be international law-friendly, does not really believe in inter-
national law’s binding power.
In their first example, Goldsmith and Posner consider the case of Yassin Ab-
dullah Kadi and the al Barakaat International Foundation. Kadi’s assets were
frozen according to a UN Security Council Resolution against financing terrorism,
which had been inscribed in an EU regulation. Goldsmith and Posner write that,
deciding the Kadi case, the “the European Court of Justice ruled that the Security
Council resolution was invalid.” They are wrong. In its 2008 judgment, the ECJ
merely ruled that the regulation implementing the Security Council resolution was
invalid because it violated Kadi’s fundamental rights. The ECJ noted that the pro-
tection of fundamental rights must be “considered to be the expression, in a com-
munity based on the rule of law, of a constitutional guarantee stemming from the
EC Treaty as an autonomous legal system which is not to be prejudiced by an in-
February 11, 2010
ternational agreement.” This does not mean that the ECJ would ignore interna-
tional law – on the contrary. The protection of fundamental rights is deeply rooted
in international law. By referring to a “constitutional guarantee,” the ECJ likens
its role to that of a constitutional court ensuring that all acts passed by the organs
it oversees respect fundamental rights. There is nothing wrong with that.
Goldsmith and Posner interpret the decision as meaning that “European coun-
tries must disregard the U.N. Charter … when it conflicts with European consti-
tutional order.” Again, they are wrong. The Court merely pointed out that any EU
regulation implementing a UN Security Resolution must meet minimum human
right standards. By reforming the Sanctions Committee, established to oversee
these resolutions, the UN has in fact taken up some aspects of the ruling to ren-
der the system more accountable.
Another example that Goldsmith and Posner bring to support the idea that Eu-
rope has a self-interest-focused approach to international law is the 1999 NATO
intervention in Kosovo. “European nations,” they write, “participated in NATO’s
bombing of Kosovo without Security Council authorization.” This is true, but as
a Commission that looked into the intervention later concluded, their action was
at least legitimate. Further, the intervention served to stop bloodshed and massive
human rights violations in Kosovo and thus served one of the most im-
portant goals of the international legal order: protecting individuals.
The Kosovo case was later seen as the first important example of
so-called humanitarian interventions, many of which have gone
on to be officially sanctioned by international legal bodies.
The evolution of the “responsibility to protect” has also been
influenced by the Kosovo intervention. Rather than ignoring
international law and enforcing their own interests, the
Kosovo intervention thus served to confirm underlying prin-
ciples of international law.
Errors have been made – but
also corrected
I have to concede that Europe’s
approach to trade disputes in the
framework of the WTO has not
been exemplary. But very often,
especially with two of the issues
Goldsmith and Posner mention –
“resisting importation of geneti-
cally modified foods, or beef from
cattle raised with growth hor-
mones” – Europeans follow an in-
ternational legal concept, namely
the precautionary principle, in op-
posing imports. It is true that European countries did not implement WTO rulings
against them in these cases, but as legal history in both the U.S. and the EU amply
shows, the non-implementation of certain rulings, in exceptional cases, does not
serve as evidence of a system’s comprehensive failure. International economic
law has been a huge success story, but only a few well publicized disputes make
the headlines.
It is also true that some European countries have cooperated with the U.S. with
regard to extraordinary renditions, but this attitude has changed. As a number of
cases before UN bodies including the Committee Against Torture and the Human
Rights Committee show, mistakes have been made and international law has been
violated. But again, this does not help Goldsmith and Posner in showing that Eu-
ropean states do not believe in the binding nature of international law or ignore it
whenever they feel like it.
The importance of values
Goldsmith and Posner mention other examples, including European states’
sometimes wavering support for the ICC, and follow this up with the conclusion
that “Europeans hold their values and interests dear, just as Americans do, and
will not subordinate them to the requirements of international law.”
But they neglect to mention that values are influenced and honed by interna-
tional law and international law, conversely, serves to express and implement these
values. There is no relationship of subordination. Rather, international law, like
every legal system, creates and is supported by a value system based on intricate
power equilibria and sometimes mutually contradictory goals. The international
legal system is more complex than any national system, even though – or because
– it has far fewer actors. That on the international legal plane values clash, bad
choices are made, rules are broken and judgments remain unimplemented cannot
be doubted. But this is also the situation in every national legal system and can-
not be used to cast a shadow of doubt over the clear evidence that states consider
international law to be just that: law.
The end of the Cold War did brought what the Finnish international legal theo-
rist Martti Koskenniemi termed, an “enthusiastic revival” of international law.
New actors emerged, new laws were made, new hopes voiced. Within the last
twenty years, the system of international was greatly energized, and the United
States was an important contributor to and shaper of international legal norms,
Gump Law, cont’d on pg. 7
February 11, 2010 Harvard Law Record Page 7
Gump Law, cont’d from pg. 6 Devil, cont’d from pg. 1 “framework” that can consistently facilitate a wise de-
H. Mnookin ’68, Chair of the Program on Negotiation. cision about whether or not to bargain with the devil.
which reflected, inter alia, American values.
Rejecting any categorical answers to that fraught ques- This framework involves asking yourself “five basic
Given this fact, it is incongruous to argue, as do
tion, Mnookin develops and presents a highly nuanced, questions.” First, inquire into your interests, and those
Goldsmith and Posner, that international law re-
context-based approach for how one can choose wisely of your adversary. Second, investigate your alterna-
flects only the interest of powerful states and is
between battle and bargaining. tives to negotiation, and those of your adversary. Third,
therefore not “good” as such.
The situation described above is but one of several consider whether any potential deal could satisfy both
captivating stories that fill the pages of Mnookin’s parties’ interests better than their respective alternatives
Just like a box of chocolates
book. Each chapter recounts a real-life, high-stakes to negotiation. Fourth, consider the costs of negotia-
conflict where emotions ran high. The contexts differ tion. Fifth, consider the likelihood that a deal, if
But there is also no reason for a prima facie
radically: the chapters include a business conflict be- reached, would be implemented. If this framework
assumption that a system reflecting the inter-
tween two giant computer companies, a bitter Ameri- seems coldly rational, that is because it is tailor-made
ests of powerful states is bad. This bears out es-
can divorce, and a family inheritance fight. Other to help isolate the signal from amid all the noise—to
pecially in light of the renewed commitment,
stories emerge out of profound political conflicts. tease the precious thread of reasoned analysis out from
by the Obama administration, to international
Some involve political lead- amid a tortuous tangle of
law as the prime tool to engage other states and
ers like Winston Churchill or other non-rational strands.
to find peaceful and sustainable solutions to in-
Nelson Mandela; other tales In short, Mnookin advo-
ternational conflicts. And with the notable ex-
concern lesser-known fig- cates a particular decision-
ception of historically explainable, but outdated
ures who came face-to-face making process. He
institutional rules, such as the membership and
with Nazi officers or the acknowledged that “[d]if-
decision-making structure of the Security
KGB. As Simon & Schuster ferent people applying the
Council, international law, just as any legal sys-
officially releases Bargain- framework can reach dif-
tem, has a strong immune system and phases
ing with the Devil, book- ferent conclusions.” This
out – through state practice – rules which do not
stores might have some is because “assessing the
conform to the aspirations of the majority of
trouble deciding which sec- costs and benefits of alter-
states. Again, it is like a box of chocolates. In-
tion or shelf should be its native courses of action
trinsically good, but with some bitter pieces.
home. History? Current af- involve predictions, and
To continue in this line of thought (and, yes,
fairs? Business? Family? always involve the appli-
I am getting hungry as I write this), Hugo
All of the above? cation of values, and peo-
Grotius, often described as the “father of inter-
In spite of this conspicu- ple can disagree.”
national law”, wrote that there lies in each per-
ous variety, Mnookin’s tales Nowhere is the book’s ad-
son an “appetitus societatis”, an appetite, or
all share a set of key ele- mirable nuance more evi-
desire, to live peacefully in an ordered society,
ments. In each tale, demo- dent than where Mnookin
structured by binding rules of a general nature
nization is rampant, and at fleshes out his approach to
and applicability. I see no reason why states
least one person perceives an moral judgments:
would not also have this “appetite”. In fact, I
adversary as evil. In some cases Mnookin thinks the “[W]hen the analytic side [of the brain] is acting as a
would argue, they do. International law needs
perception of evil is fully justified—in others, a mere dispassionate judge weighing all the arguments, not a
to be binding, it is binding, and states accept it
product of partisan animosity. And in every single lawyer defending a foregone conclusion, … moral val-
as binding – Goldsmith and Posner’s arguments
story the same decision must be made: negotiate or ues should, and in some cases must, be factored into
notwithstanding.
fight? decision-making.” The limited but crucial point is to
More than forty years ago, Louis Henkin ’40
The compelling nature of this question was evi- avoid any abdication of reasoned analysis.
formulated, in How Nations Behave, that “[i]t is
denced by the crowd in the Ropes Gray Room on Feb- In each chapter, Mnookin offers his appraisal of each
probably the case that almost all nations ob-
ruary 4, when over two hundred people attended a character’s decision on whether to fight or negotiate.
serve almost all principles of international law
reception and panel in celebration of the book’s publi- But he makes a point of “giving enough evidence …
and almost all of their obligations almost all of
cation. Along with Mnookin, the featured panelists in- and telling the story in a way where there’s plenty there
the time.” While not wrong, he was imprecise:
cluded Dean Martha Minow, Professors Gabriella if people want to reach a different conclusion than the
It is not only “probably” the case, but evidence
Blum and David Hoffman, and Margot Strom, Execu- one I reach.” As Blum noted, “it is only a very confi-
has shown that his statement is unequivocally
tive Director of the think tank Facing History and Our- dent writer that can do this.” The book invites the
true.
selves. reader to engage closely with each tale; during his writ-
States follow the Forrest Gump Approach to
So, should you bargain with the devil? Mnookin dis- ing process, Mnookin thought carefully about how to
International Law, eating the sweet and the bit-
tances himself from the standard categorical answers. “take the reader into the story.” Storytelling is “a dif-
ter pralines, enjoying their rights and respect-
Some would always bargain with the devil; others ferent kind of writing than what I’d ever done before,”
ing almost all of their obligations almost all of
would never do so. Speaking to the Record, Mnookin Mnookin said, yet he has met this new challenge with
the times, even if they contradict state interest
characterized the first view as “the conventional wis- great success: Minow hailed the stories as “com-
in the short run. They do so, because they know
dom in my field”—the conviction that “you should al- pelling,” and Blum added that each one reads “like a
that the international legal system, and not any
ways be prepared to negotiate with your enemy, page-turner.”
particular rule, reflects their values, and will, in
because after all that’s the only way you can make Mnookin expressly welcomes diversity in his read-
the long run, ensure the realization of such val-
peace with your enemy.” In rejecting this categorical ership. Hoffman described for the audience in Ropes
ues with more effectivity and sensibility to
position, he demonstrates a laudable boldness: at the Gray just a few of the many ways that the book will be
human rights than any nation could possibly
panel, Blum noted how remarkable it is that Mnookin, directly useful to “the dispute-resolution world.” At
achieve alone.
“who has dedicated his life to the negotiation field in the same time, Mnookin said that while his other books
both scholarship and practice,” here questions a basic have been aimed primarily at academics or profession-
Matthias C. Kettemann is an LL.M.
assumption that is so fundamental to that field. als concerned with negotiation or conflict, he hopes this
student from Austria.
Mnookin also firmly rejects as unwise the opposite book will also reach a broader audience. Mnookin is
notion—that you should never negotiate surely correct in his belief that “there are a lot of peo-
with an adversary whom you don’t trust or ple that can connect with the theme of the book,” which

PUBLIC INTEREST who you think is evil. He questioned, for

example, the Bush administration’s refusal
arises with great frequency in everyday business and
family situations. “There are many other stories that

INTERNSHIP
Housing attorney Jeffrey W. Purcell ’84 of Greater
Boston Legal Services is seeking an intern to
work on housing eviction and foreclosure cases.
The work would involve interviewing tenants,
going to Boston Housing Court, and doing regu-
lar paperwork. Interested students should email
Mr. Purcell at jpurcell@gbls.org or call
617-603-1648.
to negotiate or engage with Iran. And he
challenged the notions of some litigators
or public interest lawyers who think it is
always better to fight it out in court than to
negotiate a deal.
Rejecting both these categorical an-
swers, Mnookin expressed his view that
“the challenge is to make wise decisions at
a particular time in a particular context.”
Accordingly, the book endeavors to an-
swer the question, “By what process might
one try to go about making a wise deci-
sion?” When you’re thrust directly into the
presence of a devil, how can you avoid the
common traps (such as tribalism, demo-
nization, and dehumanization) that inhibit
clear, reasoned thinking? To answer this
question, Mnookin suggests a single
could be told” and “lots of other chapters” that could be
written, he said.
Mnookin also singled out what he called “the NPR
audience”—the “intelligent lay reader who is interested
in ideas” and who is especially likely to find the book
intellectually stimulating. Also, Blum remarked,
“There are definitely a number of contemporary lead-
ers I’d love to send the book to.” Last but not least,
Mnookin’s readers will surely include HLS students—
especially since he might assign some of the chapters of
the book in next year’s Negotiation Workshop.
Mnookin’s book should be considered required read-
ing for students and non-students alike. And within this
diverse readership, few are likely to disagree that if you
read Bargaining with the Devil, a face-to-face en-
counter with evil will never make you lose your wits.
Satan, for his part, would probably want this book
banned.
Page 8 Harvard Law Record February 11, 2010

Phoenix Mayor Paints Disturbing Picture of Immigrant Experience

BY MATTHEW W. HUTCHINS
Phoenix, the fastest growing major
city in the country, with a population of
over 1.7 million, has just surpassed
Philadelphia to become the fifth largest
metropolis in the nation. But this rising
star in the Southwest has an estimated
300,000 undocumented immigrant res-
idents, leading to a rising xenophobic
discontent among local residents and
increasing burdens on law enforcement,
especially due to the organized crime
operations smuggling immigrants
across the border.
Mayor Phil Gordon of Phoenix,
speaking at HLS on Friday, February
Ukraine, cont’d from pg. 1
prised to see President Yushchenko refuse neuver as Tymoshenko works feverishly to modern slavery when the coyotes
to endorse Tymoshenko, with whom he try to prevent the new president from
5th, said that the steady flow of illegal times forcing captives to dig their own seek to extort more money out of them.
immigrants into his city has created a graves while awaiting either freedom or “While I don’t condone the initial
crisis situation that is extremely dan- death. breaking of our federal
gerous for local law enforcement and a According to Gordon, law to enter this coun-
devastating drain on the city’s budget. over 20,000 people, in- try, I also understand
Although by statistical measures cluding women and chil- the reasons . . . the
Phoenix is one of the safest cities in the dren, have been rescued same reasons my
United States, it has experienced a by Phoenix police over grandparents had, to
wave of kidnapping and violent crimes the last three years from benefit their children
that have challenged its law enforce- “drop houses” where and their children’s
ment capacity. The problem, said dozens or even hundreds children.”
Mayor Gordon, is the violent behavior are held captive or even Gordon said that the
of the “coyotes” involved in human tortured, sometimes in fight against the coy-
trafficking operations across the nearby the midst of ordinary otes’ organized crime
Mexican border and who regularly kid- suburban neighbor- has forced the city to
nap, torture, rape and kill those who do hoods. These people, hire over 600 addi-
not comply with their extortion, some- who have often paid the tional police officers,
coyotes for transit many to replace the
into the United States, become 100 full-time officers assigned to fed-
lenge could be more than a stalling ma- victims of what Gordon called eral task forces investigating violent
Phoenix, cont’d on pg. 4

BLSA Wins Regional Mock Trial

stood on stages decrying the fraud of the forming a coalition government.
last election, and whose assistance led to Even if the results of this election are ul-
Yushchenko’s ultimate victory in the re- timately accepted with grace and dignity,
vote. But the last five years have pitted the future of the nation remains uncertain.
these two former allies against each other The specter of a severe fiscal crisis is over-
in a bitter fight for control of Ukraine’s na- shadowing all aspects of the national econ-
tional government, with a result of dead- omy, and the first priority of any
lock and division. government will likely be cooperation with
Now, with the votes counted in the run- the International Monetary Fund to put in
off election, it appears that the pro-Russ- place financing and a long-term restruc-
ian candidate for Party of Regions, Victor turing plan for the nation’s debt. The
Yanukovych, will become the next presi- longer it takes to form a government, the
dent. Although neither candidate took an greater the possibility of the country de-
absolute majority of the votes, faulting on its national debts and being un-
Yanukovych held on to a margin of victory able to pay pensions, benefits, and salaries.
of 3.4%, slightly less than the 4.4% who In the long term, the election of
voted against both candidates. Interna- Yanukovych appears to be set to bring
tional observers from the OSCE praised closer ties with Russia and a renewed em- Congratulations to the representatives of the Harvard Black Law Students
the election as “an impressive display of phasis on economic growth through indus- Association mock trial team, who took both first and second place at the
democratic elections” and dis- trial production. In a press Northeast Regional BLSA Convention competition the last weekend of Jan-
missed the argument that the release issued on February uary. Above (L to R): Anthony Hendricks '12, Charles E. Redmond II '11,
Orange Revolution had failed. 10, Yanukovych said that the Etienne Toussaint '12, Allison Reid '12, Ieshaah Murphy '12, Dominique
Rather, European observers nation needs to execute a Winters '10, Nneka Ukpai '11, and Julian Thompson '10. Allison Reid also
hailed the election as a trans- strategy for stimulating inno- won the prize for Best Advocate, with a perfect score.
parent example of fully func- vation in growth sectors like,
tioning democracy. The “steel-making, aircraft engi-
official tally of votes was ulti- neering, rocket engineering,
mately less than one percent the nuclear power industry,
off the results of national exit the military industrial com-
polls. plex and agriculture.”
Despite the praise from in- ON THE OUT Although the Soviet-era
ternational observers, Ty- Yulia Tymoshenko overtones of such statements
moshenko refuses to concede Source: Flickr’s Antonis Shen are clear, Yanukovych has
to her opponent. Press releases adopted a relatively centrist
from her party indicate that a legal chal- stance on many issues since his defeat in
lenge to the results will be forthcoming the 2004 elections. He now expresses
and decry the manipulation of results from openness to closer integration with Europe
the southeastern stronghold of her oppo- while at the same time welcoming renewed
nent’s party. But despite these accusations, ties to Russia. “We are the bridge between

RALPH BRUCE
no street protests have erupted. There has the West and East...We are choosing a
been no general rejection of the election. democratic path and our economy is

NADER F E I N
And her opponent has calmly begun issu- closely integrated with the economies of
ing press releases urging her to concede Russia and CIS countries, and it is becom-
and announcing his plans for the national ing more so with the West. It is important
government. that all these ties grow so that we can ex-
Tymoshenko, for her part, is probably ploit these advantages for the good of the
scrambling not only to assemble a case in country and our people.”
A H A R V A R D L A W R E C O R D E V E N T

COLLAPSE OF TH
court but also to build a parliamentary While the rhetoric may appear to em-

E
coalition that will allow her to retain her brace an open attitude toward international
control of the country’s Verkhovna Rada relations, the reality is that Russia’s rela-

RULE OF LAW
and national government. Yanukovych is tionship with Ukraine has been character-
seeking to form a new cabinet of ministers ized by ultimata and divide-and-conquer
and unite the national government in a tactics. Whether or not Yanukovych really
coalition behind his party, and he is urging desires open relations with Europe, he may
Tymoshenko to accept her fate and go into be forced by dire economic necessity to
Does the rule of law still animate lawyers at all levels of our
opposition. Tymoshenko’s own website re- turn toward the Kremlin for help. As the
nation's government and economy? Civic advocate and former
ported both the official results of the elec- Ukrainian economy wheezes, straining
presidential candidate Ralph Nader '58 will discuss the subject
tion, 48.95% for Yanukovych, 45.47% for under crumbling infrastructure and crip- with former FCC General Counsel and Deputy Attorney
Tymoshenko, as well as the exit poll re- pled by its dependency on Russian gas, the General Bruce Fein '72 and field questions from the audience.
sults of 48.5% and 45.7% respectively. lack of alternatives will make it difficult to
With a national absolute margin of over reject any course that does not involve
800,000 votes, it is unlikely that any chal- plunging headlong into a deep, dark abyss.
AMES COURTROOM | 2PM | FEB 2 3