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Welcome to Yale Law Report [online], the blog site for the Yale Law Report.

Click on “Recent Posts” in the left hand column to read a sampling of stories from the latest issue of the YLR including an article about students working in the Law School's Worker and Immigration Rights Advocacy Clinic; an article about “Quotable Yale Law School” by Librarian Fred Shapiro; and profiles of Yale Law School students who have served as Kirby Simon Summer Fellows.

Check out the blog’s photo galleries to see a slideshow of images from Alumni Weekend 2007 and supplementary photo galleries for previous Law Report articles.

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News in Brief, Alumni News, and other sections of the printed version of the Law Report are available via PDF at www.law.yale.edu/ylr.

One Law Clinic, Two Cities

YLS Students Tackle Immigrant Rights Cases in Danbury and New Haven

 
Juan Barrera stands in front of a cluster of microphones, his eyes downcast. He sways from side to side just slightly as he speaks in Spanish. With television cameras rolling and the flash and click of cameras around him, Barrera tells of the day in September 2006 when he was arrested in Danbury, Connecticut, after being offered work as a day laborer.

Beside him stands Justin Cox ’08, a student in the Law School’s Worker and Immigration Rights Advocacy Clinic (WIRAC). When Barrera finishes speaking, Cox begins translating.

“We didn’t know why, but they immediately arrested us and put us in handcuffs. We didn’t know what was going on,” he says.

Barrera begins speaking again, and the cameras continue to roll.

This day marks a milestone not only for Barrera, but also for WIRAC. Cox and other students in the clinic have called this press conference—a year after the arrests of Barrera and ten other Danbury day laborers—to announce that the men popularly known as the “Danbury 11” have filed a federal civil rights lawsuit. With the help of the clinic, nine of the eleven men arrested in September 2006 are suing the City of Danbury, its mayor, several of its police officers, and a number of federal agents for violating the First, Fourth, and Fourteenth Amendments. It has taken thousands of hours of research, writing, and phone calls on the part of the students and their supervising professors to get to this day.

Meanwhile, forty miles away, New Haven is embroiled in its own immigration battle. Again at the center of all of the controversy, a group of Yale Law School students and their teachers have spent countless hours meeting with clients, researching legal standing, and drafting requests and memos.

In June 2007, the New Haven Board of Aldermen overwhelmingly endorsed a municipal ID card program that would allow all residents of New Haven—regardless of citizenship—to obtain “Elm City Resident Cards.” Just two days later, in a move Clinical Professor of Law Michael Wishnie ’93 characterizes as retaliatory, federal immigration officers conducted raids, arresting thirty-two people suspected of being illegal immigrants.

Representing nearly thirty of those arrested, WIRAC is alleging that Immigration and Customs Enforcement (ICE) agents used racial profiling to target those arrested and entered homes without warrants or consent. In August 2007, the clinic filed a Freedom of Information Act (FOIA) lawsuit against the Department of Homeland Security aimed at discovering how ICE agents coordinated the June raids and the extent of the New Haven Police Department’s involvement in the raids. The clinic has also filed FOIA suits against the Connecticut State Police, U.S. Marshals Service, and U.S. Department of State, all of whose agents, according to ICE, also participated in the New Haven raids.

“Family members, clergy, community leaders, and city officials asked Yale’s clinic to join them in assisting the men and women arrested in the New Haven raids—the federal government, after all, is represented before the Immigration Court by experienced prosecutors,” Wishnie says about the clinic’s decision to become involved in the case. “The government alleges that each of our clients is an unauthorized immigrant, but those allegations are neither conceded nor proven. Rather, on behalf of our clients we have challenged gross abuses by immigration agents who entered homes without warrants or consent, made arrests without probable cause, engaged in racial profiling, and impermissibly retaliated against the city’s residents for adopting the municipal ID program.”

The Danbury 11
According to the lawsuit brought by the YLS faculty members and students, Juan Barrera and his co-plaintiffs were victims of illegal immigration enforcement by local police and of racial profiling. The “Danbury 11” arrests, the lawsuit alleges, are part of a pattern of unlawful and discriminatory law enforcement by the Danbury Police Department and ICE.

Ten students have worked on the Danbury 11 case, with several faculty members providing oversight. Simon Moshenberg ’08, Elizabeth Simpson ’09, Shayna Strom ’09, and Margot Mendelson ’09 have represented the day laborers in their removal cases, which are pending before an immigration judge in Hartford, and also handled a state FOIA proceeding against Danbury. The civil case filed in September 2007, as well as a pending federal FOIA suit against ICE, is the work of Justin Cox ’08, Rebecca Engel ’09, Geri Greenspan ’08, Thom Ringer ’08, and Michael Tan ’08 (with First Amendment research by Kate Desormeau ’08). Robert M. Cover Clinical Teaching Fellow and Clinical Lecturer in Law Chris Lasch ’96 and Robert M. Cover Clinical Teaching Fellow Ramzi Kassem join Wishnie in supervising the students.

As a second-year law student, Cox heard about the case shortly after the men were arrested on September 19, 2006. “I knew that a couple of my friends (Moshenberg and Greenspan) were working on getting the men out on bond, and I heard how they were driving all over the place to find the guys, scrambling to raise money and conduct legal research,” he remembers. “My initial reaction was that this is why I went to law school—to help people when they need it most-—and that I wanted in.”

Cox’s interest in immigrant rights began in college when he was working at a restaurant waiting tables. The product of a conservative, rural, homogeneously white town in Missouri, he began an unlikely friendship with several of his co-workers who were undocumented workers.

“I eventually learned all about the struggles my co-workers went through to make ends meet,” Cox recalls. “Their stories echoed that of my own mother, working two or three jobs at a time, and I continued learning Spanish to keep exploring this new world.”

A year spent in Latin America furthered his sympathy for undocumented workers in the U.S. “I realized that I was, plain and simple, lucky to have been born into this country, where hard work can pay off meaningfully, and I resolved to help those who weren’t born so lucky,” he explains. “[Barrera et al. v Boughton et al.] encapsulates all of those motivations, I think: these guys were just out looking for honest work so that they could put food on the table, and they got arrested for it because the government thinks they weren’t lucky enough to be born in this country. I can’t imagine anything more unjust.”

On the morning of his arrest in September 2006, Juan Barrera says he was waiting in Danbury’s Kennedy Park—a well-known area for day laborers to wait for work—when a man in a van approached him and offered work demolishing a fence. Barrera accepted the offer and got in the van. A few blocks later, the van pulled into a parking lot, where it was surrounded by law enforcement officials, and Barrera was arrested without explanation. Denied access, he says, to a telephone or an attorney, he was held in solitary confinement for four days, then transferred to a Massachusetts prison.

As it turns out, the men arrested that day were transported to different detention centers around the country, some as far away as Texas. After the initial work of getting the men out on bond, Cox joined the case. Though the immediate concern was building a defense in immigration proceedings, there was also work to be done researching the possibility of an affirmative civil rights suit against the City of Danbury and ICE, sending off various FOIA requests under state and federal law, and filing FOIA actions if the agencies did not respond (the first of which was filed in federal court in December 2006).

The language and geographic barriers made fact development a challenge. “Our clients…spent between ten and thirty-five days in detention,” Cox says. “Throughout the bond process, the team had little contact with them--which, we think, was the point of shipping them all over the place.” But with the help of Danbury and New Haven community members, clinic students were able to talk to the men over several weeks, clarifying what happened. They also researched the context of the arrests and established what Cox calls Danbury’s “recent anti-immigrant policies” which involved, according to the civil suit, unequal enforcement of housing rules, traffic stops motivated by racial profiling, and a crackdown on volleyball games, a sport favored by the Ecuadorean community.

“What became clear through our fact development was that whoever carried out the arrests trampled on our clients’ constitutional rights,” Cox says. “In particular, the fact that they were arrested without a single question being asked of them is indicative of Fourth Amendment and Equal Protection violations (the latter because the officers were apparently just assuming that since they were Latino, they were undocumented). The background information about the attempts of Mayor Boughton and the Danbury police to drive the day laborers away from Kennedy Park suggested they were being retaliated against for their First Amendment rights to congregate and solicit work.” One of the suit’s common threads is that the Danbury Police routinely make civil immigration arrests without having followed the statutory procedures set out by Congress for the local enforcement of immigration laws.

After brainstorming possible constitutional violations and theories, the team divided the work into substantive areas of law. Tan took on Equal Protection; Desormeau and Engel worked on the First Amendment; Ringer tackled preemption; Cox took the Fourth Amendment and Federal Tort Claims Act; Moshenberg, Simpson, and Strom became the experts on state FOIA and the immigration proceedings; Greenspan researched issues of standing, federal FOIA, and municipal liability.

As they each produced memos on their area of law, the students reached out to YLS faculty (including David Boies Professor of Law Robert Post ’77 and then Sidley Austin - Robert D. McLean ’70 Visiting Professor of Law Pam Karlan ’84) for their expertise. In between weekly strategy meetings with Wishnie and Lasch, the students sent flurries of emails, sharing drafts of memos and complaints. “The more we researched and wrote,” Cox says, “the more inspired we became, for what we were learning was only confirming our own gut instincts about the case: our clients had been grievously wronged.”

Besides learning firsthand about the Fourth Amendment, FOIA litigation, the nuts and bolts of immigration law and proceedings and filing a lawsuit, Cox has improved his Spanish, particularly his legal vocabulary.

“I’ve also learned a great deal about how local municipalities, frustrated at the lack of federal action in immigration law and enforcement, are attempting to fill the vacuum with their own regulation and enforcement activities,” Cox says.

The clinic students and faculty meet with their Danbury clients about once a month, though Moshenberg and Cox (both of whom speak Spanish) keep in touch with the men more regularly to ask follow-up questions and remind them of court appearances. Other members of the team are in charge of cooperating with Danbury community supporters, who include clergy, private citizens, and town council members.

“Our clients have been very appreciative of our work, and conscientiously do everything we ask of them,” Cox says. “They know that they represent a larger struggle for Latino and immigrants’ rights in Danbury and beyond.”

The New Haven Raids
While Cox and others have been working on the Danbury 11 case, Stella Burch ’09 has been focusing her efforts on a separate immigration case in New Haven. On the morning of her third day working with the clinic this past summer, Burch heard whispers in the hallways that something “big” had happened. Over the course of the day, details emerged and clinic students learned that a number of Fair Haven residents had been arrested in raids conducted by ICE agents.

The raids came just two days after New Haven’s Board of Aldermen approved a proposal to create a municipal ID program, effectively granting all New Haven residents—regardless of immigration status—a form of valid identification entitling them to certain municipal services.

That evening, Burch and a number of her peers went to a local church where they worked with the families and friends of those who had been arrested. “It was a very moving experience,” Burch remembers. “People were distraught—especially the children who had seen their parents arrested. People were afraid to come forward and speak to us, afraid to be out on the streets, and even afraid to return to their own homes.” After several hours, the volunteers had compiled a preliminary list of people who had gone missing during the raids.

“As soon as we had names we started calling prisons—trying to find out where our clients were,” Burch remembers. “This was not an easy task. In order to locate anyone detained within the immigration system, you need an Alien Identification Number, known as an ‘A number,’ issued to an alleged alien when he or she is processed by the authorities. But nobody knew the A-numbers, apart from the detainees themselves, who had not been able to make phone calls. We eventually located our clients by making cold calls to prisons—we called just about all of the county jails and private prisons in New England to track down all of our clients.” Similar to the Danbury case, those arrested in the New Haven raids were moved out of state—to Massachusetts, Rhode Island, and Maine. Concerned that their clients would be moved even farther away, clinic attorneys two days after the raids tried to file emergency bond motions in their clients’ names. Those motions were initially rejected because the attorneys didn’t yet have the clients’ A numbers.

Visiting her clients in a Rhode Island jail the weekend after the arrests was an experience that Burch (who is British and had never before been to an American prison) describes as “sobering.”

The visit, though, strengthened her resolve for the upcoming days of exhaustion. “I don’t think anyone can really be prepared for the whirlwind experience of that first week—I certainly wasn’t,” she says. “We didn’t sleep much, and we had to fight hard for every scrap of information we could lay our hands on. It was also emotionally draining, hearing the stories of how people had been taken away from their families—especially the stories told by the children. But the guidance from [supervising attorneys] Mike Wishnie, Hope Metcalf, and Chris Lasch was amazing—I think all of the students felt overwhelmed by the experience, but incredibly supported in our work.”

Burch and fellow clinic students Tan, Bram Elias ’09, Deborah Marcuse ’08, Anand Balakrishnan ’09, Sarahi Uribe (a recent Yale College graduate who had taken an immigration clinic while an undergrad and speaks Spanish fluently), and two law school students from the University of Connecticut and the University of Pennsylvania often worked late into the night, sustained by large quantities of local pizza.

The students met with their clients several times while they were in prison and interacted frequently with the clients’ families. “It was very humbling,” Burch says, “to hear them say ‘we believe in you, we know you will get us out of jail.’ We were first-year law students, we knew nothing—or at best next-to-nothing—and we were still the best ‘lawyers’ to whom our clients had access.”

Community support for those arrested was high. A few days after the raids, St. Rose of Lima church organized a special Mass and candlelight vigil in support of the detainees. “The church was packed: looking out across the congregation I saw not just Catholics, but also Protestant clergy and Jewish men in yarmulkes,” Burch remembers. “Outside the church people of all races, ages, faiths, and denominations mingled on the steps wearing signs saying ‘no human is illegal.’ The son of one of our clients wore a huge board around his neck with the names of everyone who we knew had been taken, including his mother.”

Burch describes the clinic’s clients as hardworking, decent, and family-oriented. And she questions the methods used by ICE agents and the detainees’ lack of access to attorneys. “Immigration raids like this happen every day, in cities across the U.S., in places where there is no Yale Law School, and no widespread city and community support for the detainees,” she says. “We have a real opportunity here in New Haven to litigate this case on behalf of our clients and other people like them, in the hope that by doing so we can bring about real change.”

In addition to being emotionally rewarding, working with the clinic has provided Burch practical experience. “It’s one thing to learn the Federal Rules of Civil Procedure and quite another to have to file an emergency bond motion in immigration court!” she says.

As a British citizen accustomed to a centralized government, she feels the experience has given her a new appreciation for the ways in which a federal system can propel progressive policy making and the power of local government.

“The City of New Haven’s support for its immigrant community, and the progressive policies it has introduced—for example the Elm City Resident’s Card Municipal ID or the NHPD General Order prohibiting police officers from inquiring into immigration status—have really changed my perception of what local government can achieve,” she says.

That type of hands-on learning is at the heart of the clinic’s benefit to students. “In a clinical program, students must learn to apply abstract legal rules to the reality of human behavior,” says Wishnie. “And in exercising judgment on behalf of a real client, in a teaching environment that encourages planning, reflection, and self-evaluation, the students learn the craft of lawyering.”

In the past few months, additional students have joined the work on the New Haven Raids case and associated FOIA cases. They are: Nicole Hallett ’08, Stephanie Akpa ’09, Anant Saraswat ’09, Prithika Balakrishnan ’09, Amanda Aikman ’08, Simon Moshenberg ’08, Justin Cox ’08, Rebecca Engel ’09, and Shayna Strom ’09.

The Jerome N. Frank Legal Services Organization’s Worker and Immigrant Rights Clinic represents immigrants and low-wage workers in Connecticut in labor, immigration, trafficking, and other civil rights areas, through litigation for individuals and non-litigation advocacy for community-based organizations.
Students handle cases at all stages of legal proceedings in Immigration Court, U.S. District Court, and other forums. The clinic’s non-litigation work includes representation of grassroots organizations in regulatory and legislative reform efforts, media advocacy, strategic planning, and other matters.
For more information, visit www.law.yale.edu/wirc.

Text by Kaitlin Thomas 

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Kirby Simon Summer Fellows Tell Their Stories

Each summer, Yale Law School students—most of whom have just finished their first year of classes—travel around the world to spend three months merging their new academic interests and legal theory with hands-on practice.

Although many YLS students have had opportunities to study and live abroad, the Kirby Simon Summer Fellowships allow a significant number of students to be deeply engaged with some of the most pressing global issues of our time and to grapple in challenging circumstances with what they have been learning about law and the role of law in protecting people’s fundamental rights.

For each of the past few years, approximately forty students have gone to work in every continent on the widest spectrum of human rights issues imaginable. “When we gather in the fall to share experiences, students—even those who had difficult times—tell their stories in the language of life-transforming insights,” says Clinical Professor of Law James Silk ’89, who directs the Allard K. Lowenstein International Human Rights Clinic and is executive director of the Law School’s Orville H. Schell, Jr. Center for International Human Rights.

“For those who want to pursue careers in human rights, the summer fellowships often give them their first opportunity to work in the field, particularly in challenging situations where serious human rights abuses are being perpetrated. This sort of experience is a critically important credential for human rights work, but one of the most difficult to obtain. And I’m confident,” Silk adds, “that these experiences have a profound and lifelong effect on how all of the summer fellows will practice law, whether in nonprofit organizations, firms, corporations, or government.”

Three students who served as Kirby Simon Fellows during the summer of 2007 agreed to share the highlights of their experiences with the Yale Law Report. Their reflections follow.

Laurie Ball, dual degree student
State Court of Bosnia and Herzegovina

The Project  I worked for the Office of the Prosecutor for War Crimes at the State Court of Bosnia and Herzegovina (BiH). Both foreign nationals and Bosnian and Herzegovinian (BH) nationals work in the War Crimes Prosecutor’s Office. I worked with the team that handles prosecutions arising out of the July 1995 Srebrenica massacres. I was working on three different trials, all of which were in different stages of development. The largest trial had eleven defendants, and the defendants had already begun presenting their case when I arrived. I compiled witness narratives in preparation for cross-examination and responded to motions related to custody and other procedural matters for this case. The second case had four defendants and the prosecution was still presenting the case-in-chief. For this case, I also assisted with witness proofing prior to testimony. The third case was a transfer case from the International Tribunal for the Former Yugoslavia (ICTY), and the defendant arrived from The Hague soon after I began work. For that case, I helped to prepare the modified BH indictment. I also helped to process new information from the BH Office of the Prosecutor’s ongoing Srebrenica investigation.

Life in BiH  I had lived in BiH for two years before coming to law school. I originally went to the country on a fellowship from Duke University during 2004–05 working for Foundation Mozaik, a local BH organization focused on community development in rural areas. I continued working for the Foundation in 2005-06. I lived with a family that survived the genocide at Srebrenica in 2004 and spent a great deal of time in Eastern BiH before law school. My work as a Kirby Simon Fellow was especially rewarding given my ties to the area around Srebrenica and my relationships with many people who survived the genocide there.

Challenges  When I lived in BiH previously, I was constantly hearing stories of survival. While I am certain that I spoke with more than a few perpetrators during [that] time, those individuals were never speaking about their roles perpetrating war crimes. One especially challenging aspect of working on the Srebrenica trials this past summer was that we were dependent on insider witnesses —many of whom may have taken part in the massacres or their cover-up in some way.

The Future  Through my earlier work with survivors of torture in Latin America and BiH, as well as survivors from other countries across the globe, I’ve learned a great deal about the challenges of community recovery from such trauma. I’m committed to continuing to work toward such recovery, especially through war crimes prosecutions and rule of law initiatives.

Laurie Ball is a dual degree student; while in the Law School’s J.D. program, she is also pursuing an MPA with the Woodrow Wilson School at Princeton. She will complete both programs in 2010.


Andrew Verstein ’09
Beijing Rural Migrant’s Legal Aid and Research Center, China

The Project   I worked primarily for the Beijing Rural Migrant’s Legal Aid and Research Center. It is a young NGO. All of the attorneys are Chinese. The primary work of the office is providing direct legal services to Beijing’s 4,000,000 temporary workers. Arriving from poorer provinces to fuel the capital city’s construction boom, these men and women work under dangerous conditions with uncertain protections. Construction-related injuries are common, and employers frequently ignore their contractual or legal obligations to provide support for disabled employees. Even for workers lucky enough to avoid serious injury, payment of a regular wage is a hope rather than an expectation. Complex systems of formal and informal subcontracting make it easy for employers to shirk their responsibilities.
The Center provides free legal consultations to tens of thousands of workers every year…After only a few years, the Center has recovered tens of millions of RMB [Chinese currency] for workers and persuaded many businesses…to change their labor practices. The Center also conducts research in order to inform policy makers, academics, and professionals. I assisted with this research. My role was comparative—I would research what American laws and policies are for X, the history and development of the European treatment of Y. My research would help the attorneys to decide what they would like to see change in China—and provide evidentiary support for papers and speeches advocating those changes.

The Inspiration   I came to Yale interested in international law—I spent a year between college and law school working as a paralegal in Milan, Mexico City, and Paris—but I had not decided to focus on China. It is fortuitous that Paul Gewirtz ’70 was my small group professor. As the Director of The China Law Center, he was able to give me some great research projects relating to Chinese legal reform, and introduce me to some of China’s most brilliant jurists, reformers, and academics. I’m grateful for that window into a wide universe of legal, social, and political issues.

Life in China   Although my work was primarily with the Rural Migrants office, I spent a substantial portion of my summer assisting the related Beijing Children’s Legal Aid and Research Center. The Rural Migrants office is an offshoot of that organization and the lawyers are acquainted. I was also able to visit network offices in Chengdu, Sichuan, and Lhasa, Tibet.
On a typical day, I would meet with my Mandarin Chinese language tutor for a lesson over breakfast. I’d spend the morning on the Internet researching something for one of the attorneys. I’d go to a local restaurant with my colleagues for lunch. We worked near where the migrants lived, so the restaurants were as authentic as you could find. I may have learned more at lunch than in my morning research session. The afternoon would often be a wild card. Sometimes we’d host visitors—academics conducting research, or an NGO asking if they could help us, or if we could help them. Or sometimes the staff would gather to discuss cases. And sometimes we’d host the media —I was interviewed on CCTV about U.S. tobacco law.

Olivia Salisbury Sinaiko ’09
South Asia Human Rights Documentation Centre, India

The Project   As a very small NGO with only a handful of people on permanent staff, SAHRDC plays a very different role than some of the more traditional human rights organizations that I had been familiar with before coming to India. Unlike those more traditional organizations, it doesn’t do a lot of primary research and field reporting. Rather, I think it’s fair to say that it sees itself more as a watchdog over those larger institutions that have taken on the responsibility of watching over human rights—governments, UN bodies, and even some well-established NGOs. SAHRDC oversees the overseers, so to speak. It narrowly targets its resources, publishing frequent critiques of these larger institutions’ work and attempting to fill what gaps they may have left, all with the aim of aiding the broader South Asian human rights community in more effectively achieving its goals. I need to clarify that this was my impression of SAHRDC’s work after the short time I spent there, and not necessarily the way the organization would characterize itself. But with that said, I did come away from the summer thinking that this approach—essentially, playing the role of outside monitor to a number of institutions that presumably want to do as good a job as possible at promoting human rights—has great potential as a way for small organizations with very limited resources to be incredibly effective. The focus of my work while at the Centre was to write a report for an International Committee of the Red Cross publication on torture. My piece analyzed the way that U.S. human rights policy and legal strategy in the War on Terror have affected the law and practice of torture in South Asia. I looked at a wide variety of sources to try to get a sense of both the direct and indirect ways that U.S. policy has impacted human rights in the region.

Life in Delhi   I lived about a five-minute walk from the office, which was in a very residential neighborhood in the south of Delhi called Safdarjung Enclave. I had an apartment by myself, but I lived just a few doors down from a number of other interns from the office. The community we lived in was very family-oriented, with many generations often living under one roof. And as a result of the summer heat, the neighborhood had this amazing evening and nighttime culture—kids playing badminton and soccer in the street, grandmothers sitting and talking on cots in the late afternoon shade. The alley was lined with food stalls and fabric stores that would open their doors when the sun went down, selling freshly fried deliciousness right out of these massive bubbling pots of oil. It was a really special place to live, and I found the community incredibly welcoming.

Challenges   My first day in the office, I was given a research assignment on the National Women’s Commission of India. At first I was pretty excited about it—the issue was interesting, and I was eager to start my work for the Centre. But when I found out that the male interns on my floor were working on issues of torture, caste-discrimination, and terrorism, respectively, my attitude toward my assignment changed. Looking into it a little further, I realized that as far as I could tell, in the recent history of the organization, all assignments relating to women’s rights had been assigned exclusively to women.
In Dean Koh’s International Human Rights class, we learned a lot about the marginalization of women’s rights in the human rights community—they are seen as women’s issues, rather than authentic human rights issues. Experiencing this marginalization firsthand was deeply affecting. It is by no means a problem particular to SAHRDC, but one that plagues the entire international human rights community. It’s a situation that I feel must change in order for real progress on these issues to be made.

The Future   My experience in India was incredibly affirming. I feel very deeply after my time there that law school was the right choice for me. There is such a variety of ways to use a law degree to effect change, and I think that the people at SAHRDC and the work they do really embody that. I came away from my summer invigorated, and tremendously excited about going forward in my legal career.

In recent years, more than twenty percent of all first-year students have received summer funding from the school’s Orville H. Schell, Jr. Center for International Human Rights. Much of this funding is provided by the Center’s Kirby Simon Summer Fellowship program, supported by a grant from the Diamondston Foundation to honor J. Kirby Simon, the son of Professor John Simon ’53, who died in 1995 while serving as a foreign service officer in Taiwan.

To learn more about the Schell Center and the summer fellowship program, visit www.law.yale.edu/schell. YLS also offers international fellowships for graduates of the Law School. To learn more about those opportunities, visit www.law.yale.edu/academics/internationalfellowships.asp.


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Quotable Yale Law School

By Fred R. Shapiro
Associate Librarian for Collections and Access and Lecturer in Legal Research, Yale Law School
Editor, The Yale Book of Quotations

The history of Yale Law School is contained not just in the bricks and mortar of its building, but in the legacy of its students, graduates, and professors. To unearth the more quotable instances of YLS history, the Law Report enlisted the help of Fred R. Shapiro, the Law School’s Associate Librarian for Collection and Access Services and Lecturer in Legal Research. A world-recognized authority on quotations, Shapiro edited The Yale Book of Quotations and the award-winning Oxford Dictionary of American Legal Quotations. His research on quotations and
words has been the subject of numerous articles in The New York Times and other media, including a front-page profile in The Wall Street Journal. Shapiro is also a major contributor to the Oxford English Dictionary and has published numerous articles on language, law, and information science.

When I compiled the recently published Yale Book of Quotations, my intention was to create the most accurate, comprehensive, and up-to-date quotation dictionary. I did not specifically seek to collect quotations relating to Yale Law School, but because I have worked at the Law School for twenty years, am familiar with its heritage and personalities, and am generally interested in law and legal history, it was inevitable that a fair number of quotations by YLS graduates and faculty would end up in my compilation. The fact that Yale Law School people have traditionally had wide-ranging interests, embracing the fullest version of legal culture and also extending beyond law to politics, literature, and many other fields, did not hurt in ensuring that my roster of the 13,000 or so most famous quotations would include a good collection of sound bites from those who have studied or taught at the school.

For example, one of the most renowned quotations to emerge from Supreme Court jurisprudence is Potter Stewart’s ’41 characterization of pornography: “I know it when I see it” (Jacobellis v. Ohio [1964]). This one may have had a collaborative YLS-alum genesis, since Ray Lamontagne ’64 has alerted me that the line seems to have originated in a conversation between Stewart and his then-clerk Alan Novak ’63. Other quotations from Supreme Court justices who attended YLS have also entered the language:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.
David Davis Class of 1835, Ex parte Milligan (1867)

The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.
William O. Douglas [taught at Yale Law School, 1928–34], Gray v. Sanders (1963)

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
Abe Fortas ’33, Tinker v. Des Moines Indep. Community School Dist. (1969)

William Howard Taft was a Supreme Court chief justice (and, incidentally, also a United States president) who taught at Yale Law School from 1913 to 1921. His judicial opinions did not feature deathless pronouncements, but he had a fine sense of humor and his self-deprecating quips about his weight (about 350 pounds) have lived on. For example, when Taft was stuck at a railroad station and was told that the train only stopped there if a number of passengers wished to come aboard, he telegraphed the conductor: “Stop at Hicksville. Large party waiting to catch train.” Anson Phelps Stokes would recall that “when I suggested to him … that he occupy a Chair of Law at the University, he said that he was afraid that a Chair would not be adequate, but that if we would provide a Sofa of Law, it might be all right.”

Of course, the words of Yale Law School affiliates figure prominently among the memorable statements of legal scholarship. The Yale Book of Quotations provides the following illustrations, among others:

Even more than as a producer of judges or academics, Yale Law School has become celebrated as a trainer of political leaders. Among presidents, Gerald R. Ford ’41 left his mark in American quotational history:

One of the greatest legal writers is Charles A. Reich ’52. I consider the following passage by Reich (published in The Yale Law Journal) to be as eloquent as any that has ever appeared in a law review:

Bill Clinton ’73 also has a legacy of famous quotations. Among his entries in The Yale Book of Quotations may be found phrases such as “The comeback kid,” “I feel your pain,” “The era of big government is over,” “Let us resolve to build [a] bridge to the 21st century,” “Strength and wisdom are not opposing values,” and “The American people [are] tired of the politics of personal destruction.”

President Clinton’s spouse, Hillary Rodham Clinton ’73, who may well be a future president herself, has contributed her own share of memorable remarks found in the YBQ, such as:

I conclude with a trio of miscellaneous quotations, transcending the realms of law or presidential politics, as YLS alumni reflect on broad topics of human experience:

Alumni Weekend 2007: 21st Century Democracy: Elections, Media, Politics

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Twenty-first Century Democracy was the topic of discussion at the Law School October 12–14 as hundreds of graduates from across the globe gathered for Alumni Weekend. Panel discussions focused on the role of media and technology in democracy and law, separation of powers, the Voting Rights Act, and money and politics. In addition to lively debates, graduates enjoyed time reconnecting with old friends and making new ones during several receptions, dinners, and the Alumni Luncheon at which New York Times Supreme Court Correspondent Linda Greenhouse ’78 MSL received the Yale Law School Association Award of Merit.

The following excerpted quotes give a flavor of the breadth and depth of the conversation. (To view videos of the panel discussions and photos of the weekend, visit www.law.yale.edu/alumniweekend.)
 

Emily C. Bazelon ’00
Senior Editor, Slate
Steve [Brill ’75] was talking about charging customers on the Internet. I see the economic rationale for that, I just don’t think that it flies culturally. I think we’ve all gotten so used to the Internet being this free place. As someone who only writes online, I love that about it. It has this kind of free-wheeling beauty to me. There’s so much response and so much give and take—I wouldn’t change that. But then if you decide we’re too far along the free Internet highway, then you really do need to come up with some kind of other ownership entity because, you know, right now we are relying on a few families, essentially—the Graham family, the Sulzbergers, we were relying on the Bancrofts, we no longer can—and that is not enough. That doesn’t seem like any long-term prescription for a healthy democracy.
from “The Next Generation of Law and Media” panel

Bruce Ackerman ’67
Sterling Professor of Law, Yale Law School
We should have a new framework statute in which, after one of these events, not before, the President should go to Congress and ask for sixty days of emergency power… and after seven days, he gets it if there is a simple majority in Congress to support it. Then he has to come back after sixty days and ask for an extension for sixty days and he needs sixty percent of the vote, and then seventy percent, and then eighty percent, and then eighty percent for every sixty days after that....What we need… is a structure to prevent the normalization of emergency.
from “The New Separation of Powers: Parties, Politics, and the Presidency” panel

Charlie Savage ’03 MSL
National Legal Affairs Correspondent, The Boston Globe
I’m going to be talking about what has been the single most competently and successfully implemented agenda and policy of the Bush administration. They’re beat up all the time for being incompetent when it comes to things like Katrina or how the Iraq occupation was run. There’s one thing in particular they’ve done magnificently well, ingeniously. And separate from whatever their policy merits, you have to admire just how well they’ve done it. And that is that they’ve set out from the very beginning, from the day after the inauguration, long before 9/11, to use their time in office to expand presidential power...
from “The New Separation of Powers: Parties, Politics, and the Presidency” panel

Jeff Greenfield ’67
Senior Political Correspondent, CBS News
If you are passionate about politics, there is more information, analysis, opinion out there than ever. The question is: ‘What does it mean that we have these tools?’… What does it mean, for instance, that candidates not only can talk about themselves but that, for instance, when Rudy Guiliani went to the NRA and took the cell phone call from his wife the Romney campaign within an hour or so had on YouTube [video of Romney] doing the same thing two months earlier? So clearly there’s stuff out there that’s going to hold candidates’ feet to the fire... What it means, I don’t know. Because I don’t know… how much of this is being consumed by people who will actually vote.
from “The Media Covering Elections: Heroes or Villains?” panel

Myron H. Thompson ’72, Judge
U.S. District Court, Middle District of Alabama
One of my first cases, and I have to admit, my most beloved voting rights cases, was Harris v. Graddick…The case had been brought to get blacks to come to vote and the lawyers had come up with this great idea of having the percentage of polling officials be the same as the percentage of blacks in the area. And that was probably the easiest opinion of all of the voting rights cases I have ever written because I wrote it from the heart. I remember I said that to me the purpose of Section 2 was to make sure that the electoral process was welcoming to all people. And I remember writing those words, and I was writing it because I had never felt welcome there.
from “Race, Politics, and the Voting Rights Act” panel

Beth Simone Noveck ’97
Professor of Law, New York Law School;
Director, Institute for Information Law and Policy; Director, Do Tank
Now is really the time to use the Net not simply to raise money for campaigns, but to raise ideas and awareness. To allow citizens to participate in the making of policy…Our institutions of democracy are fundamentally about power. They’re fundamentally about centralizing power and they have a very hard time adjusting to devolving power and changing the way they work because of a long-standing culture of professionalism... And I think what the new tools do for us is to help us open up our understanding of expertise, to open up our understanding of professionalism in order that we can move beyond representative and electoral conceptions of democracy towards a future of more collaborative, more participatory, and more open governance.
from “The New Tools: The Internet Influencing Democracy” panel

Norman J. Ornstein, Resident Scholar
American Enterprise Institute
I have seen many instances of staffers who are approached by former colleagues saying ‘I’ve got this client I want you or your boss to sit down with.’ The normal reaction would be ‘I wouldn’t go anywhere near [that person]’ but now it’s, ‘you know, a couple of years from now I’m going to want to go out and maybe join your firm so that I can make it in this society,’ and you get those meetings actually taking place. And you get members of Congress who say, ‘I’m making a sacrifice for public service and I’m going to stick around and make that sacrifice even though I could make twenty times what I’m making now. But under those circumstances aren’t I entitled to a little bit? Aren’t I entitled to have one of my friends who may also be getting a great earmark from me do a little work on my house?’... What we’re finding is that money—which is always a problem—is becoming much, much worse in terms of the atmosphere and casual corruption in Washington, and that has nothing to do with the campaigns but everything to do with politics.
from “Money and Politics” panel


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To view videos of the panel discussions and photos of the weekend, visit www.law.yale.edu/alumniweekend.

A Wish List for the New Administration

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Early this spring, the YLR asked a handful of Law School faculty to weigh in with their thoughts about the direction the next presidential administration could take. The op-eds below are their responses and constitute a “wish list” for the next administration.  
 

Harold Hongju Koh
Repair America’s Human Rights Reputation
Harold Hongju Koh, Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, served as Assistant Secretary of State for Democracy, Human Rights and Labor from 1998-2001.

The Pew Global Attitudes Project recently found, after interviewing 110,000 people in 50 countries, that the United States’ image has plummeted abroad since September 11, due in good part to a decline in America’s perceived commitment to human rights and the rule of law.  Six years of defining our human rights policy almost entirely through the lens of the War on Terror have diminished our human rights reputation, given cover to abuses committed by our allies in that “war,” blunted our ability to criticize and deter gross violators elsewhere, and lowered America’s standing as the world’s human rights leader. To repair America’s damaged human rights reputation, the next Administration should take immediate steps to put America’s own human rights house in order, to renew its support of multilateral human rights efforts, to end the ongoing genocide in Darfur, and to restore its own reputation for truthtelling about human rights.

Putting the U.S. human rights house in order would entail not just closing Guantanamo as soon as possible, but also: revising the flawed 2006 Military Commissions Act to ensure availability of the writ of habeas corpus to alleged terrorist detainees; unambiguously banning the use of torture and cruel treatment by U.S. personnel and contractors anywhere in the world—with an enumerated list of forbidden practices (such as waterboarding) that can be monitored by admission of the International Committee of the Red Cross into U.S.-operated or controlled detention facilities; and ending the practice of “extraordinary rendition.”

Concrete steps to restore our human rights multilateralism would include: sending a Special Envoy to the new U.N. Human Rights Council; shifting formally to a policy of constructive engagement with the International Criminal Court; reinitiating a human rights diplomatic process with regard to Iraq following the recommendations of the Iraq Study Group Report; joining new multilateral human rights treaties, such as Convention on Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities (both of which the United States recently backed away from); supporting the Community of Democracies and using that ad hoc multilateral body to support democratic transitions in particular countries, such as Cuba; and promoting  “Private-Public” partnerships between governments and multinational corporations to ensure the growth of internet freedom and human rights in China (especially as the 2008 Olympics approach) as well as greater access to essential medicines and the end of  “blood resources” (especially oil and diamonds) in Africa.

A third necessary and belated step would be to take firm and immediate action to end the genocide in Darfur. While proposals for intervention vary, indispensable to all are “the 4 Ps”: first, initiating a Peace Process; second, calling for immediate deployment of Peacekeepers into Darfur—with a deadline for Khartoum’s acceptance of such a force, to help achieve an enforceable ceasefire that could lead to a sustainable political settlement; third, Protecting People, both the mass of trans-border refugees and the internally displaced; and fourth, Punishing Perpetrators, by promoting four kinds of accountability: (1) new targeted sanctions (such as travel bans and assets freezes) upon individuals named in the U.N. Commission of Inquiry Report on Darfur and upon Sudanese companies owned by ruling party officials doing business abroad; (2) sanctions targeted at revenue flows from the “blood oil” sector; (3) capital market sanctions imposed upon foreign firms who deal with Khartoum; and (4) mechanisms for sharing information with the International Criminal Court to accelerate indictments against responsible Khartoum officials.

Fourth and finally, the State Department’s Annual Country Reports on Human Rights Practices have increasingly begun to shade or underreport the truth about human rights violations by our allies, especially those such as Egypt and Pakistan, who support us in the War on Terror. Nor has the State Department done enough to ensure that these Country Reports are made widely available in the very countries whose human rights conduct is being described.

This may seem like a long “To Do List” for the next Administration. But America’s human rights reputation defines who we are as a nation and a people. What the last six years have taught is that restoring that human rights reputation is simply too important a task to be left to politicians. Restoring our human rights reputation should be a core challenge for all thinking lawyers, educators, and law students, who are the ultimate guardians of the rule of law.
 

Heather Gerken
Create a Democracy Index
Heather Gerken is Professor of Law at Yale Law School.

One of the puzzles in my field, election law, is that we spend a great deal of time thinking about what an ideal election system ought to look like, but almost no time figuring out how to get from “here to there”: that is, how reform actually takes root. Given that it is extraordinarily difficult for reform proposals to get traction in this country, my hope is that the next administration will focus more on “here-to-there” strategies.

Happily, two presidential candidates— Senators Hillary Clinton and Barack Obama—have taken an initial step toward jumpstarting the conversation on reform. They have separately introduced bills whose aim is to establish a “Democracy Index,” a ranking system of state election administration practices, which I proposed in January in an editorial in the Legal Times. The Index would concentrate on the issues that matter to all voters: How long did you spend in line? How many ballots got discarded? How often did voting machines break down? It should work for a simple reason: no one wants to be at the bottom of the list.

The Democracy Index is a “here-to-there” solution. First, and most importantly, it changes the terms of the debate. Right now, it is extremely hard for voters to figure out whether the system is working or not. Problems occur routinely, but they become visible to most of us only when an election is so close that those problems threaten to affect the outcome of an election, and we have no comparative data that would tell us which states’ systems work and which don’t.

The Index would make the systemic problems in our election system visible to everyone. It gives voters a metric to hold elected officials accountable. Election administrators can defend their choices all they want, but they cannot get around the stark reality of the bottom line: How is the system working? And why is the state next door doing so much better?

The Democracy Index is a “here-to-there” solution in a second, key respect. One of the central obstacles to reform is political self-interest. The foxes are guarding the henhouse in this country— partisans make decisions about how elections are run—and it is difficult to persuade politicians to give up that power. Most reformers ask politicians to do just that—to act contrary to their selfinterest. The Democracy Index realigns the interests of politicians with the interests of voters. After all, every Secretary of State will want to be at the top of the Index. And certainly no one wants to be at the bottom. After all, most of the people who run our election system have higher political aims. Imagine you were running against a former Secretary of State like Ohio’s Kenneth Blackwell or Florida’s Katherine Harris. What better campaign weapon could you imagine than a ranking system showing that your state is one of the worst-run systems in the country?  


Daniel Esty
Reigniting America’s Environmental Spirit
Daniel C. Esty ’86 is the Hillhouse Professor of Environmental Law and Policy, with appointments in both Yale Law School and the Yale School of Forestry & Environmental Studies. He is the Director of the Yale Center for Environmental Law and Policy.

America has made a great deal of environmental progress over the past four decades. The Clean Air Act of 1970 and the Clean Water Act of 1972 launched an era of federal government-led environmental action. But the pace of progress has slowed, and it is time for a major overhaul of our approach to environmental protection. The next President should move to restructure how society pursues environmental protection, pushing for much greater use of economic incentives and a shift of the center of environmental gravity to the private sector.

One key point of learning from the past several decades is that environmental progress depends on technological advances. A successful response to climate change, in particular, will require an energy future that breaks free of fossil fuels (or a breakthrough in the capture and storage of carbon dioxide). A second key point of learning is that governments are not very good at doing technology development. Yet, for forty years, the government has played a central role in defining through “best available technology” rules what pieces of pollution control equipment are bolted onto smokestacks or effluent pipes.

It’s time to shift primary responsibility for environmental innovation onto the private sector. Government must still play a critical role in setting out policy goals and ensuring that incentives are in place to promote appropriate corporate activity. But business is better situated to do the work of developing photovoltaic cells, high-efficiency wind turbines, or “smart appliances” that reduce energy consumption. Companies, it turns out, are better at risk-taking, attracting an appropriate mix of skills and talents, paying for success, reinforcing promising lines of research, and redeploying capital where particular approaches show little promise.

By making every company and every individual pay for their greenhouse gas emissions and other pollution as well, we can lure venture capitalists, inventive spirits, and entrepreneurs into the environmental arena—re-energizing society’s march toward environmental progress. But leadership from the very top will be required to launch such a “new” environmental revolution.  


Jack Balkin and Reva Siegel
Choice-Respecting Family Policy
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment. Reva Siegel ’86 is Nicholas deB. Katzenbach Professor of Law and Professor of American Studies at Yale University.

For decades one issue—abortion—has dominated and polarized discussions of reproductive rights and family policy. We need a new direction—a national policy that respects women as responsible decisionmakers as much as it does men, facilitates their choices, and views reproductive rights as integral to a larger family policy. Government can support the formation of strong, stable families by helping women and men avoid unintended pregnancies, and by helping those who want children to have them with less harm to themselves and to their families.

What would family policy that respected women’s choices as much
as men’s look like? First, it would provide young people with information about the risks of unprotected sex; and it would improve access to contraception, especially for those most at risk for unintended pregnancies. Second, it would help effectuate women’s choices about unplanned pregnancies—providing information about abortion and adoption, material assistance for those struggling to raise children, legal procedures to help minors make difficult choices in troubled or hostile family environments, and resources to counter domestic violence. It would secure women’s right to an abortion free from government pressure designed to coerce, manipulate, intimidate, or shame women into continuing a pregnancy they wish to end. Third, it would support those choices after birth as well as before—through support for health care and nutrition for struggling families, through day care and workplace accommodation that would make it easier for both women and men to combine caregiving and wagework.

Sadly, family and reproductive rights policies are headed in the opposite direction: Most public support for women who give birth ends with birth; health care, day care, and workplace reforms have stagnated. Meanwhile governments have done everything possible to restrict information about and access to contraception and abortion; to deter health care providers from providing abortion and contraception services; and to encourage pharmacists to deny services on religious grounds. The Supreme Court’s most recent abortion decision in Gonzales v. Carhart only made matters worse; it suggested that states could enact new restrictions on abortion procedures because some women might not know what they really wanted and would regret their choices later on. This new paternalism hardly respects women’s informed choices; it forecloses them. It treats women according to sexist stereotypes as emotional and irrational creatures who cannot be trusted with control over their own reproductive futures.

The effects of these various social policies fall most heavily on poor women, young women, and women in rural areas; ironically, they actually increase the number of abortions, delay many abortions to the second trimester, and increase health complications. Women are pushed at from two directions— coerced and frightened into having unwanted pregnancies, and abandoned after they do the state’s bidding. This is not an acceptable “compromise” between pro-life and pro-choice positions—it is simply dysfunctional.

Government can do better. It can treat both women and men as human beings who have the intelligence to make responsible choices about their reproductive lives. It can help them choose the conditions under which they become parents and better manage the competing demands of parenting and the workplace. It can support family formation and keep existing families strong and stable. If we claim to respect women, we should respect their choices. If we want to promote family values, we should value families. It is as simple as that.    


Michael Graetz
Restructure America’s Tax System
Michael Graetz is the Justus S. Hotchkiss Professor of Law

The aging of the population, longer life expectancies, and rising health care costs will put enormous stress on our ability to fund our government in the years ahead. In the short-term, modest changes in spending or taxes can balance the budget. But going forward we must restructure our nation’s tax system.

Our archaic tax system was designed when the United States had virtually all the money there was. Even a horrid tax system—with individual income tax rates up to 91 percent—could not stymie our economic progress then. Now the U.S. economy must compete worldwide for the investment capital necessary to produce rising living standards for Americans. How should we reform our nation’s tax system so that it is conducive to economic growth, fair, and simple for the American people to comply with?

The income tax law is four times longer than War and Peace and considerably harder to parse. Americans waste $150 billion each year just to calculate and administer the tax. Incentives for unproductive expenditures, along with taxplanning efforts, are estimated to cost our economy an additional $1 trillion a year. These are costs we cannot afford.

The only way to wean politicians from thinking that tax benefits are the way to solve our nation’s problems is to get most Americans out of the income tax system altogether. We can do this and have a tax system that is much simpler and more conducive to economic growth by replacing the income tax for most Americans with a value-added tax (VAT), a broad-based tax on consumption used in every other Organization for Economic Cooperation and Development country and by nearly 150 countries around the world.

Here is the general scheme: Enact a value-added tax at a 10–14 percent rate to finance an exemption of $100,000 from the income tax, and substantially lower the individual and corporate income tax rates on income above that. This would free 150 million Americans from having to deal with the income tax at all. Use a smart card or employer-based refunds to offset the regressivity of the VAT for low and moderate income people and to replace the Earned Income Tax Credit.

Unlike many other tax reform plans that have been advanced, this system would not shift the tax burden away from our wealthiest citizens down the income scale. It would be far simpler and less costly to comply with and more favorable to savings, investments, and economic growth than our current tax system. It would fit well with international arrangements and improve the competitiveness of American businesses and workers. And it would stop the madness of relying on income tax breaks as the solution to the nation’s social and economic problems. I detail this plan and the reasons for it in a book entitled 100 Million Unnecessary Returns: A Simple, Fair, and Competitive Tax Plan for the United States, forthcoming in January from Yale University Press. I hope you will take it seriously.

John Donohue
Rethink the “War on Drugs”
John J. Donohue III is the Leighton Homer Surbeck Professor of Law

Crime is an issue that often seeps into Presidential elections in one form or another. Indeed, the Bush Administration has rolled back or undermined the two primary crime-fighting initiatives of the Clinton Administration by allowing the 1994 federal ban on assault weapons to lapse, and by eliminating Clinton’s COPS program, which put tens of thousands of new police on the streets of American cities. Gun control is largely a dead letter, since the NRA has shown that it has the power to keep any type of gun in the hands of anyone who wants them, as well as the power to punish any Democrat who seeks greater gun control legislation.

One area that could bring large dividends in terms of crime reduction would be to change tactics in the quagmire of the American war on drugs. With blind fidelity to a failed policy, we continue to fritter away scarce law enforcement resources fighting sale and possession of drugs and to put hundreds of thousands in prison at enormous cost to taxpayers and to inmates and their families. Many substances from alcohol and nicotine to marijuana, cocaine, and heroin impose high social costs on American society, but only the illegal drugs lead to mass incarceration, corruption of police, street killings, and other acts of violence in the effort to market them to a desirous American population. Just as the end of Prohibition generated enormous crime reductions, legalization of the above drugs would likely bring about similar crime drops, while risking increases in the high costs attending the likely increase in consumption and abuse.

The proper way to deal with all of these addictive substances is to legalize, tax heavily, ban all forms of marketing, and fund efforts to restrain consumption and provide treatment for abusers. Instead, we have pursued a policy that either puts hundreds of thousands of Americans in prison when a coordinated and aggressive regulatory posture could likely restrain demand in a far less costly manner, or gives far too much freedom to stimulate demand and sales by aggressive marketing and advertising. One potential obstacle to a regime of legalization coupled with discouraging regulation and taxation is that the suppliers of addictive substances will use constitutional arguments to advance their objectives (one can imagine the briefs by sellers of marijuana insisting on their first amendment rights to peddle the drug should legalization occur) or enlist the support of compliant legislators to help stimulate demand (note the activities of the gambling industry for an unwholesome example). This might suggest that constitutionally enshrined restrictions on the ability to market harmful substances might be an important antecedent to an effort to reduce crime by eliminating the staggering social costs of the war on drugs.


Jonathan Macey
Call for a Corporate Revolution
Jonathan Macey ’82 is Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law and Deputy Dean at Yale Law School

Ten years ago, nobody bothered to ask what the next administration should do about corporate law. Corporate law in general and the internal corporate governance of public companies in particular were issues dealt with almost exclusively at the state level. Intervention in corporate governance at the federal level was fairly rare, incremental, and reserved for particularly highly salient political issues like takeovers and insider trading that politicians simply could not afford to resist.

Enron, WorldCom, Adelphia, Tyco, Global Crossing and the other highprofile corporate meltdowns at the turn of the century changed all of this. Now everything from corporate loans to executives to the relationship between boards of directors and their outside auditors is covered by federal law on top of state law. The political spoils from regulating U.S. companies and capital markets simply became too irresistable.

Over-regulation has gotten so bad that we need more than mere reform. We need revolution. The average number of IPOs made in the U.S. has dropped by 72 percent over the last five years, and by a whopping 85 percent in the vital technology sector. Twenty-three of the twentyfive largest global IPOs in 2006 were listed on exchanges outside of the U.S.

Nowadays, when venture capitalists have finished making their contributions to start-up companies, they often no longer even attempt the traditional, time-honored strategy of doing an IPO. Instead, following the sclerotic European universal banking model, they simply try to line up a merger deal with an old-line established firm.

The next administration should start by recognizing that U.S. capital markets are in a crisis situation and that this crisis is caused by federal over-regulation of public companies and initial public offerings, and runaway private litigation. Second, it should sponsor sweeping legislative reform that removes the authority of the SEC to regulate not only internal corporate governance of U.S. corporations, but also public securities markets and exchanges and initial public offerings. The legislation should also unleash the market for corporate control by making defensive tactics such as the poison pill illegal unless authorized by shareholder vote.

U.S capital markets rose to prominence in an era in which healthy competition among rival stock exchanges and regulation at the state level enabled the U.S. not only to attain a dominant position in world capital markets, but also to provide a reliable low-cost source of capital for the emergent entrepreneurial class. If the new administration decides to abjure its recent practice of pandering to special interest groups and serve the needs of investors and workers, it is still not too late to unshackle the robust forces of capitalism that made this country great.  


William Eskridge
A Wish List for Gay Rights
William N. Eskridge, Jr. ’78 is the John A. Garver Professor of Jurisprudence

Lesbian, gay, bisexual, and transgendered (LGBT) Americans are worthy citizens who contribute productively to the nation. Under this premise, consistent with scientific evidence and people’s experience, most LGBT rights advance national interests. Here is a realistic wish list:

1. Job Discrimination. The proposed Employment NonDiscrimination Act would bar most workplace discrimination because of sexual orientation or gender identity. Most Americans support this legislation; it will not cost employers much money; and it provides essential employment protections against prejudice- based harassment and discrimination in the workplace.

2. Anti-Gay Violence. LGBT Americans are subject to vicious violence by private and public bigots. The federal government should provide funds for state anti-violence programs, hate crime prosecutions, and shelters for LGBT youth subjected to violence from their families.

3. Same-Sex Couples. The Defense of Marriage Act (1996) exclusion of same-sex couples from federal statutory “marriage” rights should be repealed. Meanwhile, the President should issue an executive order (similar to those issued by numerous governors) allowing federal employees to include their samesex domestic partners in their health care benefits. If it does not repeal DOMA, Congress should enact legislation recognizing domestic partners for purposes of immigration, federal safety net entitlements like social security, and conflict of interest laws.

4. Title IX (Anti-Discrimination in Educational Programs). The Administration should strengthen Title IX’s protections for LGBT students against discrimination and harassment and should insist on more progress toward complete gender equity in athletic programs.

5. Sex and AIDS Education. Federal sex and AIDS education programs should abandon their current sectarian (antihomosexual and anti-abortion) slant and return to a medical focus. Follow the Scandinavian model for sex and AIDS education, which is fact-based, practical, and non-prejudiced.

6. Military Service. The 1993 statute excluding openly gay Americans from military service has been a costly failure, and the Administration should create a bipartisan commission to gather information and suggest reforms. These might include repeal of the statute, experimental programs where the ban is revoked for specific units, and stronger anti-harassment rules.


Peter H. Schuck
School Choice
Peter H. Schuck is the Simeon E. Baldwin Professor of Law

The key to America’s future is quality education for all youngsters. Governments at all levels have spent trillions of dollars on programs aimed at closing the vast educational achievement gap between low-income children and their more fortunate peers, but it remains.

We cannot close this gap until disadvantaged parents have the power, not just the right, to send their children to schools other than the low-performing ones to which they are now consigned. If parents had the choice and the wherewithal to exercise it, many would opt for alternate public schools such as magnets or operationally independent “charter” schools, while others would choose secular or religious private schools. The well-documented success of the Catholic schools in educating the same kinds of low-income children—whether Catholic or non-Catholic, minority or white, immigrant or American, urban or suburban— whom public schools have manifestly failed to reach is a strong indictment of the public system.

Every careful study of choice shows some benefits and no significant harm, with per pupil expenditures that are nearly half those in the public schools. For people who enjoy choice to argue that low-income children must be denied choice in order to “save” those schools is not simply wrong as an empirical matter (public schools that must compete for scarce dollars with private ones tend to improve), and as a historical matter (choice was common until the mid-19th century). It is also morally perverse, preferring the putative welfare of the school system to that of the children it is meant to serve.

Private schools and religious schools are often more successful than public ones in teaching civic virtues, community service, tolerance, and even feminism. In localities with choice, private schools tend to be more integrated, both racially and by income, than are their public schools, which reflect segregated housing patterns. Choice plans, by reducing the premiums paid for housing in areas with good public schools, make it somewhat easier for poorer families to move to those areas. No wonder vouchers are most strongly supported by poor inner-city residents and most vigorously opposed by well-to-do suburbanites and their teachers unions.


Ian Ayres
Streamline Tax Filing
Ian Ayres ’86 is the William K. Townsend Professor of Law at Yale Law School and a Professor at Yale’s School of Management

The IRS should fill out your tax return for you. The IRS already has all the information it needs to fill out the complete forms for millions of wage income taxpayers who don’t itemize their deductions. Taxpayers wouldn’t be forced to use the IRS’s pre-completed form. They could revise it or they could just throw it away and start from scratch.

Joe Bankman, the mastermind behind this idea, has shown that there are as many as 50 million Americans who would not need to change a thing and there are 50 million more where the IRS could make a darn good start. The feds even know enough to complete your state form for you while they’re at it.

This isn’t some pie in the sky idea. California’s Ready Return Project already shows that it can work. In 2005, over 11 thousand Californians used tax returns that the state had filled out for them in advance. The participants in the pilot program loved it. Almost all the users said they’d use it again next year.

But the Tax Preparation industry hates this idea and has been fighting it tooth and nail. Why pay a tax preparer to do your taxes if the government has already done it for you? Intuit, the maker of Turbo Tax, last year poured more than $1 million into the California comptroller’s race in an attempt to seize control of the state’s Franchise Tax Board. They succeeded in killing the program for 2006 returns, but it is scheduled to expand in California to up to a million prepared returns in 2007.

John Edwards has got out in front on what should be a bipartisan issue. His “Form 1” program would have the IRS do the deed for millions of taxpayers.

It’s kind of crazy that the current system requires people to keep copies of their W2 and 1099 forms. This would be like Visa requiring us to keep copies of all our charges, and then to fill in a blank form reporting how much we spent. Customers expect Visa to start the ball rolling by sending them a bill. We should expect no less from the IRS.

I remember my dad taking over the kitchen table for one weekend every April as he struggled to do our family’s taxes. This is one rite of spring that we should try to end. Y   

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From War to Law School

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Chris Mandernach ’08 drove a ship into a mine-filled river, at night, during a sandstorm, on purpose. Jon “Tyler” McGaughey ’09 led the battalion that seized one of Saddam Hussein’s Presidential Palaces. Ken Harbaugh ’08 flew combat reconnaissance, commanding the only EP-3 aircraft in the Pacific immediately following 9/11.

Mandernach, McGaughey, and Harbaugh are among a small but growing contingent of Law School students who are veterans. This past year the Law School was home to nine students who have served on active military duty.

Chris Mandernach ’08
Lieutenant, U.S. Navy

In 2003, as coalition forces were poised to invade Iraq, Chris Mandernach ’08 was stationed aboard the USS Raven in the Khawr Abd Allah, a shallow river that joins southern Iraq and northern Kuwait. During that first night of Operation Iraqi Freedom, Lieutenant Mandernach and his fellow sailors looked to the sky lit by Tomahawk missiles and waited for the signal to drive their ship into a minefield.

The Raven’s mission: to find and disarm sea mines. At a mere 188 feet long and 38 feet wide, the Raven’s high-definition sonar and remotely operated submarine put it on the front line, clearing a path for larger boats to make their way to Iraq’s sole deep water port of Umm Qasr.

“We knew, based on what the Iraqi government had done in the first Gulf War, it was likely that the whole stretch of river was going to be mined,” Mandernach explains. The Raven’s crew studied sonar returns, identified potential mines, and then dismantled them. Even now, Mandernach speaks of the power of mines with reverence. “Mines lurk unseen, constantly listening for ships’ sounds or sensing for pressure changes in the water column. They are unforgiving,” he says.

Mandernach’s route to the Middle East began in a small town in northern Minnesota with a childhood dream of becoming an astronaut. As a high school student, he set his mind on the Naval Academy, hoping an education there would lead to NASA. By the time he realized his poor eyesight would keep him from a career as an astronaut, he had become enamored with the idea of the Naval Academy as a way for a small-town kid to break out and see the world.

“It took a while for my parents to warm to the idea,” he says. “They were always very supportive, but the Navy wouldn’t have been their first choice.”

After graduating with distinction from the Naval Academy, Mandernach matriculated at George Washington University, earning a master’s degree in security policy studies while moonlighting within Navy Staff’s political military affairs division. From there he joined the crew of the USS Chancellorsville, and was stationed in Yokosuka, Japan, for two years before being stationed in Bahrain aboard the Raven.

During his time in the Navy, Mandernach drove naval warships into nineteen different ports in twelve different countries on four different continents. He flew airplanes over the Gulf of Mexico and sailplanes over the Rocky Mountains. He drove a submarine 700 feet beneath the Atlantic. He had rocks thrown at him by young Bahraini children waiting for their school bus. He listened to a panicked voice crackle over a loudspeaker, announcing fears of a chemical attack headed his way. He saw firsthand the way war changes day-to-day: Iraqi fishermen first welcoming him as a liberator, then, within weeks, shunning him as an occupier.

When he thinks of his eight years of service, it’s the sounds and smells and memories of the people he worked with that come back first.

“There are these days in Bahrain,” he remembers, “when it’s 130 degrees, the sun is setting, you’ve got sand and dust and evening call to prayer barking over the speakers through the town. And here I am, this American, this kid from Minnesota. There are so many memories like that.”

After serving overseas, Mandernach returned to the Naval Academy where he taught in the political science department, instructing midshipmen majoring in information technology with a concentration in national security.

Now finishing his second year at the Law School, Mandernach’s transition to YLS was smooth, despite what he refers to as a “language barrier” between those who have served and those who haven’t. “It sounds cliché now,” Mandernach says, “but it’s true that there’s a culture gap between the military and the American public. Coming here, you really see that... so few people — faculty and students alike — have experienced the military. You’re really speaking a foreign language.”

After spending years being a practitioner of policy created by others, Mandernach now has his sights set on serving the country by being involved in making policy. To that end, he will serve with the legal advisor at the State Department this summer.

“I left the Navy with a good taste in my mouth,” he says. “But some of my experiences also showed me that foreign policymakers often miss the human consequences of their actions, and sometimes even end up undermining their own policy intentions. I understand the consequences of policy decisions because I have lived them. Now, I’d like to help shape those policy decisions.”


Jon “Tyler” McGaughey ’09
Captain, U.S. Marines

Jon “Tyler” McGaughey ’09 always knew he would become a Marine. His grandfather fought as a Marine in World War II and the Korean War. His father served first as an enlisted Marine in Vietnam, and later as a Marine officer flying helicopters for twenty years.

“Growing up and hanging around my father’s friends and hearing their stories, I always knew I wanted to serve my country as a Marine for at least a few years,” McGaughey says.

As a student at the University of Virginia, McGaughey participated in NROTC (Naval Reserve Officer Training Corps) and was commissioned a second lieutenant upon his graduation in 2001.

Fast forward from that kid listening to his father’s war stories and training with NROTC to March 2003 when McGaughey, an officer in Company B, First Battalion, Fifth Marines and on his first deployment to Iraq, was among the first American troops to cross the Iraqi border. After being staged in Kuwait for all of February and the beginning of March 2003, McGaughey’s battalion was ordered over the border when the Iraqi oilfields began to burn.

After securing the Rumaylah oilfields, the battalion moved north to what is now Sadr City to penetrate the heart of Baghdad from the north and seize one of Saddam Hussein’s presidential palaces.

At the beginning of that attack, my company was at the rear of the battalion,” McGaughey remembers, explaining that the units rotate position, and that his battalion had been in the lead in an earlier attack. “As we assaulted into the city,” he continues, “the lead company had some of their vehicles break down, and the battalion stalled in the middle of a major highway. Not good.”

McGaughey, commanding his company’s lead vehicle, was moved to the front of the battalion. He quickly realized that somehow the battalion had gotten off course, and it was his job to get the Marines — approximately 600 of them — back on track.

“It was the middle of the night and my map was in black and white,” he says. “I had GPS, but after months in the desert it was prone to turn off for no reason … I was having a hard time figuring out where we were and where we needed to go.”

McGaughey knew the palace was on the edge of the Tigris River and had a general idea of where the river was, so he pointed his vehicle in that direction and led the battalion through the city.

“As we made our way through the city we started taking enemy fire,” he remembers, “… multiple RPGs hit our vehicle and some of my Marines were badly wounded. We eventually made it to the palace — which was empty, despite intelligence reports to the contrary — and my Marines were evacuated. All of them lived.”

What McGaughey does not say about that experience is that his role in gaining U.S. control of the Al Azimuyah Presidential Palace (as well as his work securing a bridge over the Saddam Canal and capturing an enemy mortar section in a small village outside of Baghdad) earned him a Bronze Star with valor.

On his second deployment to Iraq, just six months after the first, McGaughey found himself in the besieged Al Anbar Province. His battalion participated in the first Battle of Fallujah in April 2004, and conducted counter-insurgency operations in the villages surrounding Fallujah for the next few months. He earned the Navy and Marine Corps Commendation Medal with valor for firefights that took place during that time.

Though McGaughey saw some of Iraq’s worst ground combat, he also spent much of his five years of active duty in routine training while based at Camp Pendleton, California. After his second deployment to Iraq, he returned to the U.S. and was in charge of supervising the training of a reserve infantry unit stationed in Las Vegas, Nevada.

His ultimate plan, though, had always been to become a lawyer. Yale’s small classes and open curriculum appealed to him. “I also liked Dean Koh’s speech during admitted students’ weekend,” he says. “Especially the part where he said that Yale is the place where you can start doing things that please you instead of things that please ‘them.’”

What pleases McGaughey most now is studying criminal law with an eye toward becoming a federal prosecutor or criminal defense attorney.

“Some things about being a civilian are nice,” he says. “I can decide not to shave on a given day without being yelled at and I can grow out my hair if I feel like it.

“On the other hand, it has been a little tough transitioning to a different teaching style — law school teaching and Marine teaching are markedly different,” he adds. “In the Marines they don’t use the Socratic Method to tease out the principles of assembling and disassembling the M16A2 service rifle. Also, surprisingly, debating current policies/ regulations and offering suggestions for improvement is not something that is highly encouraged. But the adjustment [to law school] hasn’t been too difficult, and I am enjoying the challenge.”


Kenneth Harbaugh ’08
Lieutenant, U.S. Navy

As a Navy pilot assigned to combat reconnaissance, Ken Harbaugh’s call sign was “Poet.” Harbaugh earned the nickname for his introspective nature and his penchant to wax, well, poetic. The name stuck after he won two major writing awards. Today, it’s a call sign he’s still living up to, contributing commentary pieces to National Public Radio that have landed him in some hot water.

Though Harbaugh comes from a line of veterans — his grandfather flew bombers in World War II, taking an explosive anti-aircraft round through his thigh, and his father won two Distinguished Flying Crosses over Vietnam — it wasn’t originally his intention to enter the military. In fact when he left home for college, the military was the furthest thing from Harbaugh’s mind.

“I was the guy who hitchhiked around Tasmania, played guitar, and grew a beard,” he says. “But being a bum left lots of time for thinking.” He thought about his father and his grandfather. He decided his life was a little too comfortable, that he hadn’t paid his dues. And then he joined the Navy.

Flying, it turned out, really is in Harbaugh’s blood. He was first in his class at Officer Candidate School and when it came time to choose his assignment he opted for combat reconnaissance in an EP-3 — an aircraft Harbaugh calls “fat, slow, and ugly.” But being assigned to an EP-3 would ensure that he would be gathering intelligence essential to national security, and making that kind of difference was Harbaugh’s goal.

The Navy sent him to Top Gun for intelligence pilots (affectionately referred to as “Top Geek”) and he rose to the rank of Aircraft Commander of his EP-3, responsible for a $100 million plane and an elite crew. He played cat-and-mouse with enemy jets, flew secret missions with a price on his head, and gathered intelligence that went straight to the President.

His schedule depended on the type of intelligence he was tasked with gathering. “Days would pass where we would do literally nothing, and then for weeks on end we’d be flying to the point of exhaustion,” Harbaugh says. In between deployments, he and his crew members would train, catch up on paperwork, and work on repairing marriages so they could withstand another deployment. “It was tough, but the work was incredibly rewarding,” he adds.

Flying, though, wasn’t enough for Harbaugh. And so he wrote. He contributed articles to Proceedings (the Navy’s professional journal), and the U.S. Naval Institute invited him (twice) to address their annual convention. He raised more than a few eyebrows when he told the assembled admirals and politicians what they should do differently.

When he began teaching at the Citadel, Harbaugh had more free time and his itch to write grew stronger. He started by contributing commentaries to National Public Radio’s All Things Considered. “It was stuff I thought the average American should know about the military,” he says. “But what a mess I made. My relationship with NPR outraged some Navy big-shots. They weren’t fellow pilots, or anyone with wartime experience. Just bureaucrats protecting their turf.”

The irony, Harbaugh points out, is that his commentaries were pro-military and drew tremendous listener feedback. Harbaugh’s decision to discuss the My Lai massacre with his students also led to more than a little consternation with the Navy brass.

Similar to Mandernach’s experience, Harbaugh’s decision to attend law school was prompted by a desire to find another entrée to public service. “From the cockpit to the classroom I have watched lawmakers write their rules and issue their orders,” Harbaugh explains. “For long enough I have been the instrument of my government’s policies. Now I will help craft them.

“I’ve placed my life in the hands of American’s politicians, and sent my Citadel students off to a war that many civilian leaders don’t understand. This country needs more lawmakers who have been shot at.” Y

To listen to Ken Harbaugh’s commentaries on All Things Considered, visit www.npr.org or read the transcripts at www.law.yale.edu/news/Articles&Op-eds.htm.


Text by Kaitlin Thomas
View a PDF of this article as it appeared in the Summer 2007 issue of the Yale Law Report

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Commencement 2007

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It was a Memorial Day that will hold special memories for Yale Law School’s Class of 2007. Before a gathering of about 1200 family, friends and faculty members in the sun-filled Law School Courtyard, 222 students were honored at Commencement ceremonies on Monday, May 28.

Dean Harold Hongju Koh gave welcoming remarks, proudly introducing “quite simply, the finest new law graduates on the planet this year.”

He recounted some of their major accomplishments and asked the class — the first to start and finish with him as dean — to remember some simple lessons. Among them: that accomplishment without humility is tragic and that excellence without humanity is worthless. He said Yale Law School has always been a community of commitment, dedicated to the pursuit of careers “not of selfishness but of service.”

The announcement of degree candidates followed — 186 Juris Doctor degrees, thirty Master of Laws, three Doctor of the Science of Law, and three Master of Studies in Law.

Former Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law Pamela Karlan ’84, chosen by the class to deliver the commencement address, spoke next. Currently the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University, she told the students, “Yale Law school is the place where I fell in love with the rest of my life.”

In a talk sprinkled with humor, poetry, props, personal anecdotes, literary quotes, and baseball references, Professor Karlan quoted from the opening sentence of David Copperfield and challenged students to become the heroes of their own lives.

“The pages of the briefs you file and the memoranda you write and the opinions you publish should be a part of making your own lives heroic. And you should use the gifts luck and Yale have given you to enable people who have been excluded from the great good fortunes all of us have enjoyed, to become the heroes of their lives as well.”

Also addressing the graduates was Pius Nkonzo Langa, Chief Justice of the South African Constitutional Court, who received an honorary degree earlier in the day from Yale University. Born in poverty in apartheid South Africa, Langa rose from shirt factory worker to South Africa’s first black Chief Justice. He congratulated the graduates on their success but urged the