August 06, 2013
In a week of many developments in the world of law, Harvard Law School faculty were online, in print, and on-the-air offering analyses and opinions.
New York Times
An op-ed by Charles Ogletree: Nearly 50 years after the end of Jim Crow, African-Americans are still facing execution because of their race. Duane Buck could end up being one of them. He was convicted in 1997 of the murders of two people in Harris County, Tex., home to the city of Houston. He does not deny his guilt in these terrible crimes, so there is no question that he must be punished. But what happened at Mr. Buck’s sentencing hearing is appalling, even for Texas, which was once among the handful of states that led the country in the lynching of African-American men and which is now the country’s most prolific executioner.
In her first public speech since talking the helm of the Environmental Protection Agency two weeks ago, Administrator Gina McCarthy told an audience at Harvard Law School cutting carbon pollution will “feed the economic agenda of this country.” “Climate change will not be resolved overnight,” she told the 310-person audience. “But it will be engaged over the next three years. That I can promise you.”
An op-ed by Noah Feldman: What does Major League Baseball Commissioner Bud Selig have in common with Egyptian generalissimo Abdelfatah al-Seesi? Nothing—except for the inclination to declare a state of exception and throw the rule book out the window. Reports that Selig might summarily suspend the New York Yankees’ Alex Rodriguez by invoking his “right to take action against a player to preserve the integrity of the game” are important to no one except baseball fans, of course. The general’s decision to oust elected President Mohamed Mursi affects the future of democracy in Egypt, the Middle East and the world. Yet taken together, these examples -- one minor and one major -- can teach us a fundamental lesson about the importance of procedures and the nature of power itself.
The Sedgwick County Post
Despite an outcry from civil rights groups, a call for close examination by President Barack Obama and even a 1960s-style sit-in at the Florida governor’s office, the jury’s verdict that George Zimmerman was justified in shooting unarmed teenager Trayvon Martin is unlikely to spur change to any of the nation’s stand-your-ground self-defense laws. … Charles Ogletree, a Harvard Law School professor who taught both Barack and Michelle Obama, agreed: “The reality is that this is not a federal issue. This is a state issue.”
The next big campaign finance case to go before the Supreme Court began in February 2012 in the grand ballroom at the Marriott Wardman Park hotel during the "Ronald Reagan Banquet" at the Conservative Political Action Conference. … In a string of amici briefs filed with the Supreme Court on July 25, campaign reform advocates argue that the elimination of the aggregate limits would open the door for candidates to solicit checks of over $1 million through joint fundraising committees and undermine the individual contribution limits by allowing donations to be shifted among an unlimited number of candidates and PACs. "This is a not very thinly disguised first step to try to get an absolute anything-goes, no-limits regime on campaign contributions," said Charles Fried, a former solicitor general under President Ronald Reagan and the author of an amicus brief submitted by Americans for Campaign Reform.
The court case against Bradley Manning, who was charged with "aiding the enemy", may have a negative impact on the work of Investigative journalists, said Laurence Tribe, a prominent American scholar and a Professor of Constitutional Law at Harvard University Laurence Tribe. …"I think the long-term implications of having brought an "aiding the enemy" charge in these circumstances involving a media leak could be chilling as well, but far less so than if the court had found Bradley Manning guilty of that charge", said Tribe, who once taught current US President Barack Obama and Chief Justice John Roberts. According to Professor Tribe, the verdict acquitting Manning of aiding the enemy was correct. " The fact that enemies could have indirectly benefitted from reading some of what Mr. Manning made available to the general public was insufficient, in my view, to establish an "aiding the enemy" charge. I think that any other approach would have involved seriously stretching the meaning of the federal criminal statute under which Manning was charged and dangerously chilling ordinary journalistic activities", Tribe said. This would be a violation of the principles of freedom of expression and of the press imposed by the First Amendment to the U.S. Constitution in an open American society, he added.
A secretive US Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans. … The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's constitutional right to a fair trial. … "I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records.
A new initiative aimed at tackling foreclosures in Mattapan is expected to be launched Wednesday afternoon. Dubbed the “Mattapan Initiative,” the anti-foreclosure and eviction-defense program will be administered by the Legal Services Center of Harvard Law School, a community-based program that provides legal services to low- and moderate-income residents. “The aim of the initiative is to protect the legal rights of homeowners and provide direct legal services to as many distressed homeowners and tenants facing foreclosure or eviction as possible. We are committed to making a positive difference in Mattapan,” explained Roger Bertling, the Legal Services Center attorney who will oversee the Mattapan program.
WBUR - Here and Now
A military judge has acquitted the former intelligence analyst of aiding the enemy, but convicted him of espionage, theft and computer fraud charges. … Harvard Law professor Yochai Benkler, who was a witness for the defense in the Manning trial, says the prosecution’s case has broad and dangerous implications for the freedom of the press in covering national security issues. “The basic theory that the prosecution has been pushing is that if you leak national security information to the media, and if the media publishers are on the internet, and if al-Qaida reads the internet, then you have communicated indirectly with the enemy. That essentially means that any leak to any organization that publishes on the net, is aiding the enemy,” Benkler told Here & Now.
How our nation’s founding fathers would feel about Tumblr is as impossible for the Supreme Court to know as how James Madison would have felt about violent video games. But fortunately there’s a new Tumblr blog available to help the justices understand how the framers of the Constitution felt about “corruption” in politics. The blog, created by Harvard Law professor Lawrence Lessig, examines all the writings of the founding fathers’ and aggregates every mention of “corruption” to get an overview of their opinion. The answer could prove important to the court’s ultimate ruling in the latest post-Citizens United challenge to campaign finance laws.
WBUR - Radio Boston
The federal court in Boston has been teaming with reporters over the last few months, primarily to cover the trial of alleged mobster James “Whitey” Bulger and accused Boston Marathon bomber Dzhokhar Tsarnaev. With so much public interest in these cases, debate has renewed about whether federal courtrooms should allow video cameras to record the proceedings, or even broadcast trials live. … Guests include Nancy Gertner, retired federal judge and professor at Harvard University Law School. She has advocated for allowing video cameras in the courtroom, and testified in favor of cameras before Congress.
Within legal circles, the mystery of “Whodunnit?” has increasingly become “Who wrote it?” as courts, including the U.S. Supreme Court, keep issuing opinions without divulging who actually authored them. Since 2005, for example, the Roberts Court has disposed of at least 65 cases through unsigned per curiam opinions. Many cases also came with unsigned concurring or dissenting opinions. … The challenging nature of parsing legal text algorithmically required broad collaboration across several different disciplines and institutions including computer science and engineering at MIT, the Berkman Center for Internet & Society at Harvard, and a practicing lawyer. … The article “Using Algorithmic Attribution Techniques to Determine Authorship in Unsigned Judicial Opinions” by William Li, Pablo Azar, and Robert Berwick (MIT Computer Science and Engineering), David Larochelle and Phil Hill, (Berkman Center for Internet & Society at Harvard University), James Cox (associate attorney, Jenner & Block) and Andrew W. Lo (MIT Sloan School of Management) appears in Volume 16 of the Stanford Technology Law Review.
New York Times
A military judge on Tuesday found Pfc. Bradley Manning not guilty of “aiding the enemy” for his release of hundreds of thousands of military and diplomatic documents to WikiLeaks for publication on the Internet, rejecting the government’s unprecedented effort to bring such a charge in a leak case. … Yochai Benkler, a Harvard law professor who testified in Private Manning’s defense, praised the judge for making an “extremely important decision” that he portrayed as denying “the prosecution’s effort to launch the most dangerous assault on investigative journalism and the free press in the area of national security that we have seen in decades.”
The Boston Globe
Dogged by charges that she inflated her resume and abused her position, the embattled president of the prestigious American Academy of Arts and Sciences agreed to resign at the end of the month, the institution announced Thursday, ending weeks of controversy that had engulfed the organization and threatened to tarnish its reputation. …“What the academy has done is long overdue,” said Harvard Law School professor Laurence H. Tribe, an academy member since 1980. “Whether this step will suffice to restore the reputation and integrity of this scholarly institution . . . remains to be seen. But anything less would have been insufficient.”
Chronicle of Higher Education
By remaining neutral during the federal prosecution of the Internet activist Aaron Swartz, the Massachusetts Institute Technology may have failed to "demonstrate the leadership we pride ourselves on" on issues involving information technology, open access, and "dealing wisely with the risks of computer abuse," according to an MIT internal investigation. … Lawrence Lessig, a professor at Harvard Law School and a friend of Mr. Swartz, said MIT officials had committed wrongdoing by doing nothing to deter federal prosecutors. "'Neutrality' is one of those empty words that somehow has achieved sacred and context-free acceptance," wrote Mr. Lessig on his blog after the Abelson report was released. But, he added, "there are obviously plenty of contexts in which to be 'neutral' is simply to be wrong."
Transparency campaigners condemned the harsh sentence in prospect for Bradley Manning, but journalists and lawyers closely associated with the trial were relieved with the acquittal for the most serious charge – that he "aided the enemy" by transmitting state secrets to WikiLeaks. … Yochai Benkler, a Harvard law professor who has written influentially on the role of WikiLeaks and who was a key defense witness in the trial, said that in finding Manning not guilty of "aiding the enemy" the judge presiding over the case, Colonel Denise Lind, had made an "extremely important decision, under what must have been trying professional conditions, by denying the prosecution's effort to launch the most dangerous assault on investigative journalism and the free press in the area of national security that we have seen in decades."
The New Republic
An op-ed by Cass Sunstein: Suppose that you find yourself with an unexpected windfall of $25,000. You are neither rich nor poor. You are deciding among three options for using the money: 1) Buy a new car 2) Renovate your home
3) Have a dream vacation with your family …
Catholics desperately want change in our church, and Pope Francis is being heralded in Time magazine and on almost every major network and newspaper as the one who will deliver it. But before we pronounce him the patron saint of reform, we should step back and take a critical look at whether his gestures indicate a true metamorphosis or are simply a media-friendly rhetorical shift. … He has also appointed a SWAT team to deal with the burgeoning scandal at the Vatican Bank. Whether the five-member commission possesses the necessary know-how is unclear. The four clergy lean towards canon law, diplomacy and the academy, while the final member, Mary Ann Glendon, is an ultraconservative former U.S. ambassador to the Vatican whose background is in law, not finance.
Huffington Post - Canada
Officials at the Massachusetts Institute of Technology did not target the late Internet activist Aaron Swartz, but they failed to show leadership in a case that has raised questions about open access to online information and computer abuse laws, according to the findings of an internal investigation released Tuesday. … Lawrence Lessig, a Harvard Law professor and friend of Swartz, noted that MIT officials never told prosecutors that Swartz’s access to the university’s network was "unauthorized." “If indeed Aaron’s access was not 'unauthorized' — as Aaron’s team said from the start, and now MIT seems to acknowledge — then the tragedy of this prosecution has only increased,” Lessig wrote in a blog post.
An op-ed by Cass Sunstein: In recent decades, many social scientists have drawn attention to the importance of “social capital.” The term is meant to capture the value, economic and otherwise, that comes from social networks, through which people frequently interact with one another. But what if social capital ends up contributing to the rise of extreme movements, including fascism? It is well-established that individuals and societies can gain a great deal from civic institutions, such as parent-teacher associations, athletic leagues, churches and music clubs. High levels of social capital have been associated with numerous social benefits, including improvements in health, promise-keeping, trust, altruism, compliance with the law, child welfare and individual happiness.
A military judge has acquitted the former intelligence analyst of aiding the enemy, but convicted him of espionage, theft and computer fraud charges. …We ask law professor Yochai Benkler, who is co-director of the Berkman Center for Internet and Society at Harvard University. He was a witness for the defense in the Bradley Manning trial.
Don’t tell Brandon German that Boston’s foreclosure crisis is over. He knows better. He wrestles with it every day. German is the community outreach coordinator at Harvard Law School’s Legal Services Center, and for him, work is wading through the toxic detritus that the housing boom left behind. The wreckage is still littered across Boston’s poorer neighborhoods, six years after the bottom fell out of the subprime market.
The entire political system creates incentives for venality. Consider just one factor – and there are many – the role of money, which has expanded dramatically over the past four decades. Harvard's Lawrence Lessig has pointed out that Congressmen now spend three of every five workdays raising money. They also vote with extreme attention to their donors' interests. Lessig cites studies that demonstrate that donors get a big bang for their campaign bucks – sometimes with returns on their "investment" that would make a venture capital firm proud.
The Boston Globe
Despite increased scrutiny of mortgage lending practices, many banks are still violating basic legal requirements when foreclosing on properties in Massachusetts, according to housing attorneys who represent borrowers fighting to save their homes. … Eloise Lawrence, an attorney at the Harvard Legal Aid Bureau in Cambridge, said she has helped more than two dozen homeowners overturn their foreclosures in Lynn alone based on problems with right-to-cure notices. … “Attorneys all across the state see violations of the statute all the time,” said Schumacher’s attorney, Max Weinstein, who works with the Jamaica Plain-based Legal Services Center, a Harvard Law School group that helps low-income clients.