July 29, 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.
An op-ed by Katrina Lantos Swett, chairwoman of the U.S. Commission on International Religious Freedom (USCIRF), and Harvard Law Professor Mary Ann Glendon, vice chairwoman of USCIRF: As much of the world’s attention has been focused on the huge human rights abuses in Syria, a severely persecuted group from China has quietly marked nearly a decade-and-a-half since the start of a brutal campaign of detention, defamation and public degradation. On July 20, the Falun Gong – a peaceful movement founded in 1992 and characterized by the practice of meditation exercises and moral precepts – marked 14 years since the launch of a government campaign against it. It is time for Washington and the world to take note of its plight.
In one of the highest-profile trials in Boston’s history, [US District Court Judge Denise J.] Casper, who was on the bench for only seven months before Bulger was arrested in 2011, has faced challenging and critical tasks: tending to jurors, monitoring an angry defendant and his alleged victims, and settling combative lawyers, in what has become a consistent legal back-and-forth. … Casper, 45, a mother of two young children, made history as the first black woman appointed to the federal court in Massachusetts. A graduate of Wesleyan University and Harvard Law School, she has worked in the private sector and as a state and federal prosecutor. … Former US District Court judge Nancy Gertner, who teaches at Harvard and recently joined the law firm Neufeld Scheck & Brustin in a special counsel role, said Casper’s decisions have and will continue to dictate the course of the trial.
The music industry, from the megastars you know to the mostly anonymous people writing their songs, tuning their guitars and driving their buses, has a $9.65 billion annual economic impact on the Nashville region, according to a study to be released Monday. … "If all people do now is go get the hit single and not that track 7 (on an album), that has a particularly hard impact on the pure songwriter," said Christopher Bavitz, managing director of the Cyberlaw Clinic at Harvard Law School and a former senior director of legal affairs for EMI Music North America. "Nashville is one of the few places in this country where the pure songwriter has continued to be able to make a living, at least up until recent years."
Two gay men who successfully sued to get their out-of-state marriage recognized in Ohio despite a state ban are at the forefront of what supporters and experts believe will be a rush of similar lawsuits aiming to take advantage of an apparent legal loophole. …Harvard Law School professor Mark Tushnet said that hundreds of gay married couples living in states with gay marriage could file lawsuits similar to Arthur and Obergefell's. "There's a social movement here at work," said Tushnet, who has written about the legal strategy of civil rights lawyers. "And these cases, they're already beginning to bubble up and almost certainly a fair number of them are going to be decided in favor of the married couples."
In a major national security speech this spring, President Obama said again and again that the U.S. is at war with “Al Qaeda, the Taliban, and their associated forces.” So who exactly are those associated forces? It’s a secret. … Jack Goldsmith, a professor at Harvard Law who served as a legal counsel during the Bush administration and has written on this question at length, told ProPublica that the Pentagon’s reasoning for keeping the affiliates secret seems weak. “If the organizations are ‘inflated’ enough to be targeted with military force, why cannot they be mentioned publicly?” Goldsmith said. He added that there is “a countervailing very important interest in the public knowing who the government is fighting against in its name."
An op-ed by Noah Feldman: Heard the one about the law that says the U.S. must cut aid to a country that has had a coup? Apparently the Barack Obama administration has: Its lawyers have reportedly told the president he can ignore the law simply by not asking whether Egypt has had a coup. The joke would be funny if it weren’t so outrageous -- and such an affront to the rule of law in Washington, to say nothing of Cairo.
An op-ed by Cass Sunstein: What are the legitimate powers of the president? Of Congress? Some people’s answers to these enduring questions seem to shift dramatically depending on a single (and seemingly irrelevant) fact: whether the current president is a Democrat or a Republican. These shifts amount to “institutional flip-flops,” a defining feature of modern political life. In recent weeks, the filibuster has been the most prominent example. Under President George W. Bush, Democratic senators tended to defend its use, while Republican senators opposed it. Under President Barack Obama, of course, the two sides have essentially flipped. (Clarifying note: My topic throughout is the flip-flop, not which party has engaged in worse or more aggressive behavior.)
As more protests loom in Southern California this weekend in response to the Zimmerman trial, many are analyzing President Obama's recent speech on Trayvon Martin. Some have called it the right speech given at the right time. Others have said it was a speech for white America, during which the president attempted to give historical context to protests by African Americans and called on the nation to do some "soul searching" to figure out how to move forward. … Meanwhile, take a look at the Cover it Live conversation below … Ron Sullivan is a Harvard law professor and the director of the university's Criminal Justice Institute.
More than three months after a new state law forced senior arcades into retirement, the low-stakes, adults-only gaming venues are re-emerging across South Florida, with their owners and patrons playing by a new set of rules. The law doesn't call for an outright ban on senior arcades, but its restrictions, such as not allowing gift cards to be awarded as prizes, make them less attractive to players. … Owners of Internet cafes and senior arcades have filed lawsuits that aim to repeal or rewrite the law. Alan Dershowitz, the author, TV commentator and Harvard law professor who has represented televangelist Jim Bakker and professional boxer Mike Tyson, is representing an Internet cafe in Homestead that he says is being denied its First Amendment rights.
Wall Street Journal
We tend to classify Supreme Court justices either by their politics or by their preferred method of constitutional interpretation. Justice Antonin Scalia, for instance, is a conservative originalist. In a new paper, Harvard University law professor Cass Sunstein says the standard groupings overlook how less textual and ideological factors shape our constitutional debates. He suggests a new taxonomy, the “constitutional personae,” consisting of four major categories: heroes, soldiers, Burkeans and mutes.
New York Times
For much of his public life, Barack Obama has been navigating between people who think he is too black and people who think he is not black enough. … Obama’s remarks on the death of Trayvon Martin — “could have been me 35 years ago” — reanimated the old divide. From the he’s-too-black sideline the president was predictably accused of indulging in “racial victimology” and “race baiting.” On the other side, some of those who had yearned for Obama to be more outspoken seized on his riff as a turning point; the president, a Detroit radio host exulted, “showed his brother card.” Charles Ogletree, a Harvard law professor who has known Obama for 25 years, told NPR he felt like “turning cartwheels” when he heard the remarks, and he declared he would now have to rethink a book-in-the-works, in which he had planned to criticize the president’s timidity on race. “It seems to me he threw caution to the wind,” Ogletree told me. “It opens up a whole new chapter of Barack Obama.”
The agency, he said, has played an important role by intervening to protect workers’ rights to unionize — punishing employers that illegally fire workers for supporting a union or that unlawfully threaten to close a factory if employees vote to form a union.
An op-ed by Noah Feldman: The government has ways to make you talk, as writer James Risen was reminded when the U.S. Court of Appeals for the Fourth Circuit ordered him last week to testify against the Central Intelligence Agency source who told him about covert operations regarding Iran’s nuclear facilities. The court was correct that, as it stands, federal law contains no shield for reporters of the kind that exists in 49 states and the District of Columbia. But it should -- not because journalists are a special category, but because anyone who publicizes information in the public interest is fulfilling the true purpose of the First Amendment. Without protection from coercive subpoenas, we are all less than free from an executive branch that has every incentive to enforce secrecy and none to promote disclosure.
There is one thing to be said about Attorney General Eric Holder. He has a way with words that makes conservatives furious -- especially when he starts talking about race and the law. … Harvard Law School professor Charles Ogletree, who mentions Holder several times in his book about racial profiling, "The Presumption of Guilt," said the attorney general "has no fear or reticence to talk about race wherever he thinks it needs to be discussed and that leads to a host of reactions, usually negative, from people." "I think he is being very straightforward, and some people take it as being provocative. He is very honest about his views about race and justice," Ogletree said.
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 ZimOn The New Republic's cover this week, Noam Scheiber chronicles the looming economic collapse of the legal profession. … we reached out to law professors, writers, and practitioners for thoughts on how to improve law school. Alan Dershowitz: Make Law School “Two Years-Plus” I have long proposed a change in the structure of law school education whereby the academic portion would be completed in two years, and the third year would be focused specifically on the student’s career choice. For those who want to become professors, the third year would consist of a mini-PhD program, with an emphasis on research, writing, and teaching; for those interested in government work, a supervised internship with a local, state, federal, or international organization; for those interested in practice, clinical training in the relevant areas of specialization.
Wall Street Journal
Closing arguments began Thursday in the case of Pfc. Bradley Manning, with prosecutors giving a biting description of an Army soldier bent on using his position to harm the U.S. by leaking sensitive documents to the antisecrecy WikiLeaks website. … Defense attorneys relied heavily on testimony from Harvard law professor Yochai Benkler about WikiLeaks' legitimate stature in a new age of networked journalism. Mr. Benkler praised the site as a high point in journalism's history.
An independent report commissioned by President Drew Faust following news of email searches related to cases before the Administrative Board in fall 2012 was released on Monday. … Faust commissioned the Keating review in April. She also announced the formation of a task force to develop forward-looking recommendations concerning Harvard’s policies on the privacy of, and access to, electronic communications. The task force, which began its work in May, is led by David Barron ’89, J.D. ’94, Harvard Law School’s Honorable S. William Green Professor of Public Law.
In These Times
…Last year, Crawford joined the “Fight for 15” campaign, a labor and community-supported project that aims to improve conditions for workers in Chicago’s central business districts. The campaign demands a $15 minimum wage and the right to form unions without interference from management. … So unions, especially the United Food and Commercial Workers and the SEIU, increasingly help finance organizing projects like Fight for 15 that aren’t formal unions. Elaine Bernard, director of Harvard Law School’s Labor and Worklife Program, thinks the new movement has potential for dramatic growth if union leaders refrain from imposing their own preconceived structures. “Fund [the worker activity] and let it go,” she says. “This is a movement where a lot of different things should be tried.”
Newsweek - Pakistan
A year ago, Egyptians elected Mohamed Morsi of the Islamist Muslim Brotherhood to be their president. On July 3, after mass anti-Morsi protests, the Egyptian Army deposed him and began shooting his supporters in the streets. In response, two rival cliques of Washington commentators have championed broad, all-encompassing, and mutually contradictory principles to guide the Obama administration’s response. Either one, if applied with unswerving conviction, would likely produce disaster. … In Egypt, as Harvard Law School’s Noah Feldman has pointed out, Morsi did not compromise with liberals who feared Egypt’s new Constitution was too theocratic.