July 15, 2013
In a week of many developments in the world of law, Harvard Law School faculty were on line, in print, and on-the-air offering analyses and opinions.
The defence has rested its case in the trial of the WikiLeaks source Bradley Manning, rounding off its portrayal of the US soldier as a young man who accepted that he was wrong to have leaked a vast trove of state secrets but who had no "general evil intent" to "aid the enemy". … The final defence witness called, the Harvard law professor Yochai Benkler, delivered blistering testimony in which he portrayed WikiLeaks as a legitimate web-based journalistic organisation. He also warned the judge presiding in the case, Colonel Denise Lind, that if the "aiding the enemy" charge was interpreted broadly to suggest that handing information to a website that could be read by anyone with access to the internet was the equivalent of handing to the enemy, then that serious criminal accusation could be levelled against all media outlets that published on the web.
Los Angeles Times
An op-ed by Jody Freeman: President Obama had barely announced his new climate strategy late last month when the criticism began. The plan, which will regulate carbon pollution from the nation's power plants for the first time, is an important step in addressing global warming. Republican reaction in Congress was predictably scathing. And while most green groups praised the proposal, some environmentalists were frustrated, calling it "too little, too late" or "not nearly enough."
New York Times
An op-ed by Nancy Gertner: The relationship between federal and state prosecutions–raised now in the debate surrounding the Zimmerman verdict–is, to be put it mildly, complex. When we think about the issue in connection with street crime, we have one reaction. When we think about it in connection with federal civil rights or federal hate crimes, we have another. Many practitioners, scholars and judges–I among them–have railed about the federalization of ordinary crime.
An op-ed by Noah Feldman: When in 1992 a California jury acquitted the four officers who beat Rodney King, the result was a race riot of a kind not seen since the late 1960s -- followed by a federal civil-rights prosecution that convicted two of the officers. The acquittal of George Zimmerman for killing Trayvon Martin hasn’t produced rioting, but it has spawned a growing demand, led by the National Association for the Advancement of Colored People, for a federal trial to re-charge Zimmerman with violating Martin’s civil rights. The Justice Department said it will now “evaluate the evidence.”
America Public Media: MarketPlace Tech
An interview with Jonathan Zittrain: We've said it before but this time, it's for real. Google's RSS feed Google Reader will be cutting off users from retrieving their RSS data on Monday. This means they'll have to find another way to collect all their content in one place without having to gather it manually from different websites. Jonathan Zittrain at Harvard's Berkman Center for Internet & Society says the death of Google Reader is indicative of the end of an Internet era. He joins Marketplace Tech host Ben Johnson to discuss.
WBUR: Radio Boston
An interview with Nancy Gertner: We discuss this week’s top stories, from new developments in the Boston Strangler case, to the arraignment of Boston Marathon bombing suspect Dzhokhar Tsarnaev, to chilling testimony from Kevin Weeks in the trial of admitted mobster James “Whitey” Bulger. Guests: Nancy Gertner, Harvard Law professor and former federal judge for Massachusetts.
Los Angeles Times
The jury's verdict to acquit George Zimmerman in the shooting death of unarmed teenager Trayvon Martin, a case that became a referendum on race and gun laws for many across the nation, did not turn on how those issues played out in court, legal experts said Sunday. Instead, they said, the acquittal can probably be blamed on mistakes by prosecutors in bringing a murder charge they could not prove. … "We have elected prosecutors in this country, and this case was brought because of a political outcry," said Harvard Law School professor Alan Dershowitz. "This case should never have been brought."
A California lawsuit filed this spring against teachers unions could have widespread national implications for labor laws. Ten non-union teachers and the Christian Educators Association are suing their local, state and national unions, alleging that the organizations are forcing them to pay to support political activities they do not agree with in violation of their first amendment rights. … “If the U.S. Supreme Court holds that it is unconstitutional to require public employees to contribute to a union’s collective bargaining expenses, even when those employees directly benefit from the collective bargaining agreement, this would be tantamount to sanctioning free riding and would have a profound impact on public sector unionism in the United States,” said Benjamin Sachs, a professor at Harvard Law School.
Legal Talk Network
An interview with Mark Tushnet: With the Supreme Court’s Prop 8 and DOMA rulings, same-sex marriage is now legal in California and same-sex married couples can receive federal benefits across the nation. These landmark decisions for gay rights have sparked the question: is nationwide marriage equality on the way? On this edition of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams will talk with Constitutional Law Professors Mark Tushnet and William Eskridge about what the history of both the gay rights and the civil rights movements have to say for the future of gay rights in America. Harvard Law Professor Mark Tushnet specializes in constitutional law and theory, with a focus in examining the practice of judicial review in the U.S. and worldwide.
An op-ed by Cass Sunstein: Edwin Durning-Lawrence was a writer and a member of the U.K. Parliament who devoted much of his life to an obsessive, and slightly crazy, effort to demonstrate that Francis Bacon wrote the works usually attributed to William Shakespeare. Durning-Lawrence published his defining book, “Bacon is Shakespeare,” in 1910. (My real topic is 21st-century politics, but bear with me for a moment.) … This brings us to contemporary politics. Last week, the Obama administration announced that it would postpone until 2015 enforcement of the Affordable Care Act’s so-called employer mandate, which will require employers with more than 50 employees to provide health insurance or face significant financial penalties.
Yochai Benkler, a professor at Harvard Law School, took the stand this afternoon in Maryland to testify during the defense portion of Army Pfc. Bradley Manning's court martial. According to Charlie Savage of the New York Times, who has been live-tweeting the proceedings, Benkler testified that WikiLeaks is a legitimate journalistic organization that the government has branded threatening an anti-American.
An op-ed Noah Feldman: If you’re not a U.S. Supreme Court junkie, you wouldn’t know that the single topic that most exercised the justices in the decisions issued in late June was the arcane law of standing. This is the requirement that every case before the court pose two parties against each other, arguing the opposite sides of the case at hand.
WBUR: Radio Boston
An interview with Nancy Gertner: Boston Marathon bombing suspect Dzhokhar Tsarnaev is being arraigned today in federal court. It’s his first public appearance since the April 15 bombing attacks that killed three people and wounded more than 260. Tsarnaev is charged with using a weapon of mass destruction and could face the death penalty. We’re looking specifically at the challenge of defending a terror suspect — someone who’s accused of such an appalling crime that so many people witnessed, and for which there is so much evidence of guilt. Guests: Nancy Gertner, professor at Harvard Law School, and a former federal judge for the district of Massachusetts.
WBUR: Here & Now
An interview with Alan Dershowitz: Dzhokhar Tsarnaev, 19, will appear in court in Boston on Wednesday afternoon to be arraigned on 30 federal charges in connection with the April 15th bombings at the Boston Marathon.
An op-ed by A.J. Kritikos '15: A few weeks ago, the Supreme Court decided to hear a major free-speech case during its next term. The case, McCullen v. Coakley, concerns a 2007 Massachusetts law that prohibits some speakers from coming within 35 feet of free-standing abortion clinics. In effect, the law bans pro-life advocates from trying to peacefully persuade those entering the clinic to consider alternatives to abortion.
The Vatican has suffered another setback as it tries to shed a reputation for murky financial dealings. … German lawyer Ernst von Freyberg was hired early this year by Pope Emeritus Benedict to head the Vatican bank and clean up its finances. He is working with consultants from Promontory Financial Group to review all client relationships and the bank’s anti-money laundering procedures.
Pope Francis last month set up a commission, including Harvard law professor Mary Ann Glendon, to review the Vatican bank and propose reforms, where necessary.
An op-ed by Noah Feldman: Who ousted Mohamed Mursi? It turns out that the future of Egypt -- and perhaps of regional peace -- depends on whether removing a president after popular protests counts as a military coup or not.
The Foreign Assistance Act requires the suspension of all U.S. aid to a country when the “duly elected head of government is deposed by military act or decree” -- no exceptions unless a democratic election is later held. If President Barack Obama wants to continue $1.55 billion in annual aid to Egypt, his lawyers will have to do some fancy legal footwork to explain why he gets to ignore a law designed precisely to deter an army from doing what Egypt’s did.
New York Times
“Short-term shareholders” is one of those loaded phrases that embattled companies love to use to describe troublesome activist hedge funds. How real is the label? Well, it may actually be a myth. And a new study shows that so-called short-term hedge funds actually create long-term value. … Mr. Lipton’s sometime foil, Lucian A. Bebchuk, a shareholder governance activist at Harvard and columnist for DealBook, took up this challenge. A recent paper by Mr. Bebchuk, Alon P. Brav and Wei Jiang examined more than 2,000 hedge fund activist events from 1994 to 2007. The authors found that in the short run, hedge fund interventions produced a 6 percent rise in stock prices. Over the longer term, a five-year period, these gains held and the firms did not underperform. Looking at other measures of returns, like returns on assets, they found similar results. The long-term gains from activism held even when the hedge funds advocated taking on leverage or other “quick buck” strategies.
Wall Street Journal
An op-ed by Hal Scott (subscription required): Last week's announcement of a "Path Forward" by the U.S. Commodity Futures Trading Commission and the European Commission is an important step toward coordinating the rules for derivatives trading. However, the agreement's failure to address conflicts in rules for clearinghouses—which will handle the vast majority of the trades and the trillions of dollars of collateral posted by the world's largest banks—is a troubling omission. There is still much work to be done.