September 03, 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 New York Times
An op-ed by Benjamin Sachs: The financial challenges low- and middle-income Americans face are daunting. But the poor and middle class are in an equally serious, if less well recognized, political predicament: the government has become almost entirely unresponsive to them. This is a profound political failure. A democracy in which government policy responds to the rich and not to the poor or the middle class is a democracy unworthy of the name.
A group of veteran security experts and former White House officials has been selected to conduct a full review of U.S. surveillance programs and other secret government efforts disclosed over recent months … Joining [recent acting head of the CIA, Michael] Morell on the panel will be former White House officials Richard Clarke, Cass Sunstein and Peter Swire.
Harvard Kennedy School PolicyCast
Harvard Law School Professor Charles Ogletree, a friend and mentor to President Barack Obama, discusses the state of civil rights in the United States on the 50th anniversary of the March on Washington. He discusses Trayvon Martin's death, the President's reaction to George Zimmerman's acquittal, the United States Supreme Court's ruling on the Voting Rights Act and New York City's "stop and frisk" policy.
An op-ed by Nancy Gertner and Judith Resnik: Just as Attorney General Eric Holder was rightly decrying the impact of onerous drug sentences for low-level, nonviolent offenders this summer, the federal Bureau of Prisons began to implement plans that would dramatically increase the burdens of imprisonment on women inmates. The sole federal prison for women in the Northeast — a facility for 1,100 in Danbury, Conn. — is scheduled to be converted into an institution for men, and many of the female prisoners will be transferred to rural Alabama, making family visits virtually impossible. Only 200 beds for women will remain in Danbury, attached in a lower-security camp — far too few to hold the roughly 900 women from the Northeast who receive federal prison sentences each year.
The New York Times
An op-ed by Professor Jack Goldsmith: Since the United Nations was created in 1945, its Charter has been more honored in the breach than the observance. So maybe it should not surprise us that President Obama seems poised to authorize American military action against Syria, in clear violation of international law.
The Charter permits nations to use force against other nations only for self-defense or when the Security Council authorizes such force “to maintain or restore international peace and security,” as it did for Libya in 2011.
Famed Harvard legal professor Lawrence Lessig may be the last guy you would want to pick a fight with over copyright issues over the Internet.
But that is exactly what Australian record company Liberation Music did when it threatened to sue Lessig, a leading scholar of Internet law and an advocate for fewer copyright restrictions, for allegedly violating its rights by using music from the hit song “Lisztomania” by French pop band Phoenix during a lecture.
In one corner there is the brilliant octogenarian Martin Lipton, founder of one of the nation’s most powerful and influential law firms, Wachtell, Lipton, which made it’s name in the giant merger and acquisition battles of the past 4 decades. I guess Lipton has few hedge fund clients because he recently charged the activist hedge funds with “preying on American companies to create short term increases in the market price of their stock at the expense of long term value.”
In another corner is Harvard Law Professor Lucian Bebchuk, a prominent expert on corporate governance issues, who has been extolling a recent academic study of 2000 separate interventions by hedge funds into the process of creating “long-term value.” Bebchuk believes that “activist hedge funds benefit and do not have an adverse effect on the targets over the five-year period following the attack.” Bebchuk also has led the charge against the obscene compensation earned by American CEOs even when their companies do not perform in spectacular growth and profits.
WBUR – Cognoscenti
An op-ed by Nancy Gertner: Forgive this title. It is a bit of a tease. In fact, I am completely skeptical of commentators who second-guess a judge’s decision in sentencing.
When I teach sentencing — previously at Yale Law School and now at Harvard — I have students engage in an exercise. I provide them with the documents involved in a real sentencing, and I ask them what sentence they would have selected.
There is always a caveat: These were sentences based onpaper, not the real human being whose reactions you can observe, whose words you hear and whose affect you experience. When I brought the students into my court to see a real sentencing, they understood the difference.
Computer network hackers calling themselves the Syrian Electronic Army earlier this week disrupted The New York Times’ website for nearly a day and electronic publishing on the Twitter social network for several hours. Also targeted were the Huffington Post and other media outlets.
These cyber attacks, which involved hijacking the companies’ domain names by altering their numeric addresses, which in turn prevented visitors from seeing the websites, are just the most recent in a series of strikes on news organizations, including The Washington Post, The Associated Press, and the Financial Times, in the past few months.
To better understand the attacks, Gazette staff writer Christina Pazzanese asked Harvard’s Jonathan L. Zittrain to comment by email on what happened and how institutions will have to react in order to protect themselves from future disruptions.
A Refreshingly Honest Book About Affirmative Action: Randall Kennedy admits it helped him—and proves why we need it
After a decade hiatus, affirmative action in higher education has come back before the U.S. Supreme Court not once but twice. The court decided Fisher v. University of Texas in June, making it more difficult for colleges to justify racial preferences. And this fall, the court will hear a case challenging a voter referendum banning affirmative action in Michigan. Unfortunately, much of the discussion is marred by tendentious argument and obfuscation. On the right, Justice Clarence Thomas draws deeply ahistorical comparisons between segregation and affirmative action, while on the left, supporters routinely deny the actual way in which racial preferences are administered by universities.
Into this debate steps the highly thoughtful Harvard Law professor, Randall Kennedy, whose new book candidly assesses affirmative action’s costs and benefits. Beginning with its provocative title, For Discrimination is a profoundly honest work on a topic frequently marked by mendacity. Kennedy is frank about how racial preferences work in practice, including in his own career advancement as an African American academic. He is forthright about the drawbacks of affirmative action, too, which makes the positive case he outlines all the more credible. Ultimately, though, he gives short shrift to an emerging third way—affirmative action for economically disadvantaged students of all races—that achieves most of the benefits, while avoiding the costs, of traditional racial programs.
FARS News Agency
Jack Goldsmith, a Harvard Law professor who resigned from the Bush administration over its executive overreach, wrote in Lawfare that “the proposed Authorization for Use of Military Force (AUMF) focuses on the Syrian Weapon of Mass Destruction (WMD) but is otherwise very broad” and that it “does not contain specific limits on targets”.
After Obama’s Rose Garden speech, he sent Congress the text of his proposed resolution on striking Syria in response to the chemical weapons attack on Ghouta. While Congress could modify the resolution, as it stands it’s a document authorizing the use of force on a broad array of targets and could justify deeper US military involvement in the Middle-East, the Mondoweiss reported.
New England Cable News
In the 1980's, Charles Ogletree Jr. taught Barack and Michelle Obama at Harvard Law School. Wednesday, on the 50th anniversary of the March on Washington, he was a guest when President Obama spoke in the shadow of the Lincoln Memorial, wrapped in the aura of Martin Luther King.
Ogletree even had a speaking part himself. On Saturday, he spoke from the same spot where Presidents Carter, Clinton and Obama would speak on Wednesday.
Ogletree joined Jim Braude on Broadside to discuss the anniversary of King's speech, President Obama's handling of Syria and more. "It was great to see the President," said Ogletree. "I was very impressed with what he had to say. I made it clear when I was asked about this before ... I said, no no, he's not a preacher. He's not King, and he's not trying to be King. He's aspiring to follow the footsteps of Lincoln and King in terms of being someone concerned about social justice and all these other issues. He gave a terrific speech. I think it'll be more appreciated not now, but decades from now."
Real Clear Politics
Charles Ogletree, professor at Harvard Law School and founder of the Charles Hamilton Institute for Race and Justice, talks with Rachel Maddow about the people in power who saw Martin Luther King, Jr. as a threat, the parallels between current civil rights issues and those of 50 years ago, and the significance of Martin Luther King, Jr. to President Obama.
National Review Online
Harvard University’s Charles Ogletree, a mentor to President Obama, said Americans will look back on his former student’s speech on the 50th anniversary of the March on Washington years from now and recall it as among his best.
“I think this speech is going to go down as one of the greatest he ever gave — not today, not tomorrow, not next year,” Ogletree said during ABC’s coverage of the event. “Maybe it will be a decade from now.”
The Electronic Frontier Foundation (EFF) and Lawrence Lessig have filed suit against the Australian independent label Liberation Music for “misusing copyright law” to scrub from YouTube a lecture which carried a Phoenix tune.
The video at the center of the suit is a June 2010 lecture titled “Open,” which the Harvard Law School professor delivered at a Creative Commons conference in South Korea. During the presentation, several short clips of amateur dance videos play out to Phoenix’s song “Lisztomania.”
The watchdog group is arguing that copyright law allows for the fair use of works for purposes such as criticism, comment, teaching, and scholarship, and that Lessig’s use of the “Lisztomania” clips was a “classic example of fair use” and was not copyright infringement.
An op-ed by Professor Noah Feldman: Bombing Syria for using chemical weapons against its own citizens would violate international law as it currently exists -- let’s get that straight. But that doesn’t answer the question of whether the U.S. should do it anyway.
Some evils are so great that righting them requires violating laws that are inadequate to the situation, such as when the U.S. broke the same international law by bombing Serbia in 1999 to stop what looked a lot like genocide in Kosovo. The real question is: Should we break international law to send the symbolic message that use of chemical weapons violates, well, international law?
An op-ed by Professor Cass Sunstein: With respect to the science of climate change, many experts regard the Intergovernmental Panel on Climate Change as the world’s authoritative institution. A draft summary of its forthcoming report was leaked last week. It describes the panel’s growing confidence that climate change is real, that it is a result of human action, and that if the world continues on its current course, it will face exceedingly serious losses and threats (including a significant rise in sea levels by century’s end).
The New York Times
Microsoft executives faced an unusual challenge in April when a $12 billion hedge fund, ValueAct, announced that it had bought a nearly $2 billion stake in the company with the intention of shaking things up.
To many analysts, the possibility that ValueAct, with less than 1 percent of Microsoft’s stock, could succeed seemed improbable at best. The firm buys shares in companies, hoping to fight for board seats and change the targets’ corporate strategies....There is some evidence that the results bear that out. A study led by Lucian Bebchuk, a professor at Harvard Law School, published last month argues that companies singled out by these investors improved their operating performance within three years of an activist campaign.
One would think that the last thing the American reading public needs is yet another book on affirmative action. Even by the late 1990s, library shelves were groaning with dozens of books, pro and con, on the subject. ...What Harvard law professor and prolific author Randall Kennedy brings to this is his sharp mind, accessible prose and level-headed reasoning. “I champion sensibly designed racial affirmative action,” he writes, suggesting the possibility of a poorly designed type of affirmative action in which opponents mistake a flaw in the execution for a flaw in the conception. He also writes that “affirmative action, in its typical design and implementation, is in accord with the federal Constitution.”
Affirmative action is perhaps one of the most divisive policies in America. It rattles the halls of higher education. Its appearances in the Supreme Court are frequent. And many are asking: Do we still need it? Harvard Law professor Randall Kennedy says yes. In his new book, "For Discrimination," he charts the history of affirmative action and unpacks the myriad arguments for and against policies that use race as a factor in allocating jobs, resources and spots on university campuses. And he finds that the end of affirmative action is an elusive dream.
An op-ed by HLS Professor Cass Sunstein: Under the U.S. Constitution, does the president have the power to use military force in Syria on his own? Or does he need congressional permission? Last week, 140 members of the House of Representatives signed a letter insisting that military action "without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution." But even while seeking congressional permission to use force in Syria, President Barack Obama objected, "I have the authority to carry out this military action without specific congressional authorization."
A bill that would criminalize "revenge porn" — nude or sexual photos, generally of former wives or girlfriends, posted online by an angry ex — could pave the way for other states to adopt similar laws, putting perpetrators in jail for six months if convicted a first time, and up to a year for repeat violations. The bill, already approved by the California Senate, is expected to go to the state Assembly as soon as this week, despite concerns from some lawmakers and experts who fear it could curtail First Amendment rights. … Jeff Hermes, director of the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, said a "balance needs to be struck properly," and he is not sure the California law will do that. "You need to be extraordinarily careful in criminalizing privacy law because of the risk you're going to deter legitimate speech," he told NBC News. "With the California bill, I don't see an exemption here for material that's legitimately newsworthy."
We should not bomb Syria without a vital national security interest and a precise foreign policy objective. Right now, the Obama administration has not established either. … Once force is authorized, there are very few practical limits on the executive, and presidents in both parties have claimed broad military powers. "Authorizing strikes for 60 days will not prohibit the president from using force beyond 60 days," explains Jack Goldsmith, a Harvard law professor and former Justice Department official, because modern presidents believe they have "independent, inherent" constitutional authority to conduct military campaigns.
Microsoft executives faced an unusual challenge in April when a $12 billion hedge fund, ValueAct, announced that it had bought a nearly $2 billion stake in the company with the intention of shaking things up. … There is some evidence that the results bear that out. A study led by Lucian Bebchuk, a professor at Harvard Law School, published last month argues that companies singled out by these investors improved their operating performance within three years of an activist campaign.
New York Times
Alex Macgillivray, Twitter's chief lawyer and the Internet industry's most prominent champion of free speech rights, announced on Friday that he would step down from his post, as the company expands its global footprint and prepares for a widely anticipated public offering sometime next year. … Mr. Macgillivray's departure comes at a time when Twitter is positioning itself as a multinational company, with offices and data servers around the world and pressure to comply with government requests for user data. "It's got enough impact now that governments around the world are going to want it on speed dial and are going to be seeking cooperation on a variety of fronts because Twitter now is such a vector for communications, particularly fast-breaking communications," said Jonathan Zittrain, a Harvard law professor.
Over the year, 36 million people will play fantasy sports. That's up from nine million in 2005. According to the Fantasy Sports Trade Association (FSTA), a player spends three hours per week managing a team and spends $467.60. … As far as whether fantasy sports are legal, a recent article in the Harvard Journal of Sports and Entertainment Law found it depends on the type of play and the state where it's being played. For the most part, the author believed most traditional forms of fantasy sports in most states would be legal.
President Barack Obama's abrupt change of course and decision to ask Congress to authorize a strike on Syria won praise from some who have bitterly opposed his foreign policy. But in his surprise decision, did Obama cede presidential power? … Other legal analysts disagree, however, with Spiro's assessment that the president is diluting the power of the office.
On the legal blog Lawfare, Harvard Law professor Jack Goldsmith wrote: "What would have been unprecedented, and a huge development for separation of powers, is a unilateral strike in Syria."
An article by HLS Lecturer Erica Ariel Fox: On Syria, President Barack Obama is surrounded by calls to action, taunted from abroad that he’s too weak to act, criticized at home that he’s too slow or too uncertain. On one level, he’s facing a diabolical strategic challenge. That’s obvious. On another level, a more subtle one, he’s dealing with a tie-knots-in-your-stomach internal struggle. Because Obama, like all of us, isn’t of one mind. As neuroscientists show us, human beings possess a “multiplicity of mind” that pulls us in different directions. One part of us says go right while the other points left. One says, “Strike back!,” while another urges the prudent consideration of all options.
The members of a surveillance review panel will meet with privacy advocates and officials from technology companies in two separate meetings on Monday, The Hill has learned. … The members of the review panel are: Michael Morell, a former CIA official; Richard Clarke, a former counterterrorism official; Cass Sunstein, a law professor and former regulatory official; Peter Swire, a former privacy official; and Geoffrey Stone, a constitutional law professor.
Spotify, the fast-growing music-streaming service, has had an increasingly vocal contingent of musicians questioning whether its business model benefits the music industry as a whole. Now a record label is joining the mix, accusing Spotify of copyright infringement because of the way it handles playlists. … Whether these playlists — curated in much the same way as Ministry of Sound’s compilations — are under copyright protection could become a point of legal contention if users try to carry popular playlists from one platform to another. That’s exactly what some users are doing in this case, going so far as to label some playlists with the “Ministry of Sound” moniker. “The usual practice would definitely be to register the collective album [for copyright protection], along with the artwork that’s on the album and things like that,” says Andy Sellars, a staff attorney for the Digital Media Law Project housed at Harvard University. “I’m not aware of a case where someone has tried to claim just the playlist.”
An op-ed by Cass R. Sunstein: Ronald Coase, who died this week at the age of 102, was one of the greatest economists of the 20th century. His impact on academic thought and public policy is incalculable.
In 1991, Coase won the Nobel Memorial Prize in Economic Sciences in part for a theorem he set out in a 1960 article that is, by a large margin, the most cited law-journal paper of all time. The Coase theorem produced a revolution in both thought and public policy.
The Wall Street Journal
An op-ed by HLS Visiting Professor Robert George (subscription required): Jean Bethke Elshtain, the eminent University of Chicago scholar who died last month at age 72, was a little lady from a small town in Colorado who became a giant in the field of political philosophy. She gained her stature not by conforming to the orthodoxies of the modern academy, but by frequently offering compelling reasons to reject them. In a milieu dominated by secularism, she embraced religious faith, in the end becoming a Catholic. Defying the radical feminism of the 1970s, she rejected abortion as the taking of innocent human life and defended marriage as normative for sexual conduct.
US and British intelligence agencies have successfully cracked much of the online encryption relied upon by hundreds of millions of people to protect the privacy of their personal data, online transactions and emails, according to top-secret documents revealed by former contractor Edward Snowden. … The agencies insist that the ability to defeat encryption is vital to their core missions of counter-terrorism and foreign intelligence gathering. But security experts accused them of attacking the internet itself and the privacy of all users. "Cryptography forms the basis for trust online," said Bruce Schneier, an encryption specialist and fellow at Harvard's Berkman Center for Internet and Society. "By deliberately undermining online security in a short-sighted effort to eavesdrop, the NSA is undermining the very fabric of the internet." Classified briefings between the agencies celebrate their success at "defeating network security and privacy".
The Senate Foreign Relations Committee voted yesterday to authorize the use of force in Syria, sending a resolution full of broad, imprecise language on to the full Senate. The committee split 10-7, with Democrats Chris Murphy and Tom Udall and Republican presidential hopefuls Rand Paul and Marco Rubio among those voting against the authorization. … As Jack Goldsmith, formerly assistant attorney general in the Office of Legal Council and now a Harvard law professor, wrote yesterday, the authorization “gives significant support to the position that the President has some (uncertain) independent constitutional authority to use force in Syria, regardless of what Congress authorizes, and (perhaps) beyond what Congress authorizes.”