Toby’s blog

Watching Tim Russert’s interview with Senator Hillary Clinton on Meet the Press several weeks ago prepared me well for a recent class in Austin West. Visiting winter term professor Judge Brett Kavanaugh solicited opinions for the Senator’s response to Russert’s question on whether she would follow the Justice Department’s guidelines for executive pardons. Such guidelines include consideration of the post-conviction conduct, character, and reputation of an offender and observing a period of at least five years after conviction or release from confinement before filing a pardon application. Both President Bush and President Clinton have been cited for not adhering to these recommendations. After several students opined that Clinton was in a tough position and probably should have crafted a better response than “Yes. . . ,” Kavanaugh concluded the introduction of his class. “Her interview was just a case study of how executive powers can come back to haunt you.”

Designed to examine the structure of the federal government and the system of separated powers with checks and balances, Kavanaugh’s Separation of Powers course uses historical precedent, current events, and controversies to illustrate the interplay among the three branches. Having clerked on the Supreme Court under Anthony Kennedy, worked in the Independent Counsel’s office, and served in the White House under George W. Bush, Kavanaugh has quite a bit of experience with these issues. On the day of my visit, the topic was executive privilege which included discussion of the Presidential Records Act, United States v. Nixon, and the protocol of congressional hearings. “These topics will be examined in scrutiny during the next administration,” said Kavanaugh.

I caught up with 3L Vikas Desai for his thoughts. “I tend to enjoy classes dealing with topics in constitutional law and have always found separation of powers issues to be among the most interesting. It never seemed to me like the doctrine in this area of the law was very clear, so I thought it would be a good experience to be able to delve into the topic more deeply. I have really liked the class. The law in this area is very relevant to many of today’s most contentious issues and I have appreciated being able to develop more informed opinions on them for myself. Also, Judge Kavanaugh has really had an interesting and varied career in government so he brings a unique perspective to classroom discussions.”

If computers took over the world, what would happen to Medicaid? I recently sat in on a presentation given by visiting professor Danielle Citron who argued that the computer systems used by governmental agencies that are increasingly automating their due process decisions. This mechanism is ill-suited to protect individuals from arbitrary agency action.

“I am currently developing a new model of procedural regularity and policy-making that can operate when pivotal government decisions are made by automated systems and the programmers who design them,” said Citron. “Computer systems are designed to make decisions about individual rights including the termination of Medicaid benefits and excluding certain passengers from flying on commercial airliners.”

The decisions these systems make, therefore, have potentially devastating implications. Take, for instance, CBMS, Colorado’s public benefits agency, whose IT employees and an outside vendor crafted a rulemaking algorithm that translated food stamp eligibility policies into code. “The automated program required eligibility workers to ask individuals seeking food stamps and other cash benefits whether they were ‘beggars,’ even though neither federal nor state law required an answer to that question,” explained Citron.

Among the reasons Citron cited for automation problems were the distortion of policy language into code and the computer’s inability to understand the complexities of the human language. “My piece aims to shape a response to these problems,” she explained. “For one thing, agencies should begin insisting on audit trails… we must also tackle the automation bias.” Citing the CMBS case, Citron explained that a programmer’s political views or bias may have influenced the wording of questions that discriminated against certain groups. “It is possible that a programmer could have encoded consequences to certain answers to that question that would reflect the programmer’s political views.”

Other ways Citron recommended combating automation bias are instituting norms of transparency among programmers and policymakers and conducting thorough tests on the systems for legal compliance. “There’s a gap in legal programming, and lawyers really ought to lend an eye to this problem,” commented one attendee.

Sounds like this might be an interesting consideration for cyber-savvy law students!

Over Winter Term, 2Ls and 3Ls have the option to take one of a variety of interesting classes such as Cyberlaw: Points of Control, taught by intellectual property whiz Jonathan Zittrain. I had the chance a few weeks ago to sit in on Professor Zittrain’s class for an afternoon of student discourse on the defense of Wikis and the blunders of sockpuppetry.

With course themes ranging from new modes of control over intellectual property to the expression of conflicting interests of commercial and individual internet broadcasters, Zittrain encourages his students to think critically about why IP law has developed the way it has, and how changes in technology have pushed the law to change.

The topic of the day I visited included an engaging and humorous discussion of a Wikipedia assignment requiring students to individually update any Wikipedia page. Then, groups of 5-6 students were asked to help resolve one of the many ongoing disputes on the site through Wikipedia’s semi-formal dispute resolution procedure. The mixed reactions to the group who chose the contentious subject of “waterboarding,” for instance, threw the world of Wikipedian editors into a dither as they scrambled to react to Zittrain’s innovative teaching methods that include requiring students to take risks and, as they did in the Wikipedia assignment, potentially step over the line of cyberlaw norms. Yet, as one message boarder quipped, “Wait… a group of Harvard Law students want to edit Wikipedia and this is a bad thing?”

The bold energy and expertise with which Zittrain approaches this course is palpable in the reaction of his students. “This class ties copyright, defamation, privacy, and other legal concepts to the real world in a way that no other class that I have experienced here does,” said 2L Arjun Mehra. “It also helps that [Zittrain], a co-founder of the Berkman Center, is on the cutting edge of this dynamic legal field.” Nika Engberg, also a 2L and a line editor for JOLT, agreed and said that she feels this course is great preparation for further IP class work. “For example, the issue of whether and how to grant IP rights to software developers comes up in both copyright and patent contexts (as well as trade secret contexts), and I believe that this class is giving me a stronger background in these kinds of issues.”

On the heels on my class visit, Admissions staffer Julia Foresman sat down with Elizabeth Stark, a recent graduate, Berkman Center fellow, and Cyberlaw teaching assistant to further discuss the course and new laws governing the Cyberlaw community.

Elizabeth Stark: (13:40)

Upon taking the podium at a recent event sponsored by the Human Rights Program, Soviet Jewish historian Joshua Rubenstein took particular care in framing his discussion. “This is grim material, folks… it doesn’t get more serious and bewildering than looking at mass atrocities.” Rubenstein was referring to the release of his latest book entitled The Unknown Black Book: The Holocaust in the German-Occupied Soviet Territories, a compilation of testimonies from Jews who survived atrocities inflicted by the Germans in occupied Soviet territory during World War II.

Collected through the efforts of renowned Jewish Soviet journalists Vasily Grossman and Ilya Ehrenburg, the testimonies are firsthand accounts by survivors of the work camps and ghettos across Eastern Europe. “This book deals with the enormous scale of destruction often overlooked by Western accounts,” explained Rubenstein. Indeed, between the time of the Soviet-Nazi Nonaggression Pact of 1939 and the expulsion of the Nazis by the Red Army in 1944, it is estimated that 2.5 million Jews were liquidated in Soviet Territory. Contrary to prevailing Western belief that the Soviets denied the presence of the Holocaust in their territory, Soviet Jewish journalists began documenting survival accounts before the end of the war. “It was difficult for Stalin and the Soviets… they did not want to accept that individual collaborators were turning their Jewish neighbors over to the Germans,” said Rubenstein, “Stalin understood he needed to repair ties with the West to overcome the Nazis.”

To reinforce this relationship and to sever his relationship with Hitler, Stalin created a Jewish Anti-Fascist Committee whose mission included manufacturing propaganda aimed at bolstering the Western/Soviet alliance. Jews in the United States got behind the Soviet effort and enabled Ehrenburg to publish his Black Book. Destroyed by Soviet censors, the Book itself was not officially published until 1980. “The remarkable thing about these testimonies is that you have the account of people interviewed directly after Liberation,” explained Rubenstein, “Most other accounts are informed by events that transpired years later.”

In case you missed it on the home page, Cass Sunstein ‘78 is coming to HLS. Read the article here. Rumor has it that he may be offering a 1L reading group in the fall (but I could be wrong).

I thought this article in the Record from last week did a good job of talking about a number of fellowships our students have won as well as how the fellowship application process works here. Visit this link.

I just got an e-mail from the Institute listing several events, including one with Rev. Jesse Jackson. Looks like a fun next couple of weeks for our students:

http://www.charleshamiltonhouston.org/Home.aspx

Student organizations have been quite active during recruiting season by hosting a series of career panels involving both students and alumni. The final event before break was a public interest panel organized by APALSA with 2Ls Ming Zhu, Ting Chen, and Nick Lin.

While all three panelists attested to loving their internships, the nature and intensity of their experiences differed greatly. “Working for the Center for Appellate Litigation in New York… I got lots of responsibility,” said Lin. “Under the supervision of litigators, I was given my own cases for which I wrote briefs… I got full creative control.” For Zhu, the internship experience at U.S. Attorney’s Office varied widely depending on which attorney she was assigned to. “For me in the Criminal Appellate division, I was the only intern among three attorneys… I really liked it because the written nature of the work was unlike what I’d been studying at law school.” Ting Chen spent the summer abroad at Khmer Institute for Democracy in Cambodia and talked about the level of initiative required in a small non-profit.

All three panelists emphasized the benefit gained from large amounts of research and writing. Chen added, “On an international level… it was exciting to see what I’d learned as a 1L in Civil Procedure and Criminal Law become more tangible in practice.”

With regard to obtaining the internships, Lin indicated that he had “shotgunned” letters out to different NGOs and think tanks. “The truth is, most places get back to you when they want, so be patient.” Unlike Lin, Zhu insisted that utilizing the resume drop with the Massachusetts Law School Consortium was just as effective for her. “It’s a good, easy, and early process.” For Chen, knowing she wanted to work with an NGO in Asia, the application process was focused and quick. “I just wish that I had not been so frantic in taking the first offer that came my way.” Lin nodded and said, “If you really want a certain job, stay calm… chances are even if they don’t get back to you until March, it’s worth waiting for.”

Recently, a lunch panel of attorneys experienced in working in Asia discussed the nature of corporate Chinese law practices and the professional climate that associates can expect to encounter.

“Before all else,” began Shengqiang Liao, a China Associate in the Shanghai office of a large U.S. based international law firm, “Foreign firms just represent foreign interests in China.” Still, while foreign firms are generally unable to litigate, there is currently an active debate over the role of foreign firms, in spite of the fact that existing law bars them from direct and individual practice with Chinese interests. “Local Chinese firms feel a tremendous threat to their business and it has been a fierce battle that made it all the way to the Foreign Ministry.” Interestingly, many believe the government has been prudent about taking action because they don’t want to discourage foreign investment.

Furthermore, local firms are unable to provide crucial standard international services. Thus, foreign law firms officially work with government-sponsored agencies to submit work on behalf of their clients. However, in practice, the situation is quite different. “The reality is that there are over 100 firms operating offices in large cities like Beijing and Shanghai… that conduct business with local clients, negotiate contracts, issue due diligence reports… everything short of appearing in PRC court,” said Liao. These firms are able to sustain such success in the face of technical governmental patrol by issuing disclaimers in their correspondence with clients that detach their direct involvement as counsel. “The notable exception to this law are cases that involve U.S. interests… for example, if a local Chinese business is filing as an IPO is the U.S., then it would need a U.S. lawyer to sign off on the deal,” Liao added.

When asked about the possible language barrier, the panelists assured students that while English isn’t necessary, a basic working knowledge of Chinese is extremely helpful. “Fluency with Chinese is by and large not necessary given the multinational nature of the deals… it will definitely be a big plus, especially for younger lawyers as more business is being conducted in China,” emphasized Liao. Further, the panelists agreed, associates will inevitably carry more responsibility with their effort toward language acquisition.

I was just reading a file and wanted to pass along some thoughts. As I read undergraduate transcripts, I don’t much like to see a significant number of “Ps”. One or two is no big deal, but when I see a bunch of them I wonder, “What is she worried about?” or “What is he hiding?” So keep that in mind when you’re considering a pass/fail option for a class.

Oh and I’ll add this: don’t send the “track changes” version of your personal statement in.  Saw one of those today too.  There were significant changes made…by what appeared to be someone other than the applicant.  Oops.