The Electoral College: Here to stay?

Constitutional Law expert Sanford Levinson focused on the political implications of the Electoral College at Harvard Law School on October 21. He emphasized that the U.S. Electoral College system is unique among the election processes of major countries, which tend towards popular vote models, and he connected it to what he terms “the Constitution of settlement,” the structural provisions of the Constitution that are never litigated and therefore never discussed.

In response to recent criticism and praise of the Electoral College, Levinson highlighted its benefits and the ways in which it influences electoral outcomes, saying, “It is important to look at the way that any constitution rigs the electoral system, if you use rigging as a metaphor not necessarily for unfairness, but for establishing a basic structure, 'a rigging' if one thinks of an old-fashioned ship with masts. It makes a difference how many masts there are, and what sails are up and which are down. Rigging may quite literally be a matter of life and death. One is making choices when one constructs an electoral system, and there is no such thing as a perfect electoral system, any more than there is a perfect political society.”

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals.

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals. From his perspective, “The most important example in American history of this is 1860 and the election of Abraham Lincoln, who got to the Oval Office with 39.8 percent of the popular vote and a majority of the electoral vote, but his election triggered a war . . . through a fatal mixture of the issue of slavery, which might well have triggered a war sooner or later, but also the electoral system . . . that makes electoral votes and not popular votes key.”

Why, then, maintain a system whose historical justifications, according to Levinson, have long receded? He argued that the Electoral College remains intact because of its relationship to exceptionalism and constitutional structures: the “almost insurmountable hurdles to amendment” embedded in the document comprise another exceptional feature of the American Constitution. An amendment to modify the electoral system would require the approval of a supermajority of states. Small states and battleground states hold disproportionate importance under the Electoral College that a popular vote system would eliminate, and, Levinson explained, are therefore unlikely to support any move to reduce their power.

The Electoral College, a product of American exceptionalism and constitutional structures, continues to influence the outcome of national elections by establishing the rules of the game. Ultimately, Levinson said, under the Electoral College system, “it isn't voters who decide elections. It's electors who decide elections, and there is a mixed relationship between popular votes and electoral votes.”

Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is a visiting professor at HLS this semester. His talk was sponsored by Harvard Law School's Graduate Program.

The Electoral College: Good or Bad?

Constitutional Law expert Sanford Levinson focused on the political implications of the Electoral College at Harvard Law School on October 21. He emphasized that the U.S. Electoral College system is unique among the election processes of major countries, which tend towards popular vote models, and he connected it to what he terms “the Constitution of settlement,” the structural provisions of the Constitution that are never litigated and therefore never discussed.

In response to recent criticism and praise of the Electoral College, Levinson highlighted its benefits and the ways in which it influences electoral outcomes, saying, “It is important to look at the way that any constitution rigs the electoral system, if you use rigging as a metaphor not necessarily for unfairness, but for establishing a basic structure, 'a rigging' if one thinks of an old-fashioned ship with masts. It makes a difference how many masts there are, and what sails are up and which are down. Rigging may quite literally be a matter of life and death. One is making choices when one constructs an electoral system, and there is no such thing as a perfect electoral system, any more than there is a perfect political society.”

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals.

To support his claim that the Electoral College shapes the outcomes of American presidential contests, Levinson cited the 1968 and 1992 elections, when candidates who garnered less than half of the popular vote reached the Oval Office on the strength of their electoral vote totals. From his perspective, “The most important example in American history of this is 1860 and the election of Abraham Lincoln, who got to the Oval Office with 39.8 percent of the popular vote and a majority of the electoral vote, but his election triggered a war . . . through a fatal mixture of the issue of slavery, which might well have triggered a war sooner or later, but also the electoral system . . . that makes electoral votes and not popular votes key.”

Why, then, maintain a system whose historical justifications, according to Levinson, have long receded? He argued that the Electoral College remains intact because of its relationship to exceptionalism and constitutional structures: the “almost insurmountable hurdles to amendment” embedded in the document comprise another exceptional feature of the American Constitution. An amendment to modify the electoral system would require the approval of a supermajority of states. Small states and battleground states hold disproportionate importance under the Electoral College that a popular vote system would eliminate, and, Levinson explained, are therefore unlikely to support any move to reduce their power.

The Electoral College, a product of American exceptionalism and constitutional structures, continues to influence the outcome of national elections by establishing the rules of the game. Ultimately, Levinson said, under the Electoral College system, “it isn't voters who decide elections. It's electors who decide elections, and there is a mixed relationship between popular votes and electoral votes.”

Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is a visiting professor at HLS this semester. His talk was sponsored by Harvard Law School's Graduate Program.

Don't Blame Mylan For High Drug Prices

BY MAX JACOBS -- Drug prices aren't this high because of the cost of research and development or manufacturing. They are this high because the pharmaceutical industry learned that no matter how high prices get, patients will still get the drugs.

Unions Resort To Election Trickery In Grubby Efforts At Maximizing Their Legal Plunder

Unions are resorting to deceptive ballot measures in Washington and South Dakota as they try to squeeze money out of workers who do not want their services.

Professor has Ed Portal audience vote on legalization of marijuana

Charles Nesson, spoke on: JuryX: Deliberations for Social Change, A Workshop in Active Citizenship I and II at the Education Portal at Harvard University
Rose Lincoln/Harvard Staff Photographer

It's been eight years since Massachusetts voters decriminalized the possession of one ounce or less of marijuana. On Tuesday, they'll decide whether to tax and regulate the sale and adult consumption of it.

The initiative, known as Question 4, would legalize and create a commission to regulate marijuana in Massachusetts. Under the new law, individuals at least 21 years old would be able to use marijuana, possess it, and grow up to six marijuana plants in their homes.

For Charles Nesson, Weld Professor of Law at Harvard Law School and co-founder of the Berkman Center for Internet and Society at Harvard University, the issue was the subject of an in-depth discussion at the Harvard Ed Portal in Allston.

Nesson's discussion Tuesday evening on the upcoming vote was part of the faculty lecture series at the Ed Portal, and drew strongly from Nesson's HarvardX course “JuryX: Deliberations for Social Change.”

Nesson began the discussion by showing three videos that highlighted very different points of view. First, he showed an interview clip from “60 Minutes” in which a Colorado pediatrician advocates for a ban of recreational pot due to rising numbers of babies born with marijuana in their system.

Next, Nesson showed a video created by the American Civil Liberties Union of Massachusetts (ACLUM), which supports the legalization of marijuana for racial and social justice. Those in the video argue that marijuana policing in Boston is racially biased, and that black people are three times more likely to be arrested for marijuana possession than white people.

Finally, Nesson showed part of an interview he conducted with Ras Iyah V, founder of the Westmoreland Hemp and Ganja Farmers Association in Jamaica. The organization advocates for ganja's economic development in Westmoreland, as well as protecting the traditional and cultural roots of ganja.

Iyah V is an elder of the Rastafari, an indigenous people of Jamaica. For Iyah V and others like him, Nesson said, marijuana is not a recreational drug, but “a sacrament for his culture … something that is not only regarded as safe, but centric and integral.”

Debra Poaster, of Allston, from left; Jason Clark, Ed Portal Staff; Carol Lynch, of Arlington; Phillip Lynch, of Arlington; Clint Attebery, of Somerville and Mary LaRosee of Brighton in a workshop taught by Charles Nesson, who spoke on: JuryX: Deliberations for Social Change, A Workshop in Active Citizenship I and II at the Education Portal at Harvard University
Rose Lincoln/Harvard Staff Photographer

After showing the clips, Nesson asked the attendees to gather in small groups and discuss the different points put forward. He encouraged them to negotiate what he called “the tinderbox of face-to-face conversation,” asking them to confront “the problem of listening … of coming to understand that the truth is an ambiguous object.”

“Litigators sometimes say that the truth lies at the bottom of a bottomless pit, and in fact, the Socratic process for approaching truth is one of polite, civil give-and-take. You know yourself that whenever you win an argument by anger and overpowering your opponent, you lose: It doesn't work. You actually win an argument when the other person sees you listening, sees a softening in your eye that signals understanding.”

After breaking into groups and discussing their different points of view, attendees voted on Question 4 via Post-it notes. The tally was 11 votes for the initiative, and seven against.

“Speaking to the question of civil discussion … I've thought about this matter, but I've never sat down with five other people I didn't really know and exchanged ideas like this,” said Brent Whelan '73, an Allston-Brighton resident and member of the Harvard-Allston Task Force.

“I have an extraordinary appreciation for the complexity of this question now. It became much more interesting in hearing these different points of view, and that seems like a great endorsement of what Professor Nesson is trying to accomplish with his 'JuryX' course.”

Kevin Casey, associate vice president for Harvard Public Affairs and Communications, said the event reflected Harvard's commitment to lifelong learning of all ages.

“The way that Professor Nesson distills decision-making and communicating is extraordinary - and today, that's more important than ever,” he said. “He poses important questions about our role as citizens, and how many varying viewpoints might form consensus.”

This article, “Professor has Ed Portal audience vote on legalization of marijuana,” by Jennifer Doody, Harvard Correspondent, was originally published in the Harvard Gazette, on Nov. 4.

SEC Must End Mutual Fund Paper Chase

BY PAUL ATKINS -- The SEC needs to set aside special interest lobbying and do the right thing by investors and the environment by allowing mutual funds to switch to e-delivery of those behemoth shareholder reports, with the option to keep paper delivery if you want it.

Exploring Election 2016

Exploring Election 2016

Animal-welfare advocate finds partner in growing Law School program

In 2006, Jeff Thomas swore off animal products.

For the philanthropist and Duke-educated author it wasn't one “aha” moment that turned him vegan and into an outspoken supporter of farm animals, it was a series of moments: dinner with a passionate vegetarian; the realization that a beautiful pet is essentially “no different from a beautiful cow”; the book “Animal Liberation” by Princeton philosopher Peter Singer.

Then there was the fundamental question about the human - and animal - condition.

“There is a logical path from existentially wondering how we can do the most good to helping farm animals,” said Thomas, adding: “Young people who are contemplating how to mitigate the most suffering should consider helping farm animals, where an ordinary person can positively affect millions of lives.”

Billions, in fact, when you count chickens.

According to the U.S. Department of Agriculture, 9 billion chickens, 115 million pigs, and 29 million cows were slaughtered in 2015 in the United States. Across the country, farmed animals are unprotected by any federal rules until shortly before slaughter and are exempt from the majority of state cruelty laws. Those facts stand in sharp contrast to a nationwide 2012 poll by the American Society for the Prevention of Cruelty to Animals in which 94 percent of respondents said that animals raised for food should be free from abuse or cruelty.

The confinement of factory-farmed animals has become a hot-button issue in recent years, with McDonald's and Walmart among the more than 200 U.S. companies pledging transitions to cage-free egg supply chains. A current Massachusetts ballot initiative seeks to prohibit keeping egg-laying hens in battery cages, confining mother sows in gestation crates, and tethering veal calves so they cannot move. The proposal also calls for banning the sale of food items produced in other states using such types of confinement.

“The Massachusetts ballot measure is poised to be the single most progressive piece of farmed animal protection legislation ever passed in the United States,” said Christopher Green, executive director of Harvard Law School's Animal Law & Policy Program. “Having this happen in our backyard as our program gets off the ground has allowed us to analyze the process in the classroom and given our students the opportunity to gain invaluable experience working directly on the campaign.”

Thomas has found a welcome partner in the HLS program. With his recent gift of $1 million and a subsequent matching gift of $500,000 to support individual donations of up to $50,000 through December, he is hoping to make farm animals central to animal cruelty prevention. It's a shared concern.

“How humans raise animals for food in this country and around the world affects animal welfare, human health, food safety, workers' rights, as well as climate change and the environment,” said Dean Martha Minow. “With the leadership of the Animal Law & Policy Program, and the marvelous generosity of Jeff Thomas, Harvard Law School pursues scholarship and work at the forefront of these critical concerns, and I am so grateful.”

Christopher Green with Kristen Stilt, HLS professor of law and the program's faculty director, Stilt's daughter, Lark, and Belle, a 14-year-old Hafflinger horse who lives at Winslow Farm, an animal sanctuary in Norton, Mass. Photo by Penelope Yan

The gift is to be used as the program's directors see fit, beyond a few important stipulations, said Green.

“Jeff wanted his resources to go toward items not already budgeted for, and he wanted the entire sum to be spent within seven years to ensure the gift would be implemented right away and help the program immediately expand upon its existing efforts.”

The gift has supported a new fellow to work on animal welfare aspects of a larger U.S. farm bill policy analysis being run by the HLS Food Law and Policy Clinic. Given the substantial impact factory farming has on animal welfare, public health, and environmental degradation, said Green, the program plans to hire additional fellows to work on farmed-animal policy in the coming year.

The program's work reaches well beyond U.S. borders. Its faculty director, Kristen Stilt, is collaborating with Harvard's South Asia Institute to examine animal agriculture from the Middle East to Asia.

This article, “Putting his money where his mouth is,” by Colleen Walsh, was originally published in the Harvard Gazette on Nov. 2, 2016.

Cops Raid Medical Marijuana Business, Seize Over $100,000, Including Teenage Girls' College Savings

Neither James, his wife nor their two daughters have been charged with any crime. Nor have any of Med-West's employees been indicted.

Addressing the systemic problems of rising health care costs in America

Even with the 2016 Presidential campaign mercifully coming to an end, there is more drama to come. While there will be many epicenters, perhaps none will impact the daily lives of more citizens than the impending drama in the health care industry. While not referring to the Affordable Care Act, Herbert [...]

The Wordsmith

Sarah Hurwitz '04 found herself “pretty lost” in her third year at Harvard Law School and missing her previous life as a political speechwriter.

So when a classmate asked in the fall of 2003 whether she might like to write for Wesley Clark's presidential campaign, she said yes-eventually. Her first job on Capitol Hill, when she was just a year out of Harvard College, hadn't gone very well since she couldn't quite capture her boss's voice. And the prospect of missing classes during her final year of law school shuttling back and forth to Arkansas terrified her.

Read More

“The defining truth about working with the first lady is this,” says Sarah Hurwitz. “She always knows what she wants to say-period.”

“But I sat back and really started to think about it and realized that if … my real passion was government and politics, then I'd better do this,” Hurwitz said during a panel discussion at Harvard Law School's Celebration 60 in 2013.

Clark left the race early, but her work on the campaign set Hurwitz on a course to work as Hillary Clinton's chief speechwriter during the 2008 presidential race and then serve in the same role for first lady Michelle Obama '88.

It was on the Clark campaign, Hurwitz said, that she learned how to be a good speechwriter while working alongside Josh Gottheimer '04. That job led to another for Hurwitz with Democratic nominee John Kerry. She worked as an associate at WilmerHale before returning to the campaign trail in February 2007 with the Clinton campaign.

After helping draft Clinton's concession speech, Hurwitz received an email from Sen. Barack Obama's chief speechwriter, Jon Favreau, who followed up a few days later with a phone call offering her a job. Obama called to thank her after she wrote her first speech for him and welcomed her to the campaign.

Hurwitz began working with Michelle Obama on her speech to the 2008 Democratic convention in Denver. After writing speeches for President Obama, she would go on to work with the first lady almost exclusively for nearly six years.

Read More

“For me, speechwriting is about telling the stories that too often just don't get told. There's a lot of quiet daily heroism in this country.”

“The defining truth about working with the first lady is this: She always knows what she wants to say-period,” Hurwitz told the Bulletin. “She has an unwavering sense of who she is and exactly what points she wants to make.”

Hurwitz has worked largely out of the public eye at the White House. There were occasional exceptions, such as a TV documentary that aired on cable networks including MTV and Nickelodeon in which she described how her public school education in Wayland, Massachusetts, paved the way for her career.

Her public profile grew considerably in July, when Melania Trump borrowed several lines from Michelle Obama's 2008 convention speech, which Hurwitz helped write.

Hurwitz has not commented publicly about the incident, but the irony was not lost on her former colleague Favreau, who noted in a tweet that Hurwitz had previously worked for Clinton. “So the Trump campaign plagiarized from a Hillary speechwriter,” Favreau wrote.

Hurwitz said she “loved working with Mrs. Obama on her three convention speeches” but also described as favorites some lesser-known speeches the first lady has delivered, including this year's commencement speeches at the Santa Fe Indian School and the City College of New York.

“For me, speechwriting is about telling the stories that too often just don't get told,” Hurwitz said. “There's a lot of quiet daily heroism in this country-people who get up every day and build lives driven by love, courage, and self-sacrifice.”

Accompanying the first lady to the New York commencement made Hurwitz think of her great-great-grandmother who'd wanted her daughters to attend “one of the great public universities in New York City.” “That didn't happen, but it was pretty moving all these years later to walk onto the campus of one of these schools with the first lady of the United States,” Hurwitz said.

Hurwitz, among the few White House staffers to have served through Obama's entire two terms, declined to say whether she would have any interest in staying on should her former boss win in November.

“I'm not sure what comes next,” she said. “For now, I'm just trying to enjoy every minute of this once-in-a-lifetime experience.”

Making History

Harvard Law School has produced plenty of senators, Supreme Court justices and two presidents, but no graduate has ever served as vice president.

This election has presented the first opportunity in decades to end that drought with both Democrat Tim Kaine '83 and Libertarian William Weld '70 on the ballot as vice presidential candidates.

Credit: Getty Images William Weld and Gary Johnson have described a plan to run a co-presidency.

The last Harvard Law School alumnus nominated to be vice president-Thomas Eagleton '53-was forced to withdraw as George McGovern's running mate in 1972 after just 18 days, when his prior treatment for acute depression was publicized.

The job has evolved significantly in the decades since, said Joel Goldstein '81, a Saint Louis University law professor and author of “The White House Vice Presidency: The Path to Significance, Mondale to Biden.”

Originally narrowly conceived as a legislative job presiding over the Senate, the vice president became more of a participant in the executive branch when Richard Nixon held the post in the 1950s, Goldstein said.

But it wasn't until Walter Mondale served under President Jimmy Carter that the vice president moved into the White House and became part of the president's inner circle. “For the last 40 years, across six administrations, it has really been an important institution of the presidency,” said Goldstein.

Credit: Getty Images/Johnny Lewis A friend from law school recently said of Tim Kaine (right), “He's the same guy. He's just surrounded by 25 Secret Service agents.”

Even in the modern era of the vice presidency, Kaine stands out for the diversity of his experience, said Goldstein. Kaine served as a city councilor, mayor of Richmond and then lieutenant governor and governor of Virginia before being elected the state's junior senator in 2012 alongside Mark Warner '80.

Weld is also a former governor, who led Massachusetts from 1991 to 1997 after serving as the U.S. attorney and head of the Justice Department's Criminal Division under President Reagan.

Having been a popular Republican governor in a largely Democratic state, Weld attempted to win a seat in the U.S. Senate and narrowly lost to John Kerry.

Credit: Portland Press Herald Weld and Johnson both previously served as Republican governors, Weld of Massachusetts and Johnson of New Mexico.

Weld was no stranger to the Harvard campus, having graduated from Harvard College, where his ancestors were among the original benefactors. In law school, he was a member of the Voluntary Defenders, whose members helped inmates and poor defendants prepare appeals. When asked about his membership, Weld quipped, “I should have been in the young prosecutors club,” according to a 1996 Boston Globe profile.

He worked for a Boston law firm briefly after graduation before becoming one of the first staff members for the U.S. House Judiciary Committee's Watergate investigation along with a recent Yale Law School graduate named Hillary Rodham, he recalled in a 2011 interview for the Nixon Presidential Library and Museum.

Credit: AP Photo/Andrew Harnik Kaine has described his wife and HLS classmate, Anne Holton (right), as his “political partner.”

Kaine had never visited the HLS campus before showing up for the start of school in 1979, after finishing college at the University of Missouri in three years. He soon rethought the wisdom of moving so quickly.

“I remember thinking, why am I rushing? And also, I don't really know what I want to do with my life,” Kaine said in an interview with C-SPAN in June.

He decided to take a year off after his 1L year and served as a Catholic missionary in Honduras. “It was a transformative experience,” said Brian Wolfman '84, who met Kaine the following school year when both worked for the Harvard Prison Legal Assistance Project (PLAP).

Kaine recalled rejoining PLAP after his year away thanks in part to the recruiting efforts of Anne Holton '83. They started dating midway through the school year and married after graduating.

Their work together representing prisoners before disciplinary and parole hearings exemplified a common commitment to social justice they've shown ever since, said Leto Copeley '83, who met them both in law school and now practices law in North Carolina.

After HLS, Kaine followed Holton back to Richmond, Virginia, where her father had served as governor. He spent a decade as a civil rights litigator and law professor before running for city council in 1994. Holton worked as a legal aid attorney and a juvenile court judge before being appointed the commonwealth's education secretary in 2014.

Copeley has stayed in touch with Kaine and Holton, attending Kaine's gubernatorial inauguration with other law school friends and, more recently, a campaign fundraiser in Chapel Hill after his nomination. She said they're the same down-to-earth, friendly people she first met in law school.

“He's the same guy. He's just surrounded by 25 Secret Service agents,” Copeley said.

Devils in the details

German doctors killed Anna Weiss as part of a Nazi euthanasia program directed at individuals they classified as disabled.

The woman's so-called disability, as recorded in trial documents: being an “unsympathetic Czech Talmudic Jewess.”

“That 'unsympathetic' woman deserved to be named,” said Matt Seccombe, who has been the primary analyst for Harvard Law School Library's Nuremberg Trials Project. “In these mass atrocities, the names become numbers. They deserve to have their names recorded and remembered.”

In 1949, four years after the Nuremberg war crime trials began, the library received the most complete set of documents from the Nazi prosecutions outside that of the National Archives. Over the years, individuals who participated in the 13 trials have also donated their personal papers related to the cases. In 1998, the library initiated the Nuremberg Trials Project with the goals of preserving the entire collection and making it accessible online. To date, Seccombe has analyzed five trials, including thousands of documents, while scanning teams have digitized the 154,000 transcript pages and nearly 600,000 document pages for all the trials.

The recently relaunched website allows everyone from scholars and researchers to casual history buffs to access the materials. These include the transcripts and descriptions of all documents from trials one through four and seven, as well as fully viewable document pages from trials one, two, and four. The new site includes keyword-searchable full-text transcripts and enhanced viewing of documents and transcripts. The library, which has relied on donations to support the project, will publish materials from the remaining trials as more funding becomes available.

Stephen Chapman, manager of the project scanning teams, said his sense of responsibility to the project only increased as he spent more time with the documents.

“What really gives me pause is thinking about the obligation,” he said. “I have a sense of duty that I want to make sure we present comprehensive, authoritative copies. We can't afford to leave anything out.”

Along with Chapman and Seccombe, the small team on the project includes digital archivist Kerri Fleming, web developer Paul Deschner, and curator of modern manuscripts Edwin Moloy.

From the very start, Seccombe expected to struggle with the materials. In a few documents the horror is explicit, he said, while many others couch the savagery of the crimes in bureaucratese. Describing the latter, he recalled long days poring over a letter sent to Heinrich Himmler, head of the Nazi special police force, by a doctor proposing the chemical sterilization of inmate workers in concentration and labor camps. Himmler wrote in the margin: “Dachau,” the first concentration camp established in Germany.

“Seeing it in the letter is really striking,” Seccombe said. “By writing his instructions on that document, he set the crime in motion.”

Fleming began work on the project in 2014 as a digitization specialist, removing staples and paper clips from the fragile documents so they could be photographed through a high-speed scanner. Seeing the trial typescripts and evidence photographs carefully conserved after having been bundled up in boxes for decades made the work compelling and gratifying.

She was stunned, though, at first glimpsing Hitler's signature, and had a similar reaction to a giant organizational chart illustrating the power structure of the Nazi regime.

“It was so clinical, and I couldn't help thinking about how easy it is to make a chart,” Fleming said. “At times I felt it was too much for me to handle. One of the last boxes I opened had pictures from the concentration camps. It was startling and caught me off guard. There are a million stories that will never be told, so getting the names is really important.”

Analyzing a document can take 10 minutes or 10 hours, depending on the complexity of the material and time needed to decipher handwriting and obscure details, and to identify the key persons involved. For Seccombe, several have had “a haunting effect.”

“I had four nightmares out of five trials,” he said. “Quite a few times I was glad to walk away for a while, in order to avoid burnout.”

One hard-to-shake document was a report by Lt. Walther, a Nazi who oversaw the killing of more than 100 Jews and gypsies in Yugoslavia. The officer described how quickly his men had done the killing on the first day, before hesitating the next.

“He had followed his military orders, but at the end of the report, he said he wondered how he'd feel another night alone in his quarters. That's going pretty deep into the perpetrator's mind,” Seccombe said.

Such intense attention to the details has prompted profound conversations among staffers. Often they find themselves asking, “What would I do in these situations?”

“I don't know how we can say, with certainty, what we would have done had we grown up in that period, and all of our peers had been in the Hitler Youth and in school we had been immersed in official party ideology,” said Deschner.

“I do a gut check,” said Seccombe. “There are things I might do and things I would refuse to do.”

The soul-searching underscores the genuine personal connection Seccombe has made with the lives he has researched in the Nuremberg collection. He found a model of himself in a personnel document on a Nazi deemed unreliable by higher-ups.

“This man was supposed to go straight home at the end of the day to be a good Nazi husband and father. Instead he would wander around town, looking at this and that, and indulging his curiosity,” said Seccombe, who also has a spirit of inquisitiveness.

“They didn't get rid of him, but would have been happy to see him leave. It confirmed to me that I would have been a bad Nazi and they would have known it.”

---

This article originally appeared in the Harvard Gazette on October 26, 2016.

***

 

Read More

Permanent record

Matt Seccombe, primary project analyst; Kerri Fleming, digital projects archivist; Stephen Chapman, manager of digital strategy for collections; Paul Deschner, project manager and technical lead; and Ed Moloy, curator of modern manuscripts worked together to digitize the Nuremberg papers at Harvard Law School.

Credit: Photos by Stephanie Mitchell/Harvard Staff Photographer Matt Seccombe: A bound stack of documents is just one of many waiting to be digitized.

Credit: Photos by Stephanie Mitchell/Harvard Staff Photographer Kerri Fleming: Will ready court documents for scanning.

Credit: Photos by Stephanie Mitchell/Harvard Staff Photographer Stephen Chapman: A chart mapping the hierarchy of Nazi officials for a medical project.

Credit: Photos by Stephanie Mitchell/Harvard Staff Photographer Ed Moloy: All documents are reviewed with great care.

Credit: Photos by Stephanie Mitchell/Harvard Staff Photographer Paul Deschner: Once scanned, the files are boxed and stored in Langdell Hall.

Commercial Drones Are Cleared For Take Off

BY BRIAN WYNNE AND TIM DAY -- The UAS industry is only one example of the great American spirit of innovation, and it can only succeed with the support of government regulators who seek to foster growth.

Major gift from Ada Tse '91 and James Yang will support the Negotiation Workshop

Credit: Martha Stewart Wendy Sherman, former under secretary of state for political affairs and chief U.S. negotiator in the U.S.-Iran nuclear deal, gives a guest lecture to students in the Negotiation Workshop on April 20, 2016.

Harvard Law School is pleased to announce that a $1 million gift from Ada Tse '91 and James Yang through their family's YangTse Foundation will expand and enhance the Law School's signature Negotiation Workshop, an intensive course that combines theory and practice to improve students' understanding of negotiation and their effectiveness as negotiators.

“The key to resolving conflicts between nations, to structuring winning business transactions, and to mending fractured relationships is to negotiate effectively,” said Martha Minow, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “This superb gift from Ada Tse and James Yang will enable many more HLS students to learn how to negotiate, how to bridge cultural, philosophic, professional, and interpersonal differences, and how to advance knowledge and understanding of conflict resolution.”

Tse and Yang's gift will enable additional students to enroll in the Negotiation Workshop. The Workshop is among the most popular courses at Harvard Law School and often has a substantial waitlist.

“James and I are thrilled to support Harvard Law School's outstanding negotiation curriculum, particularly the flagship Negotiation Workshop,” Tse said. “Now, more students can benefit from coursework in effective and creative problem-solving across cultural divides, and prepare to embark on successful careers advancing the rule of law, creating and directing enterprises, and even leading communities and nations.”

“An art and a science”

Students in the Negotiation Workshop are divided into working groups overseen by an experienced instructor and a teaching assistant. As negotiators and critical observers, Workshop participants use exercises and simulations to become more aware of their own behavior and determine what works-and what does not. The Workshop's readings and lectures provide a framework for analyzing negotiations, as well as useful tools and concepts. Class sessions also involve simulations, in-class demonstrations, video recordings, personalized feedback, and self-reflection through weekly journals.

“We are grateful to Ada Tse and James Yang for their tremendous generosity to the Workshop and to the Law School's negotiation teaching program,” said Robert C. Bordone '97, Thaddeus R. Beal Clinical Professor of Law and Founding Director of the Harvard Negotiation & Mediation Clinical Program, who also teaches the Negotiation Workshop course. “Regardless of specialty, all lawyers need to be effective negotiators. In the Workshop, students immerse themselves in the theory and practice of negotiation. Through the use of challenging simulations, students grow in their ability be effective, problem-solving, and creative negotiators in both transactional and dispute resolution contexts.”

The Workshop is part of an array of offerings on negotiation and mediation at Harvard Law School. HLS is uniquely positioned in the field, as current faculty build on the legacy of the late Roger Fisher LL.B. '48, a professor at the Law School for more than 40 years and a pioneer in the field of negotiation and conflict resolution. Today, the Law School's dispute resolution program is consistently ranked in the top tier of U.S. News and World Report's Best Law Schools rankings.

The Law School offers other negotiation-related courses through the Harvard Negotiation & Mediation Clinical Program, where students have the opportunity to work with clients on advanced projects related to conflict assessment, dispute systems design, and consensus building. Past clients of the clinic include Seeds of Peace, the Cleveland Indians, and the Centers for Disease Control and Prevention. Students must complete the Negotiation Workshop before they can enroll in the clinic, which also recently launched two new pilot programs related to facilitation and dialogue on campus. Founded in 2006 by Bordone, the clinic will celebrate its 10^th anniversary this year with a gala on November 5th.

The Law School is also home to the Program on Negotiation (PON), a consortium program of Harvard, Massachusetts Institute of Technology, and Tufts University established in 1983. The founders of PON shared a guiding belief that “negotiation is an art and a science” and that it can be viewed through the lenses of law, business, government, psychology, economics, anthropology, the arts, and education.

Giving back

Tse is currently running her family's YangTse Foundation after stepping back as President and CEO of PineBridge Investments Asia Limited, where she continues as Senior Advisor. The YangTse Foundation focuses on supporting education and arts initiatives that are often interdisciplinary, alternative, and cross-cultural. She previously worked at Morgan Stanley and Sullivan & Cromwell. Along with her JD from Harvard Law School, she holds a bachelor's degree in applied mathematics from Harvard. Yang, Tse's husband, is founder and chairman of the Evenstar and Geminis groups of companies. He attended Yale University for both his undergraduate and law degrees.

“The education I received at Harvard Law School has been invaluable for my career,” Tse said. “Now, as I mark my 25^th Reunion year, I feel fortunate to have the opportunity to support a new generation of faculty and students in their pursuit of rigorous teaching and learning in negotiation, dispute resolution, and mediation on a global basis.”

California Got It Right: Ban The Non-Compete Agreements

A White House proposal for national ban on "non-compete" clauses makes economic sense. Workers mobility fosters successful tech hubs.

Potholes Of Uncertainty Slow Building Of America's Broadband Infrastructure

CONGRESSMAN RICK BOUCHER -- The FCC would be well advised to take a current assessment of the tremendous growth of competition in the BDS market.

A Mother's Voice

Even when he was 5, Joel Motley III knew his mother was doing important work. He'd see her on the national news and kiss the TV.

His mother, Constance Baker Motley, a lawyer for the NAACP's legal defense fund, was traveling across the South, challenging segregated schools. As Motley grew up, he watched his mother win historic victories for black students, from the Little Rock Nine to James Meredith in Mississippi. As a little boy, he even came along while she was working on Meredith's case and stayed in the home of Medgar Evers, the field secretary of the NAACP in the state. Motley saw her go on to become the first black female Manhattan borough president, New York state senator, and federal judge.

Credit: Public Capital AdvisorsJoel Motley '78

Now, Motley '78 has co-produced a short film about his late mother, “The Trials of Constance Baker Motley.” He's screening it, with a question-and-answer session, on the Harvard Law School campus Nov. 4. (view calendar listing)

“When I was eight or nine, I was walking with my mother in Harlem, on Amsterdam and 125th,” he recalls. He told his mother he wanted to be a policeman or a fireman so that he could help people. “Lawyers can help people,” she replied. “If someone is injured on the job and can't make any money, a lawyer can represent them and get them enough money to help pay the rent.”

That thought led Motley to HLS, then to work as an aide for U.S. Sen. Daniel Patrick Moynihan in the 1980s. He's now an investment banker, providing advice on capital markets to developing countries. He's also co-chair of the board of Human Rights Watch, fulfilling a longtime goal of doing work similar to his mother's.

Motley's documentary traces his mother's life from her childhood in Connecticut through her nearly 20 years as a civil-rights lawyer. Co-produced with Motley's neighbor, filmmaker Rick Rodgers, it debuted last year at the Tribeca Film Festival and won the audience award for best documentary short at the Austin Film Festival. It intersperses news footage with Motley's interviews with his mother's former clients, shot by Rodgers in a stark, shadowy black and white that evokes the menace of the Jim Crow South. The interviewees include James Meredith, Harvey Gantt, and Charlayne Hunter-Gault, the first black students to attend the University of Mississippi, Clemson University, and the University of Georgia, respectively.

“The interview with Charlayne is the one that always brings tears to my eyes, every time I watch it,” Motley says. Hunter-Gault, now a retired broadcaster, recalls a time when Motley's mother opened up to her, saying she wanted to be home with her son and husband, but had a job to do: getting Hunter-Gault into school in Georgia. “She captures the whole work-life balance my mother had to navigate,” Motley says. His mother never spoke of that tension with him, but “I picked it up intuitively,” he adds.

Motley has showed the documentary to a gathering of black and Hispanic federal judges, including U.S. Supreme Court justice Sonia Sotomayor. He was surprised to meet a black, female federal judge who didn't know his trailblazing mother's name. “The sands of time can take anyone out,” says Motley, who speaks with a languid refinement that hints at his education: Phillips Exeter Academy, Harvard College, followed by HLS.

He's given several interviews to HLS professor Tomiko Brown-Nagin, who's writing a biography, “Constance Baker Motley: The Honor and Burden of Being First.”

“She was a very dignified person,” Brown-Nagin says. “There seems to be something of the mother in the son, in the way he carries himself. In getting to know him, one is also getting to know the mother and her values, and her strong sense of history.”

By making the film, Motley fulfilled a long-suppressed personal dream. Inspired by an HLS grad he met who'd become a movie producer, Motley told his parents on the night of his law-school graduation that he'd like to do the same. “They both just burst out laughing,” he says. “But it was nervous laughter, because it sounded so crazy. They thought I couldn't be serious. I wasn't serious enough to overcome this derision, so I set my dream aside.”

Then in 2010, during a party at Motley's home, Rodgers, a neighbor of his in Westchester County, New York, saw a photograph of Motley's mother with President Lyndon B. Johnson, from the day he nominated her to be the nation's first black female federal judge. Impressed by her career, Rodgers suggested that he and Motley collaborate on a film about her.

Motley thought he knew his mother's story, but he came to new insight into her life by making the film. Listening to recordings of his mother being interviewed for a Columbia University oral history, Motley reached a deeper understanding of her decision to turn her career toward politics in New York after Evers was murdered in Mississippi just outside his home. “Looking back, I now realize that she thought, 'If it's that dangerous, where I could've been killed, my son could've been killed, maybe I need to start thinking about doing something else.'”

It was eerie to listen to his mother's voice again. “Ten, 12, 14 hours of her telling her story, and it's clear as day,” Motley says. “And when I started listening to [the recordings], she was dead five years already. And you listen to it, and it's so clear, you think, 'Why can't I just call her on the phone?'”

 

Taxi Owners Don't Get A Bailout Because They Can't Compete With Uber, Federal Court Rules

In a pair of wins for drivers in Chicago and Milwaukee, a federal court ruled that taxi owners have no right to block competitors and are not entitled to a bailout.

A tension as old as the country

Native Americans currently represent 1 percent of the U.S. population, but thousands of years ago they were the indigenous inhabitants of the territory known to some of them as Turtle Island and eventually to others as North America. Today, there are 567 federally recognized tribes. The largest are the Navajo Nation and Cherokee Nation.

Harvard Law School, the Harvard University Native American Program, and the Harvard Native American Law Students Association held a a two-day conference in October to examine relations between Native Americans and state and federal governments. Keynote speakers included University of Colorado Law School Dean S. James Anaya, Quinault Indian Nation President Fawn Sharp, and U.S. Ambassador to the United Nations Keith Harper.

The Harvard Gazette interviewed Kristen Carpenter '98, Oneida Indian Nation Visiting Professor of Law at HLS, Council Tree Professor at University of Colorado Law School, and one of the event organizers, on the history of American Indian law, the friction between federal and tribal laws, and the rise of the indigenous rights movement in the United States.  

Credit: Kris Snibbe/Harvard Staff PhotographerKristen Carpenter, the Oneida Indian Nation Visiting Professor of Law talks about the state of American Indian Law in light of the conference on indigenous rights.

GAZETTE: Can you describe the state of Native American rights in the United States?

CARPENTER: It is mixed. On the one hand, American Indian tribes are powerful, resilient communities, deeply steeped in tribal culture and ways of life, and continuing to live in their homelands and territories to this very day. As a matter of law, tribes have well-grounded and longstanding rights commemorated in treaties made originally with European nations and then with the United States. They also have rights that are established in the U.S. Constitution and in federal statutory law, which have long been recognized by the courts. In recent years, however, there has been somewhat of a retrenchment in federal courts, and especially in the Supreme Court, with respect to the recognition of tribal jurisdiction and tribal statutory rights that were enacted to remedy some of the past dispossessions American Indians endured.

GAZETTE: What are the main grievances of Native Americans toward the U.S. courts?

CARPENTER: My sense is that tribal governments are quite often seeking dignity and respect in the courts. Indian tribes were here before Europeans and others who came to what is now called North America. Tribal governments engaged in treaty-making with Europeans going back to the 1600s. Tribal rights to exercise their own laws over their territories and their members are traceable to treaties. One question in federal Indian law is often how to understand and implement those historic arrangements today. This is a question not unlike that faced in U.S. constitutional law, where a venerable document also presents questions of contemporary interpretation. Secondly, while federal Indian law clearly recognizes tribal self-government, various parties challenge the jurisdiction of the tribal courts and regulatory system. This sounds technical but what it really means is which government and whose values are able to regulate people's lives, lands, and resources on a day-to-day basis. The foundational rules of federal Indian law provide that tribes generally retain jurisdiction within reservation boundaries, and especially over tribal citizens, and that states have authority off the reservation. That's oversimplifying the situation and there are a lot of situations where things are a little bit messier in reality.

GAZETTE: A few years ago, there was a messy case that highlighted the strain between federal and tribal laws. A Cherokee girl was given back to her adoptive parents after the Supreme Court ruled that the Indian Child Welfare Act didn't apply. Could you explain what happened?

CARPENTER: Yes, this was the case of Adoptive Couple v. Baby Girl, decided by the Supreme Court in 2013. To explain it, I have to share some history. The Indian Child Welfare Act of 1978 was enacted to address the historic removal of Indian children from their parents for purposes of their religious and social “assimilation.” In various iterations, dating back to 1850, assimilation was a federal policy implemented in part by religious organizations, state child welfare workers, and private adoption agencies. One of the views animating these practices was that Indian children would be “better off” with white families. By the 1970s, one in four Indian children was being raised away from their families. Congress noted the “wholesale separation” of Indian children from their families had devastating consequences for the children, who suffered high rates of psychological and physical trauma, as well as the parents, siblings, and tribes who lost their children, and passed ICWA to address this situations. Under ICWA, Indian parents and tribes must receive notice of custody proceedings involving their children, tribal courts have jurisdiction in some cases, and there is a set of foster care and adoptive placement preferences prioritizing the extended family and tribe.

In the Adoptive Couple case, a Cherokee baby was put up for adoption by her non-Indian mother in a set of events that did not comply with ICWA, such that the father - who was an active-duty serviceman - was served with notice of the impending adoption four months after his daughter's birth and days before his deployment. When he returned from Iraq almost two years later, the father was able to appeal the case and the South Carolina Supreme Court ruled that ICWA had been violated, granting him custody. The little girl then lived with her father, siblings, and grandparents and Indian community for two years. But the Supreme Court ruled ICWA didn't apply because, according to Justice Samuel Alito, the statute required a parent show “continuing custody” to be eligible for ICWA's protections. The little girl was then relocated back to South Carolina with the adoptive couple.

GAZETTE: What's your opinion about the outcome of the case?

CARPENTER: In my view, the case was wrongly decided. ICWA is supposed to protect Indian families and remedy the legacy of federal policies that disrupted Indian family custody. The Supreme Court, completely missing Congress' intent, created a new and narrow reading of the statute to deny a fully capable, fit, and loving Indian father the opportunity to bring up his daughter. Many in the Indian child welfare community are working in domestic and international venues for reform that will prevent this kind of outcome in the future.

GAZETTE: So the question is what's the importance of Indian laws in U.S. jurisprudence?

CARPENTER: Indian tribes pose a lot of hard questions for the U.S. legal system. They're governments and communities that predate the United States, but through conquest and colonization, they came to be dispossessed of many rights, whether it's land, jurisdiction, culture, or family. Yet, those tribes still remain 500 years later through the resilience and determination of their people as well as the strength and beauty of their culture. Today Indian law tests the capacity of the U.S. legal system to acknowledge and respect the pre-existing rights of Indian tribes and to account for those interests and norms of legal pluralism in a democratic system that is more comfortable with individual rights. Those are real challenges. In my view, the answer lies in the framework established by treaties and the Constitution, specifically to respect the sovereignty and jurisdiction of tribes, for the United States to negotiate with Indian tribes on a government-to-government basis, and for cooperative approaches among all three sovereigns to address the problems contemporarily facing us.

GAZETTE: Can you tell us whether those principles are being used in the Dakota Access Pipeline situation, the most recent case of friction between the federal government and tribal communities?

CARPENTER: The Standing Rock Sioux tribe opposes the construction of the Dakota Access Pipeline less than half a mile from its reservation. The pipeline is slated to travel under the Missouri River, the tribe's main source of drinking water, right through some of their sacred sites. So when the Standing Rock people claim that their very way of life is threatened now by the pipeline, I think they mean it quite literally. These lands and waters were originally protected by the tribe's own laws, and later by the Treaty of Fort Laramie of 1851, which the U.S. later violated, such that the contested lands are now owned by the United States, managed by the Army Corps of Engineers. Various statutes require federal agencies to “consult” with tribal nations about federal undertakings that would affect their resources. The Standing Rock Sioux and other tribes affected by the pipeline are litigating those rights in the federal courts right now. In recognition of the spirit of those laws, the Obama administration, through the Departments of Justice, Interior, and the Army, has called for a halt to construction in order more fully to consult with the affected tribes.

GAZETTE: What can the United States learn from other countries with indigenous populations?

CARPENTER: Currently in the United States, tribes' aboriginal title, meaning the land they have occupied since time immemorial, is not recognized as “property” pursuant to the Fifth Amendment. The Inter-American Commission of Human Rights has held, in a case involving the Western Shoshone people, the rule of law in the U.S. thus violates basic norms of property, equality, and non-discrimination. In cases involving Nicaragua, Ecuador, Belize, Suriname, and others, the Inter-American Court on Human Rights has recognized that property rights grow out of indigenous peoples' land tenure. Some of these countries have, in turn, reformed their national laws to recognize tribes' customary land tenure as a source of property rights and begin the process of demarcating and titling those rights. While those reform efforts are not without difficulty, I'd like to see the United States also recognize Indian tribes' aboriginal lands as being eligible for the full set of property rights protections.

---

This story was originally published in the Harvard Gazette on October 21, 2016. 

USDA's Unconstitutional Ban Of Food And Beverage Ads Establishes Dangerous Precedent

In the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of "disfavored" food and beverage products. The agency's brazen action establishes a deeply troubling precedent in government's efforts to usurp our freedom to choose what we [...]

Taking on a New Cause

Credit: Christopher Dydyk “I've made up my mind to be thankful for what I have rather than focus on what I may lose.”

HLS Professor Charles Ogletree '78, executive director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, announced this summer that he has been diagnosed with Alzheimer's disease. Ogletree, who is 64, said he will work to raise awareness of the disease and its disproportionate effect on African-Americans.

In a statement, he said: “Recently, I was diagnosed with early-stage Alzheimer's. It was something I had not anticipated and, at first, I did not know how to respond to it.

“Should I allow myself to become despondent amid this challenge? No-today, just as I have fought and advocated for civil rights and justice for America's communities of color over the course of decades, I will join the efforts of others raising awareness about the illness and fighting for a cure.”

In sharing the news with the HLS faculty, Dean Martha Minow said: “I know you join me in sending strength, support, and love to Tree, Pam, and their children. I am so glad that he will continue to speak, write and be a vital member of our community as long as he is able.”

Like many of Ogletree's students, President Barack Obama '91 calls him a mentor and an inspiration. In astatement to The Boston Globe, Obama said: “Professor Charles Ogletree has been a dear friend and mentor to Michelle and me since we met him as law students more than two decades ago. But we are just two of the many people he has helped, supported, taught, advised and encouraged throughout his life. We were saddened to hear of his recent diagnosis, but we were also so inspired by Charles' courageous response. In sharing his story and putting a spotlight on this disease, he is continuing his lifelong efforts to help others. Michelle and I are honored to know Charles, and wish him, Pamela, and their children the very best.”

Said Ogletree: “I am grateful for the support of my family, friends, and colleagues, and especially grateful for my wife, Pamela, in joining me in the steps I have already taken and the journey that lies ahead-one that has led me to take a stand and ally myself with the fight for a cure for Alzheimer's.

“While the causes of Alzheimer's are currently not well-understood, it is my sincere hope that Alzheimer's disease will continue to be part of a national conversation on health care.

“At this very moment, research is being carried out across the country and around the world to better understand and treat Alzheimer's disease. The scientific community, including the community of medical researchers here at Harvard University, continues to make gains. These advances allow for better treatment of Alzheimer's and have improved the lives of millions. However, these gains cannot come quickly enough.

“I've learned that Alzheimer's is the sixth leading cause of death in the U.S. and more than 5 million people are living with the disease. That number is growing as our population ages and grays.

“Like many illnesses, Alzheimer's has a greater impact on the black community. Studies show that African-Americans are almost twice as likely as whites to develop the disease.

“I have hope despite this. I've made up my mind to be thankful for what I have rather than focus on what I may lose. I've made up my mind not to complain about the illness, but to find purpose in it. The grace of God and my faith in God enable me to respond this way.

“I will not give up in the face of this challenge. I plan to remain a member of the Harvard Law School faculty and continue to speak and write for as long as I am able.”

There's Plenty Wrong with Our Political System, but the Election's Not "Rigged"

By now everyone's heard Donald Trump's position that he won't necessarily accept the result of the November 8 presidential election. “I'll keep you in suspense,” he said at the last debate. “I will totally accept the result . . . if I win,” he later said at a campaign rally. Why [...]

Wind's Double Standard

BY JILLIAN MELCHIOR -- The green left has insisted on rigorous science examining potential health risks from fossil fuels-but it wants to give wind energy a pass.

FDA Labeling Rules Keep Doctors In The Dark

BY PETER J. PITTS -- Drug companies have information that could drastically improve the health of millions. The FDA should stop trying so hard to keep doctors in the dark.

Clinic highlights human rights costs of South African gold mining

South Africa has failed to meet its human rights obligations to address the environmental and health effects of gold mining in and around Johannesburg, the Harvard Law School International Human Rights Clinic (IHRC) said in a recently released report.

The 113-page report, The Cost of Gold, documents the threats posed by water, air, and soil pollution from mining in the West and Central Rand. Acid mine drainage has contaminated water bodies that residents use to irrigate crops, water livestock, wash clothes, and swim. Dust from mine waste dumps has blanketed communities. The government has allowed homes to be built near and sometimes on those toxic and radioactive dumps.

Examining the situation through a human rights lens, the report finds that South Africa has not fully complied with constitutional or international law. The government has not only inadequately mitigated the harm from abandoned and active mines, but it has also offered scant warnings of the risks, performed few scientific studies about the health effects, and rarely engaged with residents on mining matters.

“Gold mining has both endangered and disempowered the people of the West and Central Rand,” said Bonnie Docherty, senior clinical instructor at IHRC and the report's lead author. “Despite some signs of progress, the government's response to the crisis has been insufficient and unacceptably slow.”

The report is based on three research trips to the region and more than 200 interviews with community members, government officials, industry representatives, civil society advocates, and scientific and legal experts. It provides an in-depth look at gold mining's adverse impacts and examines the shortcomings of the government's reaction.

For example, although acid mine drainage reached the surface of the West Rand in 2002, the government waited 10 years before establishing a plant that could stem its flow. In addition, the government has not ensured the implementation of dust control measures and has left industry to determine how to remove the waste dumps dominating the landscape.

The Cost of Gold calls on South Africa to develop a coordinated and comprehensive program that deals with the range of problems associated with gold mining in the region. While industry and communities have a significant role to play, the report focuses on the responsibility of the government, which is legally obliged to promote human rights.

The government has taken some positive steps to deal the situation in the West and Central Rand. This year, it pledged to improve levels of water treatment by 2020. In 2011, it relocated residents of the Tudor Shaft informal settlement living directly on top of a tailings dam. The government along with industry has also made efforts to increase engagement with communities.

Nevertheless, The Cost of Gold finds that the government's delayed response and piecemeal approach falls short of South Africa's duties under human rights law. As a result, the impacts of mining continue to infringe on residents' rights to health, water, and a healthy environment, as well as rights to receive information and participate in decision making.

“The government should act immediately to address the ongoing threats from gold mining, and it should develop a more complete solution to prevent future harm,” Docherty said. “Only then will South Africa live up to the human rights commitments it made when apartheid ended.”

The slavery legacy up close: Halley brings students to the Royall Slave Quarters

Earlier this month, Harvard Law School's Royall Professor of Law, Janet Halley, took first-year HLS students in her Reading Group on the Law School's connection to New England's slavery heritage to visit the Royall House and Slave Quarters in Medford, Massachusetts. The tour, which was open to the entire HLS community, generated such an overwhelming response that Halley has scheduled a second one for later this month.

Credit: Kim Wright

The Royall House and Slave Quarters showcases archeological and historical information about Isaac Royall, an 18th century slaveholder whose bequest established the first law professorship at Harvard, and the people he held as slaves. The Royall slave quarters are the only known freestanding slave quarters in the northern United States.

More than 50 students signed up for the first tour, and an additional 30 people were placed on a wait list.

Halley said, “I hope that engaging our Isaac Royall heritage by going on the RH&SQ tour becomes a shared tradition of HLS students, alums, faculty and staff.  Nothing substitutes for being on the very site where Royall, Belinda Sutton, and others of such importance to us, actually walked.”

Credit: Kim Wright

Royall's father - Isaac Royall, Sr. - made his fortune in Antigua as a slave trader and plantation owner. He returned to his native New England after a slave rebellion caused island slaveholders to institute a fierce repression. In 1739, Royall, Sr.  moved into the newly built mansion with 27 enslaved Africans, making the Royalls the largest slaveholding family in Massachusetts. Daniel R. Coquillette and Bruce A. Kimball, in their new book “On the Battlefield of Merit: Harvard Law School, The First Century,” relate that Isaac Royall, Jr. inherited the home upon his father's death. He fled to London at the outbreak of the Revolutionary War and died there, leaving the will that bequeathed property to Harvard University that established the first law professorship here.  Census and probate records have preserved the names of more than 60 enslaved men, women, and children who supported the family's lavish lifestyle over the course of their 40-year tenure in Medford.

According to Halley, the tour offers a view of the Royall family and the cultural framework of colonial mercantilism and slave trading in New England. It also provides insight into the very different ways in which the black and white inhabitants of the Royall House lived on the property.

Most of what is known about the daily lives of Royall's slaves has been unearthed through the archaeological investigations of Alexandra Chan at the site. More than 65,000 objects and fragments have been recovered from the Royall House grounds, including earthenware vessels, Chinese porcelain, and a bottle with the Royall seal, which displays three sheaves of wheat and was adopted in 1937 for the shield of Harvard Law School.

Credit: Kim Wright

Credit: Kim Wright

In 2015, a group of HLS students calling themselves Royall Must Fall called for the retirement of Harvard Law shield. At the request of HLS Dean Martha Minow, a special committee of faculty, students and staff reviewed the history of the shield and recommended that it be abandoned. In March, the Harvard Corporation accepted the recommendation.

This fall, the Harvard Law School Library opened a new exhibit - Facing History and Looking Forward: Retiring the Harvard Law School Shield - on the history of the Harvard Law School shield, documenting the shield's ties to the family of Isaac Royall, Jr. and the Law School-wide process that led to the retirement of the shield.

Following the tour, Barbara Berenson '84, a RH&SQ board member and senior attorney at the Massachusetts Supreme Judicial Court, gave a brief talk on the history of slavery in Massachusetts and the legal cases that led to Massachusetts being the first of the 13 states to officially end slavery. Berenson is the author of “Boston in the Civil War: Hub of the Second Revolution” (The History Press 2014) and “Walking Tours of Civil War Boston: Hub of Abolitionism.”

Halley was named Royall Professor of Law in 2007. Upon assuming the professorship, she gave a lecture titled “My Chair and Your Chair: Reflections on our Isaac Royall legacy,” in which she first explored ideas about how HLS should confront, acknowledge and judge its historic debt to the slaveholder. “The fact that the funds that established the Royall Chair derived, directly and/or indirectly, from the sale of human beings and the appropriation of their labor-these are facts,” said Halley. “What does one do about them?  Thinking in binarized terms of condemnation and redemption just doesn't seem to capture the complexity of this question.”

The Royall House Association was established in 1906. The Daughters of the American Revolution raised funds to purchase and preserve the property. The current mission of the Royall House and Slave Quarters grows out of an intensive reassessment of the museum's role and future undertaken in 2005.

Black Jobs Matter

BY PETER KIRSANOW -- The massive influx in low-skilled immigrants bodes ill for low-skilled workers, but particularly black males.

Why Legalizing Prostitution May Not Work

BY SIMON HEDLIN -- Official figures from Denmark lend support to the notion of a considerable increase in demand following the creation of a legal market.

Regulators Retaliate Against Tea Party Activist For His Free Speech -- And Get Away With It

Regulatory officials who disliked what a financial advisor wrote about Obama decided to abuse their power to "hang him high" by pressuring the firm he worked for to terminate him. That should be an actionable violation of the man's First Amendment rights, but so far the courts have ruled against him. He's now seeking review by the Supreme Court.

Nobel Laureate in Economics has been a key figure in HLS law and economics program

Credit: Jon Chase/Harvard Staff Photographer Harvard Professor and Nobel Laureate Oliver Hart.

Oliver Hart, a co-winner of this year's Nobel Prize in Economics, has been a key participant in Harvard Law School's program in law and economics for 25 years.

Hart, who is the Andrew E. Furer Professor of Economics at Harvard University, has co-led the Research Seminar in Law, Economics and Organization at HLS, together with HLS faculty. In that setting, Hart has presented many of the papers on contract theory for which he shares the Nobel Prize with MIT economist Bengt Holmström. The seminar has been a major forum for the development of scholarship in the field.

In a press release, the Royal Swedish Academy of Sciences said Hart received the award for his “fundamental contributions to a new branch of contract theory that deals with the important case of incomplete contracts, which have shed new light on the ownership and control of businesses and have had a vast impact on several fields of economics, as well as political science and law.”

Hart's longstanding co-teachers and participants in the Research Seminar include Harvard Law Professors Lucian Bebchuk, Louis Kaplow, Steven Shavell and Kathryn Spier.

In describing the contributions of Hart and Holmström to contract theory, the Nobel committee noted that work published separately and independently in 1979 by Holmström and Shavell, the Samuel R. Rosenthal Professor of Law and Economics at Harvard Law School, demonstrated that an “optimal contract should link payment to all outcomes that can potentially provide information about actions that have been taken.”

“Oliver Hart has been at the center of the advancement of Law and Economics at HLS and, more broadly, in the legal academy, during his entire time at Harvard. Indeed, he has served as president of the American Law and Economics Association,” said Bebchuk, Kaplow, Shavell and Spier in a joint statement. “His work on contracts, and organizations more broadly, is at the center of modern scholarship in the field, with important implications for corporate law, bankruptcy, financial regulation, and much more.

“We are delighted to congratulate our colleague Oliver Hart for his brilliant and important work on the economics of incomplete contracts, stressing the advantages of assigning residual rights of control in an efficient manner.”

Read more about Hart's Nobel Prize and the reaction at Harvard University in the Harvard Gazette.