Our News & Stories

The LLM program at Penn Law is a one-year, full-time advanced course of study designed for lawyers trained outside of the United States. The curriculum and cross-disciplinary perspective provide a superb legal education, and present opportunities for students to take law-related classes outside the Law School at Penn’s elite schools, departments and programs.

Elisabet Wenzlaff LLM'82, General Counsel and Senior Vice President of Volvo Car Corporation, shares her experience as an LLM student at Penn Law in this video feature.

Transcript

My name is Elisabet Wenzlaff. I’m an alumna of University of Pennsylvania. I graduated in 1982 and my current profession is that I am a corporate lawyer. I am general counsel of Volvo Car Corporation and I’m also the senior vice president there.

It was a wonderful year… I didn’t plan it so much. Of course I applied for a scholarship, but basically I wanted to go abroad or do something different, have an adventure. And you have to remember, this is a couple of years ago, it was almost 30 years ago. So I didn’t have a lot of expectations, but when I was there I realized how much it did to me, how much it broadened my mind, how much it helped me in my career, how many people I got to know, how much I benefited from it in all respects. So, it really changed my life.
 
I think it opened my eyes… that law is different in different countries, it opened my way of thinking, the way of legal thinking. I had a legal education from Sweden, where I come from. But, of course I got this other perspective – the U.S. perspective and also the international perspective. So, it did a lot to me as a person. And if it does a lot to you as a person, it does a lot for you as a lawyer.
 
I think Penn took very good care of their foreign students. They organized a lot of parties and adventures for us. It made us get to know each other and feel special. I think we were very well taken care of here, so I think contributed, at least for me, a very great year here.
 
[Prospective students] should definitely not hesitate to apply. I think they should be more open than thinking what can this do for me in my career, is this a good career step? I think they should go beyond that and think what can this do for me as a person, because, I think, that is the real benefit.

Transcript edited for length.

By Kathryn Siegel C'12

David Rudovsky introduces the guest speakers

On November 3, criminal justice practitioners Abbe Smith and Tucker Carrington convened in Gittis Hall’s Kushner Classroom to debate the value of innocence projects versus overall systemic reform. The event, titled “A House Divided: Is Justice Just for the Innocent?”, was sponsored by the Journal of Law and Social Change (JLASC), which will feature articles by both speakers on the subject in its December publication. Abbe Smith currently directs the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law School, while Tucker Carrington is the first director of the Mississippi Innocence Project at the University of Mississippi Law School. Penn’s criminal law professor David Rudovsky opened the event with introductions of Smith and Carrington before giving them the floor.

“Can you believe I’m complaining about innocence projects? I mean, for God’s sake, is nothing sacred?” Smith spoke first, commending the noble purpose of projects like Carrington’s. “I want to be clear that I believe in the work of innocence projects” in exonerating innocent people, she said.

She then continued to explain her three major arguments against them. First, she noted a sense of “self-righteousness and superiority” that pervades innocence projects, as though guilty persons are “beneath” the aid of lawyers. Second, she maintained that the focus on “factual innocence,” such as DNA exonerations, draw too hard a line between guilt and innocence. A defendant can be “not guilty” without being completely blameless, she reminds the audience.

Third, she argued that innocence project clinics in law schools divert too many resources and “ill prepare students for work in criminal law in a time of mass incarceration.” With 2.3 million Americans in prison, Smith suggested that reforming the large-scale approach to criminal justice is a more important issue than exonerating the few hundred who have been wrongly convicted. “Let’s not forget about the guilty,” she said.

Tucker Carrington

Carrington, a former student of Smith’s, then presented his rebuttal with a series of anecdotes drawn from his early work in New Orleans and later in Mississippi. He described a case in the “mean place” of New Orleans’ Jefferson parish, where his client had been convicted of homicide and jailed for 18 years. Despite evidence that proved him factually innocent, the judge and prosecutor urged Carrington and his co-counsel to strike a deal to avoid re-opening the trial. With this and other stories, Carrington points out that dishonesty, “prosecutorial misconduct, and forensic fraud” too often lead to unfair convictions.

He also directly addressed Smith’s three concerns. As far as self-righteousness on the part of innocence projects, “there is no doubt a surfeit of arrogance... but we haven’t exactly cornered the market on that,” Carrington said. Besides, he added, the systemic reforms that innocence projects also seek, such as legislative changes, would benefit both the innocent and the guilty. He also conceded the pitfalls of reliance on strictly factual innocence as a pillar of the projects’ work. But he defended his clinic at University of Mississippi Law School as an enlightening experience for students that, contrary to Smith’s claim, encourages them to understand their clients’ humanity.

To conclude, Carrington reiterated the hope and affirmation that innocence project cases provide. “[They] have captured public’s attention, imagination and conception of justice,” he said. “Something about them just touches people.”

Following their talks, Professor Rudovsky welcomed questions from the audience, beginning with two of his own. He and other listeners inquired about how innocence projects and more all-encompassing reforms could work together to affect change. While neither could answer definitively, Smith did acknowledge a certain competition between the two.

“Innocence projects are eating up funds that might be better used for criminal defense programs or death penalty resource centers,” she responded. Carrington agreed that “the innocence project hasn’t changed much of what is wrong with the system as a whole,” such as mass incarceration, “but that’s not what we bargained for anyway.”

Following the Q&A, some early prints of Smith’s and Carrington’s JLASC articles were made available to the audience, and a light reception was provided for attendees in the Great Hall.

By Nicole Greenstein C’14

Professors Lillian BeVier, Theodore Ruger and Arlen Specter

On Monday, November 21, a crowd of students and faculty convened in Penn Law’s Gittis Hall for a debate on the United States Supreme Court’s recent decision in Citizens United v. Federal Election Commission. First Amendment expert and University of Virginia Law Professor Lillian BeVier was opposite Penn Law Professor Theodore Ruger, a Constitutional law expert, and the debate was moderated by former U.S Senator Arlen Specter, an adjunct professor at the Law School.
 
Sponsored by the Penn Law Federalist Society, the event delved into the intricacies of the Supreme Court’s decision while also looking ahead at future implications that the case might have in the political environment. The majority opinion in Citizens United held that prohibition of all independent campaign contributions by corporations and unions was invalid, interpreting their campaign contribution rights to be the same as those of individual citizens.

Professor BeVier sided with the majority opinion, defending the argument that corporations should be protected by the First Amendment right to free speech. Professor Ruger took the opposing view, arguing that although corporations have certain constitutional rights, they should not enjoy the same protections as individuals.
 
BeVier took to the podium first to share the justifications behind her support for the Citizens United decision.
 
“The reaction to Citizens United has been nothing short of hysterical, which is kind of puzzling since the holding actually conforms to well-established and deeply-embedded First Amendment principles,” she said.
 
BeVier refuted critics’ view that the Citizens United case is an “apocalypse in the making” that will strip away power from the people. By giving corporations the right to spend money, BeView asserted that these corporations will then direct their advocacy to the people. With corporations informing the public of their views about which candidatesthey deem fit to run for federal office, Citizens United instead offers the public a more diverse, robust range of voices to chose from, she said.
 
“Instead of taking power away from the people, citizens united bestowed on them an opportunity previously denied to them,” BeVier explained. “Namely, the power to hear and evaluate for themselves arguments from sources previously silenced.”
 
“In my view, Citizens United got it right,” she noted at the conclusion of her speech.
 

Professor Ted Ruger

However, Ruger explained how in the past the courts have upheld necessary restrictions on such corporate speech, but with this case the Supreme Court overturned such rulings in one fell swoop.
 
“For the Court to fairly clumsily wander in with no originalist, textualist or doctrinal mandate and reconfigure fundamentally what congress did, does speak to a profound assertiveness — and even activism — on the part of the court,” Ruger asserted in summing up his argument.
 
BeVier followed up with a rebuttal, in which she argued that she does not trust Congress to regulate campaign finance. Since members of Congress know the inner workings of campaign finance reform, she expressed worry that they might use this knowledge to “extend their time in office.”
 
Although Specter was partial to Congress being a senator himself, he did acknowledge the validity to BeVier’s claim.
 
“When you say you don’t trust congress, you have a lot of company,” Specter said, adding that today’s polls show a loss of faith and confidence in the institutions of government to solve our problems. He even pointed to “the Tea Partiers and the Occupiers” as evidence that people are starting to think Congress cannot handle America’s troubles.
 
One audience member, an L’13 student who wished to remain anonymous due to his position on the Graduate and Professional Student Association, appreciated how relevant the debate was to the current state of politics in America.
 
“It is important for people to have faith in government, but the seed of our mistrust lies in corruption,” he said. “Personally I think Citizens United allowed more corruption in, so I was interested to hear the other side of the issue.”
 
Federalist Society President Daniel Pollack L’12, thought the event was a resounding success.
 
“I thought it was a great event,” he said. “I was really thankful that Professor BeVier, Professor Ruger, and Senator Specter were able to come out tonight.”

By Jenny Chung C'12

Penn Law Professor Cary Coglianese

An audience of students, faculty, and members of the public filled Penn Law’s Levy Conference Room November 19 for the 2011 Journal of Business Law Symposium, a full-day event comprised of three panels and five keynote lectures delivered by leading authorities in the fields of corporate law, financial regulation, and commerce, as well as other fields.

Organized by the Law School’s Journal of Business Law, this year’s Symposium addressed the implementation of the Dodd-Frank Act and the wider topic of consumer financial protection.

Professor Cary Coglianese’s opening remarks centered on the common ground between recent questions concerning relations between public authority and the ordering of private affairs as compared against those raised several centuries earlier at the nation’s founding.
 
“We’re considering today questions that have deep roots in American history and a core reflected in the movements of today,” he said. “The concerns underlying Occupy Wall Street’s efforts tap into a deep suspicion of power that underlies the American polity.”

He advised audience members to ask themselves how a conference organized around the issue of consumer protection five to ten years from now would assess whether the Dodd-Frank Act was successful at ending corporate abuses and, in turn, what criteria should be employed in evaluating the success of legislation intended to regulate relations between businesses and consumers.

“A gathering like [this Symposium] comes at a perfect time to look backward as well as forward and look forward to looking backward,” he added.

Wharton School of Business Professor Franklin Allen

Prof. Allen keynote address: Dodd-Frank and systemic risk

Coglianese’s introduction was followed by the Symposium’s first keynote lecture, delivered by Wharton School of Business Professor Franklin Allen, who discussed systemic risk within the framework of the Dodd-Frank Act.

According to Allen, most regulators before the financial crisis were confident that controlling the risk assumed by individual banks was sufficient to prevent crises as it forestalled the buildup of risk in the financial system. He suggested that this view is “fundamentally flawed” given its inability to account for systemic risk, which can arise from “panics, banking crises due to asset price falls, contagion [and] foreign exchange mismatches in the banking system.”

Tracing the origins of financial panics to “multiple equilibria in the banking system” which compel people to withdraw their funds from banks when they sense others are likely to withdraw—even if there exists no other rational incentive to do so—Allen posited the guarantee of all short-term debt as a possible method of ruling out such “self-fulfilling equilibria” but cautioned that this approach may entail other types of systemic risk and itself prove costly.

Allen also identified the extensive involvement of banks in real estate and too-low interest rates coupled with large foreign exchange reserves—mostly held in dollars and accumulated by central banks in Asia—as contributing factors to the crisis.

He emphasized the need to reduce global imbalances and explained that self-insurance by Asian countries through large reserves is optimal for the countries in question but “inefficient” globally. To rectify this, he suggested, a stronger Asian presence in the governance structure of the International Monetary Fund is central.

Allen also proposed that ensuring the permanence of the IMF liquidity facility may provide the solution to foreign exchange mismatches, another source of systemic risk.

“Systemic risk is a complex phenomenon and we don’t understand it well enough,” he said. “Central banks are constructed to manage crises, but those who are dissidents are screened out from the get-go—it’s important not to do that so we don’t miss things as we did in the previous crisis.”

Prof. Jacoby keynote: Regulatory innovation and the Bureau of Consumer Financial Protection

UNC School of Law Professor Melissa B. Jacoby, authority on bankruptcy and commercial law, delivered the next keynote speech on regulatory innovation and the Bureau of Consumer Financial Protection.

Jacoby opened her talk with the observation that current discussion of the Bureau’s existence “has played out in extreme terms” and “moderate discussion” of the issues is necessary.

UNC School of Law Professor Melissa B. Jacoby

While the principal objective of the bureau is to raise consumer confidence in financial markets and ensure individuals make “smart” decisions, she said, the Bureau also provides a basis for systematic assessment of the market in addition to venues for direct two-way communication with the public like online interactive forms and comment logs.

“This was a particular way to communicate with and get substantive comments back from a wide swath of the population—as confidence builds one can anticipate even more,” she said, adding that public commenting affects public perception of the Bureau “perhaps more so than voting” by providing a means of fostering a sense of inclusion.

Shifting her focus to the Dodd-Frank Act, Jacoby maintained that the passage of the bill was key to safeguarding the ability of states to protect their own citizens insofar as it enabled states to enforce their own consumer protection laws.

Citing the inability of government to “solve all problems” as justification for the Bureau, Jacoby criticized the “extreme” nature of the arguments frequently leveled against it.

“People opposed to the Bureau talk about the ‘right to be wrong,’ and it’s hard to disagree with that as a general proposition, but when people can’t internalize the consequences of their decisions we have to move beyond that,” she explained.

In her view, government has long played a role in encouraging debt, and while the state does and should be entitled to invest significant resources in subsidizing debt collection, it is imperative that “ground rules” be set.

“No one likes all aspects of the Bureau, but we need something to look across the entire market and provide a credible threat of enforcement somewhere within the system. There has to be an actor who can and will step in,” Jacoby said.

Professors David Skeel, David Reiss, Jason S. Johnston and Paul G. Mahoney

Feature panel: Consumer Protection and the Consumer Financial Protection Bureau

Moderated by Penn Law Professor David Skeel, the first panel addressed “The Project of Consumer Protection and the Consumer Financial Protection Bureau” and invoked the expertise of four distinguished legal scholars.

The panel commenced with a modern-day fable, recounted by Professor David Reiss of Brooklyn Law School, illustrating the “fundamentally irreconcilable worldviews” held by people evaluating the events leading to the subprime market crisis.

A reimagining of the age-old tale of the emperor’s new clothes, Reiss’ story involved an emperor swindled by scoundrels posing as lenders who claimed to have invented a mortgage “so insubstantial it looks burdensome to anyone too stupid to appreciate its quality.” While the entire kingdom perceived the mortgage as heavy, no one was willing to voice his opinion for fear of appearing incompetent.

The moral of the story, Reiss suggested, is that “disclosure can be insufficient to convey the complexity of certain transactions to many consumers” and that the persistence of “muddled and conflicting views about consumer protection” will result in inefficient regulation.

University of Virginia Law School Professor Jason S. Johnston then offered a preliminary critique and examination of the likely consequences of the Dodd-Frank Act’s consumer protection provisions, highlighting areas in which Dodd-Frank departs from existing law.

Prior to the subprime mortgage crisis, Johnston said, prudent consumers had adapted expectations and were reluctant to approach adjustable rate mortgages due to the risk of rates increasing. However, this changed when rates were artificially suppressed from 2001 to 2005 and the Federal Reserve actively encouraged consumers to take out adjustable rate mortgages and lauded the rise of the subprime segment.

Johnston contested the legitimacy of attributing consumer mortgage decisions to “irrational optimism,” contending that those “running national policy and the Federal Reserve especially” should be held accountable.

University of Virginia Law School Professor Jason S. Johnston

Johnston argued that Dodd-Frank fails to address the central issue of government officials and experts misrepresenting market conditions to rational consumers. “If they say low interest rates are now a permanent feature of the economy and you trust them, reading contract terms is irrational because what matters is haste,” he explained.

He added that fundamental reform is needed with regard to the role of the Federal Reserve. “Its discretion has to be limited and its powers restricted—not expanded,” he said.

Paul G. Mahoney, Dean of the University of Virginia Law School, spoke on the shift in regulatory philosophy from disclosure-based standards to restricting and shaping contracts between firms and consumers.

While the drafters of the first federal securities laws explicitly rejected the merit review approach in favor of more disclosure-based systems, enabling fully-informed investors to decide what is best for them, Mahoney explained, this strategy has eroded over time in favor of policing abusive deals.

The change in approach, he said, is reflective of a “current and powerful strand in academic thinking” which holds that individuals are subject to a range of cognitive biases that interferes with their ability to select the best financial product for them even if they are fully informed about the terms.

Mahoney criticized the idea that social welfare can be improved by suppressing consumer preferences and replacing them with those designated by technocrats, noting the “remarkable similarity between arguments that consumers are too dumb to make good decisions and those a century ago in favor of a centrally planned economy.”

While the proponents of the Consumer Financial Protection Bureau argue that the Bureau will not seek to manage financial markets but instead nudge consumers in right direction, Mahoney remains skeptical.

“Governments are not good at nudging, what they do is shove,” he said, adding that the current approach “ignores public choice theory.”

University of Virginia Law School Professor Edmund W. Kitch concluded the panel by examining the ways in which the Bureau could tackle consumer credit card debt.

According to Kitch, the simplest criterion by which to determine whether it is advisable for a consumer to borrow capital relates to whether or not the consumer has available projects which will yield a higher rate of return than the cost of capital.

“If we’re going to assume in terms of credit cards that the rate of return is 18 percent, it’s a very high rate,” Kitch said. “It’s hard to identify projects that return in excess of 18 percent a year, and if you use that standard I agree that Americans are drowning in debt.”

Given that the Bureau cannot impose an interest rate cap, the next viable alternative in Kitch’s view is extending credit only after the project for the use of the credit is evaluated and approved by an independent expert acting in the interest of the consumer to determine whether the proposed use of the credit has a reasonable return that exceeds the rate on the card.

Kitch explained that while the Bureau’s budget may be insufficient to provide this service, it could mandate that banks pay for it or outsource to firms specializing in evaluating credit extensions, which would then be evaluated and approved by the Bureau.

“This would raise the cost of providing credit cards but reduce the amount of outstanding debt,” he said, adding that “every means” of consumer credit must be covered to render this method effective. 

Founded in 1997, the Journal of Business Law publishes articles and comments on a broad range of business law topics including corporate governance, securities regulation, capital market regulation, employment law and the law of mergers and acquisitions.

Click to enlarge poster.

On Wednesday, November 30 at 4:30 p.m in Silverman 245A, Penn Law’s Institute for Law and Philosophy (ILP) will host a panel, “The Ethical and Legal Dimensions of Targeted Killing.”

Featured speakers include:

• Moderator: Claire Finkelstein, the Algernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania School of Law
• Jens Ohlin, Associate Professor of Law, Cornell University
• Kevin Govern, Associate Professor of Law, Ave Maria School of Law
• Daphne Eviatar, Senior Associate, Law and Security Program, Human Rights First
• Ambassador Thomas Graham, Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament (1994-1997)

The use of targeted killing has become a favored tool in the so-called war on terror, and the killing of Osama Bin Laden this year further solidified support for the practice, given its efficiency and swift success. Since Bin Laden, several high profile targeted killings have further increased public attention to such operations. But with increased public scrutiny has come a growing sentiment that the moral and legal justifications for targeted killing have not been sufficiently explored.

As part of the November 30 panel, speakers will examine such questions as, to what extent do we have an obligation to attempt to capture before killing terror suspects? Are some individuals on the target list civilians rather than combatants or "unlawful combatants"? Are there special problems associated with targeting American citizens, such as al-Awlaki? And if killing al-Awlaki was legitimate, would the same sort of operation be permissible on U.S. soil?

The panel is a follow-on event to a major April 2011 ILP conference, “Using Targeted Killing to Fight the War on Terror,”which convened scholars, policy makers, and practitioners to address related questions arising at the intersection of moral, political, and legal theory, just war theory, national security law, and international law, as well as criminal and constitutional law and theory.

In addition, the April conference papers have been collected in a book forthcoming from Oxford University Press, Targeted Killings: Law and Morality in an Asymmetrical World.

Paul G. Haaga L’74, WG'74

By Jenny Chung C'12

On the evening of Tuesday, November 15, this year’s Law and Entrepreneurship Lecture drew an audience of students, faculty, and members of the public to the Law School’s Levy Conference Room to hear Paul G. Haaga L’74, WG'74, Chairman of the Board for Capital Research and Management Company, speak on the topic of “Life in Long-Only, Objective-Based, Active Money Management.”

Haaga, a prominent spokesman for the mutual fund industry and current chairman of the Penn Law Board of Overseers, opened the lecture, which was sponsored by the Institute for Law and Economics, by dispelling “myths” central to investment practices and financial markets, encouraging his audience to remain critical of popular opinion. “The most successful people are those who ask the right questions and listen to the answers,” he said.

Invoking 2011 statistics appearing to indicate that indexing invariably yields higher returns than active management—with between half and two-thirds of active managers failing to beat their indexes—Haaga contested the prevailing view that index funds guarantee higher yields than active funds.

He maintained that factors other than the type of fund must be considered when determining yield, such as the frequency of withdrawals. “The really important thing [to selecting a fund] is what people’s timeframes and objectives are,” he explained.

To further discredit the notion of index funds beating active management funds in every instance, Haaga cited a study of the hundred largest equity mutual funds conducted from 1997 to 2002. By the end of the five-year period, it found that Vanguard’s two index funds were in the ninth and tenth deciles, having been beaten by 90 percent of active funds.

“An index fund can never have less volatility than the market, an actively managed fund can,” he explained, adding that it is also possible for actively managed funds to produce a “higher dividend yield than the market,” while index funds cannot.

Haaga then proceeded to examine the destabilizing effects of investors’ efforts toward obtaining the highest yield possible.

Because the inflationary climate of the early 1980s had permitted high yields, he said, when interest rates fell significantly investors had “developed an incredible taste for yield” and were reluctant to forgo high yields in spite of being financially better off. 

“Funds were writing covered call options to get an extra one to two percent yield—we invented a mutual fund that could go down but not up,” Haaga explained. When the market changed, he said, “investors lost 20 percent by trying to get an extra one to two percent while yields were down.”

Fund managers, who had relied primarily on models to determine the security of writing covered call options, were “caught off guard” as a result of unprecedented market conditions which modeling could not anticipate.

“Most bad things happen in the investment world when people try to get more out of investments than the investments themselves are capable of paying,” Haaga said, naming the recent mortgage crisis as a prime example.

Further, he explained, overreliance on the “myth of modeling” is ill-advised as the value of modeling rests on the flawed assumption that “market participants will always do what makes economic sense under the model.”

Haaga named “performance” as another myth surrounding the mutual fund industry.

“We aren’t allowed to use the term ‘performance’; the reason for that is that performance is inward-looking,” Haaga said. “Investing isn’t fantasy football—it’s other people’s money. Treating it like it’s all about you and what numbers you can generate is wrong.”

In answer to an audience member’s question regarding the ideal method by which to compensate those who make investment decisions, Haaga articulated support for “measuring people against the long-term, keeping bad years [relevant to compensation calculations] to discourage them from ‘shooting the moon’ and calculating bonuses based on external factors instead of performance relative to peers.”

When asked shortly thereafter to name the biggest challenges facing the industry, Haaga opted to identify the most promising opportunities first.

“The biggest opportunities in mutual funds and active management space will be for those who find a way to educate 411 investors,” he said, adding that “other winners” will include entrepreneurs who design products providing income guarantees with “long tails” that enable individuals to continue drawing funds well into old age.

According to Haaga, challenges will likely result from failing to address the above two needs and sacrificing long-term stability for short-term profit.

“If we continue to try finding more ways to make more money than there is, we’ll continue to have crashes and disappoint and lose generations of investors,” he said, emphasizing the dual necessity of encouraging investors to “manage expectations [and] accept moderate returns” and of ensuring that firms deliver the returns investors expect.

Seth Kreimer, Kenneth W. Gemmill Professor of Law

Seth Kreimer, the Kenneth W. Gemmill Professor of Law at the University of Pennsylvania Law School, will be awarded the Spencer L. Coxe Civil Libertarian Award by the American Civil Liberties Union of Pennsylvania for his “remarkable commitment to civil liberties in Pennsylvania and nationwide,” according to the group. The award will be presented at the 2011 Bill of Rights Celebration (ACLU) on December 15, 2011 at the Historical Society of Philadelphia.

Kreimer’s research and teaching focuses on Constitution Law and Civil Rights. His first article, Allocational Sanctions: The Problem of Negative Rights in a Positive State, set the terms for a generation of discussion of unconstitutional conditions on public benefits. His subsequent work has shaped analysis of privacy of information, abortion regulation, assisted suicide, and gay marriage. He has explored the implications of DNA testing in criminal justice, free speech on the Internet, and the dangers of abuse in the so-called “war on terror.”

During his career Kreimer has represented plaintiffs in a wide array of litigation. He served as co-counsel in Ferguson v. City of Charleston (U.S. Supreme Court 2001), establishing the right of obstetrical patients to refuse non-consensual drug testing; In Re R.B.F. (Pa. Supreme Court 2002), securing the right of gay and lesbian parents to establish families by second parent adoption; Nixon v. Commonwealth (Pa. Supreme Court 2003), challenging the constitutionality of lifetime disqualification of ex-offenders from employment; Buck v. Stankovic (M. D. Pa. 2007), enjoining denial of a marriage license to a citizen who wished to marry an undocumented non-citizen and Miller v. Mitchell (3rd Cir 2010) the first successful constitutional challenge to a prosecution of a minor for “sexting.”

In April of this year Kreimer was awarded the Law School’s inaugural Beacon Award which recognizes a faculty member’s contribution to pro bono and public interest service.

Symposium Editor Jesse Rabinowitz L'12 introduces panelists

By Jenny Chung C'12

On Friday November 11, an audience of faculty and students convened at the Levy Conference Center for this year’s Journal of International Law (JIL) Symposium, comprised of two keynote lectures and three high-level panel discussions which engaged experts in fields ranging from Islamic law to Middle East politics and democratization, to international communications and human rights.

Organized in association with International Human Rights Advocates, this year’s Symposium examined, among other issues, the political climate pervading the post-revolutionary Middle East in a panel moderated by political science professor Brendan O’Leary and attended by panelists Dr. Lina Khatib, Adnan Zulfiqar, and Dr. Nabeel Khoury.

Featured Panel: The Post-Revolutionary Middle East: A Realistic Picture

As part of the day’s proceedings, one of the three panels, titled “The Post-Revolutionary Middle East: A Realistic Picture,” featured Dr. Lina Khatib, the manager and co-founder of the Program on Arab Reform and Democracy at Stanford University’s Center on Democracy, Development, and the Rule of Law, who offered insight into the transitional phase facing post-revolutionary Middle Eastern states. While democracy may not be sustainable in every nation, she maintained, it will have exercised an overall “positive effect” on the countries that experience it.

“Even if the coming period sees a regression, we can say the status quo and the region has definitely changed, and there is no turning back,” Khatib said.

She attributed this in part to the convergence of formal and informal spheres of political participation, as evidenced by “institutions and people coming together,” particularly in such locales as Tunisia, where number of registered political parties rose in the wake of the revolution.

Citing “organization, leadership, program, strategy, coalitions and resources” as the six factors essential to democracy advocacy, Khatib contended it is “not enough” for post-revolutionary states “to be driven by democratic ideals.”

Though she characterized the internalization of a democratic political culture as a “long and rough journey,” Khatib noted several monumental changes that have already occurred: once exclusive to political or economic elites, she explained, formal political space has become progressively more accessible to citizens.

Further, while authoritarian regimes routinely preempted the formation of rival factions, Khatib foresees a gradual “institutionalization of opposition” from which contending political parties are empowered to emerge.

She also cited the replacement of strong authoritarian institutions with weak civil ones as states strengthen their infrastructures and the suspicion with which Middle Eastern youth regard formal politics as challenges countries moving toward democratic rule must overcome.

“The prospects for political participation in the post-revolutionary Middle East face more challenges than opportunities, but this is not surprising considering the region is recovering from decades of authoritarianism,” she said, adding that “a new era of political participation in the Middle East is in the making.”

To Adnan Zulfiqar, who discussed Islamic law and its relevance to post-revolutionary events in the Middle East, the “elimination of apprehension about voicing dissent or discontent” may constitute the principal “cornerstone upon which democracy will likely be built.” Zulfiqar, who graduated from Penn Law in 2007, is currently the Law & Public Policy Fellow at the Annenberg Center for Global Communication Studies.

Urging his audience to be mindful of the context out of which democracies are emerging in the region, Zulfiqar asserted that the question of religious values in a legal system will invariably “present challenges in a society where individual beliefs will vary.”

“It’s difficult to dissociate religion from the law when religion has a prominent place amongst the constituency,” he explained. “People wish to see their values reflected within laws of the nation.”

Zulfiqar cautioned against viewing recent events in the Middle East through an “ahistorical lens” and emphasized the importance of “[avoiding] the tendency to consider the relationship between religion and politics as uniform across the Muslim world.”

While the role of Islamic law will vary from one country to the next, he pointed out that many citizens have come to associate Islam to some extent with democracy due to its historical opposition to sectarian authoritarian regimes.

According to Zulfiqar, Islamic law in the post-revolutionary Middle East will be “subject to the court of popular opinion,” with certain components of Islamic doctrine garnering the most attention due to their symbolic significance.

Moreover, he added, religious majorities formerly marginalized under sectarian regimes will perceive themselves as “vulnerable” and seek out parties espousing ideologies for which they had previously been “suppressed.”

“The status of Islamic law is one that will be negotiated by the public, heavily influenced by historical context and will have to contend with the politics of individual constituencies,” Zulfiqar concluded. “Islam will be central to the construction of these democracies because it is central to the lives of the people for whom these democracies are being constructed.”

According to Dr. Nabeel Khoury, who serves as the Director of the Near East South Asia Office of the U.S. State Department’s Bureau of Intelligence and Research, the succession of Middle Eastern revolutions held the promise of “blood, sweat and tears,” signaling the beginning of an “arduous process.”

Khoury suggested that while the current administration has expressed unequivocally its intent to aid the transition to democracy, it has not proceeded without hesitation. The transition itself, he said, has been a “work in progress in terms of both details and implementation” and is a “new process for everyone concerned” overall.

Outlining the shifting axis politics in the Middle East, Khoury observed that “the tradition has always been for international actors to compete and regional actors to align.”

While the decades between 1950 and 1970 witnessed an ideological struggle between Arab countries as to the ideal political systems and international alliances to adopt, Khoury recalled, in the wake of the Arab-Israeli War of 1973 there emerged among them a conscious effort to set aside ideological differences in favor of collaborating on economic and political issues.

He further explained that the resultant decline of foreign (specifically Soviet) influence in the region gave rise to the ascendance of Islamic influence, which continues to operate in the present day.

“Traditional axes in the region are being reshaped and the region will look quite different in a few years—U.S. alliances in the region will look different as well,” Khoury said. “We must strike a balance between assisting the transition and keeping good relations with Gulf Cooperation Council (GCC) countries knowing our perspectives are diverging more and more and there will be tensions and problems.”

While he maintained that the new regimes resulting from the Arab uprisings are likely to prove “difficult” in their dealings with the West, Khoury remains confident they will not be “hostile.”

“These Islamist parties […] have values and priorities that may differ from the pro-Western regimes that preceded them, but in the end they’re willing to compromise and negotiate in the international arena,” he said, adding that a critical challenge for the U.S. will be to support emergent democracies “without alienating conservative monarchies in the region.”

Closing Keynote: Is Liberty God’s Law? Shari'a, the Military and the Arab Revolutions

The symposium concluded with a keynote speech delivered by Dr. Khaled Abou El Fadl L’87, a prominent scholar in the disciplines of Islamic law and Islam and an authority on human rights.

While confining the majority of his remarks to the Egyptian revolution “as a case study,” El Fadl also evaluated the impact of other revolutions on the Middle East as a region.

Noting the disparity between the “rich body” of scholarship produced theorizing the sociological and political catalysts of revolutions—particularly those engendering stable democracies—and the “impoverished” literature addressing so-called “subaltern or postcolonial” revolutions, El Fadl invited scholars to shift their focus from “commentary” to the production of “systematic paradigms” which offer principles that illuminate “which revolutions produce what, and why.”

He identified the “militarization of the state”—by which the army is no longer limited to the barracks but rooted in the “administrative structure as well as the oppressive powers of the state”—as one of the key factors shaping the Middle Eastern revolutions.

Within the context of Egypt, he explained, part of the national infrastructure rests on the prevailing expectation that upon retirement from the military one will receive a federal appointment to the board of a private company, inducing many private corporations to hire retired officials in order to avoid conflicts with the state.

“This is part of the reality that revolutions—whether in Egypt, Tunisia, Syria or Yemen—have to confront and deal with,” El Fadl said, adding that “part of the military’s ideological makeup is that they are essential not to defend but to run a country [where] one foot is rooted in a culture shared with the rest of society, while the other is rooted in a unique subculture of the military creed.”

In spite of participants in the Egyptian revolution invoking such slogans as “the army and the people are one hand” in hopes of forestalling violence from the military, he recalled, the schism dividing the military and civilian consciousness became evident when the military began attacking praying citizens and bombarding religious buildings.

Moreover, while the military initially agreed to meet with Egyptian intellectuals—himself included—to discuss the future after the revolution, over time the number of “untouchable” issues continued to increase.

“The military said it was willing to transition to democracy but that there are high-stake interests […] that cannot be left to the vagaries of the democratic process,” El Fadl said. “How much space is left for a democracy to work? What does it mean to speak of a democratic revolution in a state where the military has become its own monstrous interest?”

In spite of these misgivings, El Fadl is confident democracy will secure a foothold in Egypt. “The move for democracy has been demonstrated time and again, and my expectation especially as to Egypt is that there will be a reexplosion,” he maintained. “The streets will explode again, and we’ll be confronted with the same negotiation issues.”

From left to right: Arlen Specter C’51, Michael A. Fitts, David Mark, the Hon. Gene E.K. Pratter.

On Tuesday, November 8 in Washington, D.C., Penn Law hosted a high-level panel attended by a standing room only audience in the National Press Club ballroom, which examined whether the branches of the federal government are able to effectively compromise to carry out the people’s business – or if instead we are headed into a state of permanent crisis, or gridlock, exacerbated by the 2012 election cycle.

Panelists included Michael A. Fitts, Dean of the Law School; Arlen Specter C’51, former U.S. Senator (D-PA) and Adjunct Professor of Law at Penn Law; and the Hon. Gene E.K. Pratter L’75, Judge for the U.S. District Court, Eastern District of Pennsylvania. David Mark, senior editor at POLITICO, served as moderator.

Participants explored whether and how in the current climate of overheated partisan rhetoric the respective branches can work effectively and compromise to solve some of the major problems facing the nation.
 

Click here to view a video and slideshow of the previous Penn Law Washington Seminar series event, "Are Superpowers Above the Law? The U.S., China, and the Future of the International Legal Order".

Thomas Wilner, Morris Davis, Sig Libowitz, Peter Riegert

By Kathryn Siegel C’12

On Thursday, October 28 in the Haaga Classroom of Gittis Hall, Penn Law hosted a public screening of the short film The Response, a re-enactment of a Guantanamo Bay military tribunal based on actual transcripts from Combatant Status Review Tribunals, followed by a Q&A session with the film’s writer/producer Sig Libowitz, actor Peter Riegert, along with former military lawyers Thomas Wilner and Col. Morris Davis.

Writer and producer Sig Libowitz said he was inspired to create the film after reading one page of such a transcript in a University of Maryland School of Law classroom.

“Sometimes you get struck by something you found and have to follow it,” he said. He went on to uncover thousands of transcript pages which, coupled with discussions with military lawyers, formed the basis of the screenplay. The Response was “shortlisted for an Academy Award,” according to event organizer Jean Yin L’12, and is currently being screened across the United States and in Europe, including showings at the Pentagon and West Point Academy.

The movie consists of two parts. The first half depicts the detainee’s public hearing, where he faces accusations of bombing a U.S. Embassy building. The detainee, Ph.D. engineer Hassan Ali Al-Aqar, played by Aasif Mandvi, denies involvement but points out the flaws of the tribunal process. Namely, that he is denied a lawyer and access to the confidential evidence being used against him.

The second half portrays the three judges’ private discussion, in which they reflect on the fairness of the process and weigh the risks of clearing the detainee. Colonel Carol Simms, played by Kate Mulgrew, argues that the case is strong enough to hold him further. The remaining judges – Colonel Jefferson, played by Riegert, and Captain Miller, played by Libowitz – distrust the evidence that may have been extracted through torture. They also feel uneasy about passing judgment on a man so unable to defend himself. Jefferson ultimately deems him innocent, Simms deems him a threat, and the movie ends with Miller sitting alone, head bent, unsure of what to do.

When the final credits wrapped, Libowitz and Riegert, along with former military lawyers Thomas Wilner and Colonel Morris Davis, took questions from the audience. Wilner formerly represented Guantanamo detainees in front of the U.S. Supreme Court, and Col. Davis is the former Chief Prosecutor for the Military Commissions at Guantanamo Bay.

Thomas Wilner, Morris Davis, Sig Libowitz, Peter Riegert

The four panelists discussed the injustice of the Combatant Status Review Tribunals. According to Col. Davis, tribunals finding a detainee to be innocent were often done over until judges reached the opposite verdict.

“It was an Alice in Wonderland type environment,” he says. “We’ve created this process that runs from the law.”

Riegert, who had a recurring role in The Sopranos and also appeared in the movie Animal House, compared a scene in that film to the government’s approach to Guantanamo.

“The fraternity [in Animal House] appears in front of a Greek council, and Dean Wormer gets so frustrated that he throws them off campus. [Likewise,] the administration didn’t know how to deal with Guantanamo, so they threw away the law,” he asserted.

Guantanamo held 775 detainees at its maximum. According to Wilner, many of those were captured in Pakistan, away from the actual crime sites located in Afghanistan, and were not originally arrested by U.S. troops. This left room for coincidental evidence and false testimony. Most of the 775 have been released, but 171 still remain. Of those, 89 have been absolutely cleared, but remain imprisoned.

In response to a question from an audience member, Col. Davis stated that there is a 10 percent rate of recidivist action among those released from Guantanamo, but not all are necessarily acts of violence.

“It could be something as simple as writing an op-ed about against Guantanamo,” Davis said. Therefore, he explained, it is impossible to know the extent to which harsh treatment at the site spurred former prisoners to terrorist acts.

According to Wilner, “this issue goes to the heart and soul of the nation. What binds us together are the principles of freedom and justice in a court of law.”

Libowitz echoes the responsibility of upholding justice. “Lawyers created Guantanamo, and lawyers have the power to undo it.”