HLS Faculty assess the week’s legal news

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.

MSNBC

Obama proposes renewed consideration of profiling, ‘Stand your ground’

Charles Ogletree, senior advisor to President Obama, and Mark Thompson, host of “Make it plain,” on Sirius XM radio, talk with Alex Wagner and Melissa Harris-Perry about the criticism of “Stand your ground” self-defense laws by President Obama, Attorney General Eric Holder, and a growing number of Americans in the wake of the killing of Trayvon Martin.

New York Magazine

John McCain Also Thinks States Should Reevaluate Stand Your Ground Laws

John McCain was feeling a little mavericky during his Sunday State of the Union appearance, when he echoed President Obama’s recent call for the reexamination of Stand Your Ground laws in the wake of the George Zimmerman verdict. … Unfortunately for McCain, Obama, Attorney General Eric Holder, and many of the people who showed up for Saturday’s Al Sharpton-organized “Justice for Trayvon Martin” rallies, the public outcry over Stand Your Ground laws doesn’t seem to pose a major threat to the existing legislation. As the AP notes, the 22 states with Stand Your Ground are mostly “conservative and lean toward laws that defend gun owners’ rights.” “The reality is that this is not a federal issue. This is a state issue,” pointed out Harvard Law School professor Charles Ogletree, who taught both Obama and Michelle.

NBC News

Florida had first Stand Your Ground law, other states followed in ‘rapid succession’

In speaking out against “Stand Your Ground” self-defense laws this week, Attorney General Eric Holder criticized legislation that has been enacted in some two dozen states and has been backed by powerful gun lobbyists since the first such law was passed in Florida in 2005. …Many of the 20-plus states that have this type of legislation passed it quickly after Florida did. “It happened very, very quickly, in rapid succession,” said Jeannie Suk, a Harvard law professor who has written extensively about self-defense and criminal law. “The National Rifle Association at the time stated its intention to do it in Florida and then use it as a jumping-off point for a sweeping change in self-defense law across the country. They were not at all shy or apologetic about that. This was the goal.”

NPR

Obama’s Remarks On Trayvon Martin ‘Pointed’ And ‘Personal’

Harvard law professor Charles Ogletree, a former adviser to President Obama, says the president’s statement Friday was the “most amazing comment I’ve ever heard him make in the 25 years I’ve known him on the issue of race.” Guest host Linda Wertheimer talks with Ogletree about the significance of Obama’s words.

Centre Daily News

Why American students don’t major in science

An op-ed by Cass Sunstein: In recent years, a lot of people have been concerned about the relatively low numbers of science majors among American college students. The percentage of science and engineering graduates in the United States has been far below that in China and Japan. On various math and science tests, the performance of U.S. students has fallen below that of students in South Korea, Singapore, Japan, England, Finland, Israel, Australia and Russia.

WBUR

How Can A Lawyer Represent You Without Speaking Up?

An op-ed by Nancy Gertner: In the trial of James “Whitey” Bulger, the government moved to have the defense counsel comply with the ethical rules concerning comments to the media. The judge granted the request with one caveat: The rule applies to both prosecutor and defense counsel alike; both were admonished to follow it. Local Rule 83.2A, which is 20-years-old, bars public comment by lawyers about a criminal case if there is a reasonable likelihood that commenting would “interfere with a fair trial or otherwise prejudice the due administration of justice.” Significantly, it does allow lawyers to “quote from or refer without comment to public records of the court in the case” during the course of the trial.

Marketplace Tech

Could retail tracking lead to customer discrimination?

Cabela’s, Benneton, and Mothercare are among national retailers that have tested the idea of tracking customers in their stores using cellphone signals and video cameras, according to the New York Times. Nordstrom has also experimented with the idea, but stopped after some shoppers complained. But with all the other online tracking that goes on, why should we care? Jonathan Zittrain, co-founder of Harvard’s Berkman Center for Internet & Society, says the tracking could lead to customer discrimination. He joins Marketplace Tech host Ben Johnson to explain.

Media Post Communication

Google Settles Vanity-Searcher’s Class-Action Lawsuit For $8.5 Million

Google has agreed to settle a class-action lawsuit alleging that it leaked the names of search users via referrer headers, according to court papers filed on Friday in San Jose, Calif. The settlement agreement calls for Google to donate $8.5 million to four schools and nonprofit organizations — Harvard Law’s Berkman Center for Internet and Society, Stanford Law’s Center for Internet and Society, the MacArthur Foundation, and AARP.

CBS Boston

NightSide – Alan Dershowitz Discusses The Zimmerman Trial With Dan Rea

Late Saturday night, the verdict in the George Zimmerman trial was announced. Zimmerman was found not guilty in the death of Trayvon Martin. Demonstrations broke out around the country in protest of this result, though despite some violence in Oakland, they remained peaceful for the most part. Noted attorney and legal scholar Alan Dershowitz checks in with NightSide Nation to give his take on the trial.

Wall Street Journal

Flawed Evidence Under a Microscope

A series of recent court decisions and policy changes is starting to reshape how the U.S. justice system handles disputed or debunked forensic techniques used in thousands of criminal convictions. … Challenges to the scientific admissibility of evidence—called Daubert or Frye challenges after past court decisions—are relatively common. But judges have almost always admitted evidence based on the discredited forensic disciplines, citing precedent in past cases, said Nancy Gertner, a retired federal judge who issued several landmark rulings that labeled ballistics, handwriting and arson testimony as invalidated science.

Bloomberg News

Reasonable Doubt Is Central to Zimmerman Verdict

An op-ed by Cass Sunstein: A number of years ago, I served on a criminal jury. The defendant, who was African-American, was charged with assaulting a police officer, who was white. As I recall, all of the prosecution witnesses were police officers, and all were white. All of the defense witnesses were African-American, and they corroborated the defendant’s story, which was that no assault had occurred.

New York Times

Vacancies and Partisan Fighting Put Labor Relations Agency in Legal Limbo

At the heart of the rancorous showdown between Senate Republicans and Democrats over President Obama’s blocked political appointments is an unglamorous federal agency that polices labor practices and that has, for Republicans, become a reviled symbol of the Obama administration’s bureaucratic overreach. …“Republicans like to go after unions because unions support Democrats,” said Benjamin Sachs, a labor law professor at Harvard.

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.

Wall Street Journal

Land Mines in the Derivatives ‘Path Forward’

An op-ed by Hal Scott (subscription required): The U.S. and EU will coordinate trading rules, but the clearinghouses are a potential danger. Last week’s announcement of a “Path Forward” by the U.S. Commodity Futures Trading Commission and the European Commission is an important step toward coordinating the rules for derivatives trading. However, the agreement’s failure to address conflicts in rules for clearinghouses—which will handle the vast majority of the trades and the trillions of dollars of collateral posted by the world’s largest banks—is a troubling omission. There is still much work to be done.

Bloomberg News

Whitey Bulger Case Puts Boston Mythology on Trial

An op-ed by Noah Feldman: You know something is a big deal in Boston when it steals headlines from allegations that the New England Patriots’ only healthy tight end committed multiple murders. But the trial of James “Whitey” Bulger is, if you can believe it, bigger than sports. It’s bigger than the pending trial of accused Boston Marathon bomber Dzhokhar Tsarnaev. Bulger’s trial isn’t just a fascinating, sordid tale. It’s a true-life Sophoclean drama, enacted in a Bahston accent. And, most poignantly, it’s a requiem for a city that no longer exists.

Huffington Post

Stand Your Ground Laws: Despite Outcry, Repeals Unlikely

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 Zimmerman was justified in shooting unarmed teenager Trayvon Martin is unlikely to spur change to any of the nation’s stand-your-ground self-defense laws. … Charles Ogletree, a Harvard Law School professor who taught both Barack and Michelle Obama, agreed: “The reality is that this is not a federal issue. This is a state issue.”

The Guardian

This week in press freedoms and privacy rights

In the utter travesty known as “the Bradley Manning court-martial proceeding”, the military judge presiding over the proceeding yet again showed her virtually unbreakable loyalty to the US government’s case by refusing to dismiss the most serious charge against the 25-year-old Army Private, one that carries a term of life in prison: “aiding and abetting the enemy”. The government’s theory is that because the documents Manning leaked were interesting to Osama bin Laden, he aided the enemy by disclosing them. Harvard Law Professor Yochai Benkler explained in the New Republic in March why this theory poses such a profound threat to basic press freedoms as it essentially converts all leaks, no matter the intent, into a form of treason.

Education Week

Supreme Court’s College Race Ruling Continues to Spur Debate

The U.S. Supreme Court’s June ruling on race in college admissions continues to attract evolving reactions from legal observers, including at a lively panel discussion Friday at the Century Foundation in Washington. … There was no full-throated defense of race-conscious admissions policies at Friday’s event. But Harvard Law School Professor Lani Guinier did challenge Gratz about what Guinier said were built-in advantages for white applicants in admissions tests that were normed for upper middle class white students, as well as admissions preferences for “legacy” applicants, whose parents or other family members attended a selective college.

PolicyMic

CEO Pay Continues Its Crazy Upward Spiral

The United States’ economic recovery continues to limp and wheeze along, but that hasn’t stopped CEOs from raking in millions in compensation and getting a big raise last year. The New York Times recently reported that median pay package of CEOs in 2012 was $15.1 million, a hefty jump of 16% from 2011. (Compensation included salary, cash bonuses, perks, and other forms of cash, and stock as well as stock options.) …Rather, boards of directors — who set CEO packages — are influenced by “various economic incentives, reinforced by social and psychological factors, to go along with arrangements favorable to top managers,” according to professors Lucian Bebchuk at Harvard Law School and Rakesh Khurana at Harvard Business School.

Wall Street Journal

Manning Moves to Squelch Charge He Aided Enemies

Lawyers in the court-martial of Army Pfc. Bradley Manning, accused of leaking thousands of secret U.S. documents, clashed Monday over whether the most serious remaining charge against him – that he aided the enemy – should be dismissed. …A key defense witness, Harvard law professor Yochai Benkler, testified last week as an expert on digital journalism that WikiLeaks was regarded by many — including at the Pentagon — as novel type of Web-based news organization in the years leading up to Pfc. Manning’s leaks.

Politico

Rev. Al Sharpton’s front and center

The Rev. Al Sharpton has gone mainstream.

The killing of Trayvon Martin has provided Sharpton a high-profile opportunity to portray himself as a responsible actor on the stage of race relations in America and consolidate his standing as a moderate leader in the black community. … Harvard law professor Charles Ogletree said he’s seen an “impressive” evolution in Sharpton’s development as an activist over the past decade, reaching its pinnacle with the Martin case. “I think what it shows is he’s smarter and wiser in picking his battles,” Ogletree, director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, told POLITICO.

Boston Globe

For Obamas, Vineyard has enduring attraction

When an Illinois state senator named Barack Obama stepped on the Vineyard that day in 2004, fresh from his well-received national debut at the Democratic National Convention, the island community not only embraced him — it wrapped him in a bear hug. People streamed into Edgartown’s Old Whaling Church to see the rising political star, there to attend a forum on race relations. The wooden pews seat 800; 1,000 people showed up. “The crowd just erupted when he walked out there with me,” said Obama’s former Harvard Law professor, Charles Ogletree, a Vineyard summer resident. “He felt, ‘Well, this is the place for me.’ ”