Over the past week, a number of HLS faculty members shared their viewpoints on events in the news. Here are some excerpts:
Roberts’s Real Long Game
July 20, 2012
HLS Professor Einer Elhauge ’86, the founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, has written a number of op-eds on the healthcare mandate.
“Many are saying Chief Justice Roberts’s decision to sustain Obamacare was designed to preserve the long-term political capital of the Court. I think he simply made the decision he ultimately decided was right on the tax issue, which the precedent strongly supported. But to the extent a long-term political angle may have subconsciously motivated him, there is a large one that commentators have so far missed.
The unseen long game is that sustaining Obamacare as a tax helps preserve the Republicans’ ability to adopt two items on their own political wish list: the Paul Ryan plan to privatize Medicare and George W. Bush’s plan to privatize Social Security.” Read More.
Arab Spring Falters Yet Tunisian Democracy Thrives
July 16, 2012
A regular columnist for Bloomberg, HLS Professor Noah Feldman, a professor of constitutional and international law, recently wrote:
“Egypt is in a full-blown constitutional crisis. Syria is in a borderline civil war. Yemen elected its former vice president — who ran unopposed. Is the Arab Spring dead? If not, where is it living?
And the winner is … Tunisia, where it all started in December 2010 after a frustrated fruit-seller set himself on fire. As you read these words, a freely elected assembly is drafting a new constitution from scratch. The coalition government has faced challenges, but it is functioning. A lively press and an active political class, both inside the 217-seat constituent assembly and outside it, are criticizing like crazy. Unions are pressuring the government to create more jobs, and the government is trying to do what it can without throwing fiscal responsibility to the winds.” Read more.
New York Times
How Pensions Violate Free Speech
July 12, 2012
Professor Benjamin Sachs teaches labor law, employment law, and the workshop on law and social policy at Harvard Law School.
“A central principle of American political life is that everyone gets to choose which candidates to support. The idea that the government could force us to support those we oppose is anathema. But this unacceptable state of affairs is one of the unintended consequences of the Supreme Court’s decision in the 2010 Citizens United case.
That’s because the vast majority of people who work in the public sector—state, local and federal employees—are required to make contributions to a pension plan. Nearly all states make participation in a pension plan mandatory and a “condition of employment” for public employees. To get and keep your job with the government, you have to give some of your paycheck to the pension plan.” Read more.
Online Kiobel symposiun: The Alien Tort Statute and the importance of historical evidence
July 17, 2012
HLS Clinical Professor Tyler Giannini and Assistant Clinical Professor Susan Farbstein write on the Kiobel v. Royal Dutch Petroleum Co. Case
At February’s oral argument in Kiobel v. Royal Dutch Petroleum Co., counsel for the petitioners responded to questions about extraterritoriality by citing the incident in Sierra Leone that led to the well-known 1795 opinion of Attorney General William Bradford. That exchange appears to have sparked the Supreme Court’s request for supplemental briefing on whether the Alien Tort Statute (ATS) applies to acts that arise on foreign territory. History, including the so-called Bradford Opinion, provides strong evidence that the ATS does apply to conduct occurring on foreign soil.
History has long been a critical part of ATS jurisprudence, given that the statute dates to 1789. Sosa guides that any ATS cause of action must be for violations of the law of nations as universally recognized as eighteenth-century paradigms, such as piracy. The text and purpose of the statute, the common law of the era, and the Bradford Opinion provide the relevant insight into the Justices’ current question about claims that arise in foreign lands – and indicate that there would have been no territorial limit on the ATS at the time of the statute’s enactment. Read more.
Governor Patrick can still act on Three Strikes
July 23, 2012
Legislative approval of the so-called Three Strikes Law was a foregone conclusion last week, but that did not make the bill any easier for David Harris to swallow.
Harris helps run the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and he has done extensive research on sentencing laws. His conclusion is that this law is an ill-conceived idea.
“We have some legislation that is in response to a terrible crime,” he said. “But we can’t build public policy in response to a single crime. If you think about the communities that are most affected by crime, they’ve said pretty clearly they are against it.”
The Strategic Toll of Working With Others (Or Not)
July 17, 2012
Urs Gasser and John G. Palfrey, directors of the Berkman Center for Internet & Society at Harvard University, are co-authors of “Interop: The Promise and Perils of Highly Interconnected Systems.”
Most of the innovations in the digital space, whether small or large, are fueled by a concept we call interoperability or “interop”: the ability of complex systems, applications, and components to work together.
Interop functions on several layers. In the most basic sense, it is the ability to transfer and render useful data and other information across systems, including organizations. Take email as an example. We send (too) many emails all the time and take it for granted. Behind the scenes, however, a significant number of systems and components–think of hardware, protocols, data formats, and applications–need to work together to at the technological and data layers to enable this form of electronic communication. Read more.
Piers Morgan Pushes Gun Control, Bristles at Notion of Delaying Political Debate
July 21, 2012
In an interview with CNN anchor Piers Morgan, HLS Professor and noted constitutional law scholar Laurence Tribe ‘66 addressed gun control:
“[G]un control is overdue. The Second Amendment does protect the right to people to possess weapons for self-defense in the home. That’s what the Supreme Court said. But it certainly does not protect the right to buy 6,000 rounds of ammunition on the Internet, or to buy four guns, including automatic and semi-automatic weapons, in a short period of time.”
Bloomberg BNA Money & Politics Report
Investors Continue to Press SEC for Rules on Corporate Disclosure of Political Spending
July 18, 2012
A coalition of 14 investor and public interest groups July 16 urged the Securities and Exchange Commission to issues rules requiring companies to disclose their political expenditures, saying that shareholder interest in such disclosures is reaching new highs in 2012.
Harvard law professor Lucian Bebchuk, co-chair of the Committee on Disclosure of Corporate Political Spending, told [Bloomberg] BNA that he believes the SEC ultimately will take up the rulemaking.
“The petition has attracted a record number of comments, and the comments have been overwhelmingly positive,” Bebchuk said. “There is strong evidence that investor interest in receiving more information on the subject is substantial, and the case for greater transparency in this area is very strong. I therefore fully expect that the SEC will give a serious consideration to the rulemaking petition.”
The Wall Street Journal
NYC Bar Task Force to Study Legal Market
July 16, 2012
Representatives from all corners of the legal world are coming together in New York to try to solve the riddle of the worst legal job market in 20 years. The New York City Bar Association has conscripted law-school deans, legal aid directors, in-house counsel and law-firm partners into a search for a solution to a job market in which only 55% of the class of 2011 had found full-time positions requiring a law degree nine months after graduating. Professor David B. Wilkins, Director at Program on the Legal Profession joined the group. Read more.