August 20, 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.
We discuss this week’s top stories, from the verdict in the trial of convicted mobster James “Whitey” Bulger, to the Republican National Committee meeting in Boston, to Attorney General Eric Holder’s statement this week on mandatory minimum sentencing for drug offenders. Guests: Peter Canellos, editorial page editor for The Boston Globe. Nancy Gertner, former Massachusetts federal judge and Harvard Law professor.
An op-ed by Professor Noah Feldman: In case you still thought Egypt’s coup was leading to democracy, the violent destruction of Muslim Brotherhood protest camps and the appointment of 19 generals as provincial governors -- occurring more or less simultaneously -- should cure you of that appealing fantasy. When generals come to power, even if they are initially motivated by the ideal of restoring democracy, the attraction of remaining in power for as long as it takes to establish a military order tends to be decisive. When a regime that generals have deposed was democratically elected, as it was in Egypt, the odds of restoration are even more remote.
All In with Chris Hayes
A jaw dropping new study shows that white people don't like affirmative action, unless they think it's going to benefit them. Chris Hayes and Harvard Law Professor Randall Kennedy discuss.
State Attorney Angela Corey refuses to speak to The Florida Times-Union.
That means Corey has refused to meet her responsibility as a public servant to be fully accountable to the residents she represents as Florida’s lead prosecutor in Duval, Nassau and Clay counties.
Surely, the area’s chief prosecutor knows these issues and concerns are too important — too critical — to justify a news blackout that directly affects readers of the Times-Union and jacksonville.com, the area’s largest media source.
... . In recent months, Corey has had highly public disputes with Harvard Law School professor Alan Dershowitz, former American Bar Association president Sandy D’Alemberte and the Times-Union, among others. And she’s been criticized for her post-verdict reaction to Zimmerman’s acquittal (asked for a one-word description of Zimmerman, Corey replied, “Murderer.”)
An op-ed by Visiting Professor Robert P. George: John Henry Newman was a religious genius. And his understanding of religion enabled him to produce an account of freedom - in particular the freedom of conscience - . . . from which we today have much to learn. . . . Newman . . . locates the foundation of honorable freedoms in a concern for human excellence and human flourishing.
What happens if you need surgery, but can't afford the tens of thousands of dollars it costs to have it done locally? You might consider flying to a different country to have the procedure done for a fraction of the price. "Medical tourism—patients traveling from their home countries to another destination for medical care—is completely transforming the health care industry as we know it," writes I. Glenn Cohen, Harvard law professor and co-director of Harvard’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. Cohen joins Worldview to talk about the growing popularity of medical tourism and how it's impacting health care systems in popular destination countries.
An op-ed by Cass Sunstein: The Graham family’s sale of the Washington Post to Amazon.com Inc. (AMZN) founder Jeff Bezos has prompted intense discussion of the future of journalism. That discussion has yet to focus on a remarkable feature of the Post and other old-fashioned newspapers: They provide people with a great deal of content that they wouldn’t have chosen in advance.
Newspapers create what we might call an architecture of serendipity, in which readers encounter all sorts of stories, facts, ideas and opinions that they didn’t select. Much of what they encounter seems boring, irritating, wrong or offensive, but on occasion it turns out to be surprising, delightful, alarming, important and even life-changing.
He is called “the most evil, dangerous man in America” and Barack Obama’s “invisible hand.” Conservatives and progressives alike distrusted his project to use government power to shape human behaviour in ways that people may not even notice. He endured a tumultuous Senate confirmation, battled conspiracy theories and even fended off death threats in his job as the director of OIRA—the Office of Information and Regulatory Affairs—an obscure-sounding but powerful office that has the final say on government rules about everything from air pollution to product safety.
Cass Sunstein, a well-known Harvard law professor and long-time friend of Obama’s, is also married to Samantha Power, recently confirmed as ambassador to the United Nations. Since leaving government, he’s written a book, Simpler: The Future of Government, that is part memoir and part manifesto for injecting innovative economic theories into the DNA of government. He is, as may be clear by now, a smart and well-connected man. And he believes greater alignment between Canada and the U.S. is not just inevitable, but necessary.
World News Australia
The Nafusa Mountains rise dramatically from the rocky wastes of the northern Sahara. The road, hitherto arrow-straight, begins to twist as it gains altitude, and you find yourself looking down from the window of your car into canyons dotted with tamarisk and date palms. Finally you reach the edge of the plateau, and from there it's just a few minutes into the center of Zintan, pop. 40,000. … . Before the revolution, Saif, who liked to boast about his degree from the London School of Economics, served as the regime's open-minded face to the outside world, negotiating with the Americans about compensation to victims of terrorism and talking of the need for reform. But as soon as the uprising began, the cosmopolitan veneer quickly fell away, … .
… . … "The big issue is that he's not under the control of the government," says Alex Whiting, a former ICC official now teaching at Harvard Law School. "That's the thing that's so odd about the Saif case. If that could be solved, it would be a big win-win for everybody -- the Libyan government, Libyan people, the ICC, international community, and the international criminal justice project. If the government gets its hands on the guy and does a reasonably fair trial of him, that would be an incredible victory. Nobody loses."
MSNBC The Last Word with Lawrence O’Donnell
Shortly after the news came down that 29-year-old George Zimmerman had been acquitted of all criminal charges in the death of 17-year-old Trayvon Martin, America’s oldest civil rights organization, the NAACP, called for the Justice Department to file federal civil rights charges against Zimmerman.
… . “The government would have to prove with evidence that race was the motivation,” Alex Whiting, a former civil rights division prosecutor who is now a professor at Harvard Law. “Normally this is proven either through statements made by the attacker-either before, during, or after the attack-or by showing a pattern of such attacks or by other circumstantial evidence showing that race was the motivation.”
Everyone else was already on the boat by the time Charles Ogletree Jr. arrived at the dock in Menemsha.
“Roads were blocked,” Ogletree said, apologizing for being late. “I told the president I was going fishing and not to block the damn roads.”
The 60-year-old Harvard Law School professor was joking. While he does, in fact, have the ear of President Obama, a close friend and former student who’s vacationing this week on Martha’s Vineyard, even Ogletree is powerless to untangle the traffic caused by the first family’s visit. And that irks him because it delays his time on the water.
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.
Harvard University Press Blog
The pornographic film Deep Throat, released in 1972, was a cultural sensation whose star, “Linda Lovelace,” was said to put a girl-next-door face on the sexual revolution. But the actual life of Linda Boreman, as depicted in the new biopic Lovelace, was one of beatings, rape, and terror. Feminist legal scholar [and HLS visiting professor] Catharine MacKinnon, author of such works as Toward a Feminist Theory of the State and Only Words, represented Boreman after she came forward with her story, and later, with Andrea Dworkin, pursued civil rights litigation as a means to fight pornography. We asked MacKinnon about Boreman, Lovelace, and the potential impact of the film.
In 1812, a Connecticut law student named Samuel Cheever summarized a lecture on “Baron and Feme,” which were the legal terms for husband and wife. Toward the top, in Cheever’s slanted script, is a sentence that seems chilling now: “The husband acquires an absolute right over all the property of the wife in possession, and her right is entirely destroyed.”
... . Cheever’s jottings are among a collection of recently digitized student notebooks from the Litchfield Law School (1784-1833). The original holdings are from the Harvard Law School Library’s historical and special collections: 64 bound volumes of notebooks drafted by 17 students from 1803–1825.
Wall Street Journal
(subscription required) Here's guessing J.C. Penney JCP -3.11% and William Ackman wish they had never set eyes on each other.
Penney's fortunes have fallen hard since the activist investor's hedge fund, Pershing Square Capital Management, disclosed in October 2010 that he had built a stake in the retailer. When Penney reports second-quarter results next week, analysts expect sales to be 30% below where they were three years earlier.
... . The rap on activist hedge funds—that together they hurt the long-term interests of companies and their shareholders—doesn't stand up to the data, according to a recent analysis conducted by Alon Brav of Duke University's Fuqua School of Business with Lucian Bebchuk of Harvard Law School and Wei Jiang of Columbia Business School.
Here is a sentence I never thought I'd write: Hedge funds, activists to be specific, are a very good thing.
There has been a boomlet of activist investing headlines, good and bad. Bill Ackman quit the board of his money-losing project JC Penney after a battle over leadership on Tuesday, the same day BeaconLight Capital tore into management of Jos. A. Bank and Carl Icahn announced on Twitter that he had taken a position in Apple and was seeking a bigger share buyback program.
... . The study, by Lucian Bebchuk of Harvard, Alon Brav of Duke, and Wei Jiang of Columbia, looked at the data from about 2,000 interventions by activist hedge funds between 1994-2007, looking not just at performance before and just after, but for five years from the date of the intervention. (here)
Carl Icahn moves stocks with tweets now.
Yesterday Icahn tweeted that he had taken a position in Apple. The stock immediately was bid upward.
This much is clear: we're living in the golden age of activist investors.
Almost every day there's a new story that runs like this: hedge fund manager "X" has purchased a stake in an iconic American company that he thinks will be worth more—if only the company will follow his plan. It's now a familiar part of the Wall Street landscape.
... . Last month, Harvard shareholder governance expert Lucian Bebchuk, professor Alon P. Brav of Duke University's Fuqua School of Business, and professor Wei Jiang of Columbia Business School published a paper that looked at 2,000 interventions by hedge fund activists from 1994 to 2007. They found that in the short run, stocks tend to rise around 6 percent when activist investors get involved.
The American legal system has been on display this summer; our televisions, newspapers, and social media feeds dominated by high profile trials and arraignments, particularly here in Boston, as well as monumental Supreme Court decisions. Despite the many difference in cases, it was likely taken for granted that every defendant and every side had counsel to argue on his behalf. Every defendant had an advocate to counter the charges of the other side.
… . …As noted by constitutional scholar and Harvard Law Professor Laurence H. Tribe, the components of an adversary system of justice remind us “about the sort of society we want to become, and indeed, about the sort of society we are.”
In her first public speech as administrator of the U.S. Environmental Protection Agency, Gina McCarthy recalled the progress Boston made in cleaning up the Boston Harbor.
Speaking at Harvard Law School, the Boston area native recalled when she was a child, anyone who went into the water at Boston Harbor had to wipe the oil after their body. Now, she said, the water has been cleaned up.
The Times of India
Harvard Law School professor Ashish Nanda is spending time meeting and interacting with faculty members and staff of the Indian Institute of Management, Ahmedabad (IIM-A) as he prepares to take over as director on September 2.
For the next 10 days, Nanda has lined up several meetings and is updating himself with essential information and resources, after which he plans to go to Harvard and return to IIM-A on September 1. A tenured professor in the US, Nanda is said to have taken leave from his university to work in IIM-A.
Indian Institute of Management-Ahmedabad (IIM-A) has announced the appointment of Harvard Law School professor Ashish Nanda as its director. The term of the previous director, Samir Barua, had ended about 10 months ago. Nanda would assume charge on September 2.
“He would be visiting the campus for a few days from August 15 to acquaint himself and meet the faculty and staff,” the institute said in a statement announcing Nanda’s appointment. Sources at IIM-A said Nanda would visit the campus till August 23, after which he would go to Harvard, only to return to IIM-A on September 1.