The Case Studies Blog | Harvard Law School

Worker Centers & OUR Walmart: Case studies on the changing face of labor in the United States

Posted on June 19, 2018 by morourke

Photo credit: The All-Nite Images from NY, NY USA on Wikimedia Commons

A Q&A with Sharon Block, Executive Director of the Labor and Worklife Program and Lecturer on Law at Harvard Law School

by: Lisa Brem*

Recently, HLS Case Writing Fellow Brittany Deitch and I worked with Sharon Block, Executive Director of the Labor and Worklife Program at Harvard Law School, to create two case studies for her spring 2018 seminar entitled “Organizing for Economic Justice in the New Economy”: the first case study — “Worker Centers” — explores how worker centers have grown in both numbers and power as they seek to fill the gaps left by the decline of the union movement in the United States. Part 1 of the case study examines the challenges and opportunities faced by the New Orleans Workers’ Center for Racial Justice and its affiliated National Guestworker Alliance. Part 2 gives a brief overview of the legal framework that defines and affects labor and workforce issues in the United States.

The second case study — “OUR Walmart: Online-Offline Organizing” — showcases a different model of worker organization that grew from employee activities at Walmart. Students reading both case studies will be able to analyze and draw conclusions about the efficacy of different types of worker centers and the roles they play in the larger workforce ecosystem.

Lisa Brem (LB): Why did you choose to create these case studies for your course?

Sharon Block (SB): One of my objectives in teaching this course was to demonstrate to students that this is a very exciting time for people interested in economic justice issues. Because of the historically low levels of union density in our country, more and more energy is going into testing how the law can facilitate new forms of worker organizations. There are a number of innovative and dynamic people leading these organizing efforts. They are confronting many new and challenging legal and strategic questions. With these case studies, I hoped to help students put themselves in the shoes of these leaders so they can appreciate how interesting work in these kinds of organizations can be.

LB: What challenges and opportunities did teaching these case studies present?

SB: One challenge presented by teaching these case studies is that they each capture a story that is on-going. Many case studies look back at a scenario that has already resolved so that students can see the outcome of the decisions that are the subject of the case studies. In contrast, these case studies address situations that are still unfolding – some consequences of the decisions analyzed are clear but many are not. Because I was able to have the principle players in the case study scenarios come to class, I hope that that challenge became an opportunity. The students were able to feel more involved in the scenarios and even feel like they may have an impact on the outcomes of these unfolding stories through the questions and issues they were able to raise with the principals who came to class.

LB: What are the major takeaways that students will learn by reading and discussing these case studies?

SB: I hope that the major takeaways that students will learn will be: (1) although laws may be enacted for a particular purpose, their impact may change over time, producing very different results than those intended; (2) creative lawyers can use the law as a tool to advance policy objectives that may be very different than those intended by the laws’ drafters; and (3) moments of crisis can create great opportunities for trying new solutions to old problems.

LB: How did the students react to the case studies?

SB: The students seemed to enjoy the immediacy of the situations covered in the case studies. I enjoyed seeing how the case studies gave them a new perspective on situations that were familiar to them. For example, all of the students were familiar with Walmart and many had patronized Walmart stores. The OUR Walmart case study gave them new insights into what it was like to work at a Walmart and the community among Walmart workers that would not be evident to customers. Similarly, most of the students knew generally about the impact of Hurricane Katrina on New Orleans but learned a great deal more about how long-standing and complex the impact of the storm was on the New Orleans labor market and the lives of the people who lived and worked there.

LB: What would you tell (advice you would give) other faculty looking to use these case studies?

SB: I would recommend that if faculty use these case studies with students who haven’t taken labor law, that they spend a little time helping students understand traditional worker organizing so that the students can appreciate how innovative the leaders featured in these cases studies are.

Learn more about the Worker Centers and OUR Walmart and download both case studies for free on our website.

Quick facts on Worker Centers:

Case Study length: 37 pages including attachments. The case study includes Part 1 (general background, 22 pages) and Part 2 (legal background, 15 pages).

Format: Worker Centers is best used to facilitate an 80- to 90-minute in-class discussion on worker centers in general, and the issues facing the New Orleans Center in particular. Some or all of the discussion questions listed in the teaching note can be provided to students prior to class along with the case study, to allow them to formulate ideas that they can share in class.

Quick facts on OUR Walmart:

Case Study length: 8 pages including attachments.

Format: OUR Walmart is best used to facilitate an 80- to 90-minute in-class discussion on worker centers in general, and the issues facing OUR Walmart in particular. Some or all of the discussion questions listed in the teaching note can be provided to students prior to class along with the case study, to allow them to formulate ideas that they can share in class.

Teaching Notes for both case studies are available for free download to qualified educators on Harvard Law School | The Case Studies website. Note that you must be logged in as a registered educator on our site to download teaching notes.

*Lisa Brem is the Managing Director of Teaching, Learning & Curriculum Solutions (TLC) at the HLS Library. The Case Studies Program and Case Development are integral parts of the TLC.

Robbing the Piggy Bank? Moving from mutual to stock form at Friendly Savings Bank

Posted on June 8, 2018 by morourke

A Q&A with Harvard Law School Professor Holger Spamann

by: Lisa Brem

Corporations and corporate finance courses typically spend the majority of their time talking about the stock form of corporate organization, which makes sense, given that this is the dominant form used by businesses in capitalist economies. However, Harvard Law School Professor Holger Spamann spent his last Corporations class of the semester teaching a case study about something quite different: the mutual form. Yes, this is the organizational form memorialized in the classic film “It’s a Wonderful Life” in which Jimmy Stewart famously played the part of small community bank champion George Bailey. Why spend time in a corporations course talking about a mutual bank? We asked Professor Spamann about Friendly Savings Bank and why he and his co-author Stanley Ragalevsky created this case study.

Lisa Brem (LB): Why did you choose to create this case study for your course?

Holger Spamann (HS): I wanted something to engage broader questions about corporate organization and purpose. The mutual form presents a counter model to the shareholder(-value) driven corporate form, and it is successful at least in a limited realm. It is, therefore, a good launch pad for discussion. The case also raises questions about the role of the lawyer, particularly if one comes to believe that the management is essentially “robbing the bank” in this case.

LB: What challenges and opportunities did teaching the case study present?

HS: We try to draw students into the case by putting them in charge: they lead and present at the hearing. The risk is that you get off track, or rather off timing. It requires setting a strict timetable and reminding the students of it periodically.

LB: What are the major takeaways that students will learn by reading and discussing this case study?

HS: At a minimum, they will be aware that it is possible, at least in a limited realm, to have successful commercial entities that are not controlled by, and operated for, investors. Perhaps they will come to think that these entities have advantages in certain areas, and they may think that the bank lawyers in this case were operating in questionable territory. But that all depends on the view they end up taking on the merits of this case.

LB: How did the students react to the case study?

HS: Generally favorably. Some didn’t get the connection to the big question about entity structuring, which I will make sure to emphasize more next time.

LB: What would you tell (advice you would give) other faculty looking to use this case study?

HS: Watch the clock!

Learn more about the Friendly Savings Bank and download it for free on our website.

Quick facts on Friendly Savings Bank:

Case Study length: 39 pages including attachments.

Format: Can be taught in an 80 or 90-minute class discussion or taught as a role play simulation in a 2-hour class session. The simulation has three roles: lawyers for the Regulators, Bank Management, and Dissidents; the Management and Dissident groups take turns presenting their arguments to the Regulators, who make a final determination as to whether Friendly Savings Bank can convert from mutual to stock form.

Teaching Note available for free download to qualified educators on Harvard Law School | The Case Studies website. Note that you must be logged in as a registered educator on our site to download teaching notes.

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The Argument for Active Learning

Posted on March 13, 2018 by morourke

Multiple studies have shown that active learning is more effective than lecturing at achieving educational outcomes. One large 2014 meta-analysis of STEM classes found that average student failure rates decreased from 34% to 22% and that average student performance improved by half a letter grade when active learning replaced traditional lecturing. Given these findings, imagine the savings in tuition dollars if active learning were to be widely implemented. When it comes to assessments, researchers looked at concept inventories (which measured higher-level cognitive skills) and course examinations (which measured lower-level cognitive skills). While both higher- and lower-level skills were improved, they found that “active learning has a greater impact on student mastery of higher-versus lower-level cognitive skills”. In addition, the authors found that active learning disproportionally benefitted female and disadvantaged students.

The case study method, which encourages students to step into the shoes of a case study protagonist to wrestle with a real-world dilemma, is a proven active learning pedagogy. The use of discussion and problem-solving via a case study can heighten student engagement, critical analysis, and reflection, thus creating conditions that foster transformative learning. This can be true for both small groups and large classes, either peer-directed or facilitated by an instructor.

By using these case studies in your classroom, you can encourage innovation and inclusivity while you watch student outcomes improve.

Freeman, S., S. L. Eddy, M. Mcdonough, M. K. Smith, N. Okoroafor, H. Jordt, and M. P. Wenderoth. “Active learning increases student performance in science, engineering, and mathematics.” Proceedings of the National Academy of Sciences 111, no. 23 (2014): 8410-415. Accessed March 13, 2018. doi:10.1073/pnas.1319030111.

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Spotlight on: International and Comparative Law

Posted on March 6, 2018 by eyook

Photo used under Creative Commons Licensing, Earth seen from the International Space Station.

“The flow of goods, technology, ideas, capital, and people across borders means that the work of lawyers, whether in private practice or public service, increasingly involves matters in which knowledge of legal systems beyond one’s own can prove important.” — from International and Comparative Law Overview, hls.harvard.edu.

HLS Case Studies authors have compiled several case studies that have an international or comparative law component. Continue reading to learn more about these case studies.

The WikiLeaks Incident is a workshop-based case study designed as a background document to set the stage for several hypothetical classroom exercises during which students play the roles of various stakeholders to broaden their understanding of the issues involved. The 2010 WikiLeaks shared leaked U.S. government documents, many of which were classified, resulting in legal maneuvering and tensions between Wikileaks, its critics, and its supporters. This case encourages students to ponder the question: What is the lawfulness and ethics of the actions taken? Students will analyze the government’s reaction to a large amount of classified material being published online, explore ways to respond appropriately to future leaks of sensitive material from the point of view of various stakeholders, and discuss ways in which the Internet as changed whistleblowing activity as well as the legal ramifications of these changes.

This case was developed for an Advanced Problem Solving Workshop in Cyberlaw and Intellectual Property, a second- or third-year elective course taught in the Harvard Law School J.D. program. The case can be taught in four 90-minute class sessions.

Sanctuary Cities asks students to engage in a legislative simulation before the House Subcommittee on Immigration and Border Security. The subcommittee hears testimony from various groups on a proposed House bill that would cut federal funding to sanctuary jurisdictions. Students play the roles of majority and minority members of the subcommittee, representatives of various organizations with an interest in the proposed legislation, and correspondents from different media outlets.

This simulation could be taught in Immigration Law courses, or seminars and clinical seminars on immigrant rights and advocacy. It could also be used in Legislation and Regulation courses.

“I wanted the students in my immigration law class to engage with the complex legal issues presented by the current debate over sanctuary policies and was eager to facilitate a productive debate.” – Professor Sabrineh Ardalan

Click here to read more on case Professor Ardalan’s comments about this case study.

The Case of the Lead Toys is a workshop-based case study that follows the story of toymaker Mattel that came under fire in 2007 when one of its European retailers found lead paint on some toys manufactured in China. The case asks students to play the role of the General Counsel for Mattel, determine what questions to ask their client, and draft a press release to communicate to the public about the crisis. The problem fits in the general category of avoiding trouble or distributing losses that have already occurred. Students will discuss whether lawyers should advise clients as if they were solely interested in taking maximum advantage of their legal rights or if their advice should encompass the full range of the client’s concerns, engaging the client’s moral compass in deciding whether it is right to pursue a legally-available objective.

This case was developed for the Problem Solving Workshop, a second-semester required course taught in the Harvard Law School first-year J.D. program. It has been used as the introductory case to highlight decisions faced by lawyers working directly for and with clients. The case can be taught in four hours over two sessions.

Ching Pow: Far East Yardies!! is a workshop-based case study based on the story of Jamaican filmmaker and entrepreneur Bruce Hart, who set out to make a low-budget box office hit called “Ching Pow: Far East Yardies!!,” a satirical redubbing of a kung fu movie that appeared to be in the public domain. However, with sponsorship secured and production underway, Hart discovered that there existed a copyright holder to the original film. This case follows Hart’s international quest to find the copyright holder and secure permissions to release his movie. Readers will take the stance of Bruce Hart’s lawyers and parse out the distinctions of derivative and orphan works in intellectual property law, identifying a systematic approach to problem-solving when faced with an unresolved issue.

This case was developed by Professor Charles Nesson for an elective course for the Harvard Law School J.D. program. Educators may want to pair this case study with a discussion of the United States’ unique policy of statutory damages in copyright infringement cases. This case can be taught in two 90-minute sessions.

Somalia in Crisis: Famine, Counterterrorism, & Humanitarian Aid (Part A, B1, B2) is a free, 3-part case study that forefronts the 2011 Somalia famine to ground the teaching of International Humanitarian Law (IHL) with a real-world application.

Part A is a workshop-based case study that provides an opportunity for students to examine the potential impacts of U.S. material-support-to-terrorism laws in the context of humanitarian crises, through the lens of the Somalia famine. Participants are primed to problem solve, navigate potentially competing domestic and international law and policy, and make ethical and legal decisions in a high-pressure, complex international crisis. Then, in Parts B1 and B2, students will engage in role play exercises designed to expose the challenges in developing a consensus response among U.S. government agencies to a humanitarian crisis where a terrorist organization perceived as threatening U.S. security interests is involved.

Part B1 is best suited for two class periods spanning 90 minutes each. Part B2 can be taught in one or two class periods spanning 90 minutes each.

“…role-play exercises such as the Somalia Case Study help to contextualize IHL, introduce students to law’s real-world application, and potentially galvanize ideas about legal reform.” – Professor Rebecca Sutton

Check out our 4-part blog series about what students of Professor Rebecca Sutton’s Re-Imagining International Humanitarian Law course at the University of Western Ontario Law School thought about the use of this roleplay in a course on International Humanitarian Law. Read Part 1, Part 2, Part 3, and Part 4.

Want more? Browse through our 25 case studies that incorporate aspects of international and comparative law on our website.

Click here for more on International and Comparative Law at Harvard Law School and visit the Institute for Global Law and Policy.

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Fair Use Week: 5 Questions with Kyle Courtney

Posted on March 1, 2018 by eyook

In honor of Fair Use Week, we are reposting our blog about our case study: How Fair is Fair Use? The Battle Over E-Reserves at GSU (A) and (B)

Since it was published, this case study has been downloaded 82 times.

Kyle Courtney, Copyright Advisor at Harvard University

Kyle K. Courtney, Harvard University’s Copyright Advisor in the Harvard Library Office for Scholarly Communication, wanted to develop a case study on the contentious institution of fair use at a university. He chose to focus on electronic reserves at Georgia State University, which faced a copyright infringement suit from Cambridge University Press, Oxford University Press, and Sage Publications. The case shows how the four factors of fair use, which are designed to support educational use and engender case-by-case analysis of copyrighted works, got caught in the crossfire between educators and publishers over extralegal, universal guidelines. What better format to bring fair use back to case-by-case analysis than a discussion-based case study?

Courtney first introduced the case study in his Copyright Immersion Program for Harvard University librarians designated as “Copyright First Responders.” Courtney has plans to use the case in his cyberlaw class at Northeastern University, which attracts students in law, criminal justice, and computer science. Courtney plans to teach the case in a continuing legal education program and to use taped segments of the Copyright Immersion Program for a massive open online course (MOOC). This case study could fit well in a number of other educational settings, such as intellectual property courses and professional development for general counsels or university officials.

Courtney shared with us his experiences as a first-time case study author:

EM: What inspired the case study?

KC: This was one of the most important library fair use cases in the last decade. It also marks a new era, one in which university presses sue university libraries. It’s a shift in the legal landscape.

This case involved a weighty decision for GSU: whether to go to trial and how to measure risk. It involved a lot of judgment, and judgment isn’t taught enough. This seemed like the ideal case for a teaching moment.

EM: What challenges and opportunities did the case writing process present?

KC: It was a challenge to lay out everything that happened before the suit: the GSU case itself represented a particular moment when decades of contention came to a head. There was very little precedent but so many forces at play: the libraries’ reliance on reserves, technological leaps, changing publishing models, and the challenges of copyright intersecting and sometimes interfering with education.

It was a rare opportunity to look inside at how these forces interact. It was a 353-page decision: you can’t not write a case study on that!

EM: What advice do you have for case writers and teachers in the legal classroom?

KC: Getting up to speed on the law can be complex. Spend time on the introduction: engagement with the first part is critical to having a good discussion because it sets the scene and establishes the foundation for the discussion. When I first taught the case, my students had to get up to speed on how the law had been interpreted in the past. For this reason, I’m not sure the case should be taught in one sitting.

I had my participants in teams representing multiple sides, because for them, identifying with libraries was already easy. By asking different teams to reach a middle ground you bring in negotiation. Where are there areas for wins? What do the sides have in common?

We also explored what other schools, like Cornell, have done with similar suits in the past and about what would happen if an institution chooses not to fight. I did this as a lark at the end, but it was a great exercise.

EM: How did the students react to the case study?

KC: They really liked it—even I was surprised at the amount of enthusiasm generated by something as routine as e-reserves. The case led to a robust discussion. I think the participants realized that their work today may have an impact on the law!

Case studies are great because they reflect the front-line problems that education has with copyright law. Capturing these problems is complex but proves that these issues can be reasoned, analyzed, and addressed. Cases give front-line people the sense that there is ground to be gained and that their newfound knowledge will serve them as better employees.

EM: What, if anything, would you do differently next time?

KC: I might spend more time hitting home the points in the introduction. With busy professionals, you can’t be sure they’ve read the whole case.

More generally, I think it helps to integrate case studies into classes where you’re building copyright law. Substantive legal courses don’t normally include opportunities for role play, but it’s a critical skill using the analytical side of your brain.

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Our Bestselling Cases

Posted on February 27, 2018 by eyook

Harvard Law School | The Case Studies has served 7,986 customers, published 220 cases, and fulfilled 8,152 orders over the last 6 years. Here is a list of our top 5 bestselling case studies:

1. Diego Primadonna, our most popular product, has accounted for 13% of total downloads from our site. This role play sets the stage for a contract negotiation between the agent of an aging soccer star and a Brazilian soccer club’s business manager. This case helps students practice probing for interests, understanding the concept of a zone of possible agreement, identifying sources of value, producing value-creating options, and practicing distributional strategies.

2. Ernest Shackleton’s Journey to the Endurance describes the path that led Ernest Shackleton to embark on his epic voyage to the Antarctic aboard the Endurance in 1914. The case, a compelling saga of crisis and survival, allows instructors and students to review what happened during the voyage and explores what is required for effective teamwork and leadership in the face of turbulence.

3. William Fox follows the life and career path of William Fox, a mid-career partner at a prestigious law firm in London. This case enables participants to reflect on how to evaluate one’s career trajectory, the balance between commitments to work and personal life, and how the meaning of “success” might evolve over time.

4. Linklaters (A): Seeking Clear Blue Water follows Linklaters managing partner Tony Angel as he seeks to implement his vision for the global law firm. This case allows participants to discuss the importance of creating and articulating a clear strategy in a professional service firm, the challenges related to implementing such a strategy, and the considerations that lead to a successful change management.

5. How to Approach a Case Study in a Problem Solving Workshop is a free product that gives helpful tips for approaching problem-solving case studies and effectively reading these cases to prepare for discussions and exercises.

In 2017, HLS Case Studies published 16 new case studies, 11 of which are free to download. Browse all 40 free case studies, including Bank Secrecy Act, Anti-Money Laundering Law Compliance, and Blockchain Technology, the most popular case study published in 2017.

Negotiation instructors might want to review Mortgage Crisis Call, our most viewed new case, which has been viewed nearly 20,000 times since it was published in January 2017. This case is a multiparty negotiation scenario that provides an introduction to group decision making. It is set in the aftermath of the 2008 U.S. residential mortgage crisis, which left more than ten million homes foreclosed.

Please view the full catalog of cases published in 2017.

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New Product: Sanctuary Cities: The Legislative Hearing

Posted on January 31, 2018 by eyook

Photo used under Creative Commons Licensing, Statue of Liberty.

Q&A with Professor Sabrineh Ardalan

Harvard Law School | The Case Studies has published a new case study and classroom simulation developed by Sabrineh Ardalan, Assistant Clinical Professor at Harvard Law School and Assistant Director at the Harvard Immigration and Refugee Clinical Program, along with Brittany Deitch, J.D. Case Writing Fellow, and Lisa Brem, Managing Director of the Teaching, Learning and Curriculum group at HLS.

The case study includes a background note on sanctuary jurisdictions and a roles for six stakeholders who present comments and testimony at a mock legislative hearing on a bill affecting such jurisdictions.

Our Case Studies Program staff asked Professor Ardalan about her experience developing and teaching the case study. Read her answers to our questions below, and download free copies of Sanctuary Cities.

Why did you choose to create this simulation for your course?

I wanted the students in my immigration law class to engage with the complex legal issues presented by the current debate over sanctuary policies and was eager to facilitate a productive debate. A legislative simulation seemed like the ideal format for the class, particularly given the various legislative proposals introduced in Congress, as well as in city councils and states across the country.

What challenges and opportunities did teaching this simulation present?

The simulation allowed for both sides of the debate to have equal airtime so that students could fully understand the arguments for and against sanctuary-related policies and legislation. It was a challenge deciding what legislative initiative to use to allow students to explore the issues most fully, and we considered various bills pending at the state and federal level before making a decision.

What are the major takeaways that students will learn in this simulation?

Students will learn how to distill complicated legal arguments into clear, persuasive, and concise talking points and how to think through their strongest and weakest arguments in order to respond to questions and provide comments on testimony.

How did the students react to the simulation?

The students were very engaged both in the simulation itself and in the preparation for the simulation. They worked well in teams to develop testimony, arguments, and questions.

What would you tell (advice you would give) other faculty looking to use this simulation?

The more time you can allocate to debrief, the better. I wish I had built in additional space for a group discussion and feedback afterwards. Also, I would recommend bringing in advocates who have attended or testified at prior Congressional hearings to participate in the simulation, either by chairing the committee hearing or by commenting on the simulation and the issues presented after the fact.

Acknowledgments

I was lucky enough to have two amazing lawyers – JJ Rosenbaum, formerly the Legal Director with the New Orleans Workers’ Center for Racial Justice which led efforts in New Orleans and advocacy efforts at the Congressional hearings on New Orleans as a Sanctuary City, and Avideh Moussavian, who works on sanctuary issues at NILC – chair the hearing for the simulation, which greatly enhanced the experience for everyone involved.

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Strategies for consensus-building and decision-making

Posted on January 19, 2018 by morourke

Sabrina Bruno and Eric Blay

This is the fourth in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

The goal of the Somalia simulation was to help bring an end to the Somalia famine quickly without compromising American national security. There were numerous disagreements between opposing interest groups that necessitated consensus-building. While members of each of the parties were behaving as rational actors, individuals’ differing objectives led them to become quickly entrenched in their assigned positions. This tended to make them lose sight of the overall goal of the meeting, which was to develop a strategy for ending the famine in Somalia.

Our team played the advisory role of the intelligence agency. Striving to help build consensus with others while serving in an advisory role was challenging. It was imperative to remain in character—advocating the priorities of the intelligence agency—throughout the simulation. Differentiating between personal opinions and the insights that our assigned character was likely to espouse was challenging, but vital. In an advisory role, it is important to be aware of the seemingly incompatible agendas held by different parties. Equally necessary is to work with participants to identify underlying interests that might provide grounds for formulating solutions that meet everyone’s objectives to some extent. While each party held different principal priorities, their overarching goals seemed to converge. For instance, a central aim of all parties was to ensure the safety of American citizens, though each group differed as to how that safety could be achieved.

Reaching consensus among the groups was a difficult task. They became immersed in their assigned character roles and tended to focus on the issues that divided them rather than emphasizing what they had in common. It seemed that all parties felt that, despite being ordered to end the famine quickly, their specific interests (i.e. legal, security, humanitarian, etc.) had to take up equal space at the bargaining table. In actual negotiations of this type one would hope that objective criteria, such as feasibility, would govern the final decisions, instead of having the final word going to the most forceful individuals who took the strictest hard-lined positions.

Allowing time for discussions amongst the representatives of the various teams was an effective strategy; it allowed multiple conversations to occur simultaneously, and created space for groups to identify similar interests as well as obstacles to reaching consensus. In comparison with the time spent having all participants met as one group, it seemed that the more chaotic intermingling of groups was much more efficient. Considerable decision-making work was done by group representatives who liaised with other interest groups to garner support for their position, or to collaborate on ideas for mutually acceptable solutions. This allowed them to present a united front to other, more ideologically opposed groups. A breakthrough came when groups accepted that compromises would have to be made by all parties. When given sufficient time to discuss amongst themselves, groups were able to create a unified plan, with the exception of concerns about fungible aid and the payment of access fees to FTOs. The result was a semi-secure and partially effective solution.

This simulation was a useful exercise for learning how human character and subjectivity influence policy-making processes. All aspects of strategy for the response to the Somalia famine were heavily influenced by the personalities and proclivities of the individuals who participated in the negotiation. The most significant thing we learned was that, in practice, the negotiation process is not ruled by objective criteria so much as the subjective views of participants. No matter what the nature of the factual scenario at hand is, it is clear that negotiation, mediation, and conciliation skills are crucial to navigating the entrenched positions of various stakeholders. Read Part 2 and Part 3.

Written by law school students Sabrina Bruno and Eric Blay as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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Discerning the interests and priorities of diverse stakeholders

Posted on January 19, 2018 by morourke

Katrina Younes, Rob Alfieri, Aaron Zaltzman

This is the third in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

During the simulation of a National Security Council (NSC) meeting regarding the 2011 Somalia Famine, we observed that the first step for building consensus between parties espousing disparate positions was to efficiently and accurately categorize the identities, key issues, and positions of the respective groups. The task of the NSC Committee Chair was to incorporate the competing views of 20 different voices, representing four distinct interest groups, and facilitate a consensus in just a few hours. While this extremely tight timeline made us nervous, the key to working effectively was the efficient management of the conversation.

One way we navigated these time constraints was by laying out a roadmap that outlined the policy points that were predicted to generate the most debate. This roadmap was developed after each team had been invited to specify which issues they believed could fairly easy garner consensus, versus the issues they felt would require further persuasion. The central aim of the NSC team, for example, was to end the famine and secure legal assurances that individuals would not be prosecuted for delivering life-saving humanitarian services to this end. This was their static position, from which they would not budge. The NSC team also identified lower-stakes positions that they were open to re-thinking—so long as their core static position was not compromised.

Once the respective views of each team had been expressed, the next task was to speak to other members of other teams to see what headway could be made. One of the groups—which consisted of U.S. Department of Defense, Joint Chiefs of Staff, Director of National Intelligence and Department of the Treasury—chose to focus on interacting with groups whose views were not in alignment with their own in order to see if there was any room to maneuver. It was during this part of the simulation exercise that it became clear just how entrenched various teams were in their positions. Upon a return to the plenary formation, the Chair of the NSC meeting quickly identified which policies had broad general support, and which were now proving to be the most contentious.

In the final round of negotiations, it was clear that all parties agreed that the Somalia famine represented an emergency that demanded immediate action. It was also evident that the idea of a humanitarian exemption to the counter-terrorism laws had some support, particularly if it could be executed in conjunction with a Partner Vetting System. The most contentious issue, it emerged, was whether NGOs should be permitted to pay access fees to FTOs if necessary. Ultimately, this issue consumed the bulk of the discussion. It also ended up standing in the way of a group consensus on the overall approach. However, since the various issues had been divided up and dealt with according to level of difficulty, many smaller and less divisive issues were still possible to agree upon. This enabled the parties to forego needless arguments over small points and focus on the more significant issues at hand. Read Part 2 and Part 4.

Written by law school students Katrina Younes, Rob Alfieri, Aaron Zaltzman as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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Legal, political, strategic and ethical dimensions of the 2011 famine

Posted on January 19, 2018 by morourke

Elspeth Graham & Laura Snowdon

This is the second in a series on the use of Somalia in Crisis role play in a law school course on International Humanitarian Law. Read the Introduction.

The United Nations declared a famine in Somalia in July 2011. The humanitarian response to this crisis was slowed by the presence of al-Shabaab, and the famine ultimately claimed the lives of nearly 260,000 people. Six years later, five teams of law students representing various U.S. government departments participated in a simulation exercise to negotiate the legal, strategic, ethical, and political concerns that arose in relation to the crisis. The five teams represented the National Security Council, Department of Defense, Department of Justice, Department of State, and Office of the Vice President, respectively.

Legal concerns regarding issues of enforceability and a lack of clarity in U.S. material-support-to-terrorism legislation hindered consensus-building amongst the negotiating parties. The representatives of each group recognized that the legal landscape governing humanitarian workers in Somalia was complex and unclear, resulting in a chilling effect on the provision of aid. A majority of representatives concluded that a temporally- and geographically-limited humanitarian exception was a feasible path forward: it could potentially balance the U.S.’s moral obligation to provide aid alongside its important national security concerns. They were persuaded to agree on a humanitarian exception on the basis of moral arguments, namely the moral obligation of the U.S. to help save the lives of Somali citizens in crisis. However, the team representing the Department of Defense was the lone holdout, preventing group consensus on this point. Given its mandate to prioritize national security, it voiced concerns that any humanitarian exception—however limited—might allow al-Shabaab to financially benefit from U.S. humanitarian assistance.

The likelihood of consensus could have been increased if those teams favouring a humanitarian exception had considered arrangements more sensitive to national security. A strong attempt at this argument was that the failure to provide a humanitarian exception could actually pose a greater security threat for the U.S., due to prospects of radicalization in the face of an increasingly grave humanitarian crisis. While the Department of Defense team recognized this risk, it still insisted that directly supporting terrorist organizations posed the greater threat. Arguably, other stakeholders could have challenged this set of assumptions more effectively. After further rounds of discussion, the representatives of the Department of Defense finally appeared open to a very limited humanitarian exception so that food and water could be delivered to Somali citizens. However, they maintained the view that their obligations to protect American citizens prevented them from permitting humanitarian aid workers to pay access fees to Foreign Terrorist Organizations (FTOs) such as al-Shabaab.

In terms of political concerns, the teams also considered how a potential humanitarian exception to the counter-terrorism legislation might affect international relations. During informal discussions, some argued that it was in the interest of the U.S. to allow humanitarian assistance: this would preserve its image and status in the international community. Otherwise, the U.S. might be viewed as weak, and even callous, for failing to assist in the response when it clearly had the capacity to do so. Cutting against this was the fear that allowing for a humanitarian exception could cause the U.S. to be viewed as a state that supports terrorist organizations.

The 2011 Somalia famine was an exceptionally problematic crisis, due to the need for humanitarian assistance in the context of an armed conflict involving a terrorist group. As a result of the intersection of these issues, decision-making in response to the famine was rendered even more complex. Only time will tell if the U.S. can learn from its past mistakes to coordinate an effective humanitarian response when similar crises unfold elsewhere in the world. Read Part 3 and Part 4.

Written by law school students Elspeth Graham & Laura Snowdon as part of the Re-Imagining International Humanitarian Law course at University of Western Ontario Law School.

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