Harvard Law2 HARVARD LAW BULLETIN Winter 2019 From the Dean Generations of Impact BY JOHN F. MANNING...

Harvard LawWinter 2019

bulletin

B E A R I N G

W I T N E S S

“ There was a community of people who were ready, who were willing—even desperate—for their stories to be told.”

Bryan Stevenson ’85 at the National Memorial

for Peace and Justice in Montgomery, Alabama

Winter 2019 / Volume 70 / Number 1

CONTENTS

Law’s Influencers

26

HLS faculty blogs on law-related topics are

reaching key audiences

Bringing Slavery’s Legacy

to Light

42

Bryan Stevenson ’85 creates a memorial and museum to foster con-versation on America’s original sin

Making the Case for Criminal

Justice Reform

30

A new generation of HLS scholars is focused on improving the system

Leading a

Movement

20

HLS alumnae share perspectives across

the decades

SET ON A 6-ACRE SITE IN MONTGOMERY, ALABAMA, THE NATIONAL MEMORIAL FOR PEACE AND JUSTICE USES SCULPTURE, ART, AND DESIGN

TO CONTEXTUALIZE RACIAL TERROR. PAGE 42

CRYSTAL YANG TAKES AN EMPIRICAL APPROACH TO CRIMINAL LAW.

PAGE 30

BET

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2FROM THE DEAN

Generations of impact

3LETTERS

Cases, connections, objections

4WRIT LARGE

A precarious state; The price is right;

Books in brief

8INSIDE HLS

Hal Scott’s questions and answers; The sky is (not) the limit;

Stock buybacks; Faculty sampler; 1607 Mass. Ave.

56CLASS NOTES

A ’60s experiment still reverberates; Remembering the Sammies;

A pioneer’s logic; The last palace; HLS in Congress;

Tackling a big job; A high court reunion

69IN MEMORIAM

Remembering alumni

70HLSA NEWS

Profile of a new president

72LEADERSHIP

Patti B. Saris ’76

74GALLERY

The understated art of the Bauhaus at Harvard Law

Harvard Law Bulletin

ASSISTANT DEAN FOR COMMUNICATIONSRobb London ’86

EDITOREmily Newburger

MANAGING EDITORLinda Grant

EDITORIAL ASSISTANCE Michelle Bates Deakin, Christine Perkins,

Lori Ann Saslav

DESIGN DIRECTOR Ronn Campisi

EDITORIAL OFFICEHarvard Law Bulletin

1563 Mass. Ave., Cambridge, MA 02138Email: [email protected]

Website: today.law.harvard.edu/bulletin

Send changes of address to: [email protected]

The Harvard Law Bulletin (ISSN 1053-8186) is published two times a year by Harvard Law School, 1563 Massachusetts Ave.,

Cambridge, MA 02138.

© 2019 by the President and Fellows of Harvard College. Printed in the USA.

“ I’m inspired by what we’re seeing across the country in terms of women’s empowerment. I believe it’s a movement, not just a moment.” PAGE 20

ON THE COVER: Bryan Stevenson at the National Memorial for Peace and Justice, which opened in April along with the Legacy Museum. Both were created by Stevenson and the Equal Justice Initiative, which he founded and directs. Photograph by Beth Perkins

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2 HARVARD LAW BULLETIN Winter 2019

From the Dean

Generations of Impact

BY JOHN F. MANNING ’85

Harvard Law School community members are engaged in exciting and impactful work on issues of large import—work that is framing national conversations among leaders and policymakers. The stories in this issue of the Bulletin reflect a sample of this influential work. They also reflect our collective determination to foster a vibrant intellectual community defined by diversity of thought and by a premium put on mentorship and forging connections across generations of faculty, students, and alumni.

This issue showcases the

work of five HLS scholars

tackling pressing issues of

criminal law and justice.

I am especially excited that this issue of the magazine showcases the multifaceted work of five assistant professors with di-verse interests and expertise in the field of criminal justice: Andrew Manuel Cre-spo ’08, Elizabeth Papp Kamali ’07, Anna Lvovsky ’13, Daphna Renan, and Crystal Yang ’13. A great deal of their scholarship tackles the same pressing issues of crimi-nal law and justice that underlay the work of our late colleague William Stuntz, whose monumental book—“The Collapse of Amer-ican Criminal Justice,” published in 2011—diagnosed increasingly acute pressures upon America’s criminal courts and prisons, with corresponding prognoses of crisis in the absence of reform. These dynamic schol-ars are doing rigorous doctrinal, historical, institutional, and quantitative research that helps us understand more deeply our criminal justice system and in-forms its effective reform. Their work con-tinues a great tradition of a long line of HLS scholars whose writing has illuminated the moral, political, and economic challenges posed by crime and punishment in America.

In a related vein, in this issue of the Bul-letin, we also proudly highlight the work of our distinguished graduate and MacArthur genius grant winner Bryan Stevenson ’85, who founded the Equal Justice Initiative, the renowned legal advocacy organization working on behalf of the condemned and wrongfully convicted. Last year he and EJI

opened a striking and important new museum and memorial in Ala-bama, connecting America’s shame-ful legacy of slavery and lynching to modern-day failures in our criminal justice system.

I am also confident that you will be interested in our coverage of Celebration 65, the gathering we hosted in September marking the 65th anniversary of the first enter-ing class at HLS to include women. It was an enormous privilege for me personally to welcome the amazing-ly accomplished women who came

back for C65, including Nicole Kerno, Ann Pfohl Kirby, and Judge Sondra Miller, three pioneers from the Class of 1953. It was tru-ly awe-inspiring to reflect on the attendees’ narratives, leadership, and experiences. In the pages that follow, the Bulletin gathers the perspectives of some of the alumnae who returned to campus to participate—includ-ing a former head of state and many distin-guished leaders in the law, government, business, and throughout our profession.

This edition also includes a feature story on the increasingly important role of HLS blogs in the realm of up-to-the-minute le-

gal scholarship. Not surprising-ly, HLS faculty blogs and online forums are tremendously influ-ential in a wide variety of fields, attracting readers and contrib-utors from the highest levels of government, academia, law, and business. They also support ro-bust debate and discourse among

people with widely different perspectives. I highly recommend them if you are not al-ready following them.

As always, the magazine brings you a roundup of the latest faculty scholarship, alumni authors, campus happenings, and the news sent in by you, our terrific alumni. We hope you enjoy it!

Winter 2019 HARVARD LAW BULLETIN 3

Letters

HLS CONNECTION

Kudos on another outstanding is-sue (Summer 2018). I don’t have a lot of contact with HLS these days, and your publication keeps me well informed. I was sad to read of the passing of my classmate Jack E. Robinson ’85.

I very much enjoyed the “From the Dean” letter from another classmate, John F. Manning ’85, but one sentence saddened me for a different reason. It was only because of a despicable act of rank partisanship by Senate Majority Leader Mitch McConnell that the sentence “Less than a decade later, the Chief Justice swore in another HLS alumnus, Justice Neil M. Gor-such ’91” does not read “Less than a decade later, the Chief Justice swore in another HLS alumnus, Justice Merrick B. Garland ’77.” Future generations of HLS stu-dents will get to debate the ram-ifications of McConnell’s action.

Keep up the great work!BOB WELLS ’85

Chantilly, Virginia

BULLETIN OR ONION?

Your Summer 2018 issue read al-most like an Onion satire of the politically correct left. Is there any issue or activity that does not involve oppressed minorities, systemic injustices, or pet liberal causes? Maybe you should devote just a little time and attention to the majority and the mainstream.

RICHARD SYBERT ’76San Diego

NOTHING SHORT OF INSPIRING

Your Summer issue was nothing short of inspiring to this J.D. ’55 LL.M. ’59 and former faculty as-sistant. The new directions re-sponding to serious societal prob-lems did not exist back then; and the expansion of legal education

responding to the hiring firms’ words “Send us lawyers who can practice law” was in its infancy. For me that move began in 1957-1958 when Dean Griswold asked famed Boston litigator Jim St. Clair to initiate a Trial Practice seminar and asked me to run a drafting competition (The Willis-ton Competition). This link from law school to practice has vastly expanded to become the substan-tial part of legal education that it is today.

MILTON BORDWIN ’55 LL.M. ’59 Boston

EARLY CLASSROOM-COURTROOM LINK

The Harvard Law Bulletin for Summer 2018 was excellent, with its celebration of HLS clinics. It re-minded me of my experience with the Harvard Legal Aid Bureau.

There also came to mind the case of Poindexter v. Prosser. Are you familiar with that litigation?

William Poindexter ’49, a fellow Kansas City citizen, was my class-mate. To the best of my recollec-tion, the facts are these:

Our professor, [William] Pross-er, asked if anyone in the Bills and Notes class had a $5 bill. Poindex-

ter responded with the bill. Pross-er then pocketed it and announced that he would keep it until Poin-dexter figured out what to do. After class, Poindexter marched down to the Middlesex County Courthouse and filed a lawsuit.

The case received some publici-ty, as I recall. But fame is a fleeting thing. Worthy of resurrection for your readers, however.

EDWARD T. MATHENY JR. ’49Kansas City, Missouri

EDITOR’S NOTE: In April 1948, The Harvard Crimson and The Har-vard Law Record both devoted sev-eral articles to the “famous Case of the Five-dollar Bill.” In the end, after being initially scheduled for the Third District Court of Cam-bridge, Poindexter v. Prosser was tried in the Court of the Common-wealth of Ames. According to an article in The Harvard Law Re-cord, Prosser was the victor in the case. In the end, the author opined, “Poindexter fared rather well.” The professor treated his student and his student’s wife, the plaintiff’s counsel, and the judge to a steak dinner. “The check was somewhat in excess of $5.”

WRITE to the Harvard Law Bulletin: [email protected]; 1563 Massachusetts Ave., Cambridge, MA 02138. Letters may be edited for length and clarity.

HLS CASES

The Bulletin story “When we’re needed, we’ll show up” by Latria Gra-ham, reporting on the recent wave of students focused on immigrant rights, won a Bronze in the feature writing category last spring in the

2018 CASE (Council for Advancement and Support of Education) Circle of Excellence competition.

“All Rise,” a video edited by our colleague Lorin Granger, was also a CASE winner. It brings the Ames Moot Court Competition to the screen, through archival footage and interviews with former oralists. See bit.ly/Allrisevideo. If the case you argued is not featured in the film, you might find it in the HLS Ames Moot Court Com-petitions Archive at bit.ly/HLSamesmootcourtarchive.

4 HARVARD LAW BULLETIN Winter 2019 ILLUSTRATION BY ANDY MARTIN

THINK OF AN HONEST USED CAR salesperson. The very idea might seem like an oxymoron. That’s not because no honest people ever sell cars. It’s because the profession as a whole is not considered trustworthy by the public.

What if that sense of mistrust were not limited to the used car lot but had spread to institutions the public re-lies on every day?

It has, according to Harvard Law School Profes-sor Lawrence Lessig, and he sounds the alarm about the damage it is doing to the nation in his new book,

“America, Compromised.” Lessig has previously written on what he calls

the “institutional corruption” of Congress, whereby members are most responsive to the needs of a small cadre of funders rather than their constituents. In this book, he contends that corruption also pervades finance, the media, the academy and the law.

“Those institutions fail to the extent that people have a deep mistrust of [them],” Lessig said in an interview. “This dimension of public trust is an es-

A Precarious StateA new book warns that institutional corruption is corroding our nation

sential part of what I set out as the problem of insti-tutional corruption.”

The book came out of Lessig’s experience directing Harvard’s Edmond J. Safra Center for Ethics, where he launched a related project, and is based on a lec-ture series he gave about the results. As he makes clear, his labeling an institution as corrupt does not mean that he believes the people within it are evil. In fact, he argues that the problem of evil people doing bad deeds is dwarfed by the problem of good people who are compromised, typically by a financial influence that skews the intended purpose of the institution.

That could mean prosecutors who make deals with corporations rather than prosecuting them in order to be considered for a much higher-paying job in the future with a white-collar defense firm; academic re-searchers who publish more favorable results when funded by an industry that would benefit from that conclusion; journalists whose coverage is driven by what would be most profitable rather than what would inform the citizenry; or financial rating agencies that offer favorable ratings instead of objective analyses in order to secure business.

These kinds of compromises weaken the effective-

Writ Large | Faculty Books

ILLUSTRATION BY FRANCESCO CICCOLELLA

ness of the institutions and contrib-ute to a national decline, Lessig contends. He offers potential rem-edies to the problem, ranging from increased regulation of finance to establishing a general pooled fund for academic researchers so they would not know who was funding their work.

Lessig has long called for public financing of political campaigns, and he explored a presidential run in the last election to make that his central plank (he dropped out when the Democratic National Commit-tee wouldn’t allow him to partic-ipate in the candidates’ debate). He hasn’t decided whether he will pursue a run in 2020 but doesn’t see any other candidate who would pri-oritize campaign finance reform.

He also espouses higher taxation of the wealthy, not only to fund the government but also to address the problem he says is at the root of in-stitutional corruption: economic inequality, which is why, he writes,

“so much of public life now finds itself so easily seduced.” As the constitutional law professor notes, the framers intended for equality to be the defining feature of the new nation.

“You can’t have a republic where there is radical inequality,” he said. “We’re learning up close and personal exactly why that’s true. And these institutions I’m talking about I think are frontline exam-ples of that.”

With the book, Lessig aims to start a conversation and perhaps motivate those “good people” with-in the corrupt institutions to seek reform. He has taken a stance on public causes previously, includ-ing on network neutrality and copyright issues. But the problem of corruption, he said, is the most important battle for him to wage now. And if that battle may take a long time and may not be easy to win, that doesn’t mean not to try. It means that it’s imperative to start right away. —LEWIS I. RICE

The Price Is Right Sunstein details how government can best spend money to benefit the public

It hardly seems possible, but HLS Professor Cass Sunstein ’78 argues that for all their differ-ences, every president since Ronald Reagan has agreed on one fundamental principle of government. That is, “No action may be taken unless the bene-fits justify the costs.” Sunstein identifies President Reagan as the main architect of this con-cept, and he credits the pres-ident he served under, Barack Obama ’91, with cementing what he calls “the cost-benefit revolution,” which is also the title of Sunstein’s new book, published last summer by MIT Press.

Sunstein, who was adminis-trator of the White House Of-fice of Information and Regu-latory Affairs, contends in the

book that the revolution—made possible by experts who answer difficult questions of fact—both increases welfare and respects individual autonomy. Some of the facts may seem cold, such as calculating the value of human life in order to assess the benefits of regulation, yet are often necessary to make choices that benefit a large population.

For areas where people perceive the possibility of serious harm, such as the environment, privacy and national security, they may embrace the “precautionary principle,” a willingness to incur costs because it is better to be safe than sorry. But Sunstein writes that

precautions themselves can create risks. Instead, he says we should avoid gratuitous costs (for example, regulation that may save a small number of lives while costing more than a billion dollars), illicit grounds (such as using surveillance on people because of their political views) and using worst cases to drive policy.

Sunstein celebrates a “technocratic conception of democracy,” in which gov-ernment officials focus on “the magnitude of relevant events, with lots of numbers.” That would mean an official who believes in environmental regulation would eschew one that costs a lot of money and provides limited benefits, just as someone who dislikes regulation would embrace one that prevents premature deaths at limited costs. He acknowledges that a cost-benefit analysis can’t provide total insight into improving human welfare, which should be the ultimate goal of public policy. At the same time, cost-benefit analysis has been extremely successful in saving lives and money, he writes, even if the revolution isn’t finished. —LEWIS I. RICE


6 HARVARD LAW BULLETIN Winter 2019 ILLUSTRATIONS BY BARBARA OTT

“Big Data, Health Law, and Bioethics,” edited by I. Glenn Cohen ’03, Holly Fernandez Lynch, Effy Vay-ena and Urs Gasser LL.M. ’03 (Cambridge)With the increased use of a massive volume and va-riety of data in our lives, our health care will inevi-tably be affected, note the editors of this collection. The volume stems from a conference organized by the HLS Petrie-Flom Center for Health Law Policy (where Cohen, an HLS professor, is faculty director and Lynch was executive director) and the Berkman Klein Center for Internet & Society at Harvard (where Gasser, an HLS professor of practice, is executive di-rector). We are in the early stages of the health care system’s encounter with big data, the editors write, with the benefits and perils uncertain. Will data be used for good or ill? Will it disrupt health care? Will we be able to protect our privacy? What role will law play? Which ethical concerns will arise? The essays in this volume look at those questions and more, of-fering explorations of “the possible worlds to come.”

“Butterfly Politics,” by Catharine A. MacKinnon (Belknap Harvard)A visiting professor at HLS for many years, Mac-Kinnon has published a collection of her writing and speeches from the past 40 years, which present ideas that have brought her to the forefront of efforts to end sex inequality around the world. The title is a

reference to the butterfly effect, the proposition that a small action can reverberate in much greater ways. In the same way, MacKinnon believes that seemingly minor interventions in the legal realm can generate major social and cultural transformations. The col-lection covers topics such as pornography, prostitu-tion and sexual harassment, highlighting efforts to make our legal system, which was ”not designed by women,” work for “equality of the sexes.”

“Challenging Organized Crime in the Western Hemisphere: A Game of Moves and Counter-moves,” by Philip B. Heymann ’60 and Stephen P. Heymann ’82 (Routledge)HLS Professor Emeritus Philip Heymann, who served in the State and Justice departments, and his son, Stephen, a former federal prosecutor, highlight the dangers and new threats from organized crime in the U.S. and globally. The dangers include new drugs like fentanyl and extortion opportunities facilitated by electronic means like ransomware. The authors de-scribe deficiencies in traditional methods of fighting organized crime and outline institutional changes needed in law enforcement, including enhanced co-operation between countries’ police and prosecutors. With a rise in violence from cartels and widening ille-gal activities, organized crime remains a paramount concern during a time in which terrorism is often perceived as the greater problem, they contend.

IN BRIEF

WRIT LARGE | FACULTY BOOKS


“Constitutional Democracy in Crisis?” edited by Mark Tushnet, Sanford Levinson and Mark A. Graber (Oxford)HLS Professor Tushnet, Visiting Professor Levinson and Mark Graber present essays addressing global concerns with the health of constitutional democ-racy. The book contains a section that offers histor-ical perspectives on the fall of the Weimar Republic during an earlier period of perceived constitutional crisis. Other essays focus on how forces such as cli-mate change and immigration influence constitu-tional democracy. The editors note that perspectives are more pessimistic than they would have been in the past, given the previous decade of “constitutional backsliding.”

“Governance Feminism: An Introduction,” by Janet Halley, Prabha Kotiswaran, Rachel Rebouché and Hila Shamir LL.M. ’05 S.J.D. ’08 (Minnesota)HLS Professor Halley and her three co-authors exam-ine how feminists have wielded power and influenced society in state and state-like institutions. In the first part of the book and its conclusion, Halley address-es areas in which feminists have changed the legal order, including on prostitution, domestic violence, and workplace rights. She also writes on what kinds of feminism have been most influential and the ef-fectiveness of feminists’ work to bring about change.

Other writers present case studies on international efforts to improve laws on rape, anti-trafficking and reproductive rights.

“Law and Legitimacy in the Supreme Court,” by Richard H. Fallon Jr. (Belknap Harvard)There have long been Supreme Court decisions that many people have vehemently disagreed with. In a book that includes perspectives on law, political science and political theory, HLS Professor Fallon explores how the Court best justifies such decisions. For legitimacy to occur, he contends, the justices must stay within the bounds of law, exhibit rea-sonable moral judgment and provide good-faith arguments for their conclusions. He also offers recommendations, such as adhering to judicial re-straint in overturning legislation, in order to stave off cynicism that justices are driven primarily by ideology.

Page to Screen In her 2008 book, “Chasing the Flame,” HLS Profes-sor of Practice Samantha Power ’99 presented the dramatic life story of U.N. diplomat Sergio Vieira de Mello, killed during the war in Iraq. The story is now slated to unfold on-screen in a Netflix production. Brazilian actor Wagner Moura will portray Vieira de Mello, who has been called “a cross between James Bond and Bobby Kennedy.”

8 HARVARD LAW BULLETIN Winter 2019 PHOTOGRAPH BY MARK OSTOW

Inside HLS


T R I B U T E

‘Quid Ita?’ Hal Scott’s Questions and AnswersOne of the international financial system’s great thinkers retires from HLS

HARVARD LAW PROFESSOR HAL S. Scott was in his element, thun-dering up and down the aisles of a classroom in Wasserstein Hall and challenging each of his 70 Capital Markets Regulation students to match his enthusiasm and curi-osity.

After 43 years on the HLS facul-ty, Scott taught his final class at the school before retiring last spring. What is the best process, he asked, for ensuring that regulations for the financial system achieve their intended effect?

As one of the country’s pre-emi-nent scholars on financial regula-tion and head of the Committee on

Capital Markets Regulation, Scott continues to focus on that question and many others. He founded the committee, a bipartisan group of 375 financial leaders that advis-es the highest levels of the U.S. government on financial markets policy, in 2006 at the invitation of then-U.S. Secretary of the Trea-sury Henry M. Paulson.

Scott’s classes were marked not only by his enthusiasm but also by their deviation from the casebook method of studying judicial opin-ions. (The same is true of his book on international finance—the first legal textbook on the topic, now in its 22nd edition.)

His classes focused on the policy problems that form the basis of the legal and regulatory framework that governs the U.S. financial sys-tem. His students had to ask and answer, for example, What should regulators and Congress do to protect our financial system from a crisis without unduly restricting economic growth?

After he received an M.A. in po-litical science from Stanford Uni-versity and a J.D. from the Univer-sity of Chicago Law School, Scott’s legal career took flight in 1973-1974, when he clerked for United States Supreme Court Justice By-ron White—the only member of the high court, Scott notes, to have

also starred in the National Foot-ball League. The young Scott, un-like the other Court clerks, wanted to work on non-constitutional law cases, like antitrust and tax.

Scott thinks of White as a men-tor and says one of the things he learned from the justice was the importance of brevity of expres-sion.

Scott joined the Harvard Law faculty in 1975, the same year as his closest friend since high school, Douglas H. Ginsburg, who went on to be a judge on the U.S. Court of Appeals for the D.C. Cir-cuit. In 1980, they co-taught the country’s first law school course on the regulation of financial insti-tutions. That experience sparked a lifetime interest in the field for Scott.

Ginsburg has the highest praise for Scott: “Raising questions and getting to the bottom of them is al-ways a game with Hal, and he has been a great teacher and scholar because he has never stopped ask-ing naïve questions. If Hal had a motto, it would be not ‘Veritas’ but ‘Quid ita,’ Why is it so?”

Scott has taught many students who have gone on to careers in public service. Peter Fisher ’85, former undersecretary of the U.S. Treasury, says, “With boundless energy and enthusiasm, Hal Scott showed me how careful legal and logical analysis could unravel the mysteries of money and finance, guiding both my thinking and my career.” And Jack Reed ’82, senior U.S. senator from Rhode Island, says, “Professor Scott’s physical energy and class preparation were second to none.”

Scott is also a mentor to the dozens of HLS students who were research associates at the Com-mittee on Capital Markets Regu-lation. Adam Jenkins ’11 recalls, “I was privileged to learn from one of the international financial

Hal Scott joined the HLS faculty in 1975.

“Hal Scott

showed me how

careful legal and

logical analysis

could unravel

the mysteries of

money.” —Peter

Fisher ’85, former

undersecretary,

U.S. Treasury


system’s great thinkers, at an historic moment from 2008 to 2011 when that system was in jeopardy.” Many of the commit-tee’s recommendations after the crisis were ultimately adopted into the 2010 Dodd-Frank Act.

Scott’s scholarship at HLS was always international, and in 1986, he founded the Program on International Financial Systems at Harvard Law School. The pro-gram, known as PIFS, organizes annual gatherings of senior pol-icymakers, financial executives, and academics from China, Eu-rope, and Japan.

In July, at the time of his re-tirement, Scott spun PIFS out from Harvard Law School into an independent organization, and he recently expanded its focus to include executive education for financial regulators across the globe.

While Scott will clearly be busy in his retirement from HLS, he says that he “will miss the stu-dents and preparing for class the most. HLS students were the best in the country in 1975, and they remain so today. A career of grappling with how to solve complex problems with these students is a career well-spent.”

“Financial innovation will not stop, and neither will the policy issues that it creates,” he adds. “It will always be interesting.” Sounds an awful lot like Profes-sor Hal S. Scott himself.

—JOHN GULLIVER ’10, execu-tive director of the Program on International Financial Sys-tems and executive director of research at the Committee on Capital Markets Regulation

S T U D E N T S N A P S H OT

The Sky Is (Not) the Limit Capturing Jameyanne Fuller ’19 isn’t easy—but let’s start with space law, science fiction and a dog named Neutron

Space law

“was a way

to combine

all the things

I love,” says

Fuller.

For Jameyanne Fuller ’19, outer space represents infinite possibilities. “I’ve always been an astronomy nerd,” she says. “I went to space camp in third grade, and I took all of the space-focused classes I could in college, but the technology wasn’t really there for me to be a science major.”

That’s a passing reference to the fact that Fuller was born blind. In col-lege, it was easier to pursue other pas-sions—literature and creative writing. Which isn’t to say Fuller shies away from challenging situations. After graduating from Kenyon College,

the New Hampshire native traveled to Italy on a Fulbright Scholarship, teaching English and chemistry to students in Assisi, a town of 25,000 in the Umbria region.

Italy has laws in place to ensure guide dogs can enter places of busi-ness and public spaces. But often Fuller and her black lab, Mopsy, were barred by store owners who felt dif-ferently. “Everything in college went so smoothly,” she says. “This was the first time I had to advocate for my-self, but it wasn’t to get a textbook or an assignment. It was, I need to get on this bus. I need to get into this store to buy milk. And it was in a different language.”

She laughs now, at what was no doubt an unpleasant, stressful ex-

perience. The prevailing attitude, she explains, was that anyone with a disability should be at home with family. But by the end of the year, people told her they were using her example to encourage other blind people they knew. “I saw the dif-ference I could make, just by buy-ing groceries,” she says. The year abroad convinced her to apply to law school, with the goal of becom-ing a disability rights lawyer.

Everyone told Fuller the first year of law school would be a serious undertaking, but she was still tak-en by surprise: “I’ve never worked so hard or felt so stupid.” But there were plenty of wonderful discov-eries, too. In her 1L property class, Fuller heard about space law, a field she hadn’t even known existed. “It was a way to combine all the things I love,” she says simply. “Space law has been around in some form since the Russians launched Sputnik, but it’s still undefined and completely fascinating.” There are a number of international treaties and federal regulations, she explains, but many unanswered questions remain in the area of private industry. Can a for-profit company mine an aster-oid, for example, when internation-al regulations state that no country can own it?

Space, as it happens, also figures in Fuller’s writing, which mostly falls into the science fiction and fantasy genres. “I get cranky if I don’t write,” she says. “At orientation, they told us to have something outside law school—something that is yours—to

INSIDE HLS

◀ HAL SCOTT from previous page

ground you. Writing does that for me, and there’s also the aspect of escaping into a story and creating something completely new.” With several published short stories under her belt, Fuller is drafting a middle-grade science fiction novel and working to complete a few more stories. “I’ve taught myself to write

in those awkward 10- or 15-minute spaces that you think are too short to do anything,” she says.

Fuller also keeps a blog, where visitors can find links to her fiction, book recommendations, reflections on space law and guest posts from Neutron, the guide dog she part-nered with in 2017 when Mopsy

retired. “The first time you get a dog, it’s almost like a miracle,” she says. “You feel like you’re flying down the street.” Neutron does things a little differently from Mopsy, Fuller says. He’s much faster, for one, and likes a challenge, choosing to slalom his way through a construction zone rather than go straight through. “You learn to sense what the dog is doing through the handle of the harness,” she says. “If I’m stressed out, my dog knows it. If he’s stressed out, I know it. Sometimes I can feel him turn to look up at me, as if to say, I did it right, didn’t I?”

Becoming oriented in a new area requires effort, even with a guide dog. Fuller has become expert at making tactile maps with puffy paint and braille labels. A recent change in location for trivia night required a scouting trip to determine the best route through a complicated inter-section near Porter Square. When it comes to navigating coursework, she shows off a Braille tablet used for everything—reading cases, tak-ing notes, surfing the internet.

But mostly, Fuller has no interest in dwelling on what differentiates her as a blind person. At HLS she’s involved with the Harvard Journal of Law & Technology and the Harvard Negotiation Law Review, in addition to serving as vice president of spe-cial projects for the Space Explora-tion & Admiralty Law Society. After graduation, she’s looking forward to “getting out there and doing what I’ve been studying for,” hopefully in a federal agency that intersects in some way with space law and technology—maybe even NASA, someday.

One blog post eloquently ad-dresses the question of why Fuller would shift from disability law. She writes, “Disability rights means ... pursuing the career I want to pur-sue. ... There is a lot of value in see-ing someone with a disability doing something totally unrelated to their disability. And really, this is the point of disability rights: to let people do whatever they want to ... just like everybody else.” —JULIA HANNA

PHOTOGRAPH BY JESSICA SCRANTON Winter 2019 HARVARD LAW BULLETIN 11

Jameyanne Fuller with Neutron

12 HARVARD LAW BULLETIN Winter 2019 PHOTOGRAPH BY DANA SMITH

INSIDE HLS

RECENTLY, stock buybacks—the wide-spread practice of public firms repur-chasing their own shares in the open market—have been targeted as a cause of income inequality, with some Democrats on Capitol Hill call-ing for restrictions or even a ban on such transactions. Compa-nies, they say, should use the cash to invest in R&D or pay high-er wages to workers, rather than put mon-ey into buybacks to enrich shareholders and senior executives. Harvard Law Profes-sor Jesse Fried ’92 first became interested in the use and misuse of repurchases as an Olin Fellow at HLS in the mid-1990s. He has recently co-written several articles on the topic, including “Are Buybacks Re-ally Shortchanging Investment?” with Charles C.Y. Wang in the Harvard Business Review. Here, Fried offers perspective on a complex, and increas-ingly political, topic.

F A C U L T Y V I E W P O I N T S

What’s the Deal with Stock Buybacks?Jesse Fried says they are problematic, but not necessarily for the reasons you’ve been hearing


There has been quite a lot of media attention—most of it unfavorable—for stock buybacks. Why?For the last decade or so, the U.S. has been experiencing sluggish growth and growing inequality. Many claim both problems are due to large payouts by public firms to shareholders, mostly via stock buybacks. These buyback critics often point to a 2014 study finding that S&P 500 firms have been dis-tributing over 90 percent of their net income to investors through repurchases and dividends.

The cash used to repurchase shares, it is claimed, could have been used for growth-stimulating investment or to pay higher wag-es. As buybacks soared in 2018 due to the 2017 tax reform, this criti-cism intensified, and legislation in the Senate was introduced to ban them altogether.

While both dividends and buy-backs move cash from firms to shareholders, repurchases tend to attract the most criticism because they are more easily abused to en-rich executives.

Your research challenges the notion that buybacks are preventing com-panies from investing for the future. Can you explain?If increasing levels of buybacks were actually depriving firms of cash needed for investment, we’d expect to see this effect in the data. But my research with Charles Wang shows that R&D spending by public firms is at a record high, both in absolute terms and rela-tive to revenues. A broader mea-sure of investment—R&D plus capital expenditures (CAPEX)—is at record levels in absolute terms and near-record levels in relative terms. And public firms are not cash-constrained from spending more. Indeed, over the last decade cash balances have risen from about $3.5 trillion to a record $5 trillion. Of course, we don’t know whether investment is

at optimal levels; maybe R&D and CAPEX should be even higher. But if investment is insufficient, cash-draining buybacks cannot be the cause.

Such high levels of investment and cash holdings seem hard to square with the finding that buy-backs and dividends by S&P 500 firms total over 90 percent of net income. But that’s because this ratio—buybacks and dividends to net income—actually tells us very little about how much of the value that is available for internal investment goes to shareholders. First, the numerator reflects gross payouts to shareholders: repur-chases and dividends. But mar-ketwide, about 80 to 90 percent of buybacks are offset by equity issuances, which move cash from investors back to firms. Net share-holder payouts—repurchases and dividends, less issuances—are only about 40 percent of net in-come. Second, the denominator— net income—is not a good measure of resources available for invest-ment, as it reflects what’s left after a company invests in R&D. Across all public firms, net shareholder payouts as a percentage of income available for investment are only about 33 percent, with plenty left to be invested or stockpiled for a rainy day. This explains why we can observe both high levels of buybacks and rising investment and cash balances.

How would you respond to the argu-ment that companies should be pay-ing higher wages with that money?Profitable corporations are not the right vehicle for redistributing wealth, in my view. It’s important to remember that not all firms turn out to be profitable. Many fail, generating losses for inves-tors. However, investors expect that gains from those firms that are profitable—some of which go public—will more than offset these losses. If we start taking a portion

of the profits generated by suc-cessful firms and diverting them to non-investor constituencies, in-vestors’ now-reduced gains from winners may no longer offset their losses. The incentive to finance new and growing companies would decline, impairing investment and job creation throughout the econ-omy. If redistribution is desired, the appropriate vehicle is tax pol-icy.

You noted that buybacks can be abused. How does this occur, and how can it be addressed?Executives whose bonuses are based on earnings per share, or EPS, may be able to trigger a bo-nus by aggressively repurchasing shares to shrink the share count. There’s evidence of such undesir-able manipulation. Repurchases can also be used to exert buying pressure to push up the stock price before executives sell their shares. That’s not a good thing either. Finally, stock-owning ex-ecutives with inside information suggesting that a firm’s shares are underpriced can increase the val-ue of their own shares by having the firm buy back cheap stock. It’s like insider trading, but via the corporation.

All of these abuses could be mit-igated by improving disclosure re-quirements for repurchases. Right now, a firm buying its own stock in the open market need not disclose these transactions until several months after they occur, and must only report monthly averages. I have proposed subjecting firms trading in their shares to the same disclosure requirements imposed on their officers and directors: requiring disclosure of each indi-vidual trade within two business days. Such fine-grained real-time disclosure would quickly reveal abusive buyback transactions to regulators and investors, enabling them to take appropriate action. —JULIA HANNA

HLS Professor Jesse Fried is an expert on corporate governance.

14 HARVARD LAW BULLETIN Winter 2019 ILLUSTRATIONS BY JAMES YANG

INSIDE HLS

“Algorithmic Price Discrimination: When Demand Is a Function of Both Preferences and (Mis)Perceptions” By Professor Oren Bar-Gill LL.M. ’01 S.J.D. ’05 Forthcoming in the University of Chicago Law Review, Vol. 86

“TO MAXIMIZE PROFITS, SELLERS LIKE TO ENGAGE IN price discrimination—to set higher prices for con-sumers who are willing to pay more and lower prices for consumers who are willing to pay less. In the past, such price discrimination was limited to coarse cate-gories, e.g., setting higher prices for business travel-ers and lower prices for leisure travelers. No longer. Fueled by big data, algorithmic price discrimination is able to parse the population of potential custom-ers into finer and finer subcategories—each matched with a different price. In some cases, sellers are even able to set personalized pricing, marching down the demand curve and setting a different price for each consumer.

“A recent study found that many retail-ers and travel sites set personalized prices that vary by hundreds of dollars from one consumer to the next. Indeed, new play-ers, intermediaries, are appearing with the express purpose of identifying con-sumers’ willingness to pay and selling this information to retailers who then use it to price discriminate.

“Price discrimination is based on the ability to identify the consumer’s will-ingness to pay (WTP). Indeed, the concept of WTP is central to any discussion of price discrimination. And yet the richness and subtlety of this concept has not been fully recognized. Standard accounts of price discrimination assume, often implicitly, that a con-sumer’s WTP is derived entirely from that consumer’s preferences (and budget constraint). …

“This view of WTP, I argue, is too narrow. In ad-dition to preferences, a consumer’s WTP is affected by the consumer’s perceptions or misperceptions. ...

“A more complete understanding of WTP as a product of both preferences and (mis)perceptions has significant positive and normative implications. In the standard model, where WTP reflects only pref-erences, price discrimination harms consumers, but increases efficiency. Consumers are harmed, since the seller—monopolist or any seller with sufficient

IN THEIR OWN WORDS Excerpts from recent and forthcoming faculty articles

market power to engage in price discrimination—extracts the entire surplus by setting a price that is just below each consumer’s WTP. Efficiency is in-creased, because price discrimination eliminates the monopoly deadweight loss. … When WTP reflects both preferences and misperceptions, specifically de-mand-inflating misperceptions, price discrimination hurts consumers even more and might also reduce efficiency. The harm to consumers increases, since consumers pay a price that is equal to their perceived benefit, which exceeds their actual benefit. While in the standard model consumers are left with no gain, here consumers suffer an actual loss. Efficiency is also compromised, because price discrimination combined with overestimation leads consumers to purchase products when the cost of production ex-ceeds the actual benefit (but not the higher, perceived benefit). With a larger distributional cost and a small-er efficiency benefit, or even an efficiency cost, the case for legal intervention becomes much stronger. ...

“Personalized pricing … requires a policy response. And while existing legal frameworks can be used to combat price discrimination, the most promising or, at least, the most intriguing policy response would fight personalized prices with personalized law. Per-sonalized price caps and personalized disclosure can effectively reduce the adverse effects of price discrim-ination by curbing sellers’ ability to set prices above consumers’ true, preference-based WTP. When the market employs personalization, regulators should fight fire with fire and seriously explore the potential of personalized law.”

“The Government Could Not Work Doctrine” By Assistant Professor Nikolas Bowie ’14 Forthcoming in the Virginia Law Review, Vol. 105, No. 1

“THE SUPREME COURT HAS RECENTLY DECLARED THAT it is presumptively unconstitutional for the govern-ment to compel individuals to do or pay for things to which they have religious or political objections. Last Term, the Court applied this declaration to uphold the First Amendment arguments made by public-sec-tor employees, and it appears poised to vindicate sim-ilar claims by religious objectors to antidiscrimina-tion laws in the future. But this declaration is wrong. Indeed, throughout American history—from the Articles of Confederation through Lochner v. New

Sellers can parse the population of potential customers and set personalized pricing for each.


York and Employment Division v. Smith, the Court itself has repeatedly rejected the notion that compulsory laws, in and of themselves, are presumptively unconstitutional.

“This Article offers a novel examination of the history of challenges to compul-sory laws inside and outside the context of the First Amendment. For centuries, the Supreme Court has faced hundreds of challenges to objectionable taxes, objectionable drafts, objectionable regulations, and objectionable funding conditions. With few excep-tions, the Court has responded that the ‘government could not work’ if it lacked the power to compel peo-ple to do things to which they objected. Although the Constitution prescribes many specific limits on the powers of the federal and state governments, the Con-stitution’s very purpose was to create a union that had the power to compel political minorities to accept the will of a political majority. Such a union would be in-compatible with a governing document that prohibit-ed officials from compelling people to take any action to which they religiously or politically objected—even when those objections were sincerely held.”

“The Long Resistance” By Professor Tomiko Brown-Nagin, Dean, Radcliffe Institute for Advanced Study Law and History Review, Vol. 36, No. 3 (2018)

“WE ARE LIVING IN AN AGE OF POLITICAL TURBU-lence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. ...

“I agree that the millions-strong nationwide pro-tests, the array of state and locally based efforts to win back electoral power—and the subject of the furor, Donald Trump—are remarkable in many ways. Nev-ertheless, it seems to me that we—as citizens and as scholars—ought to contextualize and historicize this moment with a view toward assessing where it stands in the long arc of American history. …

“Many writers have turned to the Tea Party to de-scribe this moment. … I find this analogy curious and mostly inapt. I see the current Resistance in

relation to activism that stretches back to the an-ti-World Trade Organization (WTO) protests, Occupy Wall Street, the fight for a $15 minimum wage, the Movement for Black Lives, and the scattered protests against the Affordable Care Act (ACA) that preceded the Tea Party.

“All these recent protests were reactions, in part, to structural economic and political inequalities: dis-parities linked to the global flow of trade and people. Joseph Stiglitz, the Nobel Prize-winning economist, warned us that the capture and corruption of the political system by moneyed interests could create profound instability. That movement has arrived: backlash against structural economic and political inequality is the tie that binds contemporary move-ments on the Right and the Left.

“What is more, the recent movements are con-nected conceptually to the unfinished business of the mid-twentieth-centu-ry resistance movements for labor, civil and women’s rights—movements that, in turn, tackled unresolved eighteenth- and nineteenth-century conflicts over social and economic inequality—the subjects of the abo-litionist, suffrage, and progressive movements. Altogether, these move-ments struggled to uproot Founding

era commitments to property rights over human rights, while affirming Founding and Reconstruc-tion era promises of liberty and equality. Therefore, far from being only or even mostly about the present occupant of the White House, the current Resistance reflects a long and contentious struggle over the na-ture of the American social contract itself.”

“Strengths Become Vulnerabilities: How a Digital World Disadvantages the United States in Its International Relations” By Professor Jack Goldsmith and Stuart Russell Aegis Paper Series No. 1806 (a Hoover Institution essay) (2018)

“THE ROMAN EMPIRE’S MULTI-CONTINENT SYSTEM OF roads effectuated and symbolized Roman military, economic, and cultural power for centuries. Those same roads were eventually used as a pathway for the Goths to attack and destroy the empire. The Internet

Putting today’s social division and activism in context of the long arc of U.S. history


and related digital systems that the United States did so much to create have effectuated and symbolized U.S. military, economic, and cultural pow-er for decades. The question raised by this essay is whether these systems, like the Roman Empire’s roads, will come to be seen as a platform that ac-celerated U.S. decline.

“We are not so foolish as to predict that this will happen. But this essay does seek to shine light on the manifold and, in the aggregate, underappreciated structural challenges that digital systems increas-ingly present for the United States, especially in its relations with authoritarian adversaries. These prob-lems arise most clearly in the face of the ‘soft’ cyber operations that have been so prevalent and damaging in the United States in recent years. …

“Our central claim is that the United States is dis-advantaged in the face of these soft cyber operations due to constitutive and widely admired features of American society, including the nation’s commit-ment to free speech, privacy, and the rule of law; its innovative technology firms; its relatively unregulat-ed markets; and its deep digital sophistication. These strengths of American society create asymmetrical vulnerabilities in the digital age that foreign adver-saries, especially in authoritarian states, are increas-ingly exploiting. ... We do not claim that the disad-vantages of digitalization for the United States in its international relations outweigh the advantages. But we do present some reasons for pessimism about the United States’ predicament in the face of adversary cyber operations.”

“Does Intellectual Property Need Human Rights?” By Professor Ruth L. Okediji LL.M. ’91 S.J.D. ’96 New York University Journal of International Law and Politics, Vol. 50, No. 1 (2018)

“ONE REASON WE EMPLOY HUMAN RIGHTS FRAMES IS to challenge the rules that limit or deny opportunities for human flourishing. The intensity of the [intellec-tual property]/human rights interface has increased because the welfare considerations animating con-cerns over IP are no longer limited to the developing or least-developed world. In addition to mounting concerns over access to medicines and healthcare

in the developed countries, the pervasive reach of digital technologies has fundamentally altered the nature and range of individual choices and the exer-cise of individual freedoms in all societies. Resort to arguments and methods steeped in the human rights framework have become important as a universal language uniting opposition to the excesses of the IP system. It would appear, then, that the IP/human rights interface is poised to become even more influ-ential given the shared interests of citizens across the globe as they relate to the power wielded by IP owners over knowledge goods that are fundamental to living meaningful lives. But this influence tends to privilege values and concerns that resonate in the developed world; the current IP/human rights interface cannot deliver sustained welfare outcomes for developing and least-developed countries.”

“Indian Nations and the Constitution” By Professor Joseph William Singer ’81 Maine Law Review, Vol. 70, No. 2, Article 3 (June 2018)

“THERE ARE TWO THINGS EVERY AMERICAN SHOULD know about Indian nations and the Constitution.

First, the good news: compared to other constitutions around the world, our Constitution is remarkably protective of the sovereignty of Indian nations. In some ways, our Constitution has created a system that is more pro-tective of tribal sovereignty than any other nation in the world. Second, the bad news: our Con-stitution has been interpreted

over time in ways that betray its most fundamental democratic values. The Supreme Court has allowed the U.S. government to deny basic constitutional rights for Indians that it confers to non-Indians. It has interpreted the Constitution to enable the United States to engage in conquest. The Supreme Court has itself engaged in acts of conquest by limiting tribal sovereignty without any legislative or constitutional authority to do so. Americans need to know both the good and the bad. We must be aware of the ways the law unjustly oppresses Indians and Indian nations, but we must be equally aware of the ways the law pro-tects and affirms their equal worth and dignity.”

In Their Own Words (continued from previous page)

For other recent articles by HLS faculty, go to hlsscholar.wpengine.com

INSIDE HLS

Winter 2019 HARVARD LAW BULLETIN 17PHOTOGRAPHS BY BOB O’CONNOR

1 6 0 7 M A S S . AV E .

Designed for LearningThe newest Harvard Law building opens its doors

HARVARD LAW SCHOOL’S NEWEST BUILDING OPENED this fall at 1607 Massachusetts Avenue. Inside, the LEED Gold certified structure continues the school’s commitment to experiential learning, with space suited for clinics and collaborative learning as well as research programs. The new home of the Center for Health Law and Policy Innovation, which includes the Health Law and Policy Clinic and also the Food Law and Policy Clinic, the building also houses the Crimi-

nal Justice Institute and Harvard Defenders, a clinical program and student practice organization, respec-tively, in which students represent clients in criminal hearings; the Islamic Legal Studies Program: Law and Social Change; the Animal Law & Policy Program; and the Access to Justice Lab. To support the work of these clinics and programs—and collaboration among them—the interior features plentiful open workspac-es as well as client meeting rooms.

The law school’s newest building extends the campus across Everett Street.


DOUBLE EXPOSURE: The corner of Everett St. and Mass. Ave. today, and in years passed

The interior of the new building was designed to facilitate collaboration, following the example of the WCC across the street, which houses dozens of clinics and SPOs.

In support of

experiential

learning,

research—and

pizza

In terms of its aesthetics, the new structure, designed by Alex Krieger, a principal of NBBJ and professor at the Harvard Graduate School of Design, also reaches out-ward—to the community and Cambridge as a whole. Four stories of dark wood and brick, with an open, glass-fronted first floor, the 20,100-square-foot ed-ifice “elegantly bridges the style of our campus and the community,” as Dean John F. Manning ’85 put it at the opening celebration in No-vember.

Easing the transition fur-ther is a bit of street-level continuum. The longtime student favorite on that stretch of Mass. Ave., Three Aces Pizza, and its peppero-ni slices and eggplant parm subs, are no more. But the new building will house a branch of Kendall Square’s Area Four, promising pizza memories for futures al-ums. —CLEA SIMON

HAR

VAR

D L

AW S

CH

OO

L

CELEBRATION 65, a commemoration of the 65th anniversary of HLS’s first class with female students, brought

alumnae together in September to make new connections and discuss how to advance female leadership and

amplify women’s voices. Five alumnae who participated—a former head of state and other successful alumnae in

law, government, politics, and business—spoke to the Bulletin about their experiences at HLS, what they’ve learned

about women’s leadership challenges, and how to bring change to their industries, the nation, and the world.

Leading

a

Movement

HLS Alumnae Forge Connections / BY ERICK TRICKEY / PHOTOGRAPHS BY JESSICA SCRANTON


MARY ROBINSON LL.M. ’68

President of Ireland from 1990 to 1997 and the United Nations high commis-sioner for human rights from 1997 to 2002, Mary Robinson LL.M. ’68 now leads the Mary Robinson Founda-tion—Climate Justice. She’s the author of “Climate Justice: Hope, Resilience, and the Fight for a Sustainable Future,” published in the U.S. in September, and co-producer of Mothers of Invention, a podcast that advocates a feminist approach to fighting climate change.

On the culture shock of coming from Ireland to HLS:It was very competitive. Law school in Ireland taught us well, but the Socratic method made you think more. I found it very exciting.

Who at HLS influenced her most:My lecturers in the LL.M. program: Archibald Cox on labor law and [Paul] Freund on constitutional law. Henry Steiner in European community law and European competition law encour-aged me when I went back to Dublin to take a teaching opportunity. I became a professor of constitutional and crimi-nal law at Trinity College Dublin.

HLS’s imprint on her:I was very influenced by the atmosphere that year, 1967-’68. Many of my Amer-ican peers were criticizing what they called an immoral war in Vietnam. And there was a lot of discussion of civil rights and poverty. Martin Luther King was assassinated in April—that was aw-ful for us.

What I took from Harvard was the fact that young people were taking re-sponsibility and making a difference. [In Ireland,] maybe in your late 40s you got a chance. But because I was a gradu-ate of HLS, I stood for Parliament at 25. I wouldn’t have done that if I hadn’t been imbued with the atmosphere at Harvard Law. It helped me, all along the way, to have courage—as Irish president, to do it more confidently as a woman.

How Ireland has changed since 1968:Our laws opened up over the years. I was fighting hard as president, in the Sen-ate, and as a lawyer, to help that change. More recently, we had two referendums on same-sex marriage and removing the prohibition on abortion. Both votes passed with enormous support from young Irish people.

Why women should lead in fighting climate change: It’s an existential threat for our children and grandchildren—or, if we don’t have children, our nieces and nephews. With climate change now, women dispropor-tionately suffer, whether from Katrina

or in Puerto Rico.Climate change is man-made, but

of course, man-made includes women, and feminist includes men. We need a solution based on equality and progres-sive policies which take on broad gender and human rights dimensions.

“Because I was a graduate of

HLS, I stood for Parliament [in Ireland] at 25. I wouldn’t

have done that if I hadn’t been

imbued with the atmosphere at Harvard Law,”

says Robinson.


LINDA CHATMAN THOMSEN ’79

The first woman to serve as the director of the Division of Enforcement at the Securities and Exchange Commis-sion, Linda Chatman Thomsen ’79 led the Enron investigation and expanded enforcement of the Foreign Corrupt Practices Act. She is now a partner in Davis Polk’s litigation department.

On her transition from a women’s col-lege, Smith, to HLS:Ironically, it made it easier. At a wom-en’s college, as any head of any women’s or girls’ school will say, all of the leaders in my school were women. I had a sense of self that helped me get through. I was used to participating in class.

What has lasted from her time at HLS:Perhaps the best thing that came out of it was my husband, Steuart Thom-sen, also Class of ’79. There are six in-tact marriages from my section. Mine didn’t count: It was intersectional. We met in our third year, working on the law school show. He did lighting; I was in the chorus.

The intimidation factor:[HLS] was as intimidating as all get-out. I was the first person called on in Torts, by Professor [Robert] Keeton. I had de-clared it was never going to happen to a woman. Phil Areeda was so challenging, a master of the Socratic method—not in a mean way, but it was tough. From him I think we all learned to speak up.

Supreme classmate:John Roberts was in my class, in my section, but he worked harder than I did. He was a very, very nice man, very smart. Both things remain true today.

Her experience as a young woman in the law:Everybody I know who wanted a job got a job. I think people were looking for di-verse workplaces. The challenges came when we started practicing. I think the world was still a little unsure what it meant for women to practice law. There had certainly been trailblazers ahead of us, but not in large numbers. We were starting to confront issues in a more systemic way: How do we accommo-date women in the workforce, especially working mothers?

What it takes to succeed as a woman leader in a big law firm:You need excellence and a willingness to work hard. You need to love it, because it’s too hard if you don’t. In order to re-ally succeed, I think you have to prepare the next generation. Law firms don’t make anything, except lawyers. It’s im-portant to your success to mentor and nourish and have the next generation carry on.

What she learned taking on the Enron investigation:Facts ultimately matter. There was an article sometime along the way about all the ancillary employment being generated by the Enron investigations: bankruptcy lawyers, temporary photo-copying shops. [As] SEC investigators, [we were] genuinely outnumbered. But facts ultimately mattered.

The legal professionals on all sides showed great skill, great judgment. Part of me wished more of those skills and judgment had been afforded to Enron before it imploded.

Why she decided to attend the Cele-bration 65 event:I always love to be in large groups of successful women. It’s sort of inspir-ing, a reminder of how far we’ve come. Because occasionally I get a little frus-trated that we haven’t come as far as I’d like to. But I’d rather be a glass-half-full person.

“The challenges came when

we started practicing,”

says Chatman Thomsen, of

her generation of female HLS graduates. “I

think the world was still a little unsure what it

meant for women to practice law.”


PREETA D. BANSAL ’89

After serving as New York’s solicitor general and working in private law practice, Preeta D. Bansal ’89 played a major role in the Obama administra-tion’s first term as general counsel for the Office of Management and Budget. In 2015, she co-founded the Social Emergence Corporation to explore ways to encourage communication and community. She is a senior adviser to the MIT Media Lab’s Social Machines Laboratory.

On coming to Harvard as an undergrad from Lincoln, Nebraska:I was one of the first people from my hometown ever to go to Harvard, the first woman I knew, certainly the first minority from Nebraska. It was a huge journey, an opening to a grand world of ideas, a liberal arts education, and thinking big thoughts.

On HLS in the ’80s:Harvard Law had obviously been at the top as a professional school, and there were many people drawn to it for that reason. It was also the height of the Crit-ical Legal Studies movement, and many people were drawn to it for its critique of mainstream power and mainstream in-stitutions. The law faculty was also split. Soon after, it was called “the Beirut of legal education.”

I actually liked that a lot. I thought that made it really diverse and interest-ing. But it also led to conflicting expe-

riences, because people had different expectations for what they would get. It wasn’t a happy, fuzzy place to go to law school. I think that changed, and I’m delighted it did. I remember com-ing back to campus in the last five or 10 years and thinking, Oh, my gosh, people actually seem happy here.

Her experiences as a woman at HLS: I was the only woman on the masthead at the [Harvard] Law Review, or one of the few. It was my first recognition of gender issues. I started realizing, in-creasingly, whether women opted out happily, or for whatever reason, the numbers of women started getting in-creasingly thin.

On sexism in government: A famous McKinsey study said men are often promoted on the basis of poten-tial, women often on the basis of per-formance. I saw that in government: A lot of 30-something men were given the stretch jobs, as head of an agency, for example, while women in their 40s and 50s were the deputies, when they were the ones actually doing the work and running the place.

Lessons from her time in the Obama administration:The appreciation of Office of Manage-ment and Budget’s role: It’s often called the control center for the federal gov-ernment. It manages all the processes by which a new president comes in and

turns around the apparatus of state. It’s like a giant cruise ship: How do you shift it and turn it?

On her Celebration 65 workshop, “Transforming the World by Transform-ing Ourselves”: I feel that traditional ways of social change are rearranging the deck chairs on the Titanic in some ways. Partly through my meditation and yoga prac-tice, I’ve gotten very deep into work of Gandhi and others. Gandhi and Man-dela were lawyers, but their ultimate impact came not through lawyering, but through the personal shifts they went through that ultimately allowed them to change large systems. To me, that’s where the real magic happens. It’s not through words, but through the pres-ence that comes from deep periods of silence and self-purification.

On her work with the Social Emergence Corporation:I’m experimenting with transformative dialogue, working with people across di-vides, with technology plus ancient wis-dom and ancient dialogue practice. Can you have dialogue and interaction that really transform people in the way they see the other? I’m doing it in Nebras-ka. I was doing it in India for a little bit. I’m working with the Media Lab to see if technology tools can [benefit] from that process, and whether that can inform the design of technologies, so that they are more sensitive to human listening and human engagement.”I feel that

traditional ways of social change are rearranging

the deck chairs on the Titanic,” says

Bansal.


KATIE BIBER ’04

A former election lawyer and the gen-eral counsel for Mitt Romney’s 2012 presidential campaign, Katie Biber ’04 now works in Silicon Valley. After a stint as senior counsel at Airbnb, she’s the general counsel and corporate secre-tary at Thumbtack.

Her most vivid memories of HLS: I have a very distinct memory of the first couple weeks of school. My Civil Procedure professor was Elena Kagan. She said our most lasting connection would be to the people around us. I was looking around at the anonymous faces. But she could not have been more right.

Who at HLS influenced her most:I was captivated by Professor Kagan from day one. She was equal parts terri-fying and incredible in her craft. People like that have a lot of influence on me: their mastery of law, the thoughtful way they ask questions.

Why she attended Celebration 65: It’s important for us to realize how far we’ve come in a short period. It’s important not to repeat the mistakes of the past. A lot of good people made those mistakes together. Like the in-famous dean’s dinner, when the dean would ask all the women, “Please tell me why we were justified in giving this

spot to you instead of a man.” It’s easy to see echoes of that in today’s world. You should not just go along with the standard practice, status quo, or mores, just because it’s the adopted norm of a particular industry.

Her advice to other women in tech: When I think of all the conversations about how women should contort them-selves to succeed—sound like a man, sit up straight, lean in—all sometimes push women to do something that’s not real to them. My encouragement to women is to just be themselves. In any industry where men vastly outnumber women, there are going to be challeng-es.

Reset expectations of what a leader who’s a lawyer should look like. Push back on any societal or workplace norms on how men or women should act. We all perform best when just be-ing ourselves.

Her strategies to increase the number of women in tech:You can’t be what you can’t see. It’s important to have role models in the upper echelons of a company. Then, getting to leadership positions seems like a surmountable task. We employed the Rooney Rule [from the NFL and former Pittsburgh Steelers owner Dan Rooney, which requires teams to inter-view at least one minority candidate for coaching jobs]. We had to interview

new candidates we didn’t realize exist-ed. The problem with tech, or any other industry, is people tend to hire people they feel comfortable with, people like themselves. It’s an unconscious bias. We must get comfortable with people who think differently, who may push back on our own ideas.

Her strategies to increase the number of women in politics:It’s a little bit harder to influence. If you look at the statistics, you’ll see often-times, donor money comes from men. Oftentimes, men are inclined to give money to another man. A lot of smart people [are looking at how to get] wom-en more populated in the world of giv-ing. [Also,] a lot of voters carry around their own biases on what a leader looks like.

What she learned about politics as gen-eral counsel for Mitt Romney and as an election lawyer:I learned the importance of connection with people on a human level. Voters are not making decisions on technicali-ties. They want to vote for someone who stands for the things they stand for, who would stick up for them in a fight, who they think is honest and ethical. It’s a lot of gut-level [decisions]. Personal connection is really important. So is a broad narrative: not just persuading voters, but inspiring them.

“The problem with tech, or any other industry, is

people tend to hire people they feel comfortable with, people like

themselves,” says Biber.


MEENA HARRIS ’12

Founder of the Phenomenal Woman Action Campaign, Meena Harris ’12 is now Uber’s head of strategy and leadership, and she serves on the San Francisco Commission on the Status of Women. She was a senior adviser on policy and communications for the 2016 campaign of her aunt, U.S. Sen. Kamala Harris.

On coming from Oakland and Stanford to Harvard:There’s a certain intensity on the East Coast that was new for me, but it’s some-thing I really came to love: the intellec-tual rigor of being in a place like Har-vard Law School, a shared sense of work ethic—maybe over-work ethic. Maybe I appreciate it a little bit more after the fact, but it was really formative for me. That’s not to say we’re not hardworking in California. It just has a different vibe.

What sticks with her most about HLS:Being surrounded by extraordinary minds, interesting people with diverse backgrounds, who in some way, shape, or form were committed to ideals of jus-tice and using their law degrees for good in the world. Although a lot of us obvi-ously went into corporate law to pay off student debt, it’s really a feeling of com-mitment to something bigger than us.

Why she attended Celebration 65:I’m inspired by what we’re seeing across the country in terms of women’s em-powerment. I believe it’s a movement, not just a moment. Celebration 65 is a piece of that. It’s creating spaces to honor and uplift women and their pro-fessions and, most important, to make meaningful connections. It’s easy to for-get the importance of establishing that connectivity.

On social change in the digital age:Social media and digital platforms have played a powerful role in influencing and catalyzing social movements like Black Lives Matter and #MeToo. I reject that notion of it being “slacktivism” or hashtag activism.

Her Phenomenal Woman Action Cam-paign:For someone who had not previously en-gaged in politics, the small act of buying a $35 T-shirt, knowing it benefits wom-en’s organizations, and perhaps posting it on Twitter or Instagram and talking

about women’s equality, is an act of ac-tivism. In this era of purity tests and lit-mus tests of whether or not somebody qualifies as “woke,” so to speak, or as an activist, we should be encouraging every single form of it.

How she’s changing Uber’s corporate culture:We had a program and speaker series, a networking, social atmosphere for women, [with] conversations that highlight women and leadership. We launched an executive education pro-gram, piloted [in] fall [2017], offering Harvard Business School education to employees around topics such as build-ing trust and leadership. We were able to get 6,000 employees to sign up for the first pilot. It’s offered to all employ-ees, but we know it will benefit women when we talk about building trust and leadership and helping to amplify their impact and status in the workplace.

On getting more women into tech, and retaining them: In tech, we have a general disposition of immediate gratification: move fast,

break things, and things have to happen quickly, and it’s all about the product. But diversity and inclusion takes a lot of work, it takes a long-term investment, it’s difficult, it’s frustrating. It’s some-thing you have to stick with for the long term. It has to be baked into every single thing that you do.

Lessons she’s learned from her interview series with women of color running for office:Women who are running are getting outspent by corporate dollars 3 to 1, sometimes 10 to 1. But they are outwork-ing their opponents, they’re out there knocking on doors, competing for every single vote, and they’re winning.

Many have been told to be someone else, not their authentic selves: Don’t be too controversial. Don’t lead with the fact that you’re a Palestinian-American. One was told, “You’re a little quirky—act more like a liberal white guy.” Another was told she’s too serious and needs to lighten up a little bit. Every single one of them said, “I only know how to be me.” And once again, they’re winning.

“Diversity and inclusion takes

a lot of work,” says Harris. “It’s

difficult, it’s frustrating. It’s something you

have to stick with for the long term.”

HLS faculty blogs on

law-related topics are

reaching thousands—

sometimes millions—

and have become

required reading

for experts

By Erin Peterson

Illustration by Lucy Jones

Law’s

26 HARVARD LAW BULLETIN

Winter 2019

Influencers


ACK GOLDSMITH DIDN’T PLAN ON BUILD-ing a behemoth. When the Harvard Law professor teamed up with University of Texas at Austin law professor Robert Chesney ’97 and Brookings Institution writer Benjamin Wittes to start the Lawfare blog in 2010, it was launched, he says, with “very modest ambitions and no planning.”

The trio wanted to use the platform as a way to elevate public conversations about national security. From the start, they tackled issues from cybersecurity to the state secrets privilege. It turned out that there was an audience hungry for the blog, which filled the space between slow-mov-ing, rigorously vetted journal articles and one-off op-eds in general interest publications such as The New York Times.

Almost immediately, Lawfare took on a life of its own. “Our readership steadily grew,” Gold-smith says. “It came to include lots of people from government, including Congress, courts and the

press.”Readership exploded when Donald

Trump was elected. Suddenly Lawfare was attracting not just experts but read-ers interested in the way the new admin-istration might handle national security issues. Today, a million readers visit the site each month. It’s received feature-ar-ticle treatment in The New York Times Magazine, it was included in an episode of “This American Life,” and it was name-checked in a tweet by President Trump.

Many posts, including a piece on the Mueller investigation by George Con-way—a lawyer and husband of presiden-

tial spokesperson Kellyanne Conway—as well as a multi-author piece on the high-profile firing of FBI Director James Comey, have sparked national discussion. There’s no question that Lawfare has become a timely and trusted source of information for practitioners, academics, and policymakers.

The Lawfare blog is a bright star, and it is also part of a larger constellation of faculty-linked blogs aimed at making an impact in their fields. The first was begun in 2006 by HLS Professor Lu-cian Bebchuk LL.M. ’80 S.J.D. ’84: The Harvard Law School Forum on Corporate Governance and Financial Regulation. The blog quickly became the go-to source on corporate governance.

Today at least a half-dozen HLS faculty mem-bers have launched blogs in their areas of exper-tise (see sidebar). They are attracting readers and

contributors from the very highest levels of their fields, and they’ve become hubs for discussion, with insightful and quick-moving commentary.

Take, for instance, Professor Matthew Stephen-son’s Global Anticorruption Blog. Stephenson ’03 launched the blog—which covers law, social sci-ence and policy—in 2014. Nudged along with men-torship from Goldsmith, Stephenson has built a highly respected blog with more than 7,000 email subscribers and more than 10,000 readers in any given month.

Stephenson is proud of the community he’s built. He’s routinely contacted by those in the worlds of policy and practice based on posts that have appeared on the blog. Even more than that, he’s been thrilled by the conversations sparked by the blog, which have led to more nuanced under-standings of complex topics.

He recalls, for example, a lively discussion that occurred on his blog and elsewhere about job of-fers that might be considered bribes, based on the U.S. Foreign Corrupt Practices Act. A professor at another institution staked out one position on such job offers, while Stephenson offered a second perspective on his blog. “We went back and forth on this,” he says. “In the end, there was some con-vergence in our positions.”

There is a general collegiality within the con-fines of the blog, says Stephenson, that leads to robust and meaningful discussion. “We’re all on the same team, in that this is a community of peo-ple who are deeply concerned about corruption,” he says. “It’s been a good platform for debating issues on which reasonable people of good faith can disagree.”

Professor Intisar Rabb says that her desire to share diverse viewpoints was a key reason she launched SHARIAsource, a blog she describes as “a SCOTUSblog for Islamic law.” “The SHARIA-source blog offers insight into Islamic law as law, rather than as a purely religious or theological construct,” she says. “The blog allows many per-spectives to weigh in on that basic proposition.”

Since launching in 2016, the blog has attract-ed a global audience of academics and lawyers. It has covered Islamic divorce in India and recently hosted a six-person “online roundtable” to parse a landmark ruling linked to the recognition of Is-lamic marriages in the United Kingdom. The law and social science scholars discussed social, legal, and anthropological implications of the decision.

Rabb is laser-focused on credibility and accura-cy, and posts are accepted from only experts or su-pervised students. While the blog is still relatively

J

More than a

half-dozen

faculty-linked

blogs now attract

readers and

contributors from

the highest levels

of their fields.


new, Rabb wants it to be recognized as a reliable resource for broader academic, legal and gener-al-interest research in the field.

The idea of becoming a trusted resource was also what drove Professor Benjamin Sachs to launch the On Labor blog in 2013. He was eager to reach an audience of academics, policymakers, deci-sion-makers, and practitioners through his blog, which covers workers, unions, and politics.

Since launching, he has attracted thousands of email subscribers. Thousands more follow the blog’s Twitter account. The numbers, paired with the regular feedback he gets from readers and fellow academics at conferences, have been wel-come data points that suggest that he’s achieving his goal.

Sachs adds that reader interest explodes when current news and labor policies collide. Some-times, that interest is spurred by a presidential tweet. “We’ve done a lot of writing around the NFL anthem policy,” he notes. “That’s a labor issue that intersects with sports, and that dramatically in-creases our readership.”

Sachs says that there also has been a steady thrum of interest in the divide between employees and independent contractors in the age of the gig economy. He has written numerous posts about Uber drivers, for example. The changing dynamics of what constitutes a specific employment status make the blog the perfect forum for experts in the field to post ideas, questions and concerns.

HIS TYPE OF REAL-TIME INTELLECTUAL processing may be one of the biggest benefits of these platforms. While few would describe any of the blogs as “free-wheeling,” there is a stronger culture of risk-taking in blogs than in more tradi-tional venues for publishing scholarship. Several of the faculty members use the blogs as a teaching tool, and students often contribute substantive analytical

posts. Students learn from the feedback they get not just from their classmates and professor, but from outside readers as well. While the arguments in blogs may start out less formed than those in a journal article or op-ed, the ensuing discussion can help sharpen salient points, advance conver-sation and open up alternative points of view.

Stephenson, who courts a mix of practitioners and academics on his Global Anticorruption Blog, adds that blogs are a friendly place for profession-

READ ALL ABOUT IT

LAWFARE: lawfareblog.com @lawfareblog

THE GLOBAL ANTICORRUPTION BLOG: globalanticorruptionblog.com

@AnticorruptBlog

SHARIASOURCE: shariasource.blog @SHARIAsource

ON LABOR: onlabor.org @OnLaborBlog

HARVARD LAW SCHOOL FORUM ON COR-PORATE GOVERNANCE AND FINANCIAL REGULATION: corpgov.law.harvard.edu

@HarvardCorpGov

ON FOOD LAW: onfoodlaw.org

T

als to drop in. “There are a lot of busy profession-als working on anti-corruption, whether it’s in government or in an advocacy organization or an international institution,” he says. “They’re smart, but that doesn’t mean they have time to work through a technical 50-page article. What we hope is that they make our blog part of their daily reading routine, in the same way that many people check the Times, the Post, and CNN.”

While all of the faculty are quick to say that their blogs don’t—and won’t—replace their work for law reviews or newspaper op-ed pages, they also say that it’s easy to see the advantages of a forum like blogging. Increasingly, being part of the blogging community, whether leading the charge as a blog founder or contributing to the many specialized blogs in the field, is considered a valuable endeavor in its own right. “Many scholars are interested in doing this type of work now, because the audience and impact per word are large compared to tradi-tional academic work,” says Goldsmith.

Making the Case for Criminal Justice Reform

A N E W G E N E R A T I O N O F H L S S C H O L A R S I S F O C U S E D O N I M P R O V I N G T H E S Y S T E M

n light of the growing salience of criminal justice issues—such as mass incar-ceration, police shootings, the school-to-prison pipeline, the death penalty, and the private prison industry—Harvard Law School has in the past several years

significantly expanded its criminal law program. In 2015, under the direction of HLS Professor Carol Steiker ’86 and Alex Whiting, professor of practice, the Criminal Justice Policy Program was launched to work toward meaningful reforms through legal and policy analysis and partnerships with advocates and policymakers around the country.

In addition, over the past five years, HLS has hired five new lawyer-scholars with diverse interests and expertise in the field of criminal justice: Andrew Manuel Crespo ’08, Elizabeth Papp Kamali ’07, Anna Lvovsky ’13, Daphna Renan, and Crystal Yang

I

BY ELAINE McARDLEPHOTOGRAPHS BY MARK OSTOW

’13. Through teaching and scholarship, including law review articles and publication for a broader audience, they are already influencing the national conversation on our criminal law system. They add to the academic and clinical work being done in this area by HLS faculty, including at the school’s Criminal Justice Institute and Charles Hamilton Houston Institute for Race and Justice.

“Our strategy was to grow our own criminal justice experts, so we are cultivating this crop of young scholars who form an incredible bouquet of different disciplinary takes,” says Steiker, whose 2016 book, “Courting Death,” focuses on the Supreme Court’s efforts to regulate the death penalty. “They’re all looking at the same large-scale institution—the criminal justice system—but they bring very different perspectives.”

31Winter 2019

HARVARD LAW BULLETIN

CRYSTAL YANG: AN EMPIRICAL APPROACH

SSISTANT PROFESSOR CRYSTAL YANG ’13, who joined the HLS faculty in 2014, brings an empirical focus to the study of criminal law. Yang, who holds a Ph.D. in economics from Harvard, has in the past focused her

empirical studies on criminal sentencing. She has now turned her attention to the extensive use of cash bail and pretrial detention in the U.S., in order to un-derstand their short- and long-term consequences.

“I realized that relative to other stages in the sys-tem, like sentencing, there was not nearly as much research on pretrial detention, even though we could make an argument that this earlier stage may be more important because it could lead to someone avoiding a conviction,” says Yang, who worked on the project with colleagues from Stanford and Princeton.

Yang obtained administrative court data from a number of U.S. cities, then linked that data to ad-ministrative tax records from the IRS to analyze the impact on a defendant of being detained pretrial, in-cluding how likely he was to be convicted, and wheth-er he was more likely to commit crimes in the future, have a job, and access benefits such as unemployment insurance. “Even three days of being detained sig-nificantly increases the probability that you are con-victed of the charge, which comes almost exclusively through the increased likelihood that you will plead guilty, often because a prosecutor offers you ‘time served’ and you want to get out of jail,” says Yang, who teaches 1L criminal law and a seminar on social science research and the criminal justice system.

While pretrial detention is often justified as a crime deterrent, Yang and her colleagues found that it actually has a criminogenic effect. “You’re more likely to commit future crimes as a result of being detained,” she says. Being held pretrial also sub-stantially reduces the probability that someone will later be employed, even four years afterward, which increases the likelihood that they will access unem-ployment insurance and other benefits. This outcome is potentially explained by the fact that someone who pleads guilty has a criminal record that reduces the chances they will get a job, she says.

“People may not even realize that once they plead guilty, they may have a really hard time getting a job for the rest of their lives,” Yang says, “so part of this work is trying to be rigorous about documenting the long-term consequences. It’s important for judges and prosecutors and public defenders to know that someone pleading out at that early stage can suffer adverse long-term consequences.”

Another important result of the research: “We find pretty significant evidence of racial bias” as judges determine whether to detain someone or require

cash bail rather than release them pending trial, Yang says. “One striking thing is that it seems to be driven by judges making prediction errors of the risk a defendant presents, which may be based on racial stereotypes. Judges seem to overestimate or exag-gerate the risk of a black defendant relative to white defendants, which then leads them to over-detain African-American defendants.”

Many criminal defense lawyers, as well as the ACLU and the NAACP Legal Defense and Educational Fund, have cited Yang’s research, including in class-action lawsuits challenging the money bail system. Her work has also been cited by the U.S. Supreme Court. She has published in leading economic journals and law reviews, and her work has been featured in The New Yorker, The New York Times, and The Economist.

“We find it very exciting that we’re having real-world effects,” says Yang, who is undertaking a num-ber of follow-up projects.

She is now developing field experiments to consid-er what types of interventions might lead to less fre-quent imposition of pretrial detention without sac-rificing public safety, and what interventions might reduce racial disparities. She is working to create risk assessment tools that judges could use to make more-informed decisions. “The goal is to work with real jurisdictions and real judges to test the effects of these interventions,” she says, “to see whether we can improve the pretrial decision-making process.” Yang says that judges, prosecutors, and others are very interested in her work and want to understand how her research results can improve the criminal justice system.

“I can’t imagine making legal policies on the basis of a lack of evidence, although that’s what the legal system has often done, including in the criminal jus-tice system, where the stakes are so high and people’s lives are at stake,” says Yang, who served for a year as a special assistant U.S. attorney in the U.S. Attorney’s Office in Massachusetts handling criminal appeals and drug trafficking investigations, an experience that she says gave her a much richer and better un-derstanding of the legal institutions that she studies. “To rely on a gut sense or essentially flipping a coin seems to me morally irresponsible.”

A

32Winter 2019


Pretrial detention is often justified as a crime deterrent, but Yang has found it actually has a criminogenic effect.

33Winter 2019


Crystal Yang found there was relatively little research on the effects of pretrial detention.

34Winter 2019


Andrew Manuel Crespo joined the HLS faculty after serving as a public defender for three years.

ANDREW MANUEL CRESPO: PRACTICE MEETS THEORY

S STAFF ATTORNEY WITH THE PUBLIC DE-fender Service for the District of Columbia for more than three years, Assistant Profes-sor Andrew Manuel Crespo ’08 represented adults and juveniles charged with felonies

ranging from armed robberies to homicides. Passion-ate about the work, he had no plans to become an ac-ademic. But early in his career, then-Dean Martha Minow engaged him in a life-changing conversation.

“She opened my eyes to the ways in which mov-ing from practice—which I loved—back to Harvard could be a tremendous opportunity,” says Crespo, who joined the HLS faculty in 2015 and teaches first-year criminal law as well as an upper-level course on the Fourth and Fifth amendments. “It was an opportuni-ty not only to look at the big picture and think about how issues that I saw day to day were symptoms of larger systemic problems, but also to teach the next generation of lawyers who see how our criminal jus-tice system is failing and want to help fix it.”

Crespo’s practical experience as a criminal defense lawyer deeply influences his scholarship, which focus-es on the design and administration of the criminal justice system, with a particular focus on the admin-istrative role that courts play in regulating law en-forcement behavior.

“The organizing idea for much of my scholarship is that criminal courts, particularly at the state and lo-cal levels, often function in practice as more than just adjudicative bodies. Rather, they are frequently an-choring institutions within the broader criminal jus-tice system,” says Crespo. “At times, criminal courts play roles more similar to administrative agencies, or even legislatures.”

In his first year on the faculty, Crespo published an article in the Harvard Law Review that examined the large amounts of information that trial courts around the country gather about their local criminal justice systems, primarily through electronic case management systems. Although this information is often viewed as mundane administrative data, Cre-spo saw in it the potential to illuminate the justice system in action.

“Courts generate tons of data about every charge being filed, every hearing held, every document filed,” says Crespo. “This information is increasingly cap-tured digitally, and it can shed important light on what prosecutors’ offices and police departments are doing across the country, including information about who is getting arrested, when and where and for what, and how leniently some people are being treated compared to others.” As both a collector of and a repository for that data, a court is “not just a judicial institution but also a sunlight institution, sitting in

a position where it can inform the local community about how its criminal justice system is operating, and where and how it might be failing,” he says. Courts can also use that information themselves to become better-informed adjudicators, he adds.

Crespo, who writes regularly for a general audience on a range of legal issues, including the investigation by Special Counsel Robert Mueller into possible ille-gality in connection with the 2016 presidential cam-paign, is also examining how the growth of plea bar-gaining has shifted power from judges to prosecutors. William J. Stuntz, a beloved HLS professor who died in 2011, was a leading scholar on this issue and influ-enced several of the new criminal law faculty, includ-ing Crespo, who recently published an article about plea bargaining in the Columbia Law Review. In that paper, titled “The Hidden Law of Plea Bargaining,” he

argued that procedural rules, which determine such things as the number of charges that can be filed in a given case or the extent to which those charges can be traded away for more lenient sentences, function as an unrecognized regulatory framework for prose-cutors’ plea bargaining power. And who writes these procedural rules? In most states, it is judicial com-mittees, with no oversight by legislatures. “In these states, the court system is acting as the one and only legislative actor when it comes to the procedural side of the system, where important regulatory decisions about plea bargaining are made,” he says.

Based on his Columbia Law Review article, Crespo was appointed by the Massachusetts Supreme Judicial Court to join the state’s Standing Advisory Committee on the Rules of Criminal Procedure. “It’s a neat oppor-tunity for me not only to contribute to an important aspect of the criminal justice system here in our local community, but also to see what this process looks like on the institutional side, where the rules actually get written,” he says.

Crespo and Yang are also working together on an empirical study of plea bargaining practices around the country. They hope to examine how changes in court rules relate to plea bargaining rates, and to un-cover potential relationships that may be of interest not only to academics. “We hope judges, policymakers and practitioners will be interested as well,” he says.

A

Crespo has found that criminal courts can often play roles similar to those of administrative agencies or legislatures.

35Winter 2019


THINK CRIMINAL PROCEDURE IS A VERY FUN-damental part of the constitutional law of democracy,” says Assistant Professor Daph-na Renan, who writes about structural con-stitutional law, administrative law, and the

Fourth Amendment. “When can the government use force against its own citizens? When can it search in-dividuals, communities and communications? How do emergent technologies challenge existing legal frameworks? For anyone who cares about power and how law constrains and enables it, there are no more pressing questions than these.”

Renan, who joined the HLS faculty in 2015, is a pub-lic law scholar whose writing focuses on the American presidency and executive power. She teaches Crim-inal Procedure and Legislation and Regulation, and she co-teaches the law school’s Public Law Workshop.

In a 2016 Stanford Law Review article, “The Fourth Amendment as Administrative Governance,” Renan analyzed Fourth Amendment law, and how it needs to change to meaningfully regulate surveillance in the digital age. The traditional structure of Fourth Amendment law “is transactional,” she wrote. “It fo-cuses on the one-off interaction typified by the singu-lar investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice.” Drawing on doctrinal and institutional tools from administra-tive law, Renan sought to re-imagine how the Fourth Amendment operates in this space.

Early in her career, Renan, a graduate of Yale Law School, served in the Justice Department, first as a counsel to the deputy attorney general and then as an attorney adviser in the Office of Legal Counsel, where her docket included national security and cybersecurity. “Seeing the poor fit between existing legal frameworks—in the Fourth Amendment con-text, for example—and many of the questions that executive branch lawyers confront day in, day out was part of what made me want to think about, write

about, and teach in these areas,” says Renan. In her writing, she has sought to bridge some of the

divides in the fields of national security and domestic administrative law, “so that we don’t have a ‘national security president’ and an ‘administrative president,’ but rather one presidency shaped in fundamental ways by constitutional and political developments in the contexts of national security, surveillance, and administrative government,” she says.

In much of her work, she seeks to understand law beyond the courts, looking at the institutions and practices that shape executive branch governance. Renan’s recent article, “Presidential Norms and Arti-cle II,” published in June in the Harvard Law Review, discussed norms that have developed over time to constrain the presidency, such as the norm of inves-tigatory independence. “That norm helps to ensure that criminal law enforcement does not collapse into

a tool for presidential self-dealing—as a tool to punish the president’s political opponents, for example—and also preserves a space for professional judgment in the exercise of prosecutorial power,” she says.

A central claim she made in this article is that the rise of presidential power cannot be separated from the emergence of presidential norms of limitation: “A president armed with nuclear capabilities, overseeing a sprawling criminal code and a sweeping domestic administrative establishment, came to be accepted in our constitutional culture at least in part because of norms of limitation that the presidency itself devel-oped. The “fragility of such norms today only raises the stakes for understanding these features of the presidency.”

I

Renan has focused on Fourth Amendment law and how it needs to change to better regulate surveillance.

36Winter 2019


Road map for future scholars: Daphna Re-

nan talks with Tom Vos LL.M. ‘19 after she

participated in a panel for students on the

ins and outs of publishing academic papers.

The event was part of the Law Teaching Col-

loquium, a yearlong series of information

sessions highlighting various aspects of

law teaching and scholarship.

DAPHNA RENAN: PRESIDENTIAL POWER, NATIONAL SECURITY

“

TON

Y R

INAL

DO

37Winter 2019


Daphna Renan says her experience in the Justice Department shaped her scholarship.

HERE ARE MORE THAN 2 MILLION PEOPLE imprisoned in the U.S. today. One hundred years from now, historians are likely to be fascinated by this carceral state: How did we get here? Are there better options for

society? Some of the answers—or, at least, possible alternatives—may lie in an examination of medieval England.

As a Harvard undergrad, Assistant Professor Eliz-abeth Papp Kamali ’07 fell in love with medieval le-gal history. After graduating from HLS, she got her Ph.D. in history at the University of Michigan, then joined the HLS faculty in 2015. Kamali’s first book, “Felony and the Guilty Mind in Medieval England,” which is forthcoming from Cambridge University Press, examines how the concept of mens rea—that the accused person acted intentionally when commit-ting a crime—informed determinations of criminal responsibility in the first two centuries of the crim-inal trial jury.

By the early 13th century, England had replaced trial by ordeal with jury trials for felony cases. Ka-mali is interested in how juries sorted the guilty from the innocent. The terse nature of medieval English legal records has led some to assume there was a strict liability approach in criminal law—if ju-rors believed the accused did the deed, then he was guilty—but Kamali says this conclusion overlooks the very high rate of acquittals and pardons in me-dieval England, plus the presence of other escape valves such as sanctuary and benefit of clergy, which exempted English clergy from the jurisdiction of civil courts. Of the cases that made it to trial, most ended in acquittal or pardon. What explains this ap-parent leniency among jurors?

After extensive research in legal, religious, and cultural records, Kamali concludes, “Mens rea was central to the process of reaching a felony verdict.” Medieval theology emphasized that mind and will were central to the concept of sin. Influenced by church teachings, jurors focused on state of mind and intention in understanding sin and wrongful behavior. They also took a sophisticated approach to dealing with mentally ill offenders, who were typ-ically eligible for pardon. “At the time that England adopted trial by jury, England was steeped in a theo-logical discourse about how mind and emotions affect individuals’ actions in the world,” Kamali observes. “Very prominent was the idea that to be truly guilty, one needs to have acted with intentionality.”

Does this have practical application today? Kamali says this history is relevant not only to understanding the origins of our current system but also in imag-ining possible responses to mass incarceration and

other troubles plaguing the criminal justice system. “What is lost when we dispose of most cases through plea bargaining,” Kamali asks, “rather than compel-ling a jury to think about whether this person hauled before them is guilty or merits the sort of punishment the law has designated? In this age of mass incar-ceration, what kind of system can we envision going forward? I don’t know that the answer is to return to more jury trials. By looking back at the history of the jury, we can at least tackle head-on such issues as what constitutes criminal responsibility, and what factors we should weigh before incarcerating some-one.”

Medieval history also offers a different way to think about our treatment of felons, Kamali adds. “The me-dieval approach to criminal responsibility acknowl-edged the possibility of redemption, whereas today we tend to think, Once a felon, always a felon, when imposing lateral consequences that can be lifelong—such as loss of the right to vote or of the ability to access public housing or government loans.”

Her work, she says, “might remind us that in the deep historical past of the common law tradition, mind was central to our understanding of what con-stituted criminal responsibility. Is that still true? For example, with a drug possession case, do we really ask, ‘What state of mind did this person have?’ I don’t want to romanticize the medieval past, in which felo-ny was a capital offense, and if you stole a sheep, you could hang at the gallows. But we might think actively about the role that mind should play in adjudicating criminal cases; if it’s not playing as key a role today as it did in the past, should we change that? If we did change that, how would that affect mass incarcera-tion?”

In teaching history-based criminal law, both in the 1L course and in a seminar on mind and crimi-nal responsibility, Kamali invites students to think through current societal issues, including abuses of prosecutorial discretion, mass incarceration, and police shootings. “Not every student is planning to practice criminal law,” she notes, “but these are some of the most pressing issues of our day, issues that students can engage with not only as future legal practitioners but also as informed citizens.”

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“The medieval approach to criminal responsibility acknowledged the possibility of redemption.”

38Winter 2019


ELIZABETH PAPP KAMALI: MEDIEVAL ENGLAND’S LESSONS FOR TODAY

39Winter 2019


Elizabeth Papp Kamali’s classes include a seminar on mind and criminal responsibility.

40Winter 2019


Anna Lvovsky has explored the history of law enforcement against gay communities.

SSISTANT PROFESSOR ANNA LVOVSKY ’13, who joined the HLS faculty in 2017, always planned to teach. A legal historian—she holds a Ph.D. from Harvard—with a focus on the administration of criminal justice,

she teaches a seminar on the history of policing in the U.S. as well as courses on evidence and criminal law that invite students to focus on the systemic effects of seemingly neutral legal rules.

In her research, Lvovsky has explored the histo-ry of law enforcement against gay communities in the United States. Her forthcoming book, “Queer Expertise: Urban Policing and the Discovery of the Gay World, 1920-1970,” includes a history of the en-forcement of liquor codes against gay bars, the use of undercover decoys to entice solicitations and the clandestine surveillance of public spaces to enforce felony statutes. The book traces the political strug-gles inspired by the vice squads’ campaigns among the different arms of the criminal justice system, as well as how shifting public understandings of gay men shaped the police’s enforcement operations.

In that sense, the book is part of a broader series of projects examining the role of expertise—especially police expertise—within the criminal justice system. In her previous work, Lvovsky examined how and why courts began deferring to police officers as experts in the mid-20th century, beginning with their role as expert witnesses at trial and expanding to Fourth Amendment suppression hearings and cases disput-ing the constitutionality of criminal statutes.

“I’m interested in how judges developed their understanding of police knowledge,” says Lvovsky. Her work traces that story to the police reform movements of the 1950s and 1960s, which expand-ed police training programs and lobbied for the recognition of officers as professionals, both inside and outside the courts. Her work also examines how judges’ interactions with police officers in a variety of contexts—including at trainings and conferences, criminal trials, and suppression hearings—collec-

ANNA LVOVSKY: POLICE POWER IN THE SYSTEM

tively shaped their impressions of police knowledge. “Those different points of encounter created

a variety of inadvertent pressures toward defer-ence,” Lvovsky says, ultimately leading the courts to give officers “a great deal of leeway” in enforcing the criminal law. “Part of my focus is the extent to which judges’ presumption of police expertise has expanded police power on the ground. More than just bolstering individual arrests, it’s led courts to uphold criminal statutes that would otherwise have been invalidated.”

To the extent that we see growing concerns today about judicial deference to the police, it’s import-ant to recognize how that deference arose and how deeply embedded it is in the system, she says: “The reason judges began deferring to police expertise is not simply because they felt political pressure to sup-

port law enforcement. It was also because of a range of perhaps underrecognized institutional pressures that put judges into the habit of seeing the police as experts.”

In a future book, Lvovsky plans to examine the inverse side of police expertise: contexts where law enforcement agents downplay their professional in-sights in court. In the 1960s, she notes, investigators who enforced liquor laws and anti-solicitation stat-utes often developed a fluency in the codes of gay cul-ture. But in court, they often denied their knowledge of gay norms in order to counter defense attorneys’ claims that they had enticed defendants into crimi-nal behavior. “My next interest,” she says, “is to see where that dynamic occurs today.”

A

Lvovsky is interested in how courts came to give police “a great deal of leeway” in enforcing criminal law.

41Winter 2019


Advising the next generation: Anna Lvovsky

met with students as part of Notes & Com-

ment at the Harvard Law School Library.

During the sessions students get advice

from faculty on developing their own schol-

arship. Lvovsky’s first book, “Queer Exper-

tise: Urban Policing and the Discovery of

the Gay World, 1920-1970,” is forthcoming

from the University of Chicago Press. MAR

THA

STEW

ART


Bringing Slavery’s Legacy


to Light, One Story at a Time

43Winter 2019 HARVARD LAW BULLETIN


N A BLUE-SKY autumn day in Alabama, you sit in a field, your head tilted to the trees. You are won-

dering if they stood here 81 years ago, when Wes Johnson was hanged from the limb of another tree, very near where you sit. Did he look across this county road and see the grace of those branches, hold onto it, with the mob in motion below?

It is quiet where you are. A pickup truck passes slowly by with white peo-ple in it—a man at the wheel, a boy by his side. A few minutes later, the driv-er circles back and pulls into the field; he has seen your car parked in a ditch down the road.

“Can I help you?” he asks. “Oh, no, I’m fine,” you say, smiling.But then you remember the photo-

graph, back at the Legacy Museum in Montgomery, of the legs of a lynched man dangling at the top of the frame. Below is a mass of white faces. Smil-ing is not what you do when you are sitting in this field.

“I’m just here because this is where someone was lynched and I wanted to pay tribute,” you say.

The man jerks his head back.“Someone was lynched?!” he says.“Many years ago,” you say. “His

name was Wesley Johnson.”

Through a museum and memorial,

Bryan Stevenson ’85 fosters conversation on

criminal justice and America’s original sin

By Cara Solomon / Photographs by Beth Perkins

PRECEDING SPREAD:

Bryan Stevenson at the National Memorial for Peace and Justice, which his organization, the Equal Justice Initiative, created to honor the thousands of lynching victims in the United States

OAT LEFT:

Enslaved African men and women in a sculpture by Ghanaian artist Kwame Akoto-Bamfo

And then:“How did you find out?” If he drove 100 miles or so north, the

man would see soil from this field in a mason jar with Wes Johnson’s name on it, one of 300 that line shelves in the Leg-acy Museum, which the Equal Justice Initiative, a legal advocacy nonprofit, opened last spring. If he walked another 10 minutes from there, to the National Memorial for Peace and Justice, he would see 800 rusted steel columns—one for each county in the United States where EJI documented lynchings. Wes’ name is there, too.

But in this empty field near the small town of Abbeville, there is still nothing. So it makes sense when the man says it.

“I didn’t know.”

T SOME point, Bryan Ste-venson ’85, the founder and director of EJI, who has helped win reversals,

relief or release for more than 125 death- row prisoners, came to a realization: The law would not be enough. No matter how much bias he exposed, there was a nar-rative of racial difference at work—in the courts, and in American life—and it was terrorizing black people.

It had traveled down the years from slavery, inspiring a white mob in 1937 to lynch Wes Johnson for a relationship with a white woman; pushing his cousin James out of Alabama in 1965 for inte-grating a cafe; encouraging an all-white jury to condemn Anthony Ray Hinton to death in 1986 for a crime he didn’t commit.

Slavery was to blame for that narra-tive. But nobody had started a national conversation about that. On a panel one day, Stevenson suggested it was time.

“I remember people looking at me like: What is wrong with you?” says Ste-venson. “All these issues, and you want to talk about that?”

He did. Stevenson had seen other countries create space for truth-telling in the aftermath of atrocities—Rwan-da, South Africa, Germany. In the ques-tioning and conversations that followed, there was a way forward for all.

For years, he waited for a museum to tell the story of how slavery seeded the

A

myth of racial difference—and how that lie led to lynching, which led to Jim Crow segregation, which led to mass incarcer-ation, which led to the projection that one in three black boys will go to jail or prison in their lifetime. Then Stevenson realized the work couldn’t wait.

“I just felt like there was a community of people who were ready, who were will-ing—even desperate—for their stories to be told,” he says.

EJI had already been investigating lynchings all across the South, combing through archives, confirming reports through news sources, sitting in peo-ple’s homes for hours to hear their ac-counts. The report from that research led to EJI’s Community Remembrance Project, with relatives and strangers vis-iting the lynching sites, collecting soil, then sharing their experiences at events. From there, the memorial to the lynch-ing victims began to take shape, along with the museum.

Originally, Stevenson hired historians and museum experts to guide the muse-um project, but they pushed for a more academic kind of telling. And working on death-row cases, in the state with the highest per-capita execution rate in the country, Stevenson knew the power of personal stories. He was set on telling them, in ways as small and powerful as a letter from prison. So the team at EJI pushed forward on its own.

And in April, it opened: a narrative museum that draws a straight line from slavery to mass incarceration, and a me-morial with the names of 4,400 lynching victims—and the states and counties where they were killed—engraved into steel monuments at the center of a 6-acre site.

“I don’t know if I can make it to the end,” said a middle-aged man at the Leg-acy Museum recently, turning to his wife.

They had already walked down the darkened corridor of the former slave warehouse, with its series of pens, where actors projected as holograms animated the words of slaves—in pleas, in narra-tives, and in song.

Before them were mounted news clip-pings showing thousands of people at a lynching. Behind them, banners hung from the ceiling, listing dozens of sale notices—one for Tilla, another for Isaac, another for Little Judy. To their right,

JUDGE VANZETTA PENN McPHERSON

She grew up in Montgomery, walking the same streets as Ku Klux Klansmen. When she heard Stevenson was planning the memorial, she had one reaction: “Oh, I was so happy,” she said. “The story was going to be told.”


ANTHONY RAY HINTON

Exonerated after 28 years on death row, he has described his conviction as a modern-day lynching, in which “they took off the white robe and put on the black robe.” He is now a community educator with EJI, which represented him.


further down the timeline, the image of a smiling white boy, holding a sign: We won’t go to school with negroes.

“One of the brilliant things that the Legacy Museum does is it paints the pic-ture of cause and effect,” says Vanzetta Penn McPherson, a retired U.S. mag-istrate judge well-known for litigating racial and gender discrimination cases. “It’s all right there before you, and if you go from the beginning to the end, if you are a reasonable person, you have to be convinced.”

Given the urgency of EJI’s legal defense work, Stevenson says, some thought this focus on slavery was a detour. Not McPherson, who grew up in Montgom-ery walking the same streets as Ku Klux Klansmen in their robes.

Until EJI erected historical markers in 2013, Montgomery had 59 markers or monuments to the Confederacy, and not a single one to acknowledge its past as one of the biggest slave ports in America. The city’s two largest high schools, which educate primarily African-American students, are still named after heroes of the Confederacy. When McPherson heard Stevenson was planning the memorial in Montgomery, she had just one reaction.

“Oh, I was so happy,” she said. “The story was going to be told.”

For the most part, Stevenson also had the support of his clients, many of them people of color—from children sen-tenced to life in prison to adults with se-vere mental illness condemned to death. Sometimes, when they are struggling to understand how they got there, Steven-son uses history to explain.

“The essential question that most cli-ents ask me is: Why?” says Stevenson, whose best-selling memoir, “Just Mercy,” examines systemic racism in the crim-inal justice system through his clients’ stories. “Why does nobody care? Why am I being thought of in this way?”

Some of the answers are in that mu-seum. The more people visit, Stevenson hopes, the more a consciousness will grow.

“I would love to see a generation of black people not burdened by the pre-sumption of dangerousness and guilt,” says Stevenson. “I would love to see a generation of people, both black and

white, not constrained by the weight of this history, as they currently are today.”

Since April, more than 300,000 people have visited from across the country and around the world. EJI is working on a vis-itors center across from the memorial; developing a curriculum for educators; and expanding its website to include even more videos, data and stories from the museum.

When young people say to Stevenson that there’s never been a harder time in this country, he pushes back and points to the past. People endured far worse than you, he tells them. You can survive. You can overcome. Look at the history and you will see the heart and the will and the strength of your people.

VERY MORNING, Anthony Ray Hinton rises at 2:45, as he did for nearly three decades on death row. He

makes himself a stack of three pancakes and cooks himself four pieces of bacon in the comfort of his own home. He decides on a book from his shelf, then settles in to read it. But before any of that, Hinton, 62, sets his mind to thinking.

He just sits there on his living room couch and tries to work it out: How can we get rid of this racial hatred?

“I truly believe there’s an answer right at our fingertips,” he says. “And if we can figure out the right way to present it, we can wipe out racism.”

In the Legacy Museum, at the heart of the mass incarceration exhibit, Hin-ton tells his own story in question form. Sit down at one of the prison visitation booths, and you’ll see him there on a screen, blinking at you until you pick up the phone. Then come the questions he would like you to consider:

What would you do if you were sen-tenced to almost 30 years on death row for a crime you didn’t commit?

How would you survive?Who would you be? Three years after Stevenson secured

his freedom, Hinton is a community educator with EJI. He is the author of a memoir, “The Sun Does Shine.” He is the best friend of Lester Bailey, who visited him every month for 30 years, and the proud son of Buhlar Hinton, who died

E

before she could see him released. And in the name of no one else suf-

fering as he did, he will keep telling his story, even when it hurts.

It is the story of a 29-year-old black man wrongly convicted for two murders on the basis of flawed evidence, poor rep-resentation and a weak expert witness. It is the story of state officials twice refus-ing to spend the hour they said it would take to review exonerating evidence, leaving Hinton on death row for 16 years after Stevenson brought the new evidence to light.

And it is the story of how, as Stevenson likes to say, slavery never ended; it simply evolved.

Hinton chooses to be joyful de-spite it. He chooses not to hate the arrest-ing officer who told him it did not mat-ter if he committed the crime—that he was black, that the jury would be white, that the judge would be white, and that it would all add up to a conviction. Hat-ing that man, and so many others, would only keep him up at night.

Instead, every night at 10:30, he walks out into his yard to look at the moon and the stars. Such a beautiful painting, he thinks. He carries an image of it on his phone, so that when he’s speaking out-side of Alabama, he can pull it up and admire it.

“The joy I have, the world didn’t give it to me, and the world can’t take it away,” he says.

As soon as Hinton heard that EJI was creating a museum and a memorial, he wanted to be a part of it. Some people think it’s opening an old wound; Hinton thinks it’s closing one.

When he walks the downward-sloping path of that memorial, and those 6-foot-tall steel monuments rise above his head like so many men and women lynched, Hinton thinks of their sacrifice.

“If you got any kind of soul, any kind of feeling for humanity, you can’t help but

to shed a tear,” Hinton says.Their sacrifice led to the end of lynch-

ing, is how Hinton sees it. So maybe his own sacrifice will matter, too. Maybe it will educate free people to push back against the death penalty—just another form of lynching, in his mind. And may-be it will help his friends still waiting on death row. One day, he plans to go back, and pass along a message: Hold your head high. There is hope.

N THE SMALL TOWN of Abbe ville, James Johnson grew up wonder-ing why. Why did he have to climb the side stairs of the mov-

ie theater, and sit in that separate space? Why did he have to eat in the hot, dingy back room of a restaurant, with bro-ken-down tables and chairs, separated from white life by a door?

The answer came back simple: That’s just the way it is.

“And I could not accept that,” says Johnson, now an educator at a local school for at-risk youth.

When Johnson was just a boy, his mother told him about his cousin Wes, who was hanged for dating a married white woman. Johnson can still remem-ber how tightly his mother held his hand as she said those words.

It was a warning passed down from one generation to the next, and it kept him quiet for a while. Then, as the resent-ment grew, it didn’t.

In the summer of 1965, Johnson walked with a friend through the front door of the Star Cafe. They had tried to integrate the pharmacy earlier, but in an-ticipation, someone had pulled the seats from the stools, leaving only spikes.

The Star Cafe was not expecting them, so Johnson walked right into a world he never knew existed.

“Real clean, nice music, big picture

I

Bryan Stevenson had waited years for a museum to

tell the story of how slavery seeded the myth of racial

difference. Then he saw the work could not wait.

JAMES JOHNSON

He grew up with the story of his cousin’s lynching and left Alabama after being threatened for integrating a cafe. He returned to teach at the high school that was whites-only when he left.


WAITING

Each monument has a replica laid out in the field below. EJI has invited counties to claim theirs and install them on their land. So far, hundreds of counties have expressed interest.


windows for you to look out of,” he re-calls. “It was: OK, so this is what we’ve been missing.”

When his grandmother got the anony-mous call, advising her to “chastise” her grandson, they both knew what it meant. For her sake and his, Johnson left, join-ing the millions of African-Americans pushed out of the South by what Steven-son calls racial terror.

Those years in the North changed him. He worked for a man with a number tat-tooed on his arm, a Jew who understood the pain of oppression. He learned from international students and professors, broadening his idea of what life could be. And when he came back to Abbeville in the late ’70s, a college graduate, Johnson was different.

“The hatred had gone,” he says. He became a teacher at Abbeville High

School, which was whites-only when he left. He created the school’s first black history program and, at the students’ request, helped them to integrate their prom.

He still sees some of those students to-day, many of them white. They call him Brother Johnson. They embrace him openly on the street.

“It was hell when I was growing up,” says Johnson. “But this is home.”

When he first visited the memorial, Johnson gravitated toward the life-sized sculptures of men and women straining in chains. He walked up to them. He took pictures of them. He wept.

Then he wandered over to the grass where replicas of the steel monuments are laid out in rows like coffins. EJI has invited each county to claim its re - plica and to install that monument on its land. Nearly 300 counties have already expressed interest—far more than Ste-venson expected.

Johnson was looking for the name of his county that day when he met a wom-an looking for the name of hers. He lis-tened to her story, of finding her father shot dead by the side of the highway, the target of a white man who didn’t like her father’s success. The woman was 5 years old at the time.

“It’s sort of like being at a wake, where you can cry on each other’s shoulder,” Johnson says.

Stevenson has seen older African- Americans come to the memorial to find

their county, knowing they have some distant family tie, only to discover the name of a relative cut into the steel.

“You see these people wrapping their arms around these monuments and just sobbing,” says Stevenson. “And I’ve seen white people find their county, see the names, and be utterly destroyed by it and just sit there and weep.”

For so many years, Johnson never knew what happened to his cousin on that county road outside of Abbeville. It took a relative’s research to tell him how the mob of 50 men pulled the teenager out of jail, drove him down to the house of the husband, shot him several times, then hanged him.

The idea of it haunts Johnson every time he drives by.

“I try to imagine the expression on his face, the thoughts in his mind, what he might have been trying to say,” Johnson says.

Last January, Johnson and his fam-ily stood with Stevenson where it hap-pened. Beside them was Oprah Winfrey with a camera crew, filming for a “60 Minutes” segment. Stevenson said a few words in Wes’ honor, then handed a small shovel to Johnson to dig the soil that would make its way to the Legacy Museum.

After all these years, Wes’ story would finally be heard; Johnson could share it with the world. But it meant just as much to him to share the story with the people of Abbeville. In the days after the seg-ment aired, a county employee, a young white woman, approached Johnson to say she was sorry for what had hap-pened. That she had no idea.

“It just gives you some closure,” John-son says.

When his former students got in touch to apologize, Johnson reassured them it wasn’t their fault. Don’t hate your grand-parents, he added; they got caught up in the frenzy of things.

“Each of us is more than the worst thing we have ever done.” It’s something Stevenson often says, and Johnson be-lieves it.

But for the sake of the future, Johnson had something else to say to his former students. Now you know better, he told them. And it’s up to you to pass that on—to your children, and to everyone else you know.

54 HARVARD LAW BULLETIN Winter 2019 ILLUSTRATION BY REBECCA CLARKE

“Bealport: A Novel of a Town,” by Jeffrey Lewis ’70 (Haus)

The new novel by Lewis is set in motion when a multi-millionaire partner in a private equity fund buys shoes in a dingy discount store in New England, a seemingly uneventful act that changes the course of life in a work-ing-class town whose residents make the product. The author, who won two Emmys as a writer for the acclaimed TV series “Hill Street Blues,” portrays characters who come together in church, in a McDonald’s for an early breakfast before work, in a strip club, on the factory floor, in a story that captures the struggles and sensibilities of an American community.

“The Blockchain and the New Architecture of Trust,” by Kevin Werbach ’94 (MIT)

Blockchain technology began in the aftermath of a crisis of trust in government and corporations brought on by the financial crisis of 2008. Werbach writes that the technol-ogy, a data storage system that is used for digital currency like bitcoin, works based on users trusting the informa-tion recorded in the system, without trusting anyone to validate it. The result is “trust in a new form,” a concept the professor of legal studies and business ethics at the Wharton School explores in a book that also details what makes blockchain possible, what could go wrong with it, and how law can help the technology achieve its promise.

“Digital Democracy, Analogue Politics: How the Internet Era is Transforming Kenya,” by Nanjala Nyabola ’14 (Zed)

Nyabola chronicles Kenya’s first digital decade, beginning after the country’s election violence of 2007, and its impact on politics in the country. She points to positive develop-ments, such as digital spaces helping women organize and rewrite laws. Yet she also cites problems such as an in-crease in surveillance from the state. The author calls the Kenyan government’s promise of a digital election in 2017 an “enormous flop,” with systems failing primarily due to human interference. The digital decade began and ended with calamitous elections, Nyabola writes, but also rep-resents an opportunity for agency for the Kenyan people.

“Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law,” by Michele DeStefano ’02 (Ankerwycke)

Even if their business model isn’t broken, lawyers still need to innovate to keep up with changing times, con-tends the author, a University of Miami law professor and former marketing and advertising executive. In her book, she outlines the forces that are changing the legal world, such as technology and globalism, as well as a shift in client needs and expectations. In order to respond to this “upheaval in the legal marketplace,” she offers “rules of engagement” that encompass practices such as devel-

SELECTED ALUMNI BOOKS

HLS Authors

Alumni explorations,

from the blockchain, to marriage

counseling, to Guantånamo

Bay


oping growth mindsets to cultivate new skills as well as establishing diverse, broad networks. She also presents exercises to help lawyers foster a climate of innovation and collaboration.

“Listen to the Marriage,” by John Jay Osborn ’70 (FSG)

Famed for writing “The Paper Chase,” set at Harvard Law School, Osborn sets his latest novel in the intimate space of a marriage counselor’s office, where a therapist dis-covers why a longtime couple’s marriage unraveled and what may bring them back together. Inspired by his own relationship-saving experience with a marriage counselor, Osborn notes that he hoped to change law school for the better with his first book and would like to change mar-riages for the better with his latest.

“Looking for Lorraine: The Radiant and Radical Life of Lorraine Hansberry,” by Imani Perry ’00 (Beacon)

Many people may know Lorraine Hansberry’s name from her play “A Raisin in the Sun.” But, as Perry notes, few people know about her life, which was remarkably full for her mere 34 years. In her book, the professor of Afri-can-American studies at Princeton University portrays the playwright, born in 1930, as a woman ahead of her time: a lesbian who married a Jewish Communist man, an activist who fought for black equality, an artist who explored social and political issues. Drawing from Hans-berry’s unpublished writings, Perry presents a nontradi-tional biography that delves into her subject’s inner life and passions, the “sweet and intimate parts of her.”

“One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us,” by Peter H. Schuck ’65 (Princeton)

In response to what he sees as a “woefully deficient” level of public debate on important issues, the author delves into policy approaches to poverty, immigration, campaign finance, affirmative action and religious exemptions from secular public policies. The professor of law emeritus at Yale University, a self-styled “militant moderate,” does not seek to generate support for particular outcomes but to inspire clear thinking about these and other contentious issues. People will disagree with each other, but respect for alternative opinions and willingness to compromise can lead to solutions acceptable to all, he writes.

“The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind,” by Justin Driver ’04 (Pantheon)

The professor of constitutional law at the University of Chicago has written the first book to look in a compre-hensive way at the cases decided by the Supreme Court involving schools, the pre-eminent site of constitutional interpretation, he contends. The author provides evidence by showing the influence and import of such cases on core constitutional questions pertaining to religion, crime,

free expression, and equal protection, most famously in Brown v. Board of Education. In addition to legal analysis, he shares the stories of those who went against commu-nity norms to stand for their rights, such as a family who during World War II challenged a mandate for students to salute the American flag. Critiquing decisions in recent decades allowing searches without probable cause and suppressing student speech, among others, Driver writes that “it is impossible to disregard the constitutional rights of students without ultimately damaging the republic to which students pledge allegiance.”

“Welcome to Camp America: Inside Guantánamo Bay,” by Debi Cornwall ’00 (Radius Books)

A conceptual documentary artist who formerly practiced as a civil rights attorney, Cornwall fashions a book that combines art and social commentary on the “War on Ter-ror” as practiced in the Guantánamo Bay, Cuba, detention facility. The book includes photos from her three visits there, showing the stark contrast between the luxuries af-forded staff and the surroundings of the detainees. Text, in English and Arabic, includes government documents with redacted portions blacked out and first-person accounts, including an essay by a man who was held in the facility for nearly three years. Most Americans have stopped looking at Guantánamo, Cornwall writes, but she is giving them something to see.

HLS Authors

Long before she became first lady Michelle Obama ’88, Michelle Robinson was the only person in her family to talk back to her grandfather when he yelled.

In her memoir, “Becoming” (Crown), she shares such details from her childhood growing up on the South Side of Chicago that helped define and shape her.

And of course she shares what it has been like to be partner to a man who would become president, from their first meeting when she was his mentor at Sidley & Austin (she had no interest in dating him then, es-pecially when he lit a cigarette) to their time on the campaign trail and in the White House, revealing private moments between her and Barack Obama ’91 as well as her reservations about being a public figure.

Although she airs some well-publicized criti-cisms of the current occupant of the White House, she mostly “goes high,” as she famously said in the last presidential campaign, calling herself an ordinary person who has experienced extraordi-nary things.

IN MEMOIR, MICHELLE OBAMA ’88 REVEALS PRIVATE MOMENTS BEHIND PUBLIC LIFE


During an event at Harvard Law School last year celebrating its 40 clinics and student practice organizations, Van Lanckton ’67 was delighted to hear about so many opportuni-ties for students to work in the public interest today. But he also felt a sense of pride and nostalgia as he recalled the legal services ex-periment he and hundreds of other students had been part of more than 50 years earli-er—at a time when clinical education did not exist at the school and change was in the air.

In 1966, with support from a grant from the Office of Economic Opportunity, HLS opened a neighborhood law office in East Cambridge directed by John Ferren ’62 and staffed by law student volunteers. The Community Legal As-sistance Office, or CLAO, became a full-ser-vice law office helping low-income residents with whatever legal issues arose, criminal as well as civil, and providing real-world training for law students. Among them was Lanckton, who after graduation served as a staff attorney for the organization and then its director until 1971 when CLAO merged with another local legal services organization.

Lanckton, whose career has included law-yering in state government and private prac-tice, and, in his seventh decade, becoming a rabbi, has always been good at bringing peo-ple together. Last spring, he decided it was time for a CLAO reunion. On an afternoon in May, the first floor of the house in Newton he shares with his wife, Alice, was full of others like him for whom this brief experiment had had an outsized effect.

Howard Cohen ’71 recalled that as a stu-dent, he loved the law but felt disconnected from some aspects of law school. His involve-ment in CLAO allowed him to express his so-cial concerns and became the foundation of his career. After graduation, he worked at the Cambridge Housing Authority and eventually developed a practice in affordable housing “doing a lot of adversarial, opening-up-the- suburbs work,” he said, under Chapter 40B, the Massachusetts affordable housing law. He went on to found an affordable hous-ing company, Beacon Communities. “CLAO jump-started it all,” he said.

Some students who participated came from other law schools. Barbara Buell, then a Northeastern student, described her first experience with CLAO in 1969 as very much “jump right in.” She remembered the terri-ble panic she felt the first day when a woman came in wanting a divorce. “Oh my god, what am I going to do?” Buell recalled thinking. But her supervisor conducted the interview and showed her. By the next week, Buell was in court representing the woman, filing the pa-pers and going before the judge. By the end of her stints at CLAO, she had helped train other law students and worked on more than 200 criminal matters at the Third District Court in Cambridge, even handling two six-person jury trials. No one she represented went to jail, she said, a sign that she’d learned a thing or two. After Buell passed the bar, it was thanks to CLAO that she felt ready to practice law. Just as important, she stressed, “CLAO taught me how much fun it is.”

Peter Lauriat, a retired Massachusetts Su-perior Court judge, agreed. “There was a great sense of camaraderie, a willingness to work together for the common good,” said Lauriat, who was a student attorney at CLAO in the late ’60s. He recalled vividly the ins and outs of the work—from criminal cases, to efforts

to help conscientious objectors in the wake of the Vietnam War, to the peace of mind he brought to an elderly woman for whom he drafted a will.

At the center of many circles of conversa-tion during the reunion was a Harvard lawyer and teacher who has perhaps the deepest knowledge of CLAO’s long-term impact: HLS Lecturer on Law Jeanne Charn ’70. Charn views CLAO as a precursor to the Legal Ser-vices Center, the school’s first clinic, which she started with Professor Gary Bellow ’60 in 1979 and which was the beginning of HLS’s clinical program.

Charn volunteered at CLAO as a 3L and then was hired as one of the supervising attorneys, helping Buell, Cohen, and numerous other CLAO students to get their start. CLAO not only helped her, recalled Charn. It changed her life. “It wasn’t just legal services,” she said. “It was the way we did it. It was being so close to the community.” When she and Bellow started the Legal Services Center, CLAO was abso-lutely the inspiration: “a neighborhood-based program that followed the community’s lead. No matter was too small.”

“We didn’t get it right all the time. We missed things,” said Charn. “But my whole life’s work started there.” —EMILY NEWBURGER

Outside the Community Legal Assistance Office, 235 Broadway, Cambridge, 1967

Celebrating the Community Legal Assistance Office

A ’60s Experiment with a Ripple Effect

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PROFILE

As soon as Yuko Miyazaki LL.M. ’84 joined the Su-preme Court of Japan in January 2018, she made

history and international headlines. The sixth female justice on Japan’s high court, Miyaza-ki announced she’d be the fi rst to issue opin-ions under her maiden name—an option not available to female judges in Japan until 2017.

Miyazaki’s shrug is almost audible across a phone connection from Japan. “It was natural for everyone,” says the 67-year-old justice. “I am known as Lawyer Miyazaki.” She’s worked under her birth name since the 1970s, infl u-enced by the unanimous advice of profes-sionals on a panel she attended for female university students.

More than three decades after her year in Cambridge, Miyazaki has become one of two HLS grads on Japan’s 15-member Supreme Court. Mamoru Miura LL.M. ’85 became a justice a month after her. In conversation, Miyazaki projects a friendly confi dence and frankness. Those traits and her sense of humor have led HLS Professor Mark Ramseyer ’82, who has worked on cases with Miyazaki, to compare her to U.S. Supreme Court Justice Elena Kagan ’86.

In the United States, many Supreme Court justices tend to have spent much of their ca-reers on a legal fast track. Not so for Miyazaki, who says her early ambitions didn’t include Japan’s high court. “Not at all,” she says. “It was hard to imagine.”

It was hard for Japanese women to launch professional careers in the 1970s, she says. Their best move was to get an advanced de-gree. Miyazaki, whose father was a judge, chose the law. “Probably by talking with my father, I came to like the way a lawyer thinks,” she recalls. “We have to be bound by the law, legal principles and rules, fairness and justice. And you also have to be logical.”

Miyazaki graduated from the University of Tokyo faculty of law in 1976. Nagashima & Ohno, one of Japan’s most prestigious law fi rms, hired her as its fi rst full-time female lawyer in 1979. She doesn’t think she faced any particular obstacles as a female lawyer

other than an occasional frown from a client when she walked into a room. “Maybe I was lucky, very lucky,” she says; female friends in the law have confi ded in her about “diffi cul-ties, uncomfortable experiences.”

Miyazaki took an early interest in corporate law and international law, but she switched to tax on the advice of her mentor, firm co-founder Yasuharu Nagashima LL.M. ’62. Tax law was an obscure pursuit in Japan then. But Nagashima, who had friends in the United States, knew of its importance in American law and predicted it would be a growth industry for the fi rm.

It’s also thanks to Nagashima that Miyazaki spent a year at Harvard. He’d taught a class on Japanese law at HLS and led many lawyers at his fi rm to consider an HLS education.

Miyazaki’s most vivid memory of her year at HLS is her winter-term course in international tax law. She remembers getting the reading materials for the course in December: “liter-ally, a one-meter-high [stack]” for the three weeks. “It was very, very tight and required a

lot of work,” she recalls. H. David Rosenbloom ’66, the visiting professor who taught the course, became a mentor to Miyazaki in the international tax arena. The justice says she’s benefi ted from HLS’s extensive, multinational network in Japan. “If you know someone from Harvard Law School, you can call, ask some-thing, discuss something.”

As tax law became an important fi eld in Japan, Miyazaki rose to its heights. After she won a major case for IBM Japan against Ja-pan’s National Tax Agency in 2014, the Nikkei Asian Review praised her “indepth knowledge of tax law and stunning courtroom prowess.”

Yet Miyazaki describes her litigation strat-egy in plain-spoken terms. “If you think logically, and if you think, What exactly is the spirit of the law? and if you combine those two together, then it’s a good argument in the tax law area,” she says. “I tried to col-lect facts, and tried to collect evidence, and think through logically, and tried to think, What’s the just way to deal with this issue?”—ERICK TRICKEY

Yuko Miyazaki, justice on Japan’s

Supreme Court

Yuko Miyazaki LL.M. ’84 sets a historic precedent as a female justice on Japan’s Supreme Court

A Pioneer’s Logic

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PROFILE

Seven years ago, as the new U.S. ambassador to the Czech Republic, Norman Eisen ’91 moved into one of

Prague’s most beautiful homes, a 150-plus-room Beaux-Arts mansion with a sweeping, curved façade. He soon heard fascinating tales about its previous residents: former am-bassadors, a German general, and one of 1920s Czechoslovakia’s richest men. After his ambassadorship, Eisen turned to those stories to explore democracy’s epic battles with fas-cism and Communism. “I wanted to cover the ups and downs of the last 100 years of the liberal project, from Woodrow Wilson to World War II, the Marshall Plan, and the end of the Cold War,” Eisen says. “But I didn’t want to do it in an abstract way.”

The result, Eisen’s book “The Last Palace: Europe’s Turbulent Century in Five Lives and One Legendary House,” tells the story of the rise, fall, and rebirth of democracy in Prague through the lives of those who called the U.S. ambassador’s residence home, includ-ing former child-actor-turned-diplomat Shirley Temple Black. To represent the lives of ordinary Czechs, Eisen also writes about his mother, Frieda Eisen, an Auschwitz survivor and refugee from Communism. Though she never returned to her homeland, the book re-counts their conversations during her son’s ambassadorship, as her pessimistic view of history challenged his optimism.

Eisen’s book, released in September, has won acclaim for its storytelling and for its res-onance today, as illiberal movements grow in Europe and the United States.

“My experience in Prague, seeing illiberal forces gathering steam in the post-Cold War era, was one of my inspirations to write the book,” Eisen says. “Whenever you have a great surge of democracy, like we did in the post-1989 period, the counterattack will come, but its defeat is also likely.”

A senior fellow at the Brookings Institu-tion, Eisen is a CNN commentator special-izing in corruption, scandal and crime. Chair of Citizens for Responsibility and Ethics in Washington, he’s working with Harvard Law

School Professor Laurence Tribe ’66 on le-gal challenges to President Trump under the Constitution’s foreign emoluments clause. His second book, in progress, will argue that Trump is undermining the rule of law. “If we fight—and that’s a big if—democracy is always stronger than illiberalism,” Eisen says.

In “The Last Palace,” the ambassador’s residence becomes a metaphor for Western democracy and the internationalism of the man who had it built: Otto Petschek, a coal mine owner with a love of artistry and archi-tecture. “Although he was one of the richest men in the new Czechoslovakia,” says Eisen, “he was intensely private, and he transmitted that privacy down through the generations.” But while ambassador, Eisen gained the trust of Petschek’s relatives, who shared memo-ries of Petschek and the house and opened the family archives. They even showed Eisen love letters between Petschek and his wife, Martha. “It was even better than being able to interview him,” says Eisen, “because they wrote each other several times a day.”

Though Petschek died in 1934, his story foreshadows Czechoslovakia’s dark days to come. He was Jewish and conservative, a be-

liever in Czech democracy. As he perfected his mansion, both Communist and anti-Se-mitic propaganda targeted him.

During the Nazi occupation, Petschek’s commandeered mansion became the res-idence of German Gen. Rudolf Toussaint. A career Wehrmacht officer, Toussaint evaded a Nazi order to take part in the massacre in the Czech town of Lidice. On the war’s last day, he defied the SS by agreeing to a cease-fire that spared Prague further destruction.

“Toussaint is a very complicated man who often tried to do the right thing,” says Eisen. “His fundamental flaw was that he chose to remain complicit, and then was drawn into further complicity, with as evil a regime as the world has ever known,” he adds. “There’s a lesson there, by the way. You cannot dwell in the fire without being burned, and being responsible for others who are consumed by it.”

Eisen’s mother died in 2012. If she were alive today, “I suspect she would be less sanguine than I am about America’s ability to fight its way through,” Eisen says. “But I feel quite confident we’re going to do that.”—ERICK TRICKEY

Norman Eisen (left) with Vaclav Havel, former president of the Czech Republic, in October 2011

Norman Eisen ’91 tells the epic story of democracy’s long victory in Europe through a house’s history—and his mother’s life

The Last Palace and the Next Battle

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Winter 2019 Harvard Law BuLLetin 63

ROLL CALL

The U.S. Senate’s freshman class has a familiar name: Mitt Romney J.D./M.B.A. ’75.

The former Massachu-setts governor and presidential candidate won election Nov. 6 as the junior senator from Utah.

Romney joins five other alumni in the Sen-ate, including two who were up for re-elec-tion this year: Tim Kaine ’83 (D-Va.), who in 2016 lost his bid to become the first Harvard Law School graduate elected vice president, and Ted Cruz ’95 (R-Texas), who beat chal-lenger Beto O’Rourke.

Former Harvard Law School Professor Eliza-beth Warren (D-Mass.) also won re-election. She has since announced an exploratory committee for a 2020 presidential candidacy.

Three other HLS alumni serving in the U.S. Senate were not up for re-election: Tom Cot-ton ’02 (R-Ark.), Jack Reed ’82 (D-R.I.) and Mark Warner ’80 (D-Va.).

In the House, three alumni are part of the newly elected Democratic majority. Andy Levin ’94 (D-Mich.) won the seat previously occupied by his father, Sander Levin ’57, who retired in January after 18 terms in Congress.

The resume of Antonio Delgado ’05 (D-N.Y.)includes time as a Rhodes Scholar, indepen-dent music label founder and Big Law asso-ciate.

Katie Porter ’01 (D-Calif.) followed the ca-reer trajectory of her law school mentor, Eliz-abeth Warren, from bankruptcy law professor to congresswoman. Porter represents Orange County after a close race called nine days af-ter the election.

Other HLS alumni won their U.S. House re-election races: Anthony Brown ’92 (D-Md.) District 4, Joaquin Castro ’00 (D-Texas) Dis-trict 20, Jim Cooper ’80 (D-Tenn.) District 5, Josh Gottheimer ’04 (D-N.J.) District 5, Joseph Kennedy III ’09 (D-Mass.) District 4, Raja Krishnamoorthi ’00 (D-Ill.) District 8, Jamie Raskin ’87 (D-Md.) District 8, John Sarbanes ’88 (D-Md.) District 3, Adam Schiff ’85 (D-Ca-lif.) District 28, Terri Sewell ’92 (D-Ala.) Dis-trict 7, Brad Sherman ’79 (D-Calif.) District 30 and Juan Vargas ’91 (D-Calif.) District 51. Ron

DeSantis ’05, former representative for Flor-ida’s 6th District, is now the state’s governor.

Two alumni were defeated: Jay Webber ’00, who ran as a Republican against Democrat

Mikie Sherrill in New Jersey’s 11th Congressio-nal District, and Republican Robert Flanders ’74, who lost to incumbent Democrat Sheldon Whitehouse in Rhode Island’s Senate race.

HLS in Congress

Midterm Election Update

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PROFILE

When she was a girl, Megha

Parekh’s parents expected her to come home with all A’s on her report card. And

she did. Her mother also wanted her to play the flute. And she did … pretty much the ex-act opposite. Instead, Parekh banged away at a drum set, sometimes while listening to the heavy metal band Metallica, in her New Jersey home. In many ways, she has been both meeting and defying expectations ever since.

“It’s nice to surprise people—but in a good way. In a way that I hope people understand nobody is one-dimensional,” she says.

Parekh ’09 fulfilled the hopes of her immi-grant parents from India, who saw academics as a way for their children to better them-selves. She finished Harvard College in three years, graduated from HLS, and became a VP and general counsel well before she turned 30. As much as she has been focused on career success, she says that playing guitar, which she took up after the drums, in front of a crowd at a bar rivaled the excitement of any-thing she’d done professionally (she worked hard at it, though, learning 41 songs before she performed).

She also has achieved professional success in the world of sports, though she says she is the least athletic person she knows. Now senior vice president and chief legal officer of the National Football League’s Jacksonville Jaguars, Parekh oversees all legal aspects of the team, ranging from multimillion-dollar agreements for naming rights and construc-tion projects to workers’ compensation and HIPAA compliance for the players and even permitting for the NFL’s first in-stadium dog park. She handles big deals, like when team owner Shahid Khan acquired an English soc-cer team, and small, like contracts for proms and weddings held at the stadium. It makes for a variety of responsibilities she finds com-pelling.

“One thing I love about my job is that it continues to offer opportunities for learning,” says Parekh.

Her job with the Jaguars stemmed from

her time as an associate at Proskauer in New York, where she worked on Khan’s acquisition of the Jaguars, as well as on separate owner-ship deals for the NFL’s Cleveland Browns and the Houston Astros baseball team. She went to Proskauer out of law school attracted to the firm’s sports law practice. She first began to consider a career in the field at HLS, where she took a sports law class and got an internship in baseball operations with the Boston Red Sox. Her interest in sports had begun much earlier, when she followed her older brother around and watched sports with him, and then in high school managed the school baseball team. Parekh, a “completely nerdy introvert at heart,” says sports helped her make more friends in school and in general helps bring disparate people together like few other things do.

“If it doesn’t come naturally to you, sports really helps you connect with people,” she says.

She was wearing Jaguars gear on a recent

trip back to HLS to moderate a panel at Cel-ebration 65 on navigating career and life. It’s a topic that’s been on her mind lately, in the wake of a childhood friend’s death. She re-calls that he said to her when they were kids: “You’re really good at everything besides hav-ing fun.” She’s been trying to do better with that. In addition to her music, she started vol-unteering with Habitat for Humanity building houses. And after living in the Northeast her whole life, she is appreciating spending time on the balmy beaches of Jacksonville.

“I’m realizing I’ll be better at my job if I do things that are not just my job,” she says.

As it turns out, she spent only part of a day at Celebration 65 because she needed to re-turn to her job. But it was not your typical day at the office. She headed back to Jacksonville for a game between the Jaguars and the New England Patriots. During game days, as part of her job, she checks in on sponsors and stadi-um workers. But you can bet she has fun too.—LEWIS I. RICE

Megha Parekh, senior vice president and chief legal officer, Jacksonville Jaguars

Megha Parekh ’09 is in charge of all legal matters for the NFL’s Jacksonville Jaguars

Tackling a Big Job

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1930-1939IRVING ISAACSON ’39March 28, 2018JAMES S. KERNAN JR. ’39April 19, 2018

1940-1949J. BARTON “BART” PHELPS ’40June 15, 2018STANLEY GELLER ’43 (’47)April 6, 2018GEORGE N. LEIGHTON ’43 (’46)June 6, 2018S. GEORGE ALBION ’47Feb. 19, 2018RICHARD M. FURLAUD ’47Sept. 10, 2018DAVID C. ACHESON ’48Aug. 16, 2018JOHN F. CARR ’48March 14, 2018FRED N. FISHMAN ’48June 5, 2018JOHN P. FULLAM ’48March 8, 2018HAIG DER MANUELIAN ’48Dec. 1, 2016BERNARD MARCUS ’48June 2, 2018DONALD E. MARQUARDT ’48Sept. 16, 2018EDWARD R. MCHALE ’48October 2016JULES MALVIN BARON ’49April 6, 2018SAMUEL L. COHEN ’49May 26, 2018BERNARD A. FEURSTEIN ’49Nov. 16, 2018WILLIAM H. HAGENDORN ’49April 24, 2018MARVIN SPARROW ’49 (’50)June 28, 2018FREDERICK W. TREZISE JR. ’49May 16, 2018PHILLIP C. VINCELLO ’49May 21, 2016

1950-1959ROBERT R. BAIR ’50March 27, 2018MYRON BOLUCH ’50Aug. 7, 2018LYON L. BRINSMADE ’50July 27, 2018PAUL S. EDELMAN ’50June 26, 2018B.C. HART ’50Sept. 15, 2018JOHN G. KRISTENSEN ’50May 28, 2018MORTIMER S. STEINBERG ’50 July 17, 2018ROBERT L. BAILEY ’51May 10, 2018HERBERT C. FEINSTEIN ’51June 20, 2018MARVIN N. “MICKEY” GELLER ’51April 13, 2018BARRY GOLOMB ’51Oct. 29, 2014 PAUL G. HASKELL ’51March 7, 2018EDWIN J. JACOB ’51April 5, 2018SAMUEL ADAMS ’52March 4, 2018

CHARLES T. “TAD” HALL ’52May 21, 2018JAMES B. JOHNSON ’52Feb. 14, 2018WILLIAM A. KATSENES ’52Sept. 17, 2018RICHARD C. LEVIN ’52Sept. 23, 2018EARL J. MCHUGH ’52July 19, 2018ANDRE NEWBURG ’52Sept. 16, 2018MAX A. STOLPER ’52April 12, 2018PETER TALBOT ’52June 22, 2018BEVERLY S. COLEMAN ’53 (’54)August 2018ALAN J. HARTNICK ’53Aug. 18, 2018EICHI OKI ’53Oct. 20, 2016DAVID SCHECHNER ’53 April 12, 2018ROBERT L. SHULTS JR. ’53 Sept. 11, 2018RICHARD L. ANDERSON ’54Aug. 12, 2018DONALD W. DOWD ’54March 7, 2018LAURENCE S. FORDHAM ’54July 31, 2018JOAN DIGNAN FULLER ’54Aug. 2, 2018JAMES C. FULLERTON ’54June 15, 2018JAMES H. HARDIE ’54April 8, 2018EDWIN HELLER ’54July 2, 2018HERBERT D. LEWIS ’54Aug. 23, 2018RICHARD W. “ARCHIE” SOUTHGATE ’54Aug. 18, 2018CRAIG B. BRIGHT ’55Sept. 18, 2018G. EUGENE DACEY ’55 (’57)May 3, 2018CHAMPE A. FISHER ’55April 29, 2018ROGER B. HUNT ’55May 7, 2018JAMES K. LOGAN ’55Sept. 8, 2018EUGENE M. SETEL ’55May 29, 2018SCRIBNER L. FAUVER ’56June 6, 2018JERROLD P. ROSENTHAL ’56June 15, 2016M. BROOKS SENN ’56Sept. 28, 2018ROBERT F. AMBROSE ’57Aug. 25, 2018DAVID S. BROWN ’57June 12, 2018HOWARD M. “TIM” FRY II ’57May 31, 2018GERARD D. GOLDSTEIN ’57April 9, 2018LEONARD S. GOODMAN ’57April 24, 2018CHARLES M. GRIMSTAD ’57June 9, 2018CHARLES HIEKEN ’57May 31, 2018STUART A. JACKSON ’57March 22, 2018

EDWARD W. KEANE ’57July 24, 2018MELVIN H. LEVINE ’57March 19, 2018NORMAN L. MARKMAN ’57Feb. 24, 2018ROY C. MEGARGEL ’57Sept. 22, 2018ROBERT D. STILES ’57Aug. 4, 2018 LESTER R. WOODWARD ’57Sept. 5, 2018RICHARD N. GOODWIN ’58May 20, 2018HAROLD N. KAUFMAN ’58May 14, 2018WILLIAM L. KNECHT ’58June 1, 2018JAMES P. MARTINEAU ’58March 6, 2018WILLIAM M. MCGOVERN JR. ’58March 27, 2018HARRY L. MEAD JR. ’58April 3, 2018 CARL M. SAPERS ’58July 18, 2018CLIFFORD L. WHITEHILL LL.M. ’58Aug. 15, 2018HARRY A. YOUNG JR. ’58Sept. 29, 2018ALAN G. BLUMBERG ’59Aug. 12, 2018BERNARD N. BORMAN ’59Dec. 13, 2017ARTHUR L. FINE ’59Sept. 21, 2018JAMES J. ORLOW ’59Aug. 23, 2018G. WYNN SMITH JR. ’59May 5, 2018JEROME J. SUSSMAN ’59May 8, 2018CHARLES W. UFFORD JR. ’59Aug. 17, 2018

1960-1969ROBERT A. “JOE” JOHNSON ’60Feb. 26, 2018ELI KRIVOSHIA JR. ’60Feb. 26, 2018PAUL E. PLUNKETT ’60March 19, 2018WILLIAM F. WHITE JR. ’60Aug. 4, 2018SAMUEL B. BARTLETT ’61March 31, 2018JONATHAN G. BUNGE ’61April 10, 2018ANTHONY D’AMATO ’61March 24, 2018BARRY DICKMAN ’61Jan. 29, 2018WILLIAM G. “JERRY” O’KIEF LL.M. ’61July 15, 2018ROBERT M. O’NEIL ’61Sept. 30, 2018STEPHEN W. SCHUPACK ’61March 26, 2018NORMAN H. DONALD III ’62July 11, 2018JAY H. FOREMAN ’62Sept. 2, 2018RICHARD S. FRIEDMAN ’62Aug. 13, 2018GREGORY M. HARVEY ’62Aug. 7, 2018

JAMES S. KAUFMAN ’62July 23, 2018ROBERT S. STONE ’62April 30, 2018JAMES FU TAO ’62July 20, 2018LAURENCE E. CASSON ’63Nov. 25, 2016JOHN A. COATES, Q.C. LL.M. ’63July 11, 2018MARIE V. DRISCOLL ’63Sept. 29, 2018PAUL FELZEN ’63Aug. 17, 2018ROBERT S. KENISON ’63June 13, 2018RAYMOND J. PETERSEN ’63Aug. 19, 2018ALFRED J. ROSS ’63Aug. 26, 2018ROBERT A. BERGQUIST ’64July 21, 2018EDWARD S. CABOT ’64May 15, 2018PHILLIP H. GINSBERG ’64Sept. 15, 2018HARRY L. “PAT” HELLERSTEIN ’64July 31, 2015JULIUS B. LEVINE ’64April 10, 2018THOMAS P. LEWIS S.J.D. ’64March 7, 2018ARTHUR J. LOMBARD ’64May 11, 2018PERRY W. MORTON ’64April 19, 2018GAYLE B. WILHELM ’64April 8, 2018ARTHUR W. BRILL ’65June 28, 2018MEREDITH M. BROWN ’65April 19, 2018ROBERT A. GRAYSON ’65Feb. 18, 2018MICHAEL S. SAPER ’65Feb. 23, 2018LAWRENCE WEISS ’65June 1, 2018STEVEN A. SCHATTEN ’66March 5, 2018ROBERT A. WARDEN ’66March 15, 2018GERALD S. WILCOX ’66Sept. 18, 2018DOUGLAS F. BAUER ’67Sept. 4, 2018JAMES T. HENDRICK ’67Feb. 10, 2018JOHN E. KRAHMER LL.M. ’67April 4, 2018RONALD K. LACHNER ’67May 23, 2018BARDIN LEVAVY ’67June 15, 2018RANDY REVELLE ’67June 3, 2018HARVEY R. CLAPP III ’68March 27, 2018B. ALAN DICKSON ’68July 18, 2018DONALD R. HOPKINS LL.M. ’69April 22, 2018

1970-1979WILLIAM F. MCCARTHY ’70April 17, 2018JOHN R. BARMEYER ’71April 18, 2018

MORTON P. COHEN LL.M. ’71April 12, 2018ROBERT E. L. GARNER ’71July 4, 2018CARY J. RUDMAN LL.M. ’71March 31, 2018RON MERENBACH ’72June 15, 2018EDWIN C. PEARSON LL.M. ’72March 29, 2018MARK KREITMAN ’74 (’75) Aug. 30, 2018 ROBERT L. KURT III ’74Aug. 24, 2018JOHN M. THOMAS ’74April 11, 2018KEVIN P. GALLEN ’75May 27, 2018TIMOTHY J. NORRIS ’75Sept. 23, 2018CAROLYN J. RUSSELL ’77Feb. 16, 2018G. HAMILTON LOEB ’78July 30, 2018KEN SILBERGLEIT ’78June 13, 2018

1980-1989NEIL R. FINKELSTEIN LL.M. ’80June 12, 2018MARYBETH HERALD ’80Aug. 27, 2018 LESLIE H. LOWE ’80Nov. 22, 2017MARK L. PARAN ’80June 22, 2018PATRICK K. MIEHE ’82June 5, 2018JIM H. GOERING ’83May 6, 2018SOLVEIG OLAFSDOTTIR LL.M. ’83June 1, 2018JOY A. KRUSE ’84May 22, 2018DAVID C. RUTH ’84June 11, 2018KATHRYN WHITEHEAD TOHIR ’84June 24, 2018ANDREA SMILEY HIGGINS ’86April 3, 2018RUTH M. SCOTT ’86Sept. 12, 2018LECH R. KALEMBKA ’88January 2016RUSSELL D. LEBLANG ’88Aug. 25, 2018AVERY P. MAHER ’89May 1, 2018

1990-1999KIMBERLY A. JACKSON ’94March 31, 2018DANIEL J. SILBER ’94May 13, 2018DAVID A. RUBENSTEIN ’98Oct. 5, 2018

2000-2009CARRIE A. DUNSMORE ’03Aug. 15, 2018NATHAN B. ELLIOTT ’07June 3, 2018

2010-2019DANIEL POTUCEK ’13March 31, 2018

IN MEMORIAM

ONLINE Visit the In Memoriam section at bit.ly/inmemwinter2019 for links to available obituaries.


“I have to tell you, honestly—and this will sound cheesy but it’s true—my years at Harvard Law School were among the three hap-piest of my life,” says Dan Eaton ’89, the 2018-2020 president of the Harvard Law School Association, which unites more than 40,000 HLS alumni and students around the globe. “Not only was I inspired by the brilliance of the professors but also by the brilliant and very diverse voices I heard both in the classroom and outside the class-room from my fellow students.”

Soon after he arrived on cam-pus, Eaton recognized that HLS would be a remarkable experi-ence. He recalls that as a 1L, before classes began, he and other Afri-can-American students discussed a U.S. Supreme Court case with the guidance of several 2Ls (one of them was Michelle Robinson ’88, future first lady, and the other, Jocelyn Frye ’88, her future policy adviser), and they engaged in fur-ther discussion of the case with Professor Charles Ogletree ’78, re-nowned criminal law expert. The same week, two Supreme Court justices, William J. Brennan Jr. ’31 and Harry Blackmun ’32, were on campus for an alumni event, taking questions from students.

“I remember thinking, Wow, welcome to Harvard Law School!” recalls Eaton, a partner with San Diego’s Seltzer Caplan McMahon Vitek, where he focuses on em-ployment law defense. “Not to say there weren’t challenges, of course. There were, but they were the kinds of challenges that make you grow, and I’ve continued to grow from that experience ever since.”

Eaton says his experience at HLS leads him to pay it for-

Empowered and SupportedHLSA President Dan Eaton ’89 wants to share the benefits of a remarkable experience

ward in a variety of ways includ-ing as HLSA president, and, in 2016, as a program co-chair of the fourth Celebration of Black Alum-ni, when, he says, “I welcomed the opportunity to go back and engage with amazing, accomplished Af-rican-Americans who are fellow alums, people like Loretta Lynch and Ted Wells, Professor Ogle-tree and Ken Frazier and Ken Chenault. My political view is a little different from most Afri-can-Americans’—I’m a conserva-

tive—but there was a willingness to engage in deep discussion.”

As HLSA president, he is fo-cused on developing “durable means of communication among alums,” he says. “That means both where local clubs feel empowered and supported to provide oppor-tunities for alums to meet, and online communications mecha-nisms so alums can reach out to each other as resources.”

Born in Queens, New York, Ea-ton grew up in Mount Vernon, New York. As a student at Georgetown University and after graduation, he worked as an aide to U.S. Sen. Arlen Specter, where his focus in-

As president, Dan Eaton is focused on the development of “durable means of communication among alums.”

“There isn’t a day, not a day, that I

don’t draw on the lessons from my

three years of law school.”

Harvard Law School Association


cluded labor issues. That led to his interest in employment and labor law. “It’s very people-focused,” explains Eaton, who was drawn to advising and litigating on behalf of businesses “so they can make the right decisions as both a legal matter and an ethical matter.”

After graduating from HLS, he chose San Diego not only for the weather, “but because it was a place that was open to meaning-ful contributions from outsiders, where I could take part and pitch in as an expression of my patrio-tism, at a very high level.” Before age 30, he’d been elected president of the Earl B. Gilliam Bar Associa-tion, the local organization of Afri-can-American lawyers. During the second trial of the police officers accused in the beating of Rodney King, Eaton provided legal com-mentary on local radio and TV, a role he continues today. He ap-pears regularly on the local NPR affiliate, where he discusses a wide range of legal issues and the U.S. Supreme Court. He also writes a column on employment law for The San Diego Union-Tribune.

Legal ethics is another interest. He is on the disciplinary commit-tee of the local federal court, and for the past three years he has served on the California State Bar’s rules revision commission, which recommended the first overhaul in 30 years of the rules of professional conduct. The Califor-nia Supreme Court substantially adopted the new rules; among oth-er changes, they make it easier to discipline lawyers who engage in discriminatory behavior.

“There isn’t a day, not a day, that I don’t draw on the lessons from my three years of law school,” Ea-ton says.

HARVARD VS. YALE AND THE GREEN MONSTER

2014 classmates Bryan Koch, Heejin Choi, Jonathan Browalski and Vivian Ban Browalski were among the 100 HLS alumni and guests who gathered for this year’s Harvard-Yale football game, held at Fenway Park in November.

DEAN MANNING ON THE ROAD

Dean John F. Manning ’85 with Juanita Hernández ’85 (left),

Judge Merrick Garland ’77 (far right) and his wife, Lynn

Garland, in Washington, D.C., on Nov. 15. Dean Manning gave

a talk highlighting his priorities for the school. This fall he also

met with alumni groups in New York City, Chicago, and Los

Angeles at events sponsored by the HLSA and the Harvard Law

School Alumni Center.

LAW IN THE PUBLIC INTEREST

The HLSA of Greater Philadelphia hosted a well-attended event in October celebrating alumni who do public interest work. Speakers included (from left) Michael Churchill ’65, of counsel at the Public Interest Law Center; Jessica Hilburn-Holmes, executive director of the Philadelphia Bar Foundation; Dveera Segal ’79, president of the HIAS Pennsylvania Board of Directors; Susan Vivian Mangold ’87, CEO of the Juvenile Law Center; and Deborah Gordon Klehr ’04, executive director of the Education Law Center.

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ONLINE To learn more about events in your area, go to: bit.ly/HLSalumnievents.


A Conversation with Patti B. Saris ’76A trailblazing career leads Saris to cutting-edge science and criminal justice reform

You’re a Boston native. I grew up in West Roxbury, only 15 minutes from Harvard. When I ar-rived at Radcliffe College, it was as if I’d moved a thousand miles away, because the world was so different. It really emboldened me and taught me how to be a leader.

You were a dedicated student reporter on The Harvard Crimson. What made you switch gears and go to law school?I worked on the Crimson during a very contentious time, as the Viet-nam War was being debated, the civil rights movement and the women’s movement intensified, and students were challenging existing norms. I reported on the famous strikes but I also covered Harvard Law School. I went over there as students were protesting the fact that there were so few women enrolled, and I met some of the women who were asserting their rights. I loved the edginess of that, of not accepting the status quo. I decided to go to law school.

After law school, you packed a lot of work experience into a dozen years: You were the first woman to clerk for Justice Robert Braucher [’39] of the Massa-chusetts Supreme Judicial Court; next you joined the Foley Hoag firm. When Senator Ted Kennedy became chairman of the Judiciary Committee, you moved to Washington to serve on his staff, and subsequently you became an assistant U.S. attorney. What made you decide to try for a judgeship? When a magistrate judge position opened up [in 1986], I was interested but thought I wouldn’t get it—too young, at 35, too inexperienced. In the early ’80s an influx of new women members of the bar had formed the Women’s Bar Association, which I was very active in. A group of its members came to me and said, “The federal bench is primarily male, and we need more women. You’ve got a great academic background, with Radcliffe College and the law school. Why don’t you apply?” So I did.

What experiences helped you most as a new judge?I was chief of the Civil Division in the U.S. Attorney’s Office, and I had experience in civil litigation. I’d worked on some sentencing and bail issues with Senator Kennedy. I did have a steeper learning curve on the criminal side of the equation, but back in law school, I was a student district attorney at Harvard Law School and I tried more than 10 cases in the district court while working with the Middlesex DA’s office. I got fabulous trial experience and strong mentorship. These law school expe-riences in a court system are immeasurable in value, giving you a store of information you keep forever; they were hugely impactful for me.

In 1989, you became an associate justice of the Massachu-setts Superior Court, and five years later, you joined the federal bench. What kinds of cases do you find especially challenging right now?I’ve done a lot of patent cases—we’ve a big patent court up here in Boston—that involve complex sci-ence and technology, particularly in this region where we’ve got MIT and Harvard and all the major universi-ties and hospitals and drug companies. The trial judge has to double down and learn not only what the facts are, but also the science underpinning the parties’ positions to know whether or not there’s infringe-ment. The issues of science come up in criminal cases, too—in child pornography cases in terms of how does one know the defendant was accessing this particular server, or in commercial disputes over whether or not someone has taken a trade secret. I think cases in-volving cutting-edge science are something this court needs to be top-notch in.

You are part of the “second wave” of women at HLS—your class was only about 15 percent female—and you credit the women’s movement as a powerful influence in your life. Can you give an example? When I worked with Senator Kennedy, I was pres-ent when he met with soon-to-be Justice Sandra Day O’Connor, the first woman appointed to the Supreme Court. I know the senator wanted me to meet this person who was really at the top of her profession. I also watched the Senate confirmation hearing of Rya Zobel ’56, one of Harvard Law School’s first female grads, who was just wonderful. She became the first female federal district court judge in Massachusetts.

You were on campus this fall for Celebration 65. As a pan-elist on “Reforming Criminal Justice in America,” you listed reforms you want most. Number one: to end all mandatory minimums in sentencing. Why is that your top priority?I was chair of the U.S. Sentencing Commission for six years. Criminal justice, particularly in the area of sentencing, has become a passion of mine. I think too

On Jan. 1, 2013, Patti B. Saris ’76 became the first woman to be named chief judge for the U.S. District Court for the District of Massachusetts, breaking another barrier to women in the law. In her years as chief, Saris has deftly tackled cases at the far reaches of technological innovation, intellectual property, and emerging science and, more recently, immigration and deportation cases amid fiery public debate. Every day that she puts on her robe, Saris continues the pursuit of truth that led her to the law in the first place.

Leadership

Winter 2019 HARVARD LAW BULLETIN 73PHOTOGRAPH BY TONY LUONG

many people are being incarcerated for too long in this country. In the 1980s and ’90s, we freaked out as a society about rising crime rates and imposed harsh penalties. Now we’re coming to understand we do need to talk about rehabilitation, about drug courts, about collateral conse-quences of felony convictions. And there is growing consensus on both sides of the aisle that some of the mandatory minimums are too harsh. The Sentencing Commission unanimously made certain retroactive changes to drug-related penalties that made 40,000 people eligible for lower penalties. That was such a huge moment in the area of criminal justice reform. We came very close to a big fix, through legislation in Congress, but it didn’t happen. Elections matter. But momentum still exists to do more. I am hopeful. [Since this interview was conducted, the First Step Act, a criminal justice reform bill, was signed into law.]

Education also made your list of crucial reforms. Why?A lot of solutions in criminal justice can only address the tip of the iceberg. We must provide poor people with better opportunities. I’m on the board of various philanthropies. One I recently rolled off, after over a decade, is a place called Bottom Line that helps inner-city kids get access to college and then helps them graduate. That work was ex-tremely important to me. I was also involved in starting the Nelson Fellows program here at the courthouse that brings in inner-city kids (high school level) with each judge taking a different student to mentor. I’ve been doing that for 20 years now. And I’m on the board of a charter school in Dorchester.

You have a lot of interests you are passionate about. Have we skipped any?My family! My husband, Arthur Segel, is a professor teaching in real

estate at Harvard Business School. I’m the proud mother of four children and five grandchildren.

Didn’t one of your kids come pretty close to being born in a courtroom?My daughter. I went into labor when I was giving my very first circuit court argument. Work-life balance hasn’t become easier over the years, though my kids have taken different approaches. So it’s a never-end-ing discussion. My daughter once said to me, “I was al-ways so proud you were a judge, but couldn’t you have spent more time with me?” It’s always a tension, and now she’s trying to balance it differently. I do think women today have more freedom to try to strike a balance their own way.

You’ve served on the Harvard Board of Overseers (as president in 2006), been a member of the Visiting Com-mittee to Harvard Law School, and you’re on the Dean’s Advisory Board. What motivates you to be such a heavy-hitter volunteer?I’m a strong believer in Harvard’s basic model: Veri-tas. In higher education generally but at Harvard in particular, it’s extremely important for the acade-my to be strong and to speak truth, whether it’s in science or on legal principles. Both college and law school gave me a fabulous education in how to seek out the truth.


When Harvard Went ModernThe understated art of the Bauhaus at Harvard Law

ONE HUNDRED YEARS AGO, in 1919, a German school of design addressed a crucial housing shortage. Led by founder Walter Gropius, Weimar’s Bauhaus school used industrial materials to create in Germany what it called “minimum dwellings,” functional and economical housing built in spare, modernist style.

Following World War II, Amer-ican universities faced a similar shortage, as veterans returned to their studies. In 1948, Harvard Law School Dean Erwin Griswold ’28 S.J.D. ’29 turned to Gropius. He commissioned the architect, who had immigrated to the U.S. in 1937, to create the first Har-vard graduate residence center, radically expanding what many saw as the Harvard style.

In what was then the law school’s largest fundraising campaign, $1.5 million was budgeted for the project: a complex (also funded in part by the Harvard Gradu-ate School of Arts and Sciences) that would include a dining hall, a cafeteria, and lounge areas (for many years called the Harkness Commons and now the Caspersen Student Center), as well as shared

outdoor space and seven dorms (two for GSAS students), all of which are still in use today.

As part of the project, Gropius (who was teaching at the Harvard Graduate School of Design) insist-ed on a budget for art as well, com-missioning site-specific works from an international roster of sculptors, painters, and textile art-ists, including Josef and Anni Al-bers, Hans Arp, and Gyorgy Kepes, as well as American Richard Lip-pold. Several of these artworks remain in place today, while oth-ers—including newly cleaned and restored works by Joan Miró and Herbert Bayer—are part of the ex-hibit “The Bauhaus and Harvard” at the Harvard Art Museums, Feb. 8 through July 28. (An exhibit of Hans Arp’s “Constellations II,” which initially graced the HLS dining hall, coincides.)

Known simply as the Graduate Center when it opened on Oct. 6, 1950, Gropius’ complex stands as a turning point in American archi-tecture, according to A. Melissa Venator, Stefan Engelhorn Cura-torial Fellow in the Busch-Reising-er Museum, who is assisting on the Bauhaus exhibition. Even The New York Times noted the commis-sion, with a story headlined “Har-vard Decides to ‘Build Modern.’” The project lent the stark style the Harvard imprimatur, and marked a bold departure from the univer-sity’s traditional neo-Georgian, ivy-covered brick. “The spirit of the age required a certain spar-

tanness,” says Alex Krieger, Grad-uate School of Design Professor in Practice of Urban Design. “A mov-ing away from the overindulgence of 19th-century architects.”

Not everyone appreciated the broad expanses of concrete, how-ever, even though the Bauhaus structure—with its emphasis on internal support, rather than ex-ternal retaining walls—allowed for large windows that took in the shared public space. The New York Times architecture critic Ada Louise Huxtable, for example, dis-missed the center as “disappoint-ingly pedestrian.”

Even today, students on their way to lunch, passing by such works as Josef Albers’ brick relief “America,” may not recognize the genius that transformed a simple building material into a master-piece of negative space. “Is that art?” Harish Vemuri, a 2L, com-mented recently, when asked about the work in the Caspersen Student Center.

“It doesn’t read as an artwork,” explains Venator. That, she says, is part of the Bauhaus approach: “that art would surround you in an almost unconscious way.”

“Harvard has a history of art being integrated in its public spaces,” says Laura Muir, research curator for academic and public programs, who curated “The Bau-haus and Harvard.” The Caspersen Student Center, she says, “is the beginning of that in a systematic way, as a total project.”

As architect for the HLS complex, Gropius insisted on a budget

for art and commissioned work—from textiles to sculptures.

Gallery BY CLEA SIMON / PHOTOGRAPHS BY BOB O’CONNOR


Joan Miró, untitled ceramic mural, 1960. This mural, on view in the Caspersen Student Center dining room, replaced a painting by Miró after the artist noted that its placement—above a radiator and in direct sunlight—was far from ideal from a conservation standpoint. The original is now in the collection of the Museum of Modern Art in New York.

Josef Albers, “America,” brick relief, 1950. Made of a simple building material and meticulously planned, using negative space that relies on the depth as well as the placement of the bricks, “America” was a fulfillment of a Bauhaus idea, integrating art and architecture.


Textile designer Anni Albers had many conversations with Gropius about the fabrics that would eventually make up the bedspreads in the new student housing. Because of his budget, as well as the Bauhaus emphasis on utility, Gropius pushed for inexpensive and durable fabrics. Albers wanted fibers that would hold rich, saturated color. The compromise was cotton in three different plaids (see the daybed above). Two samples are on display in the Harvard exhibit.

Richard Lippold, “World Tree,” metal sculpture, 1950. Lippold, the lone American among the artists contributing to the HLS project, studied at the experimental and arts-oriented Black Mountain College, in North Carolina, where Gropius and many of his émigré colleagues taught. Lippold wrote in an artist’s statement: “The piece would enjoy an annual polishing (with Bon Ami cleanser), probably as a rite at the vernal equinox, and it will not resent being inhabited by one or two contemplative beings.”

Graduate Center, 1950

ON DISPLAY For more on the Bauhaus and Harvard, visit exhibitions at the Harvard Art Museums (Feb. 8-July 28) and the Harvard Law Library (Feb. 4-July 31).

Gallery

Black and white photos from Harvard University Archives, Harvard Art Museums

Hans Arp, “Constellations II,” 1950. Gropius shared technical drawings and architectural plans with Arp and the other artists commissioned to create site-specific installations. “It was important to him that they understood the space and they responded to the architectural interiors,” says A. Melissa Venator, who has curated Hans Arp’s “Constellations II” at the Harvard Art Museums, the large-scale work’s first public viewing in 15 years. Arp, however, had difficulty envisioning the space and traveled to Cambridge at his own expense. Once here, he worked with cardboard pieces cut to scale, rearranging his abstract shapes on the dining room floor until he was satisfied. The final pieces were stained “American redwood,” continuing the Bauhaus aesthetic of referencing local—or at least native—material. After a yearlong conservation effort, the original finish has been restored.

Herbert Bayer, “Verdure,” 1950. The painting, which takes pride of place in the Harvard Art Museums exhibit, was not always appreciated by students when it hung in the Harkness Grill Room. In 1950, The Harvard Crimson sponsored a contest inviting students to suggest interpretive titles. Suggestions ranged from “Nausea at Noon” to the prizewinner, “The Garden of Eden,” with its punning play on the piece’s lunchroom placement. Gropius served as the judge.

A 2004 renovation added modern updates to the modernist complex, including air conditioning and internet access. It restored some of the original details, such as the exterior limestone panels, and covered over others, such as the tile work designed by Herbert Bayer. The colorful room divider he designed remains.

“Harvard has a history of art being

integrated in its public spaces. ...

The Caspersen Student Center is

the beginning of that.”

Laura Muir, curator, “The Bauhaus and Harvard”

Harvard Law BulletinHarvard Law School1563 Massachusetts Ave.Cambridge, MA 02138

Nonprofi t Org.U.S. Postage PaidBurlington, VT05401Permit 347

Although arguments in the U.S. Supreme Court are not video-re-corded, you can watch many of its justices questioning oralists and presiding over cases—within the State of Ames. Visit Har-vard Law School’s archive of video recordings of the fi nal rounds of the Ames Moot Court Competition. In addition to many lower

court judges, you will fi nd 17 SCOTUS justices, including Thurgood Marshall (who fi rst presided in 1974, the fi rst year for which there is video); John G. Roberts Jr. ’79, chief justice of the United States; and most recently Sonia Sotomayor.

1978 Warren Burger

SupremeViewing:

A DEEP BENCH

1982 Sandra Day O’Connor1979 Potter Stewart

1974, 1977 Thurgood Marshall (center) 1976, 2016 John Paul Stevens

1980, 1983, 1986 Harry Blackmun ’32

1975, 1988 Lewis Powell Jr. LL.M. ’32

2015 Elena Kagan ’862011, 2018 Sonia Sotomayor2010, 2017 John G. Roberts Jr. ’79

1984, 1995, 1999, 2002, 2008 Stephen G. Breyer ’64

1989, 1997, 2006 Anthony Kennedy ’61

1982, 1994, 2004, 2013 Ruth Bader Ginsburg ’56-’58

1991, 1993, 1998, 2000, 2005, 2012 David Souter ’66

1987, 1992, 2007, 2014 Antonin Scalia ’60

1985 William Rehnquist (left)1984 William J. Brennan Jr. ’31

ONLINE bit.ly/HLSamesmootcourtarchive

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Harvard Law

Bulletin Winter 2019 Volum

e 70, Num

ber 1 BRINGING SLAVERY’S LEGACY TO LIGHT | M

AKING THE CASE FOR CRIMINAL JUSTICE REFORM

| LAW’S INFLUENCERS

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