August 26, 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.
As dorm rooms are dusted and campus squares begin to bustle with students, dozens of federal lawsuits are forcing colleges around the country to face an oft ignored reality — rape culture on campus. … "Schools can no longer hide their heads in the sand about this," Harvard Law School's Professor Diane Rosenfeld who directs Harvard's Gender Violence Program, told MSN News. "Many schools want to believe that it doesn't happen at their school, but they simply must face the fact that it does."
Wall Street Journal
An op-ed by Paul Cassell and Nancy Gertner (subscription required): The American justice system is based on the principle that justice is only possible when everyone accused of a crime, rich and poor alike, has access to effective defense counsel. This is why state and federal governments have a constitutional obligation to provide attorneys for those who are unable to afford them.
An op-ed by Mark Roe: After the financial crisis erupted in 2008, many observers blamed the crisis in large part on the fact that too many financial firms had loaded up on debt while relying on only a thin layer of equity. The reason is straightforward: whereas equity can absorb a business downturn – profits fall, but the firm does not immediately fail – debt is less forgiving, because creditors do not wait around to be paid. Short-term creditors cash out or refuse to roll over their loans, denying credit to financially weakened firms. Long-term creditors demand to be "made whole" and sue. Without cash, the firm fails.
New York Times
Chief Justice John G. Roberts Jr., who has filled a secret court that oversees surveillance almost entirely with Republican-appointed judges, has named Judge José A. Cabranes, a Democratic appointee, to the panel that hears rare appeals of the surveillance court's rulings. … Philip Heymann, a Harvard law professor and a deputy attorney general in the Clinton administration, criticized Chief Justice Roberts for not doing more to restore public trust in the FISA court process, which he said was crucial if secret intelligence operations are to have credibility.
Wall Street Journal
Pfc. Bradley Manning was sentenced to 35 years in prison Wednesday for leaking classified American information to WikiLeaks, the culmination of a trial that posed tough questions about government secrecy and national security. … Yochai Benkler, a Harvard Law School professor who testified for the defense, called it an "extreme and unjustified sentence" that was "unprecedented in American constitutional history." "The extreme threat of decades of imprisonment will make it increasingly difficult for the American public to hold its elected officials to account in one of the most important areas with which every democracy must struggle: what kind of national-security activity we want—and at what cost to democratic accountability," he said.
Harvard Law School Professor Lawrence Lessig, co-founder of Creative Commons and unofficial mack daddy of copyright law, is suing Australian record company Liberation Music after they successfully convinced YouTube to block one of his lectures. All the squabbling boils down to a five-second clip of the song "Lisztomania" by the French alternative rock band Phoenix. Lessig featured the diddy in a 49-minute lecture entitled "Open" at a Creative Commons conference in South Korea to help highlight "cultural developments in the age of the Internet."
This post is based on an op-ed by Professor Mark Roe that was published Aug. 15 in The Financial Times, subscription required. And so the drama moves on to a courtroom. Two prime traders in JPMorgan Chase's "London whale" misadventure have been indicted. Side plots may unfold, perhaps via extradition proceedings. But here is the big question: will the indictments lead to better, stronger financial markets? Well, yes and no. Recall the problem: JPMorgan's London trading desk made trades that would be profitable if the post-crisis American economy remained weak. As the economy improved, the traders sought to reverse the investments, but could not, ultimately losing the bank and its shareholders $6bn.
Subscription required: There's a new buzzword in Israel's capital markets - the "Mellanox effect." CEO Eyal Waldman delisted the high-tech company's shares from the Tel Aviv Stock Exchange; they now trade on the Nasdaq exclusively. … So what does U.S. law say? ISA officials are evasive on this. They don't want to impose yet another regulatory burden on dual-listed companies and thus wrote that they that don't want to engage in interpreting American law. But Prof. Jesse Fried of Harvard Law School, who wrote a legal opinion backing Hannes and Kamar, stated unequivocally that Teva and other dual-listed companies must indeed break out their top executives' individual compensation.
Martin Luther King Jr. declared from the steps of the Lincoln Memorial that the March on Washington was "not an end but a beginning." Fifty years later, the push for racial equality still isn't complete. … That gap has narrowed from a 55 percent differential in 1991. Blacks are also making gains on the upper end of the spectrum: More than one in 10 black households earned $100,000 or more in 2011, up from less than one in seven in 1991. For white households, 24 percent were earning at least that much. About 1.5 percent of black households earned $200,000 or more in 2011, a fourfold increase from 1991. "The black middle class is doing well, able to live where they want to live, eat where they want to eat, and that's a sign of progress," said Charles Ogletree Jr., a professor and director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School and a mentor of Obama.
The Globe and Mail
Recent months have delivered fresh defeats: the killing of Trayvon Martin, a Florida teenager who seemingly aroused suspicion just because of the colour of his skin; and a decision by the U.S. Supreme Court to invalidate a key section of the Voting Rights Act of 1965 – legislation passed in the wake of Dr. King's Washington triumph."It's a complicated picture," says Michael Klarman, a legal historian and constitutional scholar at Harvard Law School. "We pretty much obliterated Jim Crow laws" – which enforced segregation – "and restrictions on voting rights. On the other hand, we still have all of these vast differences." Prof. Klarman sees a contrast between formal equality and something more substantive. A black person in the United States is "more likely to die early, get sick, get incarcerated, drop out of high school, and be unemployed" than a white counterpart, he notes. The black poverty rate is nearly three times that of whites; the homicide rate involving firearms is 10 times higher.
Should a school bus driver do something more than just yell at the attackers to stop and call 911 when a child on their bus has become a victim of an assault by other students? You have probably heard about the Florida school bus driver who refused to intervene as three teenage students viciously beat up a 13-year-old boy in July, all of it captured on the bus video. … We discussed the facts of this case with Harvard Law School professor John Goldberg, one of America's recognized experts in the law of negligence, asking if the driver should have done more. "As surprising as it may seem, there is generally no duty to intervene or take steps to go to the aid of another person," Goldberg said. "Yet there are exceptions requiring that we help — for example auto accidents — where, regardless of whose fault it is, if you are in an accident the law requires taking some steps to help the injured.
Oil & Gas Journal
Subscription required: The rapid growth of unconventional natural gas development and production is forcing governments worldwide to examine not just how to regulate the business, but also to consider which levels of government can do the best job in specific instances, participants at an Aug. 15-16 conference hosted by the National Research Council agreed. … Kate Konschnik, policy director at Harvard Law School's Environmental Law and Policy Program, said, "I believe the government could play a bigger role in sharing and collecting data. Right now, it's trying to pull together basic information from universities about shale gas resource formation. It should not just be technical, but also governance data, including best practices not only from the oil and gas but also other industries."
Major splashes by activist investors tend to provoke dramatic and divergent reactions: shareholders cheer wildly, the media gets whipped into a frenzy and target CEOs quietly cringe. … The knee-jerk reaction on Wall Street is generally very positive. For example, a single Tweet from Icahn earlier this month disclosing a "large position" in Apple (AAPL) sent the former tech darling's stock surging almost 5%. That's not an uncommon response. The paper, which was authored by Duke University professor Alon Brav, Harvard Law School's Lucian Bebchuk and Columbia Business School's Wei Jiang, found the average price jump is 6%. "This market reaction is consistent with the view that hedge fund activists provide benefits to, rather than impose costs on, the targets of their campaigns," the authors wrote.
There's an ivory tower barbarian at the gate. Lucian Bebchuk, a Harvard Law School professor, is ratcheting up his battle against corporate defenders like veteran lawyer Martin Lipton. Hedge fund bosses, including Dan Loeb and Bill Ackman, expose real management weaknesses. Even without their resources, though, academic activists like Bebchuk can still be on target. The spat between Bebchuk and Lipton seems as personal as the one that erupted recently between Ackman, the founder of Pershing Square Capital Management, and billionaire Carl Icahn. Lipton reckons Bebchuk has "aided and abetted" uppity investors in "a form of extortion." Bebchuk, with the aid of two colleagues, fired back in a study that undermines Lipton's credo that activists create only short-term share price pops.
When Pope Francis convened his now-famous press conference aboard the papal plane during his trip home from World Youth Day, international attention was seized on his comments on homosexuality, specifically his words, "Who am I to judge?" (Only the leader of the world's 1.2 billion Catholics.)
But many in the church are raising their eyebrows–and their hopes–over the first Jesuit pope's call for a "deeper theology of women" and his note on "a lack of a theological development" when it comes to the female half of the world's population. … Some even say that a theological argument can be made for women to serve as deacons, with a spate of articles in the Catholic world exploring the issue. Catholic women across the ideological spectrum, many of whom point to female leaders already working in the church like Harvard legal scholar Mary Ann Glendon, now serving as adviser to Pope Francis on Vatican finances, nonetheless agree that these are positions that women not only can fill, but should.
An op-ed by Professor Noah Feldman: Forget Client No. 9. If you want to understand the future of world politics, it's Document No. 9 you need to know. This semisecret directive from the senior members of the Chinese Communist Party tells you how President Xi Jinping plans to manage pro-democracy voices in China: by shutting them down. The sharp repudiation of constitutional government, human rights, civic participation and free speech – not to mention truly free markets – guarantees that the ideological struggle between China and the West will continue well into the future.
To hear Rep. Steve Stockman, R-Texas, describe it, the difference between President Obama and Sen. Ted Cruz, R-Texas – on the question of their eligibility for the highest office in the land – may be a case of comparing apples and oranges. … Harvard law professor Laurence Tribe, considered a leftist, and Theodore Olsen, often considered right-leaning, co-authored a legal brief for John McCain arguing he was a natural born citizen because both his parents were U.S. citizens at the time of his birth and the founders never meant to exclude from eligibility someone who was born outside the U.S., just because the parents were serving the nation in the U.S. military at the time, the analyst said. They explained McCain ultimately provided proof (including the name of the attending physician) he was born on the Naval Base in the Panama Canal Zone, adding additional support to the claim he was born on "U.S. soil."
Ashish Nanda, a professor at Harvard Law School, jumped on a plane to India just three days after learning he had snagged the role of director at his alma mater, the Indian Institute of Management, Ahmedabad (IIMA). "I wanted to meet the people here to get a sense of the opportunities and challenges that lie ahead," he says, from India.Unlike most new deans at top American business schools, Nanda, 53, says he doesn't have a laundry list of goals he'd like to accomplish. Instead, he's coming into this job with humility and a general sense of where he'd like the school to go.
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician's trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced. … Harvard professor Alan Dershowitz infamously argued in 2002 that the time had come for torture warrants. He was pilloried for seeking to legitimise torture, but perhaps he was misunderstood. He was right that, post 9/11, the US would torture anyway, so maybe he was also right to seek some sort of legal oversight.