August 13, 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.
The Bay State Banner
Though most think the foreclosure crisis and predatory lending scandal have blown over, many people in communities that were specifically targeted — such as Mattapan — are still fighting daily to keep or get back their homes. ...“People in largely minority communities were really sold bad mortgages,” says Attorney Roger Bertling, who oversees the Mattapan Initiative and is director of the Consumer Protection/Predatory Lending Clinic at the Legal Services Center. “They were told things that were not true — they were sold things that were never going to come true,” he says. “They were preyed upon. … It ended up being a problem for everybody because they were sold mortgages they could not afford and were never going to be able to afford. Our goal is to make sure everybody gets some sort of assistance and hopefully enough assistance required to keep them in their homes.”
The Boston Globe
They are two heavyweights of Democratic economic policy, each with strong connections to Harvard University and known for intellectual firepower, each a staunch supporter of President Obama.
But the relationship between Senator Elizabeth Warren of Massachusetts and Lawrence H. Summers, the former Obama economic adviser and treasury secretary in the Clinton administration, is more complicated than their resumes might suggest. And now, in the midst of a fierce personality and policy fight that has gripped Washington in recent weeks, a new chapter in their complex friend-and-foe relationship is being written. ... People who know her say that comments about women were less likely to upset her than his positions on how the economy should be run. “I don’t think she’s ever described herself as a feminist,” said Richard Parker, a senior fellow at Harvard’s Shorenstein Center, which studies press and politics.” It’s very much more a class thing than a gender thing as far as I can tell.”
In late July, MIT issued its report, written by computer science professor Hal Abelson, on the university's own actions in the Aaron Swartz case. Swartz, an information activist, faced extensive charges for downloading a huge number of academic articles from the online service JSTOR over MIT's network. Swartz committed suicide in January.
In the past week, three respected academics, writers of leading work in digital law, language, and civics, have written about the report: Harvard Law's Larry Lessig, Northwestern's Peter Ludlow, and the director of MIT's Center for Civic Media, Ethan Zuckerman. Their responses are worth reading in full, but we've summarized them below, for they agree on three startling points.
Former intelligence analyst Edward Snowden caused a massive controversy—and a national debate—when he leaked classified documents revealing the extensity of NSA surveillance programs. But according to an exclusive report by Reuters, for the past two decades another U.S. agency has tapped huge amounts of data to investigate American citizens. … John Shiffman, Reuters reporter and co-author of the story, joins us to discuss his findings. Nancy Gertner is a Harvard Law School professor who served as a federal judge from 1994 to 2011. She joins us to explain the legal perspective on the D.E.A.'s "parallel construction" practice.
An op-ed by Professor Cass Sunstein: A lot of public discussion takes place before the president nominates a new Federal Reserve Board chairman. This time, that discussion has gotten unusually heated.
Continuing economic difficulties are one reason. Another is that Lawrence Summers, a top candidate, is a larger-than-life figure -- unusually well-known and widely admired, but in some circles controversial. The paradox is that those who know him best, and who have worked with him most closely, are his biggest supporters -- and that the objections are coming largely from those who know him little or not at all.
The US Department of Justice has launched an investigation into revelations that the Drug Enforcement Agency uses surveillance tactics – including wiretapping and massive databases of telephone records – to arrest Americans, amid growing concerns from lawyers and civil rights groups over its lack of transparency. ... Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, described the practice of "parallel construction" as "a fancy word for phonying up the course of the investigation". It was one thing, she said, to create special rules for national security, but creating rules for ordinary crime threatened to undermine the bill of rights, set up as a check against the power of the executive.
The Wall Street Journal
An op-ed by Professor Lucian Bebchuk (subscription required): The recent increase in hedge-fund activism aimed at producing changes in business strategy or leadership—including at large companies such as Apple, Hess, Procter & Gamble and, as announced last week, Air Products—has met intense opposition from public companies and their advisers. Opponents, such as prominent corporate adviser Martin Lipton, argue that such activism is detrimental to the long-term interests of companies and their shareholders: It may pump up short-term stock prices and benefit the activists—who don't stick around to eat their own cooking—but it harms shareholders in the long term.
An op-ed by Professor Hal Scott: Last week, writing in Politico, former members of Congress Chris Dodd and Barney Frank touted the fact that the legislation that bears their names now forbids using public funding to keep failing banks in business. “The U.S. federal government now has the power to terminate the lives of large, heavily indebted financial institutions,” they boasted. Ironically, however, Dodd-Frank has made it more likely that the taxpayers will need to rescue firms, because their statute has left us less able to fight contagion.
An op-ed by Professor Cass Sunstein: Americans pride themselves on their intergenerational mobility. Our nation's exceptionalism is organized around the American dream: No matter where you come from and no matter who your parents are, you can rise to the top of the economic ladder, so long as you are willing to commit yourself and work hard.
In recent years, however, a great deal of comparative research has been done on intergenerational mobility, and it raises legitimate questions about the claim that the U.S. stands out as a land of opportunity.
A former Reagan administration solicitor general and supporter of President Barack Obama, Harvard Law Professor Charles Fried, said Thursday he's entirely unconcerned about the National Security Agency's recently revealed surveillance programs.
"You talk about our privacy, our liberty, our rights and how Americans are alarmed and fear. I must report: I am not alarmed. I don’t fear anything," Fried told Sen. Richard Blumenthal (D-Conn.) following a speech he delivered on proposed reforms to the NSA programs
Reflections on NSA Oversight, and a Prediction That NSA Authorities (and Oversight, and Transparency) Will Expand
An op-ed by Professor Jack Goldsmith: Last Friday I asked how NSA Director Alexander’s claim that “we can audit the actions of our people 100%” was consistent with USG uncertainty about what Snowden stole and with its claims that it was “putting in place actions” to allow it to track its systems administrators. Former NSA General Counsel Stewart Baker answered that the “NSA does a better job of protecting Americans’ private data than it does protecting its sources and methods,” and that “the systems that protect against [searching the databases of information collected by NSA] are a lot more carefully monitored than the systems from which [Snowden stole classified data about various NSA collection programs].”
As the mysterious travel details of Edward Snowden continue to dominate the news cycle, on Monday evening "Piers Morgan Live" invited attorneys Gloria Allred and Alan Dershowitz to offer their candid reactions and detailed insights. … Dershowitz, for his part, insisted there is no gray area, "Well, it doesn't border on criminality – it's right in the heartland of criminality. The statute itself, does punish the publication of classified material, if you know that it's classified," explained the guest. "Greenwald – in my view – clearly has committed a felony."
The jury in the trail of James “Whitey” Bulger faces a complex job. The four women and eight men are just concluding their third day of deliberations.
This morning, Judge Denise Casper told the jurors they should try to reach verdicts in all of the allegations contained in the racketeering charge against Bulger. That charge includes 33 acts, including the 19 murders that Bulger allegedly planned and took part in. Guest Nancy Gertner is a retired federal judge and Harvard Law School professor.
If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant because it expressed a universal concept -- free trade in ideas -- that 125 years after the Constitution was ratified still had not yet taken hold in our democracy. Powerful because it went beyond legal precepts to a fundamental fact of human existence: We all make mistakes. We all have good opinions and bad ones. … There have been other instances where a justice changed his mind in a case of profound constitutional import. As Harvard Law School professor Laurence Tribe reminded me this week, Justice Potter Stewart shifted on the issue of reproductive autonomy from dissent in Griswold v. Connecticut in 1965 to the majority in Roe v. Wade in 1973.