BY MATT HUTCHINS

When Ukraine’ssitting president,Viktor Yushchenko,was eliminated fromthe first round of theelections, garneringless than six percentof the vote, he urgedvoters in the run-offelection to voteagainst both candi-dates. That six per-cent proved to be more than enough to blockYushchenko’s former ally, Prime MinisterYulia Tymoshenko, from achieving victory.

One might expect the President to be totallyagainst his long-time rival ViktorYanukovych, for it was he who was impli-cated in the falsification of the 2004 presiden-tial election which was reversed by theOrange Revolution. Outsiders might be sur-

CountryShiftsAwayFromWest toPro-MoscowParty

BY JENNY PAUL

Harvard Law School’s newestfirst-year required course was awinter-term success, according tomany 1L students. The ProblemSolving Workshop was the last ofthe curriculum reforms to be im-plemented after a 2006 faculty voteto change the required 1L courses,which also added Legislation andRegulation and an international lawelective course to the first-yearschedule.

“Problem Solving was awe-

some,” said first-year studentDanielle Singleton. “It taught usvery practical knowledge.” Allfirst-year students were required totake the course during the lawschool’s three-week winter term.Students separated into smallgroups of four or five and weregiven hypothetical fact patterns thatthey used to address problemslawyers face in daily practice, suchas how to effectively interviewclients and draft press releases.

Dean Martha Minow said shewas “delighted” with the results.

BY VICTORIA BARANETSKY

Last month, the Supreme Court au-thored 183 pages of opinions in Cit-izens United v. Federal ElectionCommission, fomenting the ire ofCongress, President Barack Obama’91, and the legal community. Ex-pressing their own disappointmentwith the decision, for two profoundlydifferent reasons, were ProfessorLarry Lessig, director of the SafraFoundation for Ethics, and attorneyJeff Clements, who authored an am-icus brief in support of the lowercourt’s decision. The two offeredtheir independent critiques at a panel

last week hosted by Harvard’s chap-ter of the American Constitution So-ciety.

In Citizens United, the Court held5–4 that restrictions on corporation’sindependent expenditures in politicalcampaigns are unconstitutional,overruling Austin v. Michigan Cham-

ber of Commerce and parts of Mc-Connell v. FEC. Justice AnthonyKennedy ’61, writing for the major-ity, explained that to rule otherwisewould chill protected politicalspeech.

However, critics like Jeff Clementswere not persuaded. “Kennedydances around the real thresholdissue of ‘What is a corporation?’Andhe is pretending that there is no dis-tinction between corporations andhumans, but that is very grave.” saidClements. “That is what makes thiscase so profoundly important for thiscountry.”

Harvard Law RecordFebruary 11, 2010 Vol. CXXX, No. 3www.hlrecord.org — twitter @hlrecord

The Independent Newspaper at Harvard Law School

News• Phoenix Mayor on Immigrants• Mock Trial Wins Again

Opinion• Hope for European Rights• Forrest Gump and Int’l Law• Citizens United: What Next?• Citizens United: Nader’s Book

INSIDEThe HL Record

RALPH NADER & BRUCE FEIN ON CAMPUS TUESDAY, FEB 23 - SEE BACK COVER

TIRED OF SUBCITING?NEWS EDITORS WANTED!E-MAIL RECORD@LAW

LESSIGLEVELSCITIZENSUNITEDDECISIONIn Wake of Ruling,Prof. Says CountryMust Act to RestoreTrust in Politics

ANOUTLAWWHOSE

LIFEWASTHELAW

CCCCiiiittttiiiizzzzeeeennnnssss UUUUnnnniiiitttteeeeddddvvvv.... FFFFEEEECCCC

More Coverage and More Coverage and Opinion - Page 2Opinion - Page 2

Bob Mnookin Deals With the DevilIn His Newest Book, Mnookin ‘68 Negotiates the Pitfalls of Bargaining With the Forces of Evil

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

South Africa’s Revolution as Dissident,Then as Constitutional Court Judge

1L Winter Workshop HeatsUp First Year Curriculum

BY REBECCA AGULE

He survived repeat imprisonment, a carbombing that resulted in the loss of his arm,and vision in one eye, but through it all, AlbieSachs counts himself lucky to have played apivotal role in his country’s history. And onFebruary 5, Sachs, recently retired from theConstitutional Court of South Africa and pro-moting his new autobiographical book, TheStrange Alchemy of Life and Law, shared histales of activism, exile and incarceration atHarvard Law School.

Sachs began his legal career by advocatingfor human rights and representing defendantscharged under racist statutes. This work led to

Problem Solving, continued on pg. 5

BY NATHANIEL L. FINTZ

You are beside yourself with rage.Your small research-and-developmentfirm in Silicon Valley has partnered witha Japanese company to manufacture anddistribute your product. But you’ve justdiscovered that this company has vio-lated your contract by secretly creating aknock-off of the design you licensed tothem—and selling it in the Chinese mar-

ket! They deny wrongdoing, and theyalso want to renegotiate your originalcontract.

You are so angry you can hardly thinkstraight. But what should you do?Should you bargain with this devil? Thisquestion, which arises in so many situa-tions, is central to Bargaining with theDevil: When to Negotiate, When toFight, a new book by Professor Robert

Lessig, cont’d on pg. 3

Devil, cont’d on pg. 7

Sachs, cont’d on pg. 5

Ukraine’s OrangeRevolution SweptAside in Vote

N E W S A N A L Y S I S

Yanukovych admires hisnarrow, but solid, margin of victory

KREMLIN MAN?

Source: partyofregions.org.ua

Ukraine, cont’d on pg. 8

Citizens United v. FEC is the kind of opinion thatdeserves fierce and decisive condemnation by theAmerican public. Indifferent to the threat of unre-strained economic power, and wedded to a rhetoric ofcorporate personhood that only seems plausible in therealm of disorienting metaphor, it preaches a visionof free speech that most Americans have rejected forover a century. Judicially rewiring the First Amend-ment into an efficient convertor of economic might topolitical influence, Justice Anthony Kennedy ’61 etal. rewrote a major swath of constitutional law in an-swer to a question posed only by the majority toitself. As a result, our First Amendment willspend the foreseeable future frozen in irony – astatus born of the role it now plays in gutting thevery right it exists to champion.

Harm to free speech is only the beginning,however, of Citizens United’s consequences. As ju-dicial and legislative elections fall under the vastlyexpanded sway of corporate dollars, we can anticipatea new bevy of creative tax loopholes, deregulatoryinitiatives, and pro-business doctrinal shifts in manyfields of private law. And as Prof. Mark Roe ’75 ob-serves in the Financial Times, Citizens United mayactually reduce economic dynamism by encouragingincumbent business interests to deploy their new po-litical muscle against emerging market entrants (wholack the organization and influence to successfully op-pose regulatory obstacles). Citizens United also significantly expands an

incentive structure that was already highlyconducive to actual and perceived politicalcorruption. Fortune 100 companies reportedrevenues of $13.1 trillion during the last elec-tion cycle, as compared to approximately $745

million raised by Barack Obama ’91, and averages of$711,000 and $2.44 million respectively for Houseand Senate candidates. ExxonMobil alone reportedprofits of $85 billion across this same period. Withunlimited access to funds, these corporations wouldwield extraordinary power over the electoralprospects of our political class – the harms of whichare both obvious (bad policies that favor narrow cor-porate agendas over the public interest) and subtle (re-duced popular faith in democratic processes).

It may seem strange to argue that an expansion of

free speech will produce this parade of horribles. Jus-tice Kennedy frames the issue in absolute terms, re-ferring constantly to the “chill” of corporate speech.How, then, to square a serious commitment to libertywith the troubling concerns raised by Citizens United?As Prof. Larry Tribe ’66 explained to the House Ju-diciary Committee, “it would be passing strange if theFirst Amendment, so central to our system of self-government, compelled us to choose between freespeech and democratic integrity.” Properly under-stood, of course, it does no such thing. To reach its

conclusion, the Court piles one questionable assump-tion atop another – treating corporations as “associa-tions of individuals,” granting those corporations fullfree speech rights, equating money and speech, andrelegating to analytic irrelevance any concerns aboutthe real-world effect of unmatched corporate wealth.

The combination of these errors leads to a prepos-terous result, forgetful of the point that the FirstAmendment protects democracy by safeguarding self-expression essential to political discourse. Although“we the people” still reserve the right to speak, our

relative ability to exercise that freedom in mean-ingful service to democratic self-governance hasbeen badly compromised. This result, moreover,is not required by the Constitution. As explainedby Justice Stevens, the unique advantages andcharacteristics of corporations – legal fictions that

we endow with impressive benefits to facilitate eco-nomic growth – provide sufficient and long-recog-nized cause for denying them the same rights asnatural persons.

Some commentators, mainly associated with the po-litical right, tell us not to worry. Citizens United, theyinsist, will do little to disturb the status quo. This op-timistic outlook depends upon at least four doubtfulassumptions: (1) legislatures will act effectively tolimit its impact; (2) judicial elections will not bemeaningfully affected; (3) patterns of corporate be-

havior will remain untouched by an expres-sive and doctrinal shift in legal culture andregulatory power; (4) courts will not construeCitizens United as the basis for further expan-sion of corporate rights; and (4) patterns of ap-proximate party in donations to both political

With the recent Supreme Court holding inCitizens United, corporations and unions havefirst amendment protection to spend directlyon political campaigns – at unprecedented lev-els. This is not the first ruling to protect speechrights for corporations – they also benefit fromthe Court’s “Noerr-Pennington” doctrine,which exempts them from antitrust laws whenthey combine to influence legislation.

But Jefferson and company might be quite surprisedto learn that “originalists” citing the sanctity of theiroriginal intent would let loose upon our governmenthated British megacorporations of the colonial era,like the Hudson Bay Company, as a “person” withsuch rights to combine with other companies and winpolitical influence. We live in aworld that is increasingly controlledby these horizontal organizations.They, together with labor and pro-fessional alliances, dominate Wash-ington and in state capitals. Theyare euphemized as “stakeholders.”

These tribal structures are oftenvehicles that represent the lowestcommon denominator of the ethical sensibilities oftheir membership. But the problem is not quite relatedto the easy demonizing Wall Street or corporate pre-dation; it is that it is the job of corporations to investcapital, and then to try to maximize return on that cap-ital for the stockholders who provided it. That neutral,understandable task means that they should and mustprotect that investment, and if society has createdmarket flaws that allow external costs in the exhaus-tion of the earth’s resources, or health costs borne byothers, this is not something they exist to correct.

The problem is that they are now legally able to pre-vent correction. The “socialist” moniker thrown atsupporters of government intervention applies wherethe state excessively owns and operates the means ofproduction., when the check between private and pub-lic becomes lost. But what do you call the eviscerationof that check in a system where the means of produc-tion own and operate the state? Is industrial or specialinterest socialism not even more antithetical to Amer-

ican notions of check and balance? The corporate-controlled fate awaiting us is not

confined to liberal gnashing over global warming andenvironmental depredations. Conservatives have astake also, as the current unfunded liability for socialsecurity, MediCare and the national debt exceeds aprojected $55 trillion. The carrying charge in currentdollars for the debt we are imposing on our children

is over $20,000 per family per year. Into this evolving and deeply problematical world,

Ralph Nader ’58 released his interesting new book,Only the Super-Rich Can Save Us (Seven StoriesPress). This novel combines real-world politik withan imaginative story—a fantasy of what could hap-pen if 17 of the nation’s wealthiest and most influen-tial persons combined to move the needle back towardthe middle, accomplishing political reform and eco-nomic restructuring. Can such a group transform ourlong-term future and diffuse interests (the environ-ment, our children and our legacy) by expanding theirsecondary, public relations “fig leaf” roles into actual,real-world influence?

The prospects would appear dim, but the idea hasmore to it than the frustration of a longtime consumeradvocate. Nader has been largely marginalized by themedia as some sort of eccentric, most of whom haveforgotten that many of the mechanisms that protectmodern consumers, from air bags to drug testing to

government transparency – are directly trace-able to his citizen advocacy. But his point inthe book is not vindication; it is to raise thepossibility of an imaginative alternative. Andwith the current elevation of corporate per-sonae, Nader’s jujitsu idea may become theonly alternative we have.

Much significant human progress occurs be-cause someone rises above predictable self-advance-ment, taking on his own elite group. Though thisrarely happens, there have been a few remarkable ex-amples, such as Mikhail Gorbachev reversing the So-viet Union’s expected course, ending decades ofbullying and antidemocratic domination. He did theunpredictable—he replaced defense bluster with dis-

armament and political dominationwith Glasnost. And no, it was notReagan or rising oil prices or a pea-cock-strutting United States thatforced the Soviet Union’s coursecorrection. It was a leader turningagainst every expected instinct andpattern. When such reversals of pre-dictable self-interest occur, the con-

sequences may be profound. Indeed, the highestethical act in the modern world may be to take onone’s own tribe.

In Nader’s fantasy, that is what these billionaires do.They get together and find common ground in a

legacy of competition, environmental health, politi-cal reform, and world progress. Could it happen?What is interesting is that Nader personally knowsmost of the folks he writes about. And his storylinepurports to capture not only their political views, butalso their personalities: Warren Buffet ordering cherrycolas, the clever repartee of Sol Price, and thecharisma of Warren Beatty. And the fact that thesefolks do, in fact, care about our planet.

Most of those named in his story currently spendfortunes on charity—on advancing values not farfrom those promoted by Nader. But what they do inhis fantasy is stop spending the vast proportion of iton direct services. This is not to say that the billions

Page 2 Harvard Law Record February 11, 2010

C I T I Z E N S U N I T E D

In His Latest Book, Ralph Nader Envisioned a Different Kind of Corporate Influence.

After Citizens United, it May Be Our Only Hope. By Prof. Robert Fellmeth

What Happens Next?By Joshua Matz

What Next?, cont’d on pg. 3

Corporations, cont’d on pg. 3

February 11, 2010 Harvard Law Record Page 3

Imagining the possible implicationsof the decision, he explained that in the2008 Fortune 100 companies had prof-its of $605 billion and political candi-dates spent three billion on theircampaigns. But in the next cycle, if thetop 100 spend even 1% of their profitthrough “independent expenditures” onpolitical campaigns, they will havemore than doubled the federally-re-ported disbursements of all Americanpolitical parties. “These mathematicsare huge especially when we think thatmoney is already paralyzing public in-terest in Washington,” said Clements.“Corporate money has a huge impacton what comes out of Congress or whatdoesn’t as it is.”

“The implications are even more se-rious,” Clements continued. “They goto the heart of our democracy. Thequestion is who gets to participate inself-government in a democracy? Whois a citizen?” . To fight the Court’s de-cision, Clements urged students to peti-tion for 28th Amendment introduced byCongresswoman Donna Edwards. Theamendment would overturn CitizensUnited.

For Lessig, money’s impact on Con-gress is the concern – rather than cor-porations being vested the right tospeech. In fact Lessig stated, “It wouldbe fantastic if we could ensure FirstAmendment Speech to the highest de-gree. I look forward to the day thatcomputers can secure this right – aBlade Runner type moment.” InsteadLessig expressed concern that “peoplethink money buys elections.”

In surveys conducted in Californiaand North Carolina, Lessig reported aratio of five to one people believed thatmoney buys votes in Congress. Unlikethe courts and the presidency, Congresshas lost its integrity among a large ma-jority of people. “It is this institutionthat is most bankrupt,” said Lessig.

In other words, Lessig is concernednot with corporate speech but withCongress’ ability to safeguard its ownintegrity. “Congress’ objective was tocreate a law so that elections were notdependent on corporations but onlyupon one thing – the people,” he said.Congress should be able regulate cor-porate behavior that interferes with thepuplic trust in Congress, “Outside ofthis window corporations are allowed

to do whatever they want,” said Lessig. Lessig mentioned Caperton v. A. T.Massey Coal Co. as precedent. In Ca-perton, the Supreme Court announcedthat the Due Process Clause requiredjudges to recuse themselves from caseswhere independent expenditures havebeen given to campaigns. “The courtfound there was a constitutional re-quirement that the justice had to shut upbecause of the appearance of impropri-ety from the independent funding.” Soshouldn’t Congress, Lessig asked, beable to squash corporate speech tomaintain its own integrity?

The solution, according to Lessig, isnot to return to the world that we occu-pied before Citizens United was de-cided. Instead he wants to “deal with allof the other corruption that existed.”Lessig’s plan is twofold. First, insteadof overturning Citizens United, Lessigendorses the Fair Elections Now Act (S.752 and H.R. 1826) that was introducedin the Senate by Sens. Dick Durbin (D-Ill.) and Arlen Specter (D-Pa.). Al-though the title is a proverbial red flagto the bull that is Justice Antonin Scalia’60, said Lessig, “the bill would allowfederal candidates to choose to run for

office without relying on large contri-butions.”

Lessig also believes a constitutionalamendment would be helpful, but in-stead of presenting one platform, hecalls for a form of amendment processthat exists in Article V, allowing a con-vention to be called to discuss theamendment. A convention would allowall proposals for amendments currentlystirring around Washington to remedyCitizens United to be melded, creating ahybrid amendment worthy of ratifica-tion. Many people are afraid of such aconvention, said Lessig. But thirty-eight states have to ratify it and twelvestates could veto and stop the process.Moreover, “an amendment processshouldn’t stop us from a real opportu-nity for freedom,” said Lessig.

Lessig ultimately posed the questionthat political scientists have repeatedlydiscounted, “Does money matter?”“How,” he wondered, in response to hisown question, “could anyone ask thatquestion? Why is such an extraordinaryamount of money being spent if it does-n’t matter? No doubt,” he concluded,“the relationship creates a perverse de-pendence.”

spent on AIDS or malaria abatement have not yielded im-portant results; the 2009 data from UNICEF shows real re-ductions in child mortality worldwide. Some of Nader’s“characters”—all real persons—are largely responsible forthis progress. But their donations are not strongly lever-aged, as Nader would propose.

What Nader essentially does is imagine a world wherethe super-rich seek more than malaria containment—wherethey seek leveraged change in public investment and deci-sions. Interestingly, Citizens United may make that shiftboth more needed and more feasible legally. For if corpo-rations can independently campaign for political candidatesprotecting the value of their drilling rights and seek to burncarbon accumulated over four billion years as if it were asparkler lit on the 4th of July, why cannot those who havewealth, lacking such a sunk-cost bias, do likewise? Whycan’t Soros and Buffet and Gates and the rest – with wealthfreed from direct exploitation bias and able to factor in fu-ture costs – participate in countervailing political discourse?

Nader imagines that they end their dabbling and “feelgood” dispensation of shots to wide-eyed children and dothe work of changing ground rules so that political candi-dates are bought by the public, not by special interests, sothat political campaigns have substance beyond ten-secondsound bites and brainless namecalling, so that the manyhave access to the courts, so that agencies hear from manyinterests regularly, so that no business is too big to fail.

The fun of reading this book is in joining the author’s fan-tasy, but punctuating it with our own tactics – what wewould do to correct the world’s deviant path had we the re-sources and visibility of these 17. The characters in thisbook seek structural and leveraged change—advocacy forpublic budgets and laws and international agreements—thatproperly embody more than the exploitation of narrow self-interest. Now that the U.S. Supreme Court has radicallyshifted ground and allowed (contrary to the judgment of thepeople’s democratic institutions) many billions of corpo-rate and union money to directly influence elections, thoseinterests with capital investment in current profitable en-terprise – whether it be mining the seas, polluting the earth,or collecting medical benefits for power wheelchairs andCialis on the backs of their grandchildren -- will increas-ingly lock-in their self-protection and their imposed exter-nal burden on others. Their free ride, notwithstandingfuture costs, will be further and irretrievably calcified intopublic law.

Although pathetic, it appears as if these 17 and some oftheir friends may indeed be the most realistic hope we have.

Robert Fellmeth ’70 was one of “Nader’s Raiders” and for-merly worked on the Harvard Law Record. He is now is thePrice Professor of Public Interest Law at the University ofSan Diego Law School.

parties will persist undisturbed (the result ofwhich would be greater corporate control acrossthe partisan spectrum). This argument is, quitesimply, wrong on its merits. And perpetuation ofthe status quo ante – with its perverse incentivesand tendency toward corruption – would not because for reassurance.

At a recent American Constitution Societyevent, Jeff Clements and Prof. Lawrence Lessigoffered wider perspective on these issues.Clements emphasized the important role thatFirst Amendment doctrine has played in recentconservative efforts at deregulation. This hassometimes taken the form of limitations on theregulation of commercial speech (i.e. cigaretteadvertisements targeting children), but, in a morepernicious form exemplified by Citizens United,has undermined popular control over elections inthe name of corporate liberty.

Lessig agreed. He observed “a Blade Runner-like moment in this opinion,” and gleefully ac-knowledged his excitement that computers, too,may soon find favor with Justices keen to endowrights upon non-human entities. But he focusedsquarely on corruption. Charging the Court withhypocrisy, he contrasted its apparent disregardfor congressional efforts to secure electoral in-tegrity with the concern for judicial purity thatanimated Caperton v. A.T. Massey Coal Co. Not-ing that Congress is widely seen as the most cor-rupt branch of government, and that politicalaction committees, lobbyists, and fundraisingevents already provide corporations with plentyof expression, Lessig worried that CitizensUnited will further prevent Congress from real-izing the desires of its one true constituency –“we the people.”

So what can we do next? Lessig and Clementsboth support a constitutional amendment to rem-edy the decision’s effecys. Lessig ups by theante by calling for a full constitutional conven-tion (from which a more wide-ranging group ofreforms might emerge). Both also urged Con-gress to quickly pass the Fair Elections Now Act,championed by Senators Richard Durbin andArlen Specter. Other commentators have urgedchanges to corporation law, shareholder gover-nance, disclaimer and disclosure requirements,anti-coordination rules, and the terms applied togovernment contractors. At the state level, Citi-zens United has emboldened advocates of a shiftfrom the election to appointment of judges.Many of these proposals strike broadly at a much

larger pattern of corruption. Although few ofthese would truly fix the problem, they wouldcertainly provide a badly-needed palliative.

All of which brings us to the main issue: DoesAmerican democracy remain sufficiently ener-getic to face this challenge? That, I must admit,is an open question. It is remarkable that ourpresident felt the need to spend part of his Stateof the Union address reassuring us that our po-litical institutions are indeed capable of actingfor the common good. Not that Congress hasdone much in recent years to justify such faith, asevidenced most glaringly by its recent “debate”over health care legislation. The postmodern airof unreality that pervades much of contemporarypolitical discourse, in which astroturf has re-placed grassroots and partisan pundits occupydifferent realities, seems to leave little room forthe kind of meaningful national conversation thatmight restore integrity to our electoral process.

Such reform efforts are further complicated byCitizens United itself, which, unlike previousSupreme Court decisions that merely denied peo-ple rights, commits the further indecency of cor-rupting the very electoral process that mightnormally facilitate remedial action. In the future,any legislator involved in efforts to limit or mod-ify corporate funding of elections will confrontthe multi-billion dollar megaphone of corporategeneral treasury funds. Needless to say, the ti-tans of corporate America might feel stronglyabout ensuring their recently secured ability toflood our marketplace of ideas with PR-friendlysound-bites.

Completing a process begun decades ago, fivemembers of the Supreme Court have staked thefuture of America’s electoral system on their be-lief that we previously suffered for a lack of cor-porate influence. The First Amendment, asshown clearly by Justice Stevens, did not compelthat result. Now the time has come for the pub-lic, and our elected representatives, to deal withits consequences. Any solution worthy of thename will undoubtedly involve extraordinarymeasures, including some kind of landmark leg-islation. “We the people” must therefore bebrave. Only if the American public stands firmlybehind advocates of reform can we hope to rein-vigorate the integrity of our treasured politicalinstitutions.

Joshua Matz is a 1L.

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

Lessig, cont’d from pg. 1

Page 4 Harvard Law Record February 11, 2010

HarvardLaw

Record

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

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

EStabLiShEd MCMXLViEditors-in-Chief

Matthew W. HutchinsChris SzablaStaff Editors

News: Rebecca AguleOpinion: Jessica CorsiSports: Mark Samburg

ContributorsVictoria BaranetskyProf. Robert Fellmeth

Nathaniel FintzMatthias C. Kettemann

Joshua MatzJenny Paul

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

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

BY MATTHIAS C. KETTEMANN

In 2010, the European Conventionon Human Rights will celebrate its 60thanniversary. One might think this is areason to celebate, but for ThorbjørnJagland, the Secretary General of theCouncil of Europe, the Convention’s in-stitutional mother, it’s not. In Decem-ber 2009, he warned that the EuropeanCourt of Human Rights, which over-sees compliance with the Conven-tion, was in a “desperate situation”and “no longer able to function asit should”; some judgments hadbeen “reduced to a few lines”,amounted to “little more than anaccounting exercise” and con-tained “less than a bare minimumof reasoning”. In brief, the situa-tion was “intolerable and unwor-thy of our [the Council’s] memberStates’ repeatedly reaffirmed com-mitment to human rights.”

In general, the Court, which sitsin Strasbourg, France, has beenconsidered a huge success. WhatSecretary General Jagland, alongwith numerous human rightslawyers and activists over the pastyears, rightly criticized was that successhad been too overwhelming. As theCourt’s President, Jean-Paul Costa,pointed out in his Annual Report, in justone year 57,000 new applications hadbeen allocated for decision and 35,460applications were decided: 33,065 byrelatively brief inadmissibility or strike-out decision, but 2,395 by sometimesextensive judgment.

To put things into perspective, in

2008 the U.S. Supreme Court publishedjust 74 opinions. But the StrasbourgCourt is charged with a mandate thatshould give rise to a much higher case-load: It must ensure adherence to theConvention by all 47 members states ofthe Council, and is, therefore, the courtof last instance of human rights mattersfor 800 million people, a little less thanthree times the U.S. population.

It’s no wonder, then, that cases before

the Court take a long time. So long, infact, that sometimes the Court’s hearingof cases concerning the right to a fairtrial within one of the Convention’smember states winds up violating theright to a fair trial at the Court – due toits lengthy proceedings.

Still, there are silver linings to theclouds that Secretary General Jaglandsaw during a year when the Courtshould be celebrating. In fact, three sil-ver linings or “reasons for optimism” as

President Costa put it in a rathermore upbeat press conferenceon January 28th. Taken together,these three factors promise tomake 2010 a revolutionary yearfor what is widely accepted tobe the most successful and mostadvanced regional human rightsprotection system in the world.Let us consider them in turn.

First, the Lisbon Treaty, whichfinally entered into force on De-cember 1, 2009, affirms that theEuropean Union will accede tothe European Convention ofHuman Rights. While there arestill a number of unresolved pro-cedural questions (should, forexample, the EU now be repre-sented by its own judge on theCourt?) and serious substantiveissues to clarify (especially con-cerning the relationship betweenthe Luxembourg-based Euro-pean Court of Justice, whichrules on questions of EU law,and the Strasbourg Court), themove will have limited substan-tial impact on the level ofhuman rights protection in EUcountries. Already under thepre-Lisbon Treaty framework,fundamental rights, “as guaran-teed” by the European Conven-tion, were “general principles ofthe Union's law.” PresidentCosta described the future ac-cession by the EU as a “majorstep towards creating a Euro-pean fundamental rights space”.

It is, at the very least, a symbolic one. Also of substantial symbolic and real

importance is the vote by the RussianState Duma to finally ratify Protocol 14to the Convention, which was con-firmed by the Duma’s upper chamber,the Federation Council, on January 27.Russia had been the only one of theCouncil’s 47 member states not to ratifythe Protocol, mainly out of political dis-agreements with Strasbourg over the

Court’s scrutiny of military activi-ties in Chechnya, which had in-variably led to a number ofjudgments holding Russia respon-sible for torture and illegal killingsin there. Indeed, complaints againstRussia account for roughly a thirdof all cases lodged with the Stras-bourg Court.

Protocol 14, which is part of alarger process of reform of the Eu-ropean human rights system, pro-vides for substantial proceduralstreamlining, by foreseeing, interalia, new judicial formations, suchas decisions rendered by singlejudges, or three-judge committees.Further, cases which similarities to

already decided cases can be struck offthe record (the famous pilot-judgmentprocedure), as can the untested and po-tentially problematic category of caseswhere an applicant has suffered no “sig-nificant disadvantage”. The Protocolwill also allow the Committee of Min-isters, a political organ, which ischarged with supervising the enforce-ment of judgments, to work more ef-fectively with national governments toensure compliance.

While the changes brought by Proto-col 14 have the potential to substan-tially streamline Court proceedings,they are not revolutionary. Some proce-dural provisions have already been im-plemented through Protocol 14bis,which was adopted in May 2009, afterit became apparent that Russia’s ratifi-cation of Protocol 14 would take sometime. The pilot-judgment procedure hasalso been applied, rather successfully,through a creative interpretation of con-ventional procedure rules from 2004onwards, when it was introduced inBroniowski v. Poland. Protocol 14biswill become moot when Protocol 14 en-ters into force on June 1, 2010, pro-vided that Russia’s instrument ofratification reaches Strasbourg by theend of February.

The third positive impetus for the Eu-ropean human rights protection systemwill have its origin in the idyllic Swisstown of Interlaken, where, on February18-19, a “High Level Conference on theFuture of the European Court of HumanRights” will take place. President Costadescribed the conference as a “land-mark” event in which states would reaf-firm their commitment to human rightsand, more significantly, “draw up aroadmap for the future development ofthe Court”. A number of Council offi-cials have weighed in with statementson what needs to be achieved in Inter-laken. While differing on the details,the main challenges are clear (thoughthe ways to achieve them are less so).

President Costa himself suggested a

F R OM S T R A S B O U R G W I T H H O P EAs it Celebrates its 60th Anniversary, the European Convention on Human Rights is

Being Reinvigorated With New Signatories and Ideas for Better Enforcement

More roads are leading to the European Court ofHuman Rights in Strasbourg, and they’re getting faster.Photo: Richard Cawood

criminals and 50 officers embedded under-cover in federal operations. The cost toPhoenix of employing these 150 officers,over $15 million dollars a year, is not reim-bursed by the federal government andthreatens to forcereductions in cityservices like li-braries and afterschool programs.

Mayor Gordonsays that his city’spolice do not oper-ate in the samemanner as the sher-iff of MaricopaCounty, Joe Arpaio,and that Phoenixpolice officers’ pri-mary goal is to pro-tect the innocentfrom being killed orsold into slavery.He denied any pol-icy of officersrounding up dayworkers “just be-cause of the color oftheir skin” but rec-ognized that the county sheriff’s operationshad raised cause for alarm.

Unfortunately, Gordon said the immigra-tion situation has opened the door for right-wing extremists to grandstand their hatefulbeliefs without fear. He expressed extremeconcern at the presence of “Nazi hategroups that wrap the flag around them-

selves in the name of patriotism and spewvile anti-semitism and racist rhetoric.” Thepublic presence of these radicals has furtherincreased the burden on the police, as clash-ing demonstrations of extremists andcounter-extremists have required police in-

volvement to preventviolence. “Nowthose individualswho had to hide inthe dark, under arock like a snake,feel free to comeout.” But Gordonemphasized that hiscity will continue tofight to protect thehuman rights of thevictims of the coyotecriminal organiza-tions. “With rightscome responsibili-ties, and althoughthose hate-mongersdon’t care about re-sponsibilities, wemust.”

Nonetheless, Gor-don expressed urgentconcern about the

state of immigration law in the UnitedStates. He believes that immediate action isnecessary to reform immigration policy andassist burdened local police. “I couldn’t andwouldn’t stay silent any longer, not only be-cause of the economic costs, but also be-cause of the cost in human suffering.”

Protesters in Phoenix, AZ urge passers-by to“Deport Illegals, Secure our Border”Photo: flickr user cobalt123

Phoenix, cont’d from pg. 8

Strasbourg, cont’d on pg. 5

February 11, 2010 Harvard Law Record Page 5

his 1963 arrest under the 90 DayLaw, which allowed the governmentto hold political prisoners for 90 dayswithout filing actual charges. Sachssat in solitary confinement, only tobe rearrested almost immediatelyupon his release. He described theexperience of sitting alone in a cell,with little light and high windows, al-ternating between staring at his toesand the wall.

“It’s a strange existence, an inhu-man existence, to be forcibly withouthuman contact. To be without peo-ple,” he said. “A deep deep depres-sion enters into you. It is a sense oftotal utter deprivation.”

Mental games and songs helpedSachs pass the hours. He waltzedaround his cell, tried to name all ofthe United States, and sang hit tunes.Irving Berlin’s popular song “Al-ways” provided the inspiration for asatirical take on his own situation.

Sachs sang his version: “I’ll be liv-ing here, always. I’ll be staying here,always. Keeping up my chin, always,not for but an hour not for but a weeknot for 90 days. But for always.”

Prison contributed to his philoso-phy of life and the law.

“I took a vow deep into my deten-tion, that if ever I was in a positionof authority, I wouldn’t do this toanybody. It’s a great power, greaterthan thinking I will get them and dothis to them. It’s a superior power,”he said.

Sachs also recognized the benefitshe enjoyed, as compared to othersunder the same conditions.

“Even being subjected to torture,my skin gave me privilege, even asan enemy of the state,” he said.

After being released, and then re-arrested and released once again,Sachs could not bear the threat offurther imprisonment. He moved toEngland and began a life with a newwife and, later, two sons.

At age 39, while teaching law atSouthampton University, Sachs dis-covered his terrorist status, which heearned simply because of his mem-bership in the African National Con-gress (ANC). Sachs applied for avisa to attend a workshop on SouthAfrican development at Yale, only tobe rejected because of this label.Sachs saw the accusation as the an-tithesis of the true nature of the ANC.

“The ANC was against terrorism.This was the era of ‘isms,’ and ter-rorism was an evil thing for theANC. Indiscriminate acts of strikingdown people are not part and parcel

of mobilizing society. The indiscrim-inate use of terror was something weopposed,” he said. “I recall a timewhen planes were hijacked as part ofthe Middle East conflict. The leader-ship of the ANC said, ‘We are againstterrorism.’”

Sachs describes the ANC’s anti-terror stance as, in part, strategic. “Ifthe ANC went for that, we play intothe hands of those in power,” he said.

During the 1985 ANC conference,Sachs made a presentation regardingthe treatment of captives, and the or-ganization passed several key reso-lutions on appropriate forms ofstruggle.

“When it came to the resolutions itbecame clear: traditional armedstruggle, but no use of terrorism, noattacking people because they belongto a particular group,” he said. “Theoppressed don’t have to learn the lan-guage of the oppressors.”

The delegates voted unanimouslyto ban the use of torture by the ANC.Sachs explained this decision, “TheANC doesn’t use torture, as a matterof principle, as a matter of the kindof people we were. This distin-guished us.”

“More people have died from stateterrorism than terrorism from irregu-lar forces,” Sachs said. “That’s partof the equation, but no amount ofstate terrorism justifies the use of ter-rorism to overcome the state.”

Violence reentered Sachs’ life in1988, when a bomb planted in his carby the South African security serv-ices exploded. Sachs lost his rightarm and sight in one eye.

“I was personally never engaged inthe armed struggle, but the armedstruggle came to me.”

Until 1990, Sachs remained inexile, first in England and then inMozambique. Returning to SouthAfrica, he participated in the consti-tutional negotiations as a member ofthe Constitutional Committee and as

the National Executive of the ANC.Following the first democratic elec-tions, President Nelson Mandela ap-pointed Sachs to the newConstitutional Court.

While on the Court, Sachs presidedover the “Case of Mr. Mohamed,”which involved a Tanzanian whotook refuge in South Africa after par-ticipating in the 1998 bombing of theU.S. Embassy in Dar es Salaam.South African authorities extraditedMohamed before obtaining a guar-antee that the U.S. would not imposethe death penalty. The Court declaredthe extradition unconstitutional, asno person may be sent to anotherstate when facing a risk of humanrights violations.

Touching upon the death toll inDar es Salaam, Sachs said, “The factthat the offence is particularly egre-gious is no reason to bend the rules.If anything it becomes that muchmore important, you want to distanceyourself. You don’t want to say in ef-fect, ‘We are like you, but we arestronger than you.’”

“It is easy to have beautiful princi-ples when they aren’t being tested,but isn’t it when they are tested thatthey really matter?” he asked.

Sachs prefers to think about thelong term implications of the Court’sopinions and dislikes the idea ofjudges operating as machines, simplyprocessing the information they arefed.

“To what extent does life experi-ence go into decisions you make?Once you’ve got your opinion out ithas an impact; it has effects. It is partof the law.”

Occupying a unique place historyand jurisprudence, Sachs appreciatesthe opportunities that befell him.

“I feel I am perhaps the most priv-ileged person in the world,” Sachssaid. “I have all the privileges thatbeing a white person automaticallygave you. But I also had the privilegeof being part of a liberation struggle.And finally the privilege of being alawyer. That is three layers of privi-lege, and I dare you to find anybodywho has had any more than that.”

The Office of the Dean, Interna-tional Legal Studies, and the Officeof Public Interest Advising collabo-rated in sponsoring this event. DeanMartha Minow’s introduction re-vealed her admiration for Sachs.

“I don’t think I’ve had as great anhonor since I’ve been Dean as thismoment,” Minow said. “This is ahero who has written human dignityinto the law.”

Sachs, cont’d from pg. 1 Problem Solving, con’d from pg. 1

“The participating faculty took the unprece-dented step of meeting daily to confer andcompare experiences and ideas -- and allseven of the teachers found the experience ex-citing and rewarding,” Minow said in an e-mail. “We are avidly reviewing now whatworked well and what can be improved.”

In the last problem set, students took on therole of a public interest lawyer. Their clientwas a tenant who was told he was beingevicted from his rental apartment because abank was foreclosing on the owner of thebuilding. Each group of students had to writea memo addressing what type of action theywould take to try to keep their client in theapartment or how they would negotiate amonetary settlement with the bank. Thegroups then met with practicing lawyers topresent the memos and receive feedback.

“The word we’ve had from the practitionerswho did that is that they really liked it, andthey thought, on the whole, our students did agood job,” said Todd Rakoff, one of the pro-fessors who conceived of the course andwrote the problems presented to the enrolledstudents. “I thought it was a neat thing. Wesort of sent 500 people out into Boston tomeet with practitioners.”

First-year student Julie Schechter said thepractitioner meetings were her favorite partof the course. “I think we should have donethat for all of the problems or at least morethan one,” she said. “Someone who had prac-tical experience taught you more than justtalking to your classmates.”

Only one section was led by a practicinglawyer – Bill Lee, a co-managing partner atWilmerHale. “I loved having a practitioner[as a professor],” said Jessica Lewis, who wasin Lee’s class. “I think every section shouldhave a practitioner. I think it gives you a dif-ferent experience than the typical classroomexperience. I have prior work experience, andit seemed much more like a workplace set-ting.”

Rakoff said he would like to have Lee re-turn to teach the course next year, but said itis unlikely that any other practitioners wouldbe teaching. “I think probably we will try tohave some more practitioner involvement inindividual problems, since, in a lot of sec-tions, people said they found that really valu-able,” he said.

Rakoff said all 1L students filled out sur-veys to give feedback on the course. He saidthose comments are still being processed, buthe has looked at them in “bits and pieces.”

“There were many favorable commentsabout the chance to work in groups,” Rakoffsaid. “People seemed to think that that was anice break from what otherwise happens inthe first year and they thought they had ac-quired some skill in working in groups andalso that it was just kind of fun to have agroup of people to work with.”

Rakoff said he and the other professors whotaught the course will meet in a few weeks todiscuss possible changes to the course. In fu-ture years, students might be given fewerproblem sets, because some 1Ls wrote thatthey would have liked to spend more timeworking with the same fact pattern, he said.He also said the professors would probablywrite some new problems to give to futurefirst-year students.

All in all, Rakoff said, he thought the coursetaught first-year students something differentthan they were learning in their other courses.

“[The workshop] has the same core missionas the rest of the other courses,” he said. “It’san attempt to show you the mental pathwaysthat lawyers use, but we just thought therewere a whole bunch of those mental pathwaysthat weren’t covered in the traditional doctri-nal courses.”

number of obvious and not so obvious long- and short-term goals. He proposed, for instance, to develop the ideaof filtering applications by legal secretaries as it was un-clear whether all applications “should be examined judi-cially”. Drawing “inspiration” from the EU’s judicialsystem, he also suggested adding a Human Rights Tri-bunal subordinate to the Court as a European humanrights court of first instance, though this would contributeto what some criticize as the mushrooming of Europeanhuman rights institutions, with largely parallel bodies ex-isting in the parallel structures of the Council and the Eu-ropean Union.

Among the new ideas to be explored “immediately,”President Costa finally counted “class actions” or col-lective applications (which are largely alien to the Euro-pean legal system) and the possibility of referral by theCourt of purely repetitive cases to member states or the

Committee of Ministers to be “dealt with on the basis ofwell-established case-law”.

While the details, as mentioned before, will still needto be worked out and the days before the Interlaken con-ference are sure to be filled with intensive intra-Euro-pean human rights diplomacy, one conclusion ofPresident Costa is certainly true: Reforms must bear inmind the “principle of a better sharing of responsibilitybetween the Court and the States”. Truly, ensuring humanrights protection is not a matter that states can leave to acourt alone, especially one as swamped with cases as theEuropean Court of Human Rights. It is a common re-sponsibility.

Interlaken literally translates as “between the lakes”.Let us hope that when it comes to reform of the Courtsystem Europe’s leaders will not get wet feet.

Matthias C. Kettemann is an LL.M. student from Austria.

Strasbourg, cont’d from pg. 4

Forest Gump’s mother famously said that life was like a box of chocolates: “Younever know what you’re gonna get.” The same holds true for international law.Taking the box of chocolate und accepting “what you’re gonna get”, independentof whether you like the particular praline, is what international law is all about.Since the famous Peace of Westphalia of 1648, which brought along the emer-gence of today’s international legal system, states have taken the box and eatenboth the bitter chocolate (i.e., they have accepted their obligations and changedtheir behavior accordingly) and the nougat (when they have enjoyed the interna-tional legal rules that reaffirmed their interests).

Then came along Harvard Law School’s Jack Goldsmith and University ofChicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits ofInternational Law, which argued vehemently for what could be termed a “nougatonly approach” to international law. In essence, they posited that international lawdoes not, in fact, pull states toward compliance. States conform with internationallaw, they argued, only when it furthers their interests.

The limits of international law

Former U.S. Ambassador to the UN John Bolton, and more influential thinkersbefore him, such as Thomas Hobbes, went so far as to question the veryexistence of international law. Goldsmith and Posner don’t go nearlyas far. They merely relied on rational choice theory to argue thatinternational law does not act as an external constraint on statebehavior. The Limits of International Law was widely read andcritically well-received. But some critics, such as internationallaw and economics expert Anne van Aaken of Switzerland’sUniversity of St. Gallen, rightly pointed out that there werelimits to the Limits book, as the authors only took account ofthe interests of states to conform their behaviour to internationallaw at one – arbitrary – point in time. More significantly, Gold-smith and Posner ignored the possibility (and, I would argue,likelihood) that states have a non-instrumental interest in be-having in conformity with rules, so as to stabilize the system.Of course, in keeping with an state interest-focused “nougat” ap-proach to international law, Goldsmith and Posner could counter thatin so doing states are actually, again, acting in sync with their interests– their long-term ones.

A stronger observation is that rational states will accept the obliga-tory nature of international legal rules as rules, based on an ex ante as-sumption that international rules are legitimate since, by so doing,they can most likely achieve advantages incuding and beyond theirown self-interest (such as world peace, international security, or themaximization of their reputation) in the long run. In what ProfessorsGeorge Norman and Joel Trachtman called a “customary internationallaw game”, states sometimes choose to disobey a rule, but rarely question therule’s legitimacy as such.

To better understand this point, think of a common thief. He will break the ruleagainst violating another person’s property on an individual basis, but does notdoubt the existence of the more general rule providing for the protection of prop-erty. Indeed, his risky acquisition of property is made because he implicitly truststhe state’s legal system to protect his property, even if it was illicitly obtained.Even thieves hate thieves. Similarly, in international law, it is often the rogue statesthat, while breaking international legal rules on an individual basis, believe (andonly sometimes abuse) the international legal system in toto. Think of Iraq, con-sider North Korea, and look at Iran. In fact, the choice by a state to ignore an in-ternational rule, or to question the validity of this rule, might, in fact, contributeto an increase its power to oblige – by making others states voice their oppositionto the violation. The real difference between theft and the violation of interna-tional legal norms by rogue states is that, while we see the consequences of the for-mer on “Cops”, we have to wait for some years to see the outcomes of the latter– as “Breaking News” on CNN.

Does Europe believe in international law?

In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner applytheir theory on the limits of international law to Europe. They write that “[l]ike theBush administration, Europeans obey international law when it advances their in-terests and discard it when it does not.” In essence, they argue that even Europe,which professes to be international law-friendly, does not really believe in inter-national law’s binding power.

In their first example, Goldsmith and Posner consider the case of Yassin Ab-dullah Kadi and the al Barakaat International Foundation. Kadi’s assets werefrozen according to a UN Security Council Resolution against financing terrorism,which had been inscribed in an EU regulation. Goldsmith and Posner write that,deciding the Kadi case, the “the European Court of Justice ruled that the SecurityCouncil resolution was invalid.” They are wrong. In its 2008 judgment, the ECJmerely ruled that the regulation implementing the Security Council resolution wasinvalid because it violated Kadi’s fundamental rights. The ECJ noted that the pro-tection of fundamental rights must be “considered to be the expression, in a com-munity based on the rule of law, of a constitutional guarantee stemming from theEC Treaty as an autonomous legal system which is not to be prejudiced by an in-

ternational agreement.” This does not mean that the ECJ would ignore interna-tional law – on the contrary. The protection of fundamental rights is deeply rootedin international law. By referring to a “constitutional guarantee,” the ECJ likensits role to that of a constitutional court ensuring that all acts passed by the organsit oversees respect fundamental rights. There is nothing wrong with that.

Goldsmith and Posner interpret the decision as meaning that “European coun-tries must disregard the U.N. Charter … when it conflicts with European consti-tutional order.” Again, they are wrong. The Court merely pointed out that any EUregulation implementing a UN Security Resolution must meet minimum humanright standards. By reforming the Sanctions Committee, established to overseethese resolutions, the UN has in fact taken up some aspects of the ruling to ren-der the system more accountable.

Another example that Goldsmith and Posner bring to support the idea that Eu-rope has a self-interest-focused approach to international law is the 1999 NATOintervention in Kosovo. “European nations,” they write, “participated in NATO’sbombing of Kosovo without Security Council authorization.” This is true, but asa Commission that looked into the intervention later concluded, their action wasat least legitimate. Further, the intervention served to stop bloodshed and massive

human rights violations in Kosovo and thus served one of the most im-portant goals of the international legal order: protecting individuals.

The Kosovo case was later seen as the first important example ofso-called humanitarian interventions, many of which have gone

on to be officially sanctioned by international legal bodies.The evolution of the “responsibility to protect” has also beeninfluenced by the Kosovo intervention. Rather than ignoringinternational law and enforcing their own interests, theKosovo intervention thus served to confirm underlying prin-ciples of international law.

Errors have been made – butalso corrected

I have to concede that Europe’sapproach to trade disputes in theframework of the WTO has notbeen exemplary. But very often,especially with two of the issuesGoldsmith and Posner mention –“resisting importation of geneti-cally modified foods, or beef fromcattle raised with growth hor-mones” – Europeans follow an in-ternational legal concept, namelythe precautionary principle, in op-

posing imports. It is true that European countries did not implement WTO rulingsagainst them in these cases, but as legal history in both the U.S. and the EU amplyshows, the non-implementation of certain rulings, in exceptional cases, does notserve as evidence of a system’s comprehensive failure. International economiclaw has been a huge success story, but only a few well publicized disputes makethe headlines.

It is also true that some European countries have cooperated with the U.S. withregard to extraordinary renditions, but this attitude has changed. As a number ofcases before UN bodies including the Committee Against Torture and the HumanRights Committee show, mistakes have been made and international law has beenviolated. But again, this does not help Goldsmith and Posner in showing that Eu-ropean states do not believe in the binding nature of international law or ignore itwhenever they feel like it.

The importance of values

Goldsmith and Posner mention other examples, including European states’sometimes wavering support for the ICC, and follow this up with the conclusionthat “Europeans hold their values and interests dear, just as Americans do, andwill not subordinate them to the requirements of international law.”

But they neglect to mention that values are influenced and honed by interna-tional law and international law, conversely, serves to express and implement thesevalues. There is no relationship of subordination. Rather, international law, likeevery legal system, creates and is supported by a value system based on intricatepower equilibria and sometimes mutually contradictory goals. The internationallegal system is more complex than any national system, even though – or because– it has far fewer actors. That on the international legal plane values clash, badchoices are made, rules are broken and judgments remain unimplemented cannotbe doubted. But this is also the situation in every national legal system and can-not be used to cast a shadow of doubt over the clear evidence that states considerinternational law to be just that: law.

The end of the Cold War did brought what the Finnish international legal theo-rist Martti Koskenniemi termed, an “enthusiastic revival” of international law.New actors emerged, new laws were made, new hopes voiced. Within the lasttwenty years, the system of international was greatly energized, and the UnitedStates was an important contributor to and shaper of international legal norms,

Page 6 Harvard Law Record February 11, 2010

WHAT FORREST GUMP’S MOMMA KNEW ABOUT INTERNATIONAL LAWDespite Sweeping Arguments to the Contrary, States’ Adhesion to International Law is Not Predictable. With International Law,

Argues MATTHIAS C. KETTEMANN, Forrest Gump’s Mother Had the Best Theory: You Never Know What You’re Gonna Get

Gump Law, cont’d on pg. 7

which reflected, inter alia, American values.Given this fact, it is incongruous to argue, as doGoldsmith and Posner, that international law re-flects only the interest of powerful states and istherefore not “good” as such.

Just like a box of chocolates

But there is also no reason for a prima facieassumption that a system reflecting the inter-ests of powerful states is bad. This bears out es-pecially in light of the renewed commitment,by the Obama administration, to internationallaw as the prime tool to engage other states andto find peaceful and sustainable solutions to in-ternational conflicts. And with the notable ex-ception of historically explainable, but outdatedinstitutional rules, such as the membership anddecision-making structure of the SecurityCouncil, international law, just as any legal sys-tem, has a strong immune system and phasesout – through state practice – rules which do notconform to the aspirations of the majority ofstates. Again, it is like a box of chocolates. In-trinsically good, but with some bitter pieces.

To continue in this line of thought (and, yes,I am getting hungry as I write this), HugoGrotius, often described as the “father of inter-national law”, wrote that there lies in each per-son an “appetitus societatis”, an appetite, ordesire, to live peacefully in an ordered society,structured by binding rules of a general natureand applicability. I see no reason why stateswould not also have this “appetite”. In fact, Iwould argue, they do. International law needsto be binding, it is binding, and states accept itas binding – Goldsmith and Posner’s argumentsnotwithstanding.

More than forty years ago, Louis Henkin ’40formulated, in How Nations Behave, that “[i]t isprobably the case that almost all nations ob-serve almost all principles of international lawand almost all of their obligations almost all ofthe time.” While not wrong, he was imprecise:It is not only “probably” the case, but evidencehas shown that his statement is unequivocallytrue.

States follow the Forrest Gump Approach toInternational Law, eating the sweet and the bit-ter pralines, enjoying their rights and respect-ing almost all of their obligations almost all ofthe times, even if they contradict state interestin the short run. They do so, because they knowthat the international legal system, and not anyparticular rule, reflects their values, and will, inthe long run, ensure the realization of such val-ues with more effectivity and sensibility tohuman rights than any nation could possiblyachieve alone.

Matthias C. Kettemann is an LL.M.student from Austria.

February 11, 2010 Harvard Law Record Page 7

Gump Law, cont’d from pg. 6H. Mnookin ’68, Chair of the Program on Negotiation.Rejecting any categorical answers to that fraught ques-tion, Mnookin develops and presents a highly nuanced,context-based approach for how one can choose wiselybetween battle and bargaining.

The situation described above is but one of severalcaptivating stories that fill the pages of Mnookin’sbook. Each chapter recounts a real-life, high-stakesconflict where emotions ran high. The contexts differradically: the chapters include a business conflict be-tween two giant computer companies, a bitter Ameri-can divorce, and a family inheritance fight. Otherstories emerge out of profound political conflicts.Some involve political lead-ers like Winston Churchill orNelson Mandela; other talesconcern lesser-known fig-ures who came face-to-facewith Nazi officers or theKGB. As Simon & Schusterofficially releases Bargain-ing with the Devil, book-stores might have sometrouble deciding which sec-tion or shelf should be itshome. History? Current af-fairs? Business? Family?All of the above?

In spite of this conspicu-ous variety, Mnookin’s talesall share a set of key ele-ments. In each tale, demo-nization is rampant, and atleast one person perceives anadversary as evil. In some cases Mnookin thinks theperception of evil is fully justified—in others, a mereproduct of partisan animosity. And in every singlestory the same decision must be made: negotiate orfight?

The compelling nature of this question was evi-denced by the crowd in the Ropes Gray Room on Feb-ruary 4, when over two hundred people attended areception and panel in celebration of the book’s publi-cation. Along with Mnookin, the featured panelists in-cluded Dean Martha Minow, Professors GabriellaBlum and David Hoffman, and Margot Strom, Execu-tive Director of the think tank Facing History and Our-selves.

So, should you bargain with the devil? Mnookin dis-tances himself from the standard categorical answers.Some would always bargain with the devil; otherswould never do so. Speaking to the Record, Mnookincharacterized the first view as “the conventional wis-dom in my field”—the conviction that “you should al-ways be prepared to negotiate with your enemy,because after all that’s the only way you can makepeace with your enemy.” In rejecting this categoricalposition, he demonstrates a laudable boldness: at thepanel, Blum noted how remarkable it is that Mnookin,“who has dedicated his life to the negotiation field inboth scholarship and practice,” here questions a basicassumption that is so fundamental to that field.

Mnookin also firmly rejects as unwise the oppositenotion—that you should never negotiatewith an adversary whom you don’t trust orwho you think is evil. He questioned, forexample, the Bush administration’s refusalto negotiate or engage with Iran. And hechallenged the notions of some litigatorsor public interest lawyers who think it isalways better to fight it out in court than tonegotiate a deal.

Rejecting both these categorical an-swers, Mnookin expressed his view that“the challenge is to make wise decisions ata particular time in a particular context.”Accordingly, the book endeavors to an-swer the question, “By what process mightone try to go about making a wise deci-sion?” When you’re thrust directly into thepresence of a devil, how can you avoid thecommon traps (such as tribalism, demo-nization, and dehumanization) that inhibitclear, reasoned thinking? To answer thisquestion, Mnookin suggests a single

“framework” that can consistently facilitate a wise de-cision about whether or not to bargain with the devil.

This framework involves asking yourself “five basicquestions.” First, inquire into your interests, and thoseof your adversary. Second, investigate your alterna-tives to negotiation, and those of your adversary. Third,consider whether any potential deal could satisfy bothparties’ interests better than their respective alternativesto negotiation. Fourth, consider the costs of negotia-tion. Fifth, consider the likelihood that a deal, ifreached, would be implemented. If this frameworkseems coldly rational, that is because it is tailor-madeto help isolate the signal from amid all the noise—totease the precious thread of reasoned analysis out from

amid a tortuous tangle ofother non-rational strands.

In short, Mnookin advo-cates a particular decision-making process. Heacknowledged that “[d]if-ferent people applying theframework can reach dif-ferent conclusions.” Thisis because “assessing thecosts and benefits of alter-native courses of actioninvolve predictions, andalways involve the appli-cation of values, and peo-ple can disagree.”Nowhere is the book’s ad-mirable nuance more evi-dent than where Mnookinfleshes out his approach tomoral judgments:

“[W]hen the analytic side [of the brain] is acting as adispassionate judge weighing all the arguments, not alawyer defending a foregone conclusion, … moral val-ues should, and in some cases must, be factored intodecision-making.” The limited but crucial point is toavoid any abdication of reasoned analysis.

In each chapter, Mnookin offers his appraisal of eachcharacter’s decision on whether to fight or negotiate.But he makes a point of “giving enough evidence …and telling the story in a way where there’s plenty thereif people want to reach a different conclusion than theone I reach.” As Blum noted, “it is only a very confi-dent writer that can do this.” The book invites thereader to engage closely with each tale; during his writ-ing process, Mnookin thought carefully about how to“take the reader into the story.” Storytelling is “a dif-ferent kind of writing than what I’d ever done before,”Mnookin said, yet he has met this new challenge withgreat success: Minow hailed the stories as “com-pelling,” and Blum added that each one reads “like apage-turner.”

Mnookin expressly welcomes diversity in his read-ership. Hoffman described for the audience in RopesGray just a few of the many ways that the book will bedirectly useful to “the dispute-resolution world.” Atthe same time, Mnookin said that while his other bookshave been aimed primarily at academics or profession-als concerned with negotiation or conflict, he hopes thisbook will also reach a broader audience. Mnookin issurely correct in his belief that “there are a lot of peo-ple that can connect with the theme of the book,” whicharises with great frequency in everyday business andfamily situations. “There are many other stories thatcould be told” and “lots of other chapters” that could bewritten, he said.

Mnookin also singled out what he called “the NPRaudience”—the “intelligent lay reader who is interestedin ideas” and who is especially likely to find the bookintellectually stimulating. Also, Blum remarked,“There are definitely a number of contemporary lead-ers I’d love to send the book to.” Last but not least,Mnookin’s readers will surely include HLS students—especially since he might assign some of the chapters ofthe book in next year’s Negotiation Workshop.Mnookin’s book should be considered required read-ing for students and non-students alike. And within thisdiverse readership, few are likely to disagree that if youread Bargaining with the Devil, a face-to-face en-counter with evil will never make you lose your wits.Satan, for his part, would probably want this bookbanned.

Devil, cont’d from pg. 1

PUBLIC INTERESTINTERNSHIP

Housing attorney Jeffrey W. Purcell ’84 of GreaterBoston Legal Services is seeking an intern towork on housing eviction and foreclosure cases.The work would involve interviewing tenants,going to Boston Housing Court, and doing regu-lar paperwork. Interested students should emailMr. Purcell at jpurcell@gbls.org or call 617-603-1648.

BY MATTHEW W. HUTCHINS

Phoenix, the fastest growing majorcity in the country, with a population ofover 1.7 million, has just surpassedPhiladelphia to become the fifth largestmetropolis in the nation. But this risingstar in the Southwest has an estimated300,000 undocumented immigrant res-idents, leading to a rising xenophobicdiscontent among local residents andincreasing burdens on law enforcement,especially due to the organized crimeoperations smuggling immigrantsacross the border.

Mayor Phil Gordon of Phoenix,speaking at HLS on Friday, February

5th, said that the steady flow of illegalimmigrants into his city has created acrisis situation that is extremely dan-gerous for local law enforcement and adevastating drain on the city’s budget.Although by statistical measuresPhoenix is one of the safest cities in theUnited States, it has experienced awave of kidnapping and violent crimesthat have challenged its law enforce-ment capacity. The problem, saidMayor Gordon, is the violent behaviorof the “coyotes” involved in humantrafficking operations across the nearbyMexican border and who regularly kid-nap, torture, rape and kill those who donot comply with their extortion, some-

times forcing captives to dig their owngraves while awaiting either freedom ordeath.

According to Gordon,over 20,000 people, in-cluding women and chil-dren, have been rescuedby Phoenix police overthe last three years from“drop houses” wheredozens or even hundredsare held captive or eventortured, sometimes inthe midst of ordinarysuburban neighbor-hoods. These people,who have often paid the

coyotes for transitinto the United States, becomevictims of what Gordon calledmodern slavery when the coyotes

seek to extort more money out of them.“While I don’t condone the initial

breaking of our federallaw to enter this coun-try, I also understandthe reasons . . . thesame reasons mygrandparents had, tobenefit their childrenand their children’schildren.”

Gordon said that thefight against the coy-otes’ organized crimehas forced the city tohire over 600 addi-tional police officers,many to replace the

100 full-time officers assigned to fed-eral task forces investigating violent

Page 8 Harvard Law Record February 11, 2010

Phoenix Mayor Paints Disturbing Picture of Immigrant Experience

Congratulations to the representatives of the Harvard Black Law StudentsAssociation mock trial team, who took both first and second place at theNortheast Regional BLSA Convention competition the last weekend of Jan-uary. Above (L to R): Anthony Hendricks '12, Charles E. Redmond II '11,Etienne Toussaint '12, Allison Reid '12, Ieshaah Murphy '12, DominiqueWinters '10, Nneka Ukpai '11, and Julian Thompson '10. Allison Reid alsowon the prize for Best Advocate, with a perfect score.

BLSA Wins Regional Mock Trial

R A L P H

NADERB R U C E

F E I N

CC OO LL LL AA PP SS EE OO FF TT HH EE

RR UU LL EE OO FF LL AA WWDoes the rule of law still animate lawyers at all levels of our nation's government and economy? Civic advocate and formerpresidential candidate Ralph Nader '58 will discuss the subjectwith former FCC General Counsel and Deputy AttorneyGeneral Bruce Fein '72 and field questions from the audience.

AA MM EE SS CC OO UU RR TT RR OO OO MM || 22 PP MM || FF EE BB 22 33

AA HH AA RR VV AA RR DD LL AA WW RR EE CC OO RR DD EE VV EE NN TT

prised to see President Yushchenko refuseto endorse Tymoshenko, with whom hestood on stages decrying the fraud of thelast election, and whose assistance led toYushchenko’s ultimate victory in the re-vote. But the last five years have pittedthese two former allies against each otherin a bitter fight for control of Ukraine’s na-tional government, with a result of dead-lock and division.

Now, with the votes counted in the run-off election, it appears that the pro-Russ-ian candidate for Party of Regions, VictorYanukovych, will become the next presi-dent. Although neither candidate took anabsolute majority of the votes,Yanukovych held on to a margin of victoryof 3.4%, slightly less than the 4.4% whovoted against both candidates. Interna-tional observers from the OSCE praisedthe election as “an impressive display ofdemocratic elections” and dis-missed the argument that theOrange Revolution had failed.Rather, European observershailed the election as a trans-parent example of fully func-tioning democracy. Theofficial tally of votes was ulti-mately less than one percentoff the results of national exitpolls.

Despite the praise from in-ternational observers, Ty-moshenko refuses to concedeto her opponent. Press releasesfrom her party indicate that a legal chal-lenge to the results will be forthcomingand decry the manipulation of results fromthe southeastern stronghold of her oppo-nent’s party. But despite these accusations,no street protests have erupted. There hasbeen no general rejection of the election.And her opponent has calmly begun issu-ing press releases urging her to concedeand announcing his plans for the nationalgovernment.

Tymoshenko, for her part, is probablyscrambling not only to assemble a case incourt but also to build a parliamentarycoalition that will allow her to retain hercontrol of the country’s Verkhovna Radaand national government. Yanukovych isseeking to form a new cabinet of ministersand unite the national government in acoalition behind his party, and he is urgingTymoshenko to accept her fate and go intoopposition. Tymoshenko’s own website re-ported both the official results of the elec-tion, 48.95% for Yanukovych, 45.47% forTymoshenko, as well as the exit poll re-sults of 48.5% and 45.7% respectively.With a national absolute margin of over800,000 votes, it is unlikely that any chal-

lenge could be more than a stalling ma-neuver as Tymoshenko works feverishly totry to prevent the new president fromforming a coalition government.

Even if the results of this election are ul-timately accepted with grace and dignity,the future of the nation remains uncertain.The specter of a severe fiscal crisis is over-shadowing all aspects of the national econ-omy, and the first priority of anygovernment will likely be cooperation withthe International Monetary Fund to put inplace financing and a long-term restruc-turing plan for the nation’s debt. Thelonger it takes to form a government, thegreater the possibility of the country de-faulting on its national debts and being un-able to pay pensions, benefits, and salaries.

In the long term, the election ofYanukovych appears to be set to bringcloser ties with Russia and a renewed em-phasis on economic growth through indus-

trial production. In a pressrelease issued on February10, Yanukovych said that thenation needs to execute astrategy for stimulating inno-vation in growth sectors like,“steel-making, aircraft engi-neering, rocket engineering,the nuclear power industry,the military industrial com-plex and agriculture.”

Although the Soviet-eraovertones of such statementsare clear, Yanukovych hasadopted a relatively centrist

stance on many issues since his defeat inthe 2004 elections. He now expressesopenness to closer integration with Europewhile at the same time welcoming renewedties to Russia. “We are the bridge betweenthe West and East...We are choosing ademocratic path and our economy isclosely integrated with the economies ofRussia and CIS countries, and it is becom-ing more so with the West. It is importantthat all these ties grow so that we can ex-ploit these advantages for the good of thecountry and our people.”

While the rhetoric may appear to em-brace an open attitude toward internationalrelations, the reality is that Russia’s rela-tionship with Ukraine has been character-ized by ultimata and divide-and-conquertactics. Whether or not Yanukovych reallydesires open relations with Europe, he maybe forced by dire economic necessity toturn toward the Kremlin for help. As theUkrainian economy wheezes, strainingunder crumbling infrastructure and crip-pled by its dependency on Russian gas, thelack of alternatives will make it difficult toreject any course that does not involveplunging headlong into a deep, dark abyss.

Yulia TymoshenkoSource: Flickr’s Antonis Shen

ON THE OUT

Ukraine, cont’d from pg. 1

Phoenix, cont’d on pg. 4