Alibaba’s Governance Leaves Investors at a Disadvantage

An op-ed by Lucian Bebchuk. Wall Street is eagerly watching what is expected to be one of the largest initial public offering in history: the offering of the Chinese Internet retailer Alibaba at the end of this week. Investors have been described by the media as “salivating” and “flooding underwriters with orders.” It is important for investors, however, to keep their eyes open to the serious governance risks accompanying an Alibaba investment. Several factors combine to create such risks. For one, insiders have a permanent lock on control of the company but hold only a small minority of the equity capital. Then, there are many ways to divert value to affiliated entities, but there are weak mechanisms to prevent this. Consequently, public investors should worry that, over time, a significant amount of the value created by Alibaba would not be shared with them.

Who Speaks For the Bench About Surveillance?

An op-ed by Nancy Gertner. At the 11th hour, the Senate Judiciary and Intelligence Committee received an extraordinary letter from U.S. District Judge John Bates of Washington purporting to represent the federal judiciary. In it, Bates criticized the Senate proposal to reform the Foreign Intelligence Surveillance Act (FISA) court and implied support for the House version. The Senate bill would create a permanent special advocate tasked with challenging the government’s presentations before the FISA court and is more protective of civil liberties and privacy than the House version. But whatever the merits of Bates’ concerns—and other judges have dissented from it—he most assuredly does not speak for the Third Branch.

Outing at Gossip Website Strains Campus Civility

An anonymous school-gossip website that saw a sharp rise in popularity over the past year has become a campus cause célèbre since an enterprising journalism student outed the site’s top-secret editor…”Anonymity has a storied relationship with American democracy,” said Jonathan Zittrain, a Harvard Law professor who co-founded the school’s Berkman Center for Internet & Society. “It’s a way for the powerless and disadvantaged to speak without fear of repercussion. Of course, that same lack of repercussion can make for a license for abusive behavior.”

Detentions of war

An op-ed by Alan Dershowitz. Part 3. How should a nation committed to the rule of law deal with captured terrorists who are believed to be dangerous but who cannot realistically be brought to trial? This issue has arisen in the context of the debate over whether to close the US prison at Guantanamo Bay, which candidate Barack Obama promised to do, but President Obama has not yet done. A major reason why Guantanamo remains open is that it contains several detainees — the precise number is unknown — who, if released, would almost certainly return to a life of terrorism. Indeed, some have, and many in detention have overtly stated their malignant intentions. Others have histories that suggest the likelihood of recidivism. But even some of the most dangerous detainees cannot be tried, either because there is insufficient admissible evidence of a specific crime or because the evidence comes from undercover sources the government is unwilling to out. If Guantanamo were to be closed, as it should be, and the detainees transferred to other facilities, the basic problem would still remain.

Obama Already Has Authority to Fight Islamic State

An op-ed by Cass R. Sunstein. Does the Barack Obama administration have the legal authority to use military force against Islamic State? Some constitutional scholars, and some members of Congress, have been skeptical, even dismissive. But as a matter of law, the president has a strong justification…In 2001, Congress gave the George W. Bush administration broad authorization to respond to the Sept. 11 attacks. The Authorization for Use of Military Force explicitly says the president can “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks, or even that “harbored such organizations or persons.” For present purposes, the most important word here is “organizations,” and the key phrase is “he determines.”

D.C. Circuit Judge Robert Wilkins Sworn In

Judge Robert Wilkins was formally sworn in on Friday as the 61st judge on the U.S. Court of Appeals for the D.C. Circuit at a ceremony dedicated to the African American judges who preceded Wilkins on the bench…Four of Wilkins’ friends and former colleagues spoke. Kenneth Mack, a professor at Harvard Law School and a friend of Wilkins since the two were law students at Harvard, spoke about Hastie, Robinson and the legacy of other black federal judges in history, who strived to deliver justice at a time when they faced discrimination outside the courthouse. Their service meant that Wilkins “would not be faced with the kinds of dilemmas that they faced every day,” he said.

Parents Poised to Gain Easier Access to College Loans

The Obama administration is moving to ease access to student loans for parents with damaged credit, a policy reversal that could saddle poor families with piles of debt but also boost college enrollment…Credit counselors say they have seen a rise in borrowers who took out large sums despite being on limited incomes. “This debt will remain a huge problem for the rest of their lives,” said Toby Merrill, head of the Project on Predatory Student Lending at Harvard University’s Legal Services Center.

Surveillance and privacy

An op-ed by Alan Dershowitz. Part 2.

The recent disclosure by Edward Snowden of the US government’s wide net of surveillance has stimulated an emotional debate about security, privacy, and secrecy. We have learned from Snowden that the National Security Agency engages in virtually unchecked monitoring of all sorts of communications that were thought to be private but that we now know are maintained in secret government databases. Three fundamental issues are raised by these disclosures: Was it proper for the government to conduct such massive surveillance and to maintain such extensive files? Was it proper for the government to keep its surveillance program secret from the public? If not, did this governmental impropriety justify the unlawful disclosure of so much classified information by Snowden?

War of principles

An op-ed by Alan Dershowitz. Part 1. When democracies seek to protect their citizens against new threats posed by terrorist groups such as Al Qaeda, ISIS, Hamas, and Boko Haram, the old rules — designed for conventional warfare among nations — sometimes become anachronistic. New balances must be struck between preserving people’s civil liberties and protecting them against terrorist violence. As Aharon Barak, the former president of the Supreme Court of Israel — a nation that has confronted this issue over many decades — once put it: “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.”

Apple Takes A Swipe At The Credit Card

It started with the iPod. In 2001, Apple promised to do away with stacks of CDs and put 1,000 songs in your pocket. Thirteen years later, the music industry is unrecognizable: most brick-and-mortar record stores have shuttered and a pocket-sized hard drive filled with music seems quaint in a world with YouTube and Spotify. …Susan Crawford, an Internet policy expert and visiting professor at Harvard Law School, sees the payment system as a way of locking in increased loyalty for already-adoring Apple fans. If Apple can leverage its customers’ preexisting trust to help consumers jump over their privacy concerns associated with e-payments, she says, the company may have made one more reason for users to keep their iPhones clutched tightly in their hand at all times. “Really this is all about affection for these devices, which are literally very close to people’s hearts,” Crawford says.