BY CHRIS SZABLA

By last Tuesday night, it was hardly aserious shock that little-known StateSenator ScottBrown, a Re-publican, hadbeen elected tofill the U.S.Senate seat ofMassachusetts’“liberal lion”,Ted Kennedy.In the lastweeks of thecampaign toreplace him,D emo c r a t i cParty officialsand affiliatesgroups hadjoined togetherto pour money– and ads –into the BayState. Their ef-fort was in-tended to save the flagging candidacyof stateAttorney General Martha Coak-ley, whose massive lead had evaporatedin the span of mere weeks. Even a cam-paign rally presided over by none otherthan President Barack Obama ’91 failedto stem the tide.The question on the morning after

Brown’s come-behind win – whichmade him the first Republican Senatorelected from the state in nearly fourdecades – was why voters in the tradi-tional Democratic bastion of Massa-chusetts turned to a member of theGOP. Multiple theories were offered inthe aftermath. But new data indicate

that an energized Republican base – anda dispirited Democratic one that largelystayed away from the polls – con-tributed significantly to the election’s

outcome.The quality

of Coakley’scampaign waschief amongreasons givenfor her loss.The AttorneyGeneral hadtaken her leadfor granted inthe weeks lead-ing up to thegeneral elec-tion, leavingfor a vacationas her lead inthe polls evap-orated andeven deridingtested cam-paign tactics –like greeting

voters in the cold after hockey games.Brown, meanwhile, capitalized on aneveryman image (embodied in histruck, which became a campaign staple)and an indefatigable – if seeminglyquixotic – effort to meet and greet vot-ers.But Coakley and Brown themselves

were not the only heavily-invested par-ticipants in the race: the efforts of out-of-state groups played a major role. Thespecial election’s characteristics – itwas held in the middle of winter, in astate where the Democrats believedthey were assured victory – put it on themap of groups who believed it could be

Harvard Law RecordJanuary 28, 2010 Vol. CXXX, No. 2www.hlrecord.org — twitter @hlrecord

The Independent Newspaper at Harvard Law School

Opinion• Citizens United Reactions• Ogletree on Obama’s First Year• One Year After the Gaza War

Features• Cambridge, USA in India• HLAB’s New Board• Photo: Jarvis Field Frozen

INSIDEThe HL Record

Clinical StudentDetainedandDeportedatIsraeliAirport

DISPIRITED DEMSDOOMED COAKLEY

Poll Data Shows Low Liberal Turnout WasKey To Victory by Republican Candidate

Mass. Attorney Gen-eral Martha Coakleylost the Senate seatshe thought was hers

AWE (SHUCKS)Scott Brown charmedmany into picking a

Republican for the firsttime...or did he?

Photos: Flickr users Dan Kennedy (left), roberthuffstutter (right)

Israel, cont’d on pg. 3

SUNSTEINSKEWERED OVER“INFILTRATION”

PROPOSAL

&

SEC Restructures to Catch Next Madoff

BYMATTHEWW. HUTCHINS

Reeling from the fallout of the Mad-off scandal, the Securities and Ex-change Commission has beensearching for a new strategy and newleadership in its mission to protect theinvesting public from fraud. As partof this effort, the S.E.C. recently un-veiled six new organizational depart-ments that will lead units aimed atsupervising particular domains of fi-nance: asset management, market abuse, structured andnew products, foreign corrupt practices, and municipalsecurities and public pensions. These changes come with apublic recognition that in the rapidly changing world of mod-ern finance the Commission must be constantly vigilant tokeep pace with innovation in the markets, as well as a keenawareness that in the wake of the Madoff fiasco the public

and Congress are demanding swift action to improve thequality of financial industry oversight.But while the Commission seeks new and innovative

strategies for fulfilling its policy objectives, its core mis-sion of overseeing financial markets continues to de-

pend on its ability to directly probe intothe activities of market players, andstarting at the end of January, the front-lines inspectors in America's financialcapitol will have a new chief, privatefund industry expert Norman Champ'89, who will take on the role of Re-gional Associate Director for theS.E.C.'s New York Regional Office.

Champ brings a wealth of experience as an attorney and in-dustry insider, having worked for eight years at Davis Polk&Wardwell before becoming general counsel at Chilton In-vestments, a private investment management fund based in

Hedge Fund Expert Norman Champ ‘89 to be Top New York Investigator

CCCCiiii tttt iiii zzzzeeeennnnssss UUUUnnnniiii tttteeeedddd vvvv.... FFFFEEEECCCC

Campaign Finance Jolted byCampaign Finance Jolted byLatest Free Speech RulingLatest Free Speech RulingSee Page 2 for CoverageSee Page 2 for Coverage

(IN) SHOCK

HLS ProfessorCass Sunstein’78, now head ofOIRA, is underfire again for oneof his academicpapers. The pro-lific professorwas attackedduring his confirmation hearings overan academic argument that appeared topropose that humans litigate on behalfof animals. Critics are now alarmed by apaper Sunstein wrote with Prof. AdrianVermeule ’93 in 2008 titled “Conspir-acy Theories” (available on the SSRN).Civil liberties blogger Glenn Green-

wald of Salon.com warns that the paperproposes that government agents “cog-nitively infiltrate” websites of activistswho spread “false conspiracy theories”against the government, with the goal ofincreasing citizens’ faith in governmentby decreasing the number of untrue ru-mors circulating about state activities.The paper goes on to reject an outright“ban” on conspiracy theories or tax ontheir propagators but notes that such ac-tions could “have a place under imagi-nable conditions”.As head of OIRA, part of Sunstein’s

authority includes “overseeing policiesrelating to privacy, information quality,and statistical programs.”

BY REBECCAAGULE

A warm smile and easy laugh revealHebah Ismail’s unthreatening, gentlepersonality. An American citizen, this3L of Egyptian descent works with theInternational Human Rights Clinic onprojects related to Bedouin land rights.Hebah wears a hijab. She still does notknow which of one, or combination, ofthese characteristics prompted the se-curity and immigration personnel at TelAviv’s Ben Gurion International Airportto deem her dangerous and deny herentry to Israel.Ismail flew to Israel to join Clinical

Instructor and Global Advocacy FellowAhmad Amara and a fellow student forfield research related to a 2008 reportprepared by the Goldberg Committee.Convened by the Housing Ministry in2007, the Goldberg Committee exam-ined land disputes between the state ofIsrael and the Bedouin community andoffered subsequent recommendations. As her colleagues had already been inIsrael for several days, Ismail arrivedalone on the afternoon of December23rd and planned to travel from TelAviv to Be'er Sheva by train. Thatevening, as Amara prepared to meet Is-mail at the station, the Ben Gurion se-curity services phone to notify him thatshe had been detained. “I originally knew something would

happen, that she would be held,” Amarasaid. “And we prepared for that.” As expected, Ismail was pulled aside

in border control for more intensescreening. Over several hours, securitypersonnel questioned her reasons fortraveling to Israel, often returning towhether or not she intended to visit the

Israel, cont’d from pg. <#>

SEC, cont’d on pg. 6

Coakley, cont’d on pg. 7

What started as a 90-minute politicalcampaign documentary against then-presidential candidate Hilary Clintonended in the Supreme Court with a de-cision that was described by some criticsas one of the worst since Dred Scot.“Hillary: The Movie,” was produced byCitizens United, a conservative non-profit, as part of its campaign against theformer democratic presidential aspirant, andwas released during the Democratic presi-dential primaries in 2008.The judgment, which relaxes the restric-

tion on power of the corporations to directlyspend on advertising during federal elec-tions, was described by Harvard law ProfessorLawrence Lessig as “proverbial fuel on the fire”. Henotes that the issue is not whether corporations are si-lenced or their First Amendment right to free speechupheld. More importantly, the outcome is an assaulton democracy, capable of promoting a system thatwill further erode the public trust in their elected of-ficers. Lessig cautioned that decision would under-mine the participation of the citizens in the democraticprocess and that it gives unfair advantage to corpora-tions, whose financial prowess will give them astronger voice than the electorate.Lessig heads Harvard’s Safra Center for Ethics,

which studies the intersection between politics, inter-est groups and corruption in the U.S. politics. As partof the reading for a course convened by the program,I came across a very interesting article by an expert onpolitical corruption, Zephyr Rain Teachout (found inthe Cornell Law Review, Vol. 94, No. 341, 2009, forthose who are interested), which I found very relevantto the Court’s decision in Citizens United. Teachout writes that the Framers of the Constitu-

tion were obsessed with corruption and saw it as oneof the greatest threats to democracy. They designedthe system in such a way that corrupt leaders will notonly loose their positions, but also their reputation.The Founding Fathers built mechanisms into the Con-stitution to safeguard democracy by ensuring trans-parency, accountability and citizens’ participation in

the political process. The independence of the politi-cal office holders from other special interests was ofparamount importance to the Framers.Teachout writes that “corruption was discussed

more often in the constitutional convention than fac-tions, violence, or instability. It was a topic of con-cern on almost a quarter of the days that the membersconvened. Madison recorded the specific term cor-ruption fifty-four times, and the vast majority of thecorruption discussions were spearheaded by influen-tial delegates Madison, Moris, Mason, and Wilson.The attendees were concerned about the corruptinginfluence of wealth, greed, and ambition.” It is not anoverstatement to say that the Framers actually saw theConstitution as an instrument to fight corruption. The Framers defined political corruption to include

“self-serving use of public power for private ends, in-cluding, without limitation, bribery, public decisionsto serve private wealth made because of dependent re-lationships, public decisions to serve executive powermade because of dependent relationships, and use bypublic officials of their positions of power to becomewealthy”.Their efforts to curb corruption in the political

process is visible in issues including the regulation ofelections, term limits, limits on holding multiple of-fices, limitations on accepting foreign gifts, the vetopower, the impeachment clause, and provisions forthe separation of powers, among other measures, with

a view to ensure that leaders representthe interest of their constituency and notpersonal interests. In the words of Tea-chout, “taking seriously the architecture[of the Constitution] requires more thanpassing knowledge of what motivatedthe choice of architecture. Political cor-ruption is context without which otherspecific words don't make sense; it is

embodied in the text itself through otherwords that can’t be understood without un-derstanding corruption”.History has shown that when leaders put

their self-interest above those who electedthem, it undermines the trust of the people in

the process and inevitably leads to collapse of thedemocratic system. The Roman and Greek empiresare classic examples. The danger of democracies leav-ing political corruption unchecked is succinctly cap-tured by Teachout: “voters will stop voting, peoplewill stop running for office, and citizens will stopmaking serious efforts to read news and understandthe public issues of their day, because they will be-lieve that such efforts are futile,” she writes.In McConnell v. FEC, 540 U.S. 93, which the Court

overturned in Citizens United, the Court had made thefollowing powerful comments:“Just as troubling to a functioning democracy as

classic quid pro quo corruption is the danger that of-ficeholders will decide issues not on the merits or thedesires of their constituencies, but according to thewishes of those who have made large financial con-tributions valued by the office holder. Even if it occursonly occasionally, the potential for such undue influ-ence is manifest. And unlike straight cash-for-votestransactions, such corruption is neither easily detectednor practical to criminalize. The best means to pre-vention is to identify and remove the temptation.”Ignoring the threat of corruption to democracy is,

therefore, a serious problem that we must not be takenlightly. I agree with Teachout when she writes that“internal decay of our political life due to power-and-wealth seeking by representatives and elites is a major

"Judges are like umpires. Umpires don't makethe rules; they apply them. They make sureeverybody plays by the rules. But it is a limitedrole." - Chief Justice John Roberts ’79, speak-ing to the Senate Judiciary Committee in 2005

That was then.Now, the conservative wing of the U.S. Supreme

Court defers neither to its own precedents nor to de-cisions by other branches of government. In fact,when stare decisis and our constitutional system ofchecks and balances interferes with their personal pol-icy preferences, they shrug and legislate from thebench.The Court's opinion in Citizens United v. FEC, is

being hotly debated for its conclusion that corpora-tions and unions are, constitutionally speaking, peoplewhose free speech the Founders intended to protect.Will there be an unprecedented flow of money intopolitics from already powerful interest groups? Is thismerely the faucet being turned up, or the breaking ofthe dam? Few doubt that this decision will have a pro-found impact on our country's electoral landscape.However devastating the consequences, though,

how this Court arrived at such a myopic ruling may beeven more disturbing.Five of six Republican-appointed Justices aban-

doned legislative deference, overturning more than100 years of campaign finance legisla-tion. In the same opinion, they reversedthe two leading opinions on campaign fi-nance law. The law's shape-shiftingproperties seem to prove the legal realistmaxim that the Court is not final becauseit's right, but right because it's final.Somehow, though, old sayings arehardly comforting when it becomes so

readily apparent that, if you want to win the game, allyou have to do is change the umpires.Justice John Paul Stevens found room in his 90-

page dissent to make exactly this point. "The only rel-evant thing that has happened since Austin andMcConnell [which Citizens United overturned] is thecomposition of this Court," Justice Stevens wrote. Thesentiment was shared by Justice Sandra Day O'Con-nor, who stepped down from the Court in 2005 andwas replaced by Justice Samuel Alito -- a member ofthe Citizens United majority. Asked for her legal as-sessment of Citizens United, she cooly instructed herquestioner to read McConnell, for which she authoredthe Court's majority opinion.Not only did the umpires vastly expand the strike

zone in Citizens United, they went out of their way todo so by ordering reargument of the case. After theCourt heard oral argument on the narrower issuesraised by the parties last term, the Court ordered rear-gument on whether the existing series of campaign fi-nance decisions was ripe for reconsideration. Putanother way, the Court didn't like what the pitcher wasthrowing, so they wiped it from the record books and

ordered a do-over suited to their specific tastes.Setting aside the Court's proactive role in

raising the issues that it wanted litigated, itshould not go unacknowledged that the Courtcan and does reverse itself on occasion. InBrown v. Board of Education, for instance, the

Court rejected the long-standing "separate, but equal"principle that under-girded Jim Crow. The Justicesfounded their uninimous opinion in constitutionalprinciple of equal protection, and certainly not with-out considering the laudable goal of ending state-sponsored discrimination based on race.Here, too, the Court announced an opinion

premised on constitutional principles -- namely, free-dom of speech -- in reversing itself. But the similari-ties end there.In Brown, the Court's conscience guided it to un-

ravel legalized segregation, giving greater opportu-nity to school children across our country. Now, theconservative Justices have hijacked the levers of leg-islative power to protect corporations from havingtheir "voices" muffled by Congress. In doing so, theyhave further entrenched special interest politics intoour system of governance."While American democracy is imperfect, few out-

side the majority of this Court would have thought itsflaws included a dearth of corporate money in poli-tics," Justice Stevens observed.

Alas, these misguided umpires haverun amok.

Chris Cassidy is the Assistant Directorof Communications at the AmericanConstitution Society and Criminal Jus-tice Blogger at Change.org. The viewsexpressed here are solely attributable toCassidy.

Page 2 Harvard Law Record January 28, 2010

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

CITIZENS UNITED: UPHOLDING

INSTITUTIONAL CORRUPTIONBy Aminu Gamawa

UMPIRES RUNNING AMOKby Chris Cassidy

Corruption, cont’d on pg. 6

January 28, 2010 Harvard Law Record Page 3

CITIZENS UNITED: CORPORATE MONEY NOT BEHIND FLOODGATESBY NICHOLAS JOY

In the decision handed down by theSupreme Court in Citizens United v.Federal Election Commission on Janu-ary 21, the Court upheld the disclaimerand disclosure provisions of the Bipar-tisan Campaign Reform Act of 2002(also known as the McCain-Feingoldlaw) while at the same time invalidat-ing a ban on electioneering communi-cations by corporations and unions,political speech that the Court said thegovernment may not suppress simplybecause of the speaker’s identity.Citizens United has already caused an

uproar. President Obama has said of thedecision that he “can’t think of anythingmore damaging to the public interest.”Justice Stevens wrote in his partial dis-sent that the Court has rejected a cen-tury of history of regulating corporateelectioneering, a claim that many pun-dits have taken up. In all, the criticshave painted a picture of CitizensUnited as a dangerous innovation thatwill allow unbridled abuse of the elec-toral system by corporations and shakethe very foundations of our democracy.These hysterics are overblown for a

number of reasons. First, the regulationthat the Court overturned covered onlya relatively limited category of advo-cacy. The provision that the Court de-clared unconstitutional prohibitedcorporations from using their generaltreasury funds to pay for “electioneer-

ing communications.” Electioneeringcommunications are defined as anybroadcast, cable, or satellite communi-cation that refers to a candidate for fed-eral office and that is broadcast within30 days of a federal primary election or60 days of a federal general election inthe jurisdiction in which that candidateis running for office. Unless the elec-tion law statute were to be read sobroadly as to make the “electioneeringcommunications” language redundant,this restriction did not even touch com-mercials broadcast outside the specifiedwindow before an election, political ap-peals in print such as newspaper adver-tisements and books, or internetcampaigning tools such as the Youtubevideos and Google ads that have be-come so important in recent elections. Even before Citizens United, corpo-

rations were not prevented from broad-casting so-called “issue” ads on TV andradio right up to elections so long asthey did not expressly support one can-didate or another, even if the intentionsbehind the ads were thinly veiled. Al-though electioneering communicationscertainly play a major role in modernpolitical campaigns, it is hard to imag-ine these organizations gaining dramat-ically more influence as a result of thisdecision, given the numerous avenuesavailable in the past for corporationsand unions to influence the electorate.Furthermore, the notion that the Citi-

zens United decision runs counter to a

century of regulation of corporate elec-tioneering is not, strictly speaking, ac-curate. The practice of prohibitingcorporations from making political con-tributions does indeed date back at leastto the Tillman Act of 1907 and is unaf-fected by this ruling. But the line ofcases which allowed the regulation ofindependent expenditures by corpora-tions is of much more recent vintage. Citizens United overturns the 1990

case Austin v. Michigan Chamber ofCommerce, which upheld a Michiganstatute prohibiting corporations frommaking independent expenditures sup-porting or opposing state candidates.The court’s holding in Austin that suchexpenditures could be restricted put thatdecision in tension with the 1976 caseBuckley v. Valeo, in which the Courtdistinguished between direct contribu-tions to political campaigns and inde-pendent expenditures and held that alimit on independent expenditures wasunconstitutional. The Bipartisan Cam-paign Reform Act, which restricted in-dependent expenditures at the federallevel, was only enacted as recently as2002.Some of the criticisms of the Citizens

United decision ignore the ways inwhich its impact could be mitigatedthrough means that do not implicatespeech so strongly. For instance, JusticeStevens worries in his dissent that somecorporations might spend money insupport of candidates whom their

shareholders oppose. But corporatelaws can be changed to require permis-sion from shareholders before a corpo-ration supports particular candidates.Members of labor unions already havethe right to choose not to have theirdues used to support political causes.Even if this decision did signify the

sea change that its detractors suggest itdoes, Citizens United would still havebeen rightly decided based on FirstAmendment law. First Amendment pro-tection is generally considered to bemost necessary in the domain of politi-cal speech. The Supreme Court has re-peatedly and consistently held that FirstAmendment protection of speech rightsextends to corporations, stating in FirstNational Bank of Boston v. Bellotti that,even in a political context, speech doesnot lose its protection “simply becauseits source is a corporation.” Because thefree speech right enshrined in the FirstAmendment is so fundamental to ourdemocracy, any law which places a re-striction on that right must survive strictscrutiny by being narrowly tailored toserve a compelling state interest. Thegovernment interest stated in Austin isthat of avoiding the “corrosive and dis-torting effects of immense aggregationsof wealth” on the political process. Butthe Court stated in Buckley that “theconcept that government may restrictthe speech of some elements of our so-ciety in order to enhance the relativevoice of others is wholly foreign to the

Occupied Territories. A signed letter from the HumanRights Program attesting to the purpose of her trip andoutlining her agenda did nothing to assuage their mis-givings. After almost seven hours, Hebah was directed to

claim her luggage and open it for examination.“I wasn’t strip searched, but they did pat me down

well,” Ismail said. After going through her computer, including the ex-

ternal hard drive, the line of questions continued.While most of those originally holding Ismail ap-peared rather young, a man in his 30s and clearly in aposition of authority took over the interrogation.Ismail recounts how this man introduced himself.

“I don’t remember his exact words,” she says. “Butbasically he told me, ‘Before we get started, we wantyou to know that this is a democratic country, and werespect other points of view. But we found things onyour external hard drive that are very concerning.’ Hewas sure I had some other objective, but I had no ideawhat that could be.”Hebah tried to assure the security officer that her

trip related only to the clinical project and a personaldesire to visit Jerusalem. But he remained convincedthat an article on her computer describing modern Is-raeli as being on land previously held by Palestinianspointed to a more insidious motivation and beganpressuring Ismail to allow him to read her emails.“He told me, ‘I cannot let you through until I know

I can go home and get a good night’s sleep,’” Ismailsaid. “He kept saying, ‘If you let me go through youremail, I’ll let you in.”Having been counselled by Amara prior to the trip

that the security forces had no right to demand accessto her emails, Ismail denied his request. Almost eighthours after landing, Ismail’s passport progressed fromborder control to immigration, who would proceed toask the same set of questions. Only later would belearn that security had finally granted her entry andimmigration ultimately denied her. Again, the de-mands centered upon her emails, but now the conse-quences escalated.

“They told me that if I didn’t let them read myemails, not only would I not be allowed into Israel, Iwould be banned for life.”Having stood by her initial refusal regarding the

personal mail, Ismail cannot ever travel to Israel.“I always wanted to go to Jerusalem. And this was

finally my chance. But I won’t be trying to go back.”After being fingerprinted, photographed and hav-

ing her passport scanned, Ismail was moved to van.She assumed this would take her to the departure gate,and she texted family about her imminent deportation.But instead of boarding a plane, Ismail found herselfin the “Hedar Mesuravimor”, or “Rejected Room”, aholding pen for those awaiting deportation, a placeshe describes as akin to “a really bad Egyptian hos-tel.” This room would become her home over the nextday, as she waiting for a flight 23 hours away. Beforeshe could re-inform her family, the phone was taken,along with all of her other belongings. “Once they asked if I had a heart condition, they

even took my medication. I was allowed to keep onesmall sweater.” Unable to contact her family, Ismail continued to

request that someone contact Amara, so that he couldat least reach out to them. Each time, the person onduty would simply tell her she could call later. But noone ever allowed her to make that call.Morning arrived, and with it a breakfast of cheese

and tea. Lactose-intolerant, Ismail could do little morethan stare at the food. Hours later, she finally met withAmara, though as her lawyer, not as her professor. Ex-plaining that they could launch a case and arose mediainterest on her behalf, Amara laid out the various op-tions. However, a best case scenario would take atleast a week, during which Ismail would remain in de-tention. The decision was made for her to return to theUS. Finally boarding a plane on Christmas Eve, Hebah

had never managed to leave the Ben Gurion Airport.Arriving in the U.S., three plainclothes Israeli securityofficials walked her to the Department of HomelandSecurity and handed over her passport. “The DHS officer asked if I had been arrested. The

Israelis said no. He asked me if I was an Americancitizen, and I said yes. Then he walked me to the frontof the passport line, stamped me and said, ‘Welcomehome.’ I turned to my escort and said, ‘Have a happyholiday,’ and walked through to meet my family,” Is-mail said.Of course, they were worried about me going to Is-

rael in the first place, so now they get to say, I toldyou so!” she laughs. Ismail joins a growing list of human rights and de-velopment workers recently denied entry to and workpermits in Israel.“There is a general practice of denying entry to

American citizens,” Amara said. “Its not uncommonwith those of Palestinian origin, or anything aboutJerusalem, the Negev, human rights. In the past, I hadan American student of Pakistani descent who wasalso denied entry. No matter what you say, they as-sume you are going to the Territories.”According to Reuters, in December 2008, Israel de-

nied entry to Richard Falk, the United Nations SpecialRapporteur on Israeli Behaviour in the Occupied WestBank and Gaza Strip and an American Jew. Accordingto Reuters, “Falk had angered Israel by making re-marks comparing its forces' actions in the Gaza Stripto those of the Nazis in wartime Europe.” More re-cently, the Israeli newspaper Haaretz reported that “Is-raeli immigration police were involved in the arrestand deportation earlier this month of a Czech pro-Palestinian activist living in Ramallah.” In addition tothe UN and pro-Palestinian groups, impacted organi-zations include Oxfam, Save the Children and Doc-tors without borders.Amara cannot determine how Ismail’s adventures

will impact the future of the Bedouin land project.Unable to do the research, the group cannot completethe project, which must be put on hold until anothertrip can be arranged.“Hebah knew the Goldberg report, there were meet-

ings arranged specifically for her trip,” Amara said.“It means now we won’t have something ready.”

Israel, cont’d from pg. 1

Speech, cont’d on pg. 4

Page 4 Harvard Law Record January 28, 2010

HarvardLawRecord

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

ContributorsChris CassidyAminu Gamawa

Prof. Charles OgletreeNimer Sultany

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

orHarvard Law RecordHarvard Law School

Cambridge, MA 02138-9984

President Obama and the Legacy ofDr. Martin Luther King, Jr.

BY PROFESSOR CHARLES J. OGLETREE, JR.

January 2010 is an occasion that is widely celebratedaround the country, particularly in the African Americancommunity. Not only does it mark the birth of Dr. MartinLuther King, Jr., but it also commemorates the anniversaryof the election of President Barack Obama ’91 a year agothis past week. For African Americans, there is a greatamount of pride as they look upon these two historic figuresand their contributions to equality and justice in America.While celebrating Dr. King’s accomplishments, there is alsothe challenge in trying to assess the impact of PresidentObama’s election.The first year of President Barack Obama’s presidency has

produced mixed results. One highlight was his early decisionto select Senator Hillary Rodham Clinton, a fierce competi-tor during the Democratic primary, as Secretary of State. Itwas a bold decision that reflected the President’s ability toboth find talent among the ranks of a group of notable Amer-icans and to move forward his foreign policy agenda. Hisnomination of Eric Holder as the first African American At-torney General, former Harvard Law School Dean ElenaKagan ’86 as the first woman to serve as Solicitor General,and former Second Circuit judge Sonia Sotomayor as thefirst Latina on the Supreme Court, were all notable suc-cesses. Consistent with President Obama’s eager goal of getting

things accomplished, he not only pushed for the bailout ofthe American financial system, helping it avoid falling intoa financial crisis as significant as the Depression of the1930’s, but also steered Congress through the adoption of an$800 billion stimulus package designed to find jobs forAmericans throughout the United States and to create finan-cial resources to address the stagnant economy. The President’s promise to draw down the number of

troops in Iraq has also been successful, with U.S. Marinesdeparting the country this week as the first wave of the with-drawal. At the same time, President Obama did not meet hisgoal of closing Guantanamo in a year, and, in apparent con-tradiction to his opposition to the war in Iraq, escalated thewar in Afghanistan. But all throughout his campaign, he hadmade it clear that the real fight, to stem the spread of AlQaeda, is in Afghanistan. His decision to send an additional30,000 troops to Afghanistan to address the growing threat ofterrorism drew unlikely support, but also much criticismfrom both sides of the political aisle. Also looking back on the legacy of Dr. Martin Luther King

this month, we realize he was enormously accomplished inpushing forward the adoption of the Civil Rights Act of 1964,the Voting Rights Act of 1965, and ultimately the Public Ac-commodations Act and the Fair Housing Act of 1968. ButDr. King also encountered much controversy and objectionto his agenda of non-violence and civil rights. As we look atthe success of the March on Washington on August 28th,1963, we’re reminded that, less than a month later, four lit-tle girls were murdered in the 16th Street Baptist Churchbombing on September 21st, 1963. It took events like theMarch 1965 beating of John Lewis, who now serves as aCongressman from Georgia, for America to address issuesof inequality, and President Lyndon B. Johnson’s overt ap-proval of the Voting Rights Act of 1965. But President Obama’s first year and Dr. King’s legacy as

a civil rights leader reveal very different attitudes toward war.

Dr. King was an advocate of non-violence, leading to his his-toric address at Riverside Church in New York in oppositionto the Vietnam War. It drew harsh criticism, but it reflectedKing’s relentless commitment to non-violence even when itwas an unpopular theme to pursue. Similarly, Obama wasone of the early opponents of the Iraq War. He sharply criti-cized the war in 2002, less than one year after the anniversaryof the death of over 3,000 innocent Americans at the WorldTrade Center, in Pennsylvania, and in the Pentagon. But their contrasting views on war were most evident after

President Obama’s decision to increase the level of troopsthe U.S. maintained in Afghanistan, at the same time he wasawarded, like Dr. King, the Nobel Peace Prize. While Dr.King was also criticized for receiving the Nobel Peace Prizeat a young age, it was remarkable how much he had furtheredthe agenda of civil rights in his 39 years before his assassi-nation. President Obama has had the same goals in mind,but his agenda has taken one step back after attempting topush forward access to greater opportunity and equality. Inhis remarkable speech as the recipient of the Nobel PeacePrize, he defended the idea of a “just war”, and received theunlikely support of people such as former Alaska GovernorSarah Palin, Newt Gingrich, and Henry Kissinger. President Obama’s first year in office was also a mixed

record for African Americans. While the diversity of thePresident’s political appointments have been lauded – Pres-ident Obama has pursued an aggressive effort to create a verydiverse cabinet, appointed a diverse group of federal judgesat the District and Circuit court levels – there has been muchconcern about the slow state of economic development, thelack of structured efforts to increase the opportunities forAfrican Americans in urban areas, and failure to fulfill anexpected goal of greater diversity and accomplishmentthroughout the nation. And yet, as we look beyond the lim-ited success that has directly affected the African Americancommunity, President Obama has pushed to ensure greatersupport for minority owned businesses, and for a race to thetop for educational reform and a health care plan, at best afragile hope at the moment, designed to provide coverage toan unprecedented number of African Americans.The President’s ambition has not been questioned. His

ability to achieve many of his lofty goals in the face of fierceresistance from both Republicans and moderate Democratsonly reinforces the challenges he will face during the nextfour years and beyond. What really stands out is the Presi-dent’s ability to take bold positions, push multiple agendas atthe same time, and to persuade doubters, as he undoubtedlywill have in his State of the Union address this week. Thesame enthusiastic focus on multiple issues will guide hispresidency for years to come. While President Obama cannot be satisfied that he has ac-

complished as much as he had ambitiously sought, it is cer-tainly true that he has developing unprecedented levels ofglobal support for America’s move from isolation to an in-clusive agenda. It will take decades to fully evaluate the im-pact of his election and accomplishments, but it’s hard todoubt that his efforts to improve America’s global relation-ships, and to invest in its economy, not only face great chal-lenges, but that, in time, will bear fruit.

Charles J. Ogletree, Jr. ’78 is the Jesse Climenko Professorof Law at HLS.

HOPES AND DREAMS

First Amendment.” Even if Buckley hadallowed this rationale, the restriction oncorporations would be both under- andoverinclusive. Such restrictions wouldnot stop exceptionally wealthy individ-uals from attempting to influence elec-tions, but they would freeze out bothnonprofit corporations and the smallfor-profit corporations with revenues ofunder $1 million which make up thevast majority of all corporations.An argument can be made that the

Court showed a lack of judicial restraintby choosing to overturn the precedentestablished in Austin. But in truth, it isAustin that is the outlier in regards toFirst Amendment precedent. No casebefore Austin had held that Congresscould prohibit independent expendi-tures for political speech based on thespeaker’s corporate identity. Buckley, infact, had suggested just the opposite.Two and a half years ago, the Court ar-guably foreshadowed a move in this di-rection by upholding an as-appliedchallenge to the prohibition in FederalElection Commission v. WisconsinRight to Life, Inc, and the decision inCitizens United merely brings FirstAmendment jurisprudence back in linewith the bulk of the case law. Protect-ing the ability of corporations andunions to voice their support for candi-dates may not be politically correct, butit is legally so.

Nicholas Joy ‘11 is a 2L.

Speech, cont’d from pg. 3

January 28, 2010 Harvard Law Record Page 5

CAMBRIDGE, INDIA: THE SMELL OF DEVELOPMENT?BY JESSICA CORSI

All of Delhi is being transformed. The entire city ispreparing for the 2010 Commonwealth games. I trav-eled there in January to research the right to food fora UNDP report. I was there two years ago in Janu-ary, also to write a report on the right to food. Thistime, having come to see what had changed, I wasgreeted by streets lined with piles of bricks andmounds of dirt. Women in tightly wrapped saris hoedthe earth as their children played next to them, andmixed groups of men and women laid bricks in newwalls. I watched them daily as my auto-rickshaw wascrisscrossing the city to deliver me to meetings, and Iwondered if this was a good thing or a bad thing. Iwondered if this was employment for the unemployedor if when the games came undesirable people wouldbe swept out of sight. I wanted to know whether lifehad really improved for those at the bottom of society.I was told that it hasn’t. When I met with Dipa

Sinha, one of the Commissioners monitoring the im-plementation of the still-open 2001 Supreme Courtcase on the right to food, she informed me that reportsof starvation deaths have been higher in the past yearthan in any year since the opening of the case. Thereis still no India-wide system to ensure that the Court’sorders are put into action, and so relief for starvingcommunities happens in ahaphazard way, if at all. Ms. Sinha told me that she

has seen people that they aremonitoring die over thecourse of a year. In a typicalcase, a report will come that amarginalized community, per-haps a community of tribalsor dalits, is starving and with-out any work. NGOs lobbythe local and State govern-ment to provide governmentguaranteed employment andsubsidized grains available tothe community. But thesecommunities are often cut-offfrom accessing to social serv-ices due to discriminationagainst minorities, and whenthe requesting organizationfollows up with the authori-ties, none of the promised ac-tions have been taken. By thattime, the handful of severelyhungry persons identified as on the brink will havedied. But in these ignored communities there are al-ways hungry and malnourished people who are on thebrink of dying from starvation. It is hard for me to hear this information, but it is the

information that I traveled to obtain. I was there tosearch for signs of implementation of the right to foodorders, and to evaluate the direction that the right tofood is taking in India. One of the many paradoxes ofIndia is the coupling of its famous economic growthwith poverty that seems to have only intensified in themost vulnerable communities. Journalist David Rieff is writing a book on malnu-

trition and hunger. I had breakfast with him at theIndia Habitat Center, a beautiful place, a place of calmin the middle of Construction City. I was disorientedas I ate huevos rancheros in an American style diner,with Abba playing in the background, as we discussedthe “why” of the paradox.Were we still in Delhi? He pointed out some of the unique aspects of Indian

hunger, as compared to hunger in other countries. Thegender question looms large in India, for example. Inother countries, he has found, a household with foodwill have equally fed women and men, while in Indiaa household with food might have a nourished manand a malnourished woman. And then there are otherkey indicators of health that are missing. He has trav-eled extensively in China, and he said he can drinkthe water there. There is also no comparison with thelevel of open defecation found in India. As he spoke

I had a flashback to my 2008 trip to inner UttarPradesh, the first time I had seen so many peopleopenly defecate. There is no infrastructure to deliverbasic services like sewage. Yet, I thought to myself,India has plans to test a new space shuttle, with an eyeto making headway in the satellite industry. This ispart of the paradox: impressive development is tak-ing place at the highest level; but the bottom rungscan’t subsist on plans for a spaceship. Poverty at thebottom is still a life and death emergency. David Rieff mentioned another element of the par-

adox: the economic boom has resulted in an evengreater divide between the classes, with newly mintedcities for the rich that allow the affluent to screen outthe signs of poverty and, perhaps most importantly,interactions with the poor. An illustration of this is what I came to think of as

the “car and driver set.”Delhi smells. (and so doMumbai, Chennai, and…) It is extremely noisy. In-stead of using turn signals or staying in one’s lane(when it is even marked) you instead make ample useof your car horn. All of this can give you an instantheadache. But if you have a car and a driver, you areinsulated from the smell, the noise, and the stress ofthe drive. This phenomenon is not new, but thegreater number of people catapulted into this “car anddriver” class and the construction of new suburbs that

house only the affluent is a movement toward balka-nization. Rieff mentioned Gurgaon, a suburb on theedge of Delhi, as an example of this new arrangement. Coincidentally, I was having dinner there that very

night. When I spoke to the friend I would be meetinghe said, “I’m warning you, Gurgaon is my least fa-vorite place in India.” This was a strong statementfrom a person who had a deep affection for the coun-try.I arrived in the dark. “This isn’t so bad,” I told him.

I had been bracing for Armageddon.“You haven’t seen it in the day. There’s no infra-

structure. The workers and their families that havecome to build this place have no toilets, no water, noelectricity. In the daylight, the whole city smells likeshit. Of course, from inside the office buildings, youcan’t smell it. They even have their own electricitygenerators for when the power goes off.”The power went off over dinner. But then, right on

cue, a generator kicked in and restored the lights. On the drive back from Gurgaon to Delhi, my cab

driver was in a talkative mood. He wanted to sharewhat he thought of India’s development.“I’ve been in this business, driving only tourists, for

18 years. And still, 18 years later, my family and Ilive in the same place. Our standard of living hasn’tchanged. And why not? Because the wages for usstay the same, and the prices go up. The prices offood, even the prices of vegetables, just keep goingup. They keep saying, India is growing, India is shin-ing, this is a new India. But a New India for who?

Who is getting this new India? I say, give first to thevery poor. There are people here who have less than50 rupees [$1 USD] a day. Give to them first.” I had heard the same thing from all of my cab driv-

ers. “The price of sugar has more than doubled in thepast month,” said one auto-rickshaw driver, as wedrove we passed a truck draped in banners and filledwith people chanting on bullhorns. “It’s a politicalparty,” the driver explained. “They’re talking aboutthe increase in food prices.” We arrived at my desti-nation, the Supreme Court Commissioner’s office,and she too immediately mentioned the food pricesand the price of sugar. The anecdotal reports of risingprices are backed by facts. But you can hear from peo-ple directly about how they’re being impacted, and Igot a sense that people are heavily impacted. Life goes on, and plenty of people are doing fine,

even as others literally starve to death, and as almosthalf of India’s children remain malnourished to apoint of permanently stunted growth. Over one week-end, I sat with a friend on the beach in Chennai, andwatched a festival being cleaned up. “There are notrashcans,” she said, pointing to the area where thefestival had taken place. “This (the people cleaning)is the rag picker class.” Instead of lining the festivalarea with bins, people were brought in the next dayto clear everything away. “Why not have bins? In

order to generate jobs?”“Maybe,” she shrugged. “Butthis caste of people has tradi-tionally cleaned the waste.” My friend is a development

economist. She shrugged be-cause she knows that povertyin India—and in any place,but perhaps more so here—iscomplicated. She took me toan estuary where brand newoffice buildings perch on theedge of the water. "This is avery fragile ecosystem," shesaid. "It will probably be de-stroyed by the development.But if you talk to people, itseems like this is what theywant. They want the new airconditioned shopping malls." But these are the people in

the cities, who can afford togo into these malls. In therural areas, they want any em-ployment they can find, and

they want it now. The cities are mushrooming with in-vestment, but more than two thirds of the population'sincome still derives from agriculture. As the govern-ment of India focuses on the high tech side of devel-opment, the farmers are being left behind. In my last interview before I flew home, I asked,

“What remains to be done? What are the next steps?”“Research,” responded my interviewee, without hes-itation. “We need more in depth studies as to why theprogrammes that we have, the Supreme Court ordersthat we have, the laws that we have, are working ornot working.” But what will come first — more research, or an ex-

panded space program? The buildings to house for-eign companies in the growing tax-free zones, or theinfrastructure to provide basic programs for the peo-ple who construct the buildings? If things stay ontheir present course, development as usual will con-tinue to have a negative impact on the people at theeconomic margins — which presently seems to be themajority of the Indian population. I spent my last weekend in India in Mumbai. “Have

you been to Delhi lately,” I asked a friend. “It’s a con-struction site.” “I heard that,” he responded, “I wonder what it will

look like in time for the games.” So do I. I wonderwhat it will all look like in the near future, andwhether people like my taxi drivers and the womenin saris digging on the side of the road will experiencechange.

Photo: flickr user HelpAge

Page 6 Harvard Law Record January 28, 2010

and constant threat to our democracy. Historyprovides some powerful tools to allow us in-corporate the anti-corruption principle into theconstitutional law of democracy. We shouldpay attention to it”. The recent decision of theSupreme Court ignores this history, undermin-ing the Constitution’s efforts to curb corruptionat the highest level.The 5-4 conservative majority decision was

delivered by Justice Anthony Kennedy ’61, andconcurred in by Justice Samuel Alito, ChiefJustice John Roberts ’79, Justice ClarenceThomas and Justice Antonin Scalia ’60. JusticeSonia Sotomayor began her Supreme Court ca-reer with a dissent. She joined four other lib-eral justices in disagreeing with the majoritydecision. The dissenting judgment delivered byJustice Stevens severely criticized the majoritycourt for ignoring the dangerous consequenceof the decision on democracy: “At bottom, the Court's opinion is thus a re-

jection of the common sense of the Americanpeople, who have recognized a need to preventcorporations from undermining self govern-ment since the founding, and who have foughtagainst the distinctive corrupting potential ofcorporate electioneering since the days ofTheodore Roosevelt. It is a strange time to re-pudiate that common sense. While Americandemocracy is imperfect, few outside the ma-jority of this Court would have thought itsflaws included a dearth of corporate money inpolitics,” Justice Stevens wrote.The decision overruled a decade of precedent

laid down in McConnell, a 2003 decision thatupheld the part of the Bipartisan Campaign Re-form Act of 2002, which restricted campaignspending by corporations and unions, as wellas Austin v. Michigan Chamber of Commerce,494 U.S. 652, a 1990 decision that upheld re-strictions on corporate spending to support oroppose political candidates.In his weekly address on Saturday, President

Barack Obama ’91 criticized the decision as “ahuge victory to the special interests and theirlobbyists”. The President expressed his disap-pointment with the ruling, saying that he couldnot “think of anything more devastating to thepublic interest. The last thing we need to do ishand more influence to the lobbyists in Wash-ington, or more power to the special interests totip the outcome of elections”. He noted thateven foreign corporations would now have sayin U.S. politics; candidates that disagreed withcorporations would come under serious attackfrom the corporations during election.Obama went on to observe that “all of us, re-

gardless of party, should be worried that it willbe that much harder to get fair, common-sensefinancial reforms, or close unwarranted taxloopholes that reward corporations from shel-tering their income or shipping American jobsoffshore”. He also cautioned that the decisionmakes it “more difficult to pass common-senselaws” to promote energy independence or ex-pand health care.The danger is clear!The competition will now be intense among

the corporations to producing the highest num-ber of Senators and Representatives. Doesn’tthis undermine the role of the public in theAmerican democracy? Can individuals’ contri-bution to candidates now count in the cam-paign process? Will this be the last Congressthat is truly elected by the people? How muchwould this decision contributing in promotinginstitutional corruption? I am sure most politi-cians will be more concerned about pleasingthe corporations than their constituencies. Itwill be dangerous for any of them to fall outwith the corporations.American democracy has been a model to

many countries across the globe. But the recentdecision by the Supreme Court legalizing di-rect corporate participation which over turn a

time revered restriction on the corporation is aworrisome development that deserve concernof anyone that is interested in Americandemocracy’s future. Citizens United has intro-duced a new era in the U.S. politics. The Constitution’s “We the People” has grad-

ually become “We the Corporations”. Equatingcorporations with human beings undoubtedlyundermines the participation of individual cit-izens in the political process. Election into po-litical office under the new regime will largelydepend on having the highest donation fromthe corporations. Corporations and their inter-ests, which sometimes include interest of for-eign nationals, will now have the strongestvoice in the U.S. politics.It will not be surprising to see Blackwater,

Wal-Mart, Exxon and other corporations beingbetter represented in Congress than citizens,whose interest and participation the Constitu-tion seeks to preserve. This is an unwelcomedevelopment that anyone concerned about pre-serving the U.S.’ long-cherished democracymust oppose.The matter of democratic integrity, trans-

parency and accountability transcends the usualliberal/conservative or Democrat/Republicandivide. It is an assault on democracy and nega-tion of the text and original understanding ofthe Constitution as understood by the Found-ing Fathers, who strived to craft a documentthat would preserve democracy by protectingthe interest of the electorate over and aboveother interests.One might ask if there is anything Congress

can do. Even before the decision was an-nounced, an advocacy group called ChangeCongress was working to pursue the passage ofa bipartisan bill called the Fair Elections NowAct. The bill is sponsored by congress menSens. Dick Durbin (D-IL) and Arlen Specter(R-PA), and Reps. John Larson (D-CT) andWalter Jones (R-NC).“Under this legislation, congressional candi-

dates who raise a threshold number of small-dollar donations would qualify for a chunk offunding—several hundred thousand dollars forHouse, millions for many Senate races. If theyaccept this funding, they can’t raise big-dollardonations. But they can raise contributions upto $100, which would be matched four to oneby a central fund. A reduced fee for TV airtimeis also an element of this bill. This would cre-ate an incentive for politicians to opt into thissystem and run people-powered campaigns.”President Obama said that he has instructed

his advisers to work with Congress on a force-ful, bipartisan response. In a New York Timesop-ed, David D. Kirkpatrick wrote that becauseof the enormous threat of this decision todemocracy, some members of Congress areworking hard to introduce new laws that will,cure the defect by either • Imposing a ban political advertising by cor-

porations that hire lobbyists, receive govern-ment money, or collect most of their revenueabroad; • Tightening rules against coordination be-

tween campaigns and outside groups so that,for example, they could not hire the same ad-vertising firms or consultants; or• Requiring shareholder approval of political

expenditures, or even forcing chief executivesto appear as sponsors of commercials theircompanies pay for.What is really necessary need, as Professor

Lessig puts it, is an alternative, “Not the alter-native that tries to silence any speaker but analternative that allows us to believe once againthat our government is guided by reason orjudgment or even just the politics of the peoplein a district and not by the need to raisemoney.”

Aminu Gamawa is an LL.M. student fromNigeria.

Stamford, Connecticut with over $7 billion in assets under man-agement. Champ served until the end of 2009 as Executive VicePresident and General Counsel at Chilton, in addition to repre-senting the interests of the hedge fund industry as a member ofthe board of directors of the Managed Funds Association. During this year's January term, Mr. Champ came to Harvard

Law School to teach an intensive course on the laws and regu-lations that govern the structure of the private fund industry, asubject he had taught two years before in the winter term of2008. According to Champ, those two years had seen tremen-dous changes in the industry. The havoc caused by the financialcrisis in September of 2008, as well as the stunning revelation ofthe Madoff fraud, left the private fund industry in a state ofshock, with investors in a panic and fund managers worriedabout the reliability of their business partners. “I don't think it really occurred to people that Lehman, Mer-

rill, would be swallowed up and gone,” said Champ, speakingwith the Harvard Law Record. The realization of counterpartyrisk meant that overnight the entire hedge fund industry had toscramble to evaluate the creditworthiness of its prime brokersand other counterparties. In the aftermath of the crisis, the en-tire hedge fund industry has come under intense legislative andregulatory scrutiny as lawmakers in Washington seek to outlinea bold reform agenda. Champ points to the verification of cus-tomer assets as a key priority of the SEC's present investiga-tions. “Are the securities really there?” This is the question thatmany wish had been asked earlier in the Madoff case, and thusa rallying point for the Commission.And now with the high profile prosecution of Raj Rajaratnam,

hedge funds have again come to the public eye in a negativelight. To Champ, insider trading is just one of many forms ofbad behavior that must be taken seriously by compliance officersat funds, whose jobs it is to detect and curtail such abuses fromthe inside. “Good policies and procedures that are inforced canmake a huge dent in illicit activity. If top managers are willingto support compliance, it creates a culture of trust and eliminatesa lot of problems.” The role of the compliance officer is crucial,says Champ, if the company is going to avoid the devastatingconsequences of merely being investigated for the possibility ofany insider trading, a fact illustrated by the collapse of theGalleon Group funds within 24 hours of Rajaratnam's arrest. AsCongress contemplates the extension of registration require-ments to all hedge funds, these compliance concerns will onlybecome more important for the managers of funds.With regard to his decision to leave the private fund industry

and enter government service, Champ says that his decision wasprimarily based on the good relationship he had with outgoingRegional Associate Director Tom Biolsi. When the commissionbegan looking for a replacement, Biolsi suggested to Champ thathe consider the position because of the invaluable analyticaltools he could bring to the job. One of the most challengingaspects of the commission's work, says Champ, is penetratingthe minutiae of fund management to recognize the red flags re-quiring attention right away. As a long time fund executive andGeneral Counsel, Champ hopes to bring his experience to bearin a way that strengthens the capacity of the commission to pro-vide effective and efficient oversight of the thousands of regu-lated entities in the New York area.Despite new legislative restrictions on the independence of

hedge funds that are likely to be passed, Champ believes thatthe private fund industry is becoming more concentrated and so-lidified in the financial landscape. “What started as an entre-preneurial movement has become more institutionalized, butbecause of investor demand.” The concentration is in part, saysChamp, due to the benefits such institutionalization can providein strict compliance policies and a consistent reputation for goodbusiness practices and strong investment performance. And yet,because of the diversity of investor tastes in the private fundworld, Champ says, “You have hot money investors that alwayswant to go after the small funds, so you're always going to havesome entrepreneurs.” In this sense the hedge fund industry em-braces the creative destruction that comes as one fund fails onlyto be replaced by another, each pursuing their own innovative in-vestment strategies. Although such instability might alarm someoutsiders, Champ points out that investors do a considerableamount of due diligence before entrusting their funds to a man-ager, especially since most funds require minimum investmentsof over $1 million. “Investors have the ultimate motivation ofhaving their money on the line.”

Dissenting Opinion?EMAIL RECORD@ LAW

SEC, cont’d from pg. 1Corruption, cont’d from pg. 2

January 28, 2010 Harvard Law Record Page 7

cupier and thus refused to apply the Geneva Conventions,claiming that the Palestinian territories are contested areas.It even refers to Palestinian territories by their Biblicalnames: Judea and Samaria. Israeli settlements (121, plusthose in East Jerusalem) and their “natural growth”(479,000 settlers) aim at creating facts on the ground thatenable Israel to control as much land as possible. Credibleestimates suggest Israel has invested $100 billion in devel-oping Jewish-only infrastructure inside the West Bank. Astate that intends a temporary occupation would hardlymake such investments. As historian Avi Shlaim demonstrated in his book The

Iron Wall, Israeli governments have worked under a strat-egy according to which time is on the Zionists’ side: thenatives will be overwhelmed by the power of the settlers,ultimately internalizing their subjugation and capitulatingto the new reality of power. This means there is no needfor peace agreements, and explains Israel’s rejection of nu-merous peace deals through its history. Israel’s refusal toengage with the Arab peace proposal emerging from theBeirut summit in 2002 was only one of the most recent ex-amples of this policy. The history of Palestine, then, is the story of the escala-

tion of Israeli power. The International Court of Justice rec-ognized this in its July 2004 ruling on the construction ofIsrael’s “separation wall”. The ICJ considered the wall partof an Israeli policy to alter the demographic composition ofthe Occupied Territories, a policy tantamount to a de factoannexation. The ICJ emphasized the detrimental effects ofthese policies on the right of the Palestinian people to self-determination. Israeli policies make the prospects for therealization of this right unrealistic.

Even the withdrawal from Gaza in 2005, the so-calleddisengagement plan, sought to entrench the colonization ofthe West Bank. Then Prime Minister Ariel Sharon’s senioradviser, Dov Weisglass, described the withdrawal fromGaza, in an interview with Haaretz in August 2004, as “thefreezing of the political process”: “And when you freezethat process, you prevent the establishment of a Palestinianstate and you prevent a discussion about the refugees, theborders and Jerusalem. Effectively, this whole package thatis called the Palestinian state… has been removed from ouragenda indefinitely. And all this with [President Bush’s]authority and permission... and the ratification of bothhouses of Congress.”Thus, describing Sharon’s withdrawal from Gaza as a

prelude to further withdrawals and a peace agreement ispatently false.Note that the withdrawal from Gaza did not mean that

Israel relinquished control of every aspect of life in the ter-ritory. A report by the Israeli organization Gisha listed theadministrative aspects which Israel continues to controlthere: not only its territorial waters, airspace, border cross-ings, fuel, and electricity, but also Palestinians’ populationregistry (which determine who is a “resident” of Gaza), andeven taxes and the transfer of tax revenues. Through thesepolicies, notes Sara Roy, Israel continues to exploit and“de-develop” the Gazan economy as it has done fordecades.

Ehud Olmert and Tzipi Livni have repeatedly said in re-cent years that they believe in the right of the Jewish peo-ple to all the “Land of Israel”, but they understand the needfor “compromise.” Ironically, Hamas’s statements practi-cally mirror these: it believes in the right of the Palestinianpeople to all the land of Palestine, but is willing to offerlong-term cease-fire agreements. The fact that Hamas iswilling to offer cease-fire agreements undermines the ar-gument that it is committed to the destruction of Israel. ButHamas’s proposals have been dismissed by successive Is-raeli governments from Yitzhak Rabin on. The fact that Hamas refuses to “recognize Israel” is also

unsurprising. For one, a focus on Hamas’s charter, whichstates this policy, is a reductionist view, concentrating on ananachronistic document, which ignores the evolution ofHamas’s thinking and politics since drafting the charter.Khaled Hroub, the author of a book on Hamas, has refutedsuch simplistic claims by discussing more recent docu-ments produced by Hamas. More importantly, what Israel is demanding is recogni-

tion of its ideological character as a Jewish state. In otherwords, Hamas is not asked to recognize Israel as a de factoentity; Israel already has de facto recognition by virtue ofits tanks, warplanes and bulldozers. Rather, Hamas is asked

to recognize the current, ethnically-exclusivist ideologicalcharacter of Israel and the legitimacy of the Zionist projectthat displaced the Palestinians. Hamas is asked to renouncethe history of the Palestinian people as a precondition fornegotiations. From a Palestinian perspective, recognizing Israel as a

Jewish state means both rejecting the Palestinian right toreturn and perpetuating the subordination of the Palestiniancitizens of Israel. Rejecting the right to return before thenegotiations even start aborts such negotiations or rendersthem meaningless. Thus, the fact that Hamas rejected Osloand refuses to recognize the exclusive Jewishness of Israelhas little to do with religious fundamentalism.In any event, it’s ironic that the leaders of Egypt, Jordan

and Saudi Arabia are corrupt dictators, but they are seen as“moderates”. Hamas, on the other hand, has not beenshown to be corrupt, was elected democratically and hasnever attacked any targets outside Palestine and Israel.Nonetheless, it is considered “extremist.” The criterion for“extremism” is not disregard for human rights, otherwisethe states of Egypt and Saudi Arabia deserve the samelabel. Rather, the criterion is the rejection of Israeli dictates.At the same time, Israel and the United States have also

fragmented Palestinian politics by actively encouraging so-called “moderates” and isolating so-called “extremists,”aborting attempts to form a unity government. As VanityFair reported in April 2008, Hamas was reacting to a stagedcoup d’état when it took control of Gaza. The “moderates”in Ramallah refused Hamas’ call for a unity governmentunder pressure from the previous Bush administration andIsrael.In fact, ever since Hamas came to power in January 2006,

through democratic elections, Israel had boycotted its gov-ernment, withheld Palestinian tax money, imprisoned andassassinated dozens of Hamas’ parliament and cabinetmembers, imposed a tight blockade that resulted in a hu-manitarian crisis, and made the lives of 1.5 million Pales-tinians (52% of whom are children) living in what iseffectively an open-air jail, making them totally dependenton Israeli political demagogues and security technocrats.Finally, Israel violated the June 2008 cease fire by attack-ing a tunnel under Gaza’s border in November 2008, killingHamas members in a prelude to its large-scale onslaughton Gaza that was long in the making. Both the 2006 Lebanon war and the Gaza onslaught

should be understood in this context. Israel wanted to makeany opposition and resistance to its hegemony costly interms of civilian life and thereby to strengthen the so-called“moderate” camp. According to this logic, only when theArabs and Palestinians recognize the impossibility of de-feating Israel will they accept the fait accompli designedby Israel. Thus, Israel did not attack Gaza to end Hamas’rocket attacks. This could have been achieved by observingthe cease-fire agreement and lifting the siege that is stran-gling Gaza. Rather, it aimed at crushing any resistance to itsdomination.Those who are busy justifying Israeli actions as if Israel

were a well-meaning occupier want us to focus on Pales-tinian violence instead of the siege; on the symptoms (re-sistance) rather than the root cause of the conflict (theoccupation), and on one Israeli soldier captured by Pales-tinians rather than the thousands of Palestinian prisoners.By doing so, they legitimate the oppressive actions of thelongest military occupation since World War II, an occu-pation that even decides, as Haaretz reported in November2009, when and whether Palestinians can eat pumpkin,chocolate or pasta.Martin Luther King, Jr. wrote in his letter from Birming-

ham: “I have almost reached the regrettable conclusion thatthe Negro’s great stumbling block in the stride toward free-dom is… the white moderate, who is more devoted to‘order’ than to justice; who prefers a negative peace whichis the absence of tension to a positive peace which is thepresence of justice; who constantly says: ‘I agree with youin the goal you seek, but I cannot agree with your methodsof direct action’; who paternalistically believes he can setthe timetable for someone else’s freedom; who lives by amythical concept of time and who constantly advises theNegro to wait for a ‘more convenient season’.”Similarly, Palestinians should not be asked to wait for

their freedom. Instead, all those who hold equality, free-dom and justice dearly should support their struggle andhelp them obtain it.

Nimer Sultany is an S.J.D. candidate and a Palestinian cit-izen of Israel.

ripe for a Republican insurgency. Mem-bers of the “Tea Party” movement andother right wing organizations gave mil-lions to the Brown effort, and their vol-unteers poured into the state.Their contributions are borne out in

the totals spent by each candidate –Brown’s campaign, fueled by directcontributors, spent $8.7 million to Coak-ley’s $5.1. The difference was onlymade up by spending from the Demo-cratic Party, which did not jump in untillate in the game. Despite Brown’sclaims that he was running against the“machine” candidate, the picture thathas emerged of his effort is of a well-oiled conservative machine able to turnout its base and use its considerable re-sources to turn independents slighted bythe indifference of the Coakley cam-paign.Another theory posits that Brown’s

victory was driven by populist anger.Furious that the Democratic Party andPresident Obama had failed to reign inWall Street, voters had lashed out,choosing, paradoxically, the representa-tive of a party pledged to do even less toregulate the financial sector than his op-ponent. This notion seems to assumethat Massachusetts voters acted out ofblind rage or misinformation, but vet-eran pollsters consistently rate Massa-chusetts residents among the mostinformed on national issues. Were Massachusetts voters simply

more conservative than assumed, justwaiting to lash out at the state’s Demo-cratic establishment after the death ofone of the popular Senator Kennedy? Inone poll, voters surveyed after the elec-tion were found to rate PresidentObama’s job performance at only 40%,a 20% drop from only two months be-fore. Nate Silver, the fivethirtyeight.compoll aggregator, found such a drasticdrop unlikely. Did some left wing vot-ers abandon support for Obama? Or wasturnout skewed? A Washington Post-Kaiser-Harvard poll conducted after theelection indicated continuing support forObama (at 60% of voters and nonvoterssurveyed). The evolving effort to reformhealth care received less support – onlyabout half those surveyed supported it,despite strong support for Massachu-setts’ universal coverage. Turnout across the state was unusually

high for a special election, at 54% of theelectorate, compared to around 30%during the Senate primary. But it was es-pecially high in outer suburbs that wentheavily for Brown. Coakley saw hightotals in urban areas that traditionallyvote for Democrats – including Boston,Worcester, and Lowell. But in all theseareas, she was handicapped by consid-erably lower turnout. The overall message appears to be that

the Democratic base is discontented –but not necessarily with Obama. BeyondCoakley’s lackluster candidacy, healthcare reform was not overwhelminglypopular. Massachusetts Democrats donot tend to be small minded – the factthat Massachusetts is already covered bya universal health care plan is unlikelyto have motivated their discontent. Butdissatisfaction with the performance inthe party that has been overwhelminglyin power surely played some role inkeeping voters away from the polls inone of the state’s most furiously con-tested elections.

Coakley, cont’d from pg. 1Gaza, cont’d from pg. 8

BY NIMER SULTANY

One year after the Israeli onslaught on Gaza, the ter-ritory is still strangled by a comprehensive, tighteningsiege. And the consequences of last winter’s war,which ran from December 27th to January 18th, havebeen few. Despite the horrific outcomes and images ofcivilian death and destruction caused by Israel, warcriminals are still at large, and numerous reports bywell-known human rights organizations and inde-pendent international bodies have done little to effectaccountability and freedom. Egypt has started to build a seven-mile-long under-

ground steel wall with the assistance of the UnitedStates Army Corps of Engineers. Israel has further de-fied international norms by dismissing the UN’s Gold-stone Report on abuses of humanitarian law duringthe conflict offhand. It refuses to conduct an inde-pendent inquiry into the Report’s findings. Israel hasalso been trying to prevent foreign judicial inquiriesinto such crimes. The defenders of Israel’s strategy continue to em-

ploy the same mundane arguments they have used inthe past. These arguments divert the discussion fromsubstance to procedure by claiming bias and selectiv-ity on the part of international bodies, or by using adhominem attacks. This time, however, the attackswon’t work as they have in the past. The internationally-revered jurist and self-pro-

claimed Zionist Judge Richard Goldstone headed theUnited Nations fact finding mission on the Gaza on-slaught, which produced the Report that bears hisname. He insisted that the mandate of his committee

be expanded to include crimes committed by both Is-raelis and Palestinians. The Report is not only explicitin its criticisms of both Israel and Hamas, it even as-sumes that Israel acted in self-defense. Consideringthis, it is difficult to believe thatthe Israeli government’s allega-tions of bias and its reasons forrefusing to engage with the Re-port are sincere. But critics of the Goldstone Re-

port trivialize the gravity of thewar crimes it documents byclaiming that civilian deaths anddestruction of infrastructure werenot a matter of policy, but of themisconduct of a minority of sol-diers. This explanation is dubiousfor several reasons. First, whileone soldier who stole a creditcard from a Palestinian home wasprosecuted, no soldiers were pun-ished for killing Palestinians. TheIsraeli military has failed to pub-licly hold these so-called “roguesoldiers” accountable. Second,the large numbers of casualties,the enormous and wanton de-struction of property and the targeting of civilian in-frastructure by the Israeli army in the 2006 war onLebanon and the onslaught on Gaza indicate that theseattacks are deliberate. As the Report mentions, manystatements by Israeli officials support this conclusion.The Israelis have even codenamed their strategy: the

Dahiya Doctrine.***Yet legitimate complaints that Israeli aggression

against Gaza has been disproportionate or is counter-productive are not effective re-buttals to the Israeli government’sself-justifications. In fact, theselines of argument presuppose thatIsrael was, at least in part, justi-fied in its “defensive security op-eration”. When focused on theseobjections, the dispute revolvesaround the numbers of Palestin-ian civilians Israel would havebeen “justified” in killing. Israel was not justified in its ag-

gression for more profound rea-sons than these arguments reveal,regardless of the horrendous out-come of the onslaught. (Around1400 Palestinians killed were and5320 wounded and thousands ofhouses destroyed or damaged.)Israel is not a peace-seeking stateacting in self-defense and Hamasis not an irrational fundamental-ist or terrorist movement that

wants to annihilate Israel. As I will argue below, bothperceptions are, at base, crucially misleading. Israel has proven throughout its history that it has an

expansionist plan to control as much Arab land as pos-sible. Israel never acknowledged its status as an oc-

Page 8 Harvard Law Record January 28, 2010

To Build or Not to Build? Campus Expansion Turns the Corner, but Jarvis Field Frozen

THE HARVARD LEGALAID BUREAU’S BOARD FOR THE CLASS OF 2011President: Rachel Lauter, Executive Director: Naomi Mower,

VP of Practice Standards: Christine Demana, VP of Membership: Alana Greer, Secretary-Treasurer: Jen Tarr; Officer-Directors: Intake - Caitlin Kekacs,

Outreach - Ben Saltzman, Training - David Carpman, Research & Tech. - Aaron "Roo" Dulles, Communications - Shaylyn Cochran

ONE YEAR AFTER GAZA WAR, CONDITIONS OF VIOLENCE FESTER

Walking down Mass. Ave, one can now see completed portions of the edifice of the Caspersen-Wasserstein Northwest Corner Complex. But outside Harkness Com-mons, where in boom years Jarvis Field featured a skating rink, the abandoned volleyball court has become a patch of frozen sand. Anyone up for pond hockey?

New HLAB Board Launches Pro Se Divorce ProjectAs the leadership of the Harvard Legal Aid Bureau passes to a new generation,

its programatic initiatives are continuing to build upon the ongoing needs of theeconomically disadvantaged in the Greater Boston area. The bureau has seentremendous success in its tenants rights program, called “No One Leaves”, whichhas been duplicated by law schools throughout the area and altered the landscapeof bank forclosures of multi-family housing properties. The program, which wasfounded by two former HLAB members who went on to receive Harvard's GaryBellows fellowship, has helped tenants understand the legal rights they possess inthe face of bank programs offering “cash for keys.” In addition to its foreclosure related advocacy, the HLAB members provide rep-

resentation in areas like family law, domestic violence, wage and hours disputes,and receipt of benefits. “Forclosures generally have been in the public eye more,but as far as the resources of the organization, we remain evenly split betweenthat and our other activities,” says HLAB incoming President Rachel Lauter '11. But the social strains caused by the economic downturn have created a particu-

larly acute need for divorce related services among groups that cannot afford anattorney. A new monthly limited representation program will allow the HLAB'sadvocates to help guide clients through the steps necessary to navigate the legalsystem on their own and get a divorce without an attorney's help.“We are always working with marginalized populations,” says Lauter. She has

enjoyed the non-traditional lawyering experience provided by her work with theHLAB. “If you are interested in meeting diverse clients, this is a great opportunity,because it involves long-term engagement with those clients.”

Photo: flickr user Toban Black

Gaza, cont’d on pg. 7