Hearsay

Short takes from faculty articles and op-eds

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Illustrations by Gracia Lam

Internet Arms Race

Professor John Palfrey ’01
MIT Technology Review
May/June 2009

“In less democratic societies, sophisticated use of the Internet is limited to the few and the elite. Too often, using these tools puts activists at risk of greater control by the state, through surveillance, censorship, and imprisonment. Political leaders in dozens of states around the world are using digital tools to extend the reach of their power through propaganda, fear, and self-censorship. Resistance is limited to an impassioned, but widely dispersed, community of Internet activists. Bottom-up resistance plainly works at the margins: the tech-savvy can elude most censorship and surveillance most of the time. … But so too can the smartest of tyrants keep the bulk of their citizens under greater, not lesser, control.

“Digital technologies do not have a nature. They are what we make them. For those who care about human rights and the spread of democracy, alarm bells should be going off right now. The Internet may not be the universally positive influence we’ve been hoping for.”

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Stress-Testing Washington’s Chrysler Bankruptcy Plan

Professor Mark J. Roe ’75
Forbes
May 13, 2009

“Not everything that’s good for a Chrysler rescue is good for the U.S. The interests of the administration and the economy are not the same as those of Chrysler and the UAW’s; the latter two want any deal done that preserves their interests. If the deal bars any outsiders from making a real competing bid on the assets, all the better. The Treasury though, having decided to rescue Chrysler and the UAW, should have wanted a deal done that does little to disrupt capital markets’ confidence in their contracts.

“But that’s not what we got in the first week of the Chrysler bankruptcy. It’s getting done in a way that unnecessarily disrupts financial markets’ confidence in lending to troubled firms, including via the TARP’s proposed public-private partnership, by roughing up bankruptcy’s normal lender protections. But it didn’t have to do this. Chrysler had reason to play it as hard-edged as possible; the United States Treasury did not.”

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Focus on the Child’s Human Rights

Professor Elizabeth Bartholet ’65
The New York Times blog “Room for Debate”
May 10, 2009

“The biggest problem in international adoption is that many who call themselves advocates for children’s human rights press for legal restrictions that limit the ability to provide homes to children in need. Thus Save the Children calls for denying Madonna’s second adoption based on interpreting a residence requirement so as to prevent virtually all international adoption. Some 67 children’s rights organizations went into court to oppose her first adoption. UNICEF calls regularly for restrictions limiting international adoption to at best last-resort status. Romania was forced by similar pressures to outlaw such adoption as a condition of joining the European Union. …

“International adoption provides good homes for the children lucky enough to be placed, and brings significant new resources into countries to improve orphanage conditions and help build welfare programs for the future. Celebrities like Madonna and Angelina Jolie have provided many millions of dollars for such efforts. While few individual adopters have their resources, many develop comparable interest as a result of their own adoptions in contributing what they can to help those children left behind.”

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Rights Case Gone Wrong

Professor Jack Goldsmith with Duke Law School Professor Curtis Bradley ’88
The Washington Post
April 19, 2009

“As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms’ financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa—including distressed firms such as General Motors and Ford—can be held liable for South Africa’s human rights violations during that period. …

“[T]hese lawsuits threaten to deepen the economic distress of U.S. and foreign firms by imposing an enormous tax on investment in developing countries at a time the world desperately needs such investment. Judicially made corporate human rights litigation is a luxury we can no longer afford.”

Editor’s Note: Read the story about the involvement of the HLS International Human Rights Clinic in the suit.

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A Prison of Words

Professor Noah Feldman
The New York Times
March 18, 2009

“[T]he Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him. …

“The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.”

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Correspondence: A New Era of Corruption?

Professor Yochai Benkler ’94
The New Republic (online)
March 4, 2009

“Critics of online media raise concerns about the ease with which gossip and unsubstantiated claims can be propagated on the Net. However, on the Net we have all learned to read with a grain of salt between our teeth, like Russians drinking tea through a sugar cube. The traditional media, to the contrary, commanded respect and imposed authority. It was precisely this respect and authority that made The New York Times’ reporting on weapons of mass destruction in Iraq so instrumental in legitimating the lies that the Bush administration used to lead this country to war. … On some of the greatest challenges of our time, newspapers have failed us. The question then, on the background of this mixed record is whether the system that will replace the mass mediated public sphere can do at least as well.”

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The Bailout Is Robbing the Banks

Professor John C. Coates with Harvard Business School Professor David S. Scharfstein
The New York Times
Feb. 17, 2009

“For reasons that remain unclear, the Troubled Asset Relief Program has channeled aid to bank holding companies rather than banks. … It’s easy to see why holding companies would withhold capital from their troubled banks. If a bank is insolvent—as many are now believed to be—and the government has to take it over, the holding company loses any capital it gave to the bank. Rather than take that risk, the holding company can opt to spend its money elsewhere, perhaps on trading of its own.

“But this is not a good use of scarce capital. We might end up with too much of this proprietary trading and too little lending. It also means that when it comes time to recapitalize banks there is a bigger hole to fill, and when banks fail there is less capital available to meet the government’s obligations to insured depositors and other creditors. Keeping money at the holding company may benefit its shareholders, but it is costly for taxpayers.”

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We Need a Truth Commission to Uncover Bush-era Wrongdoing

Clinical Professor James Cavallaro
The Christian Science Monitor
Feb. 20, 2009

“Does the United States need a truth commission to uncover wrongdoing committed by the Bush administration in the war on terror? Yes, says Sen. Patrick Leahy (D) of Vermont. Earlier this month, he proposed a process to do just that. …

“If we are to control our own destiny, we must reclaim our past. A truth commission, along the lines suggested by Leahy, would be a good means of beginning that process. The alternative—to turn the page without knowing what is on it—could doom us to a haphazard and unpredictable future in which individual consciences and other nations’ courts control our destiny.”

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History’s Verdict

Professor Charles Fried
The New York Times
Jan. 10, 2009

“[T]he election was a definitive repudiation of the Bush administration and its principal characters. There are those for whom this will not be enough to vindicate the values of decency and humanity that the Bush administration flouted as it defended us against further terrorist attacks. There are those who will press for criminal prosecutions, but this should be resisted.

“It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.”


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