Category Archives: Law

LOOKING BACKWARD ON HARVARD’S DIVERSITY PROBLEM

Last week witnessed two events, both involving Harvard University and the enigma of ethnic diversity. On October 15, the trial of Harvard College began in a Boston federal courtroom. The institution stands accused of racial discrimination against Asian-Americans in admissions. On the same day, in the courtroom of public opinion, former Harvard Law Professor, now U.S. Senator, Elizabeth Warren released a DNA report supposedly corroborating her claim to Native American heritage.

Both events are surrounded by controversy, with partisans lining up along predictable lines. And both events take on added significance when viewed against the background of Harvard’s first experiment in what might today be considered affirmative action: the establishment of an “Indian College” in 1655.Old-Harvard-Yard-according-to-Anthropology-1130-e1419632116650 Continue reading

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AFTER KAVANAUGH

As this story goes to press, it is uncertain whether Judge Kavanaugh will be confirmed to sit on the Supreme Court. But one thing is certain. The confirmation process itself is broken, and in desperate need of repair. Here are three recommendations. They may not necessarily fix the many problems manifested over the past few months, but they may at least moderate them.Panorama_of_United_States_Supreme_Court_Building_at_Dusk

First, the process needs a consensus among its participants on the meaning of judicial temperament. Everyone agrees that judicial temperament is a crucial qualification. No one agrees on what that temperament should be. Continue reading

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THE MONKEY AND THE DUTCH MASTER

Who or what qualifies as an “author” under copyright law? Recent events on opposite sides of the world shed light on the question.

Last April, the Ninth Circuit Court of Appeals confronted the issue of whether animals qualify as authors. The case arose when Naruto, a 7-year old crested macaque, noticed a camera lying unattended on the jungle floor of his neighborhood on the island of Sulawesi in Indonesia. For reasons known only to himself (but which may have involved the same egocentrism harbored by humans), Naruto paused in his travels to use the camera to take several photographs of himself. These pictures, dubbed the “Monkey Selfies” by the court, went viral.

Macaquex  Next Rembrandt

While the Monkey Selfies case unfolded, a team in Holland — once the colonial master of Naruto’s homeland – were hard at work studying the facial features and proportions of the 346 known works of the Dutch Master, Rembrandt van Rijn. The team designed an Artificial Intelligence (AI) software program, incorporating a deep-learning algorithm, which analyzed Rembrandt’s use of geometry, composition, and painting materials. Utilizing a 3D printer, the   program replicated the paint and brushstrokes Rembrandt might have used, applying 13 layers of ink. It generated a new work of art, consisting of more than 148 million pixels based on 168,263 painting fragments from Rembrandt’s body of works. The portrait, known as the Next Rembrandt, was put on display in 2016, and won two Grand Prix for cyber and creative data at the Cannes Lions Festival.

The Monkey Selfies and the Next Rembrandt would seem to have little in common. But for students of copyright law, they stand together, cheek by hairy jowl, forcing reconsideration of the nature of authorship. Continue reading

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A RADICAL WASTE OF MONEY

As widely reported in the press (see here, here, and here), Angela Davis has decided to donate her papers to Harvard University’s Schlesinger Library. Well, not exactly “donate.” The long-time Communist Party member has overcome her distaste for free market forces and sold her papers for an undisclosed sum of money. Harvard alumni might well ask: Is this how we want our contributions spent?

Harvard

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OF MONSTERS AND MISJUDGMENTS

Let us begin with the indisputable. Larry Nassar is a monster. So it’s not surprising that Judge Rosemarie Aquilina, who sentenced him to 40 to 175 years in prison, has been universally cheered. On the right, Fox News’ Andrew Napolitano has called her style of administering justice “nothing short of heroic.” On the left, feminist fans have proposed her for Person of the Year, or even for the Supreme Court.

But while Larry Nassar is a monster, our legal system is designed to protect the procedural rights of monsters. For without such protection, there is no guarantee that the same rights will be available to help the innocent.

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For that reason, anyone concerned with due process must view with deep unease the manner in which Judge Aquilina handled the sentencing of Larry Nassar following his guilty plea for molesting seven girls. Continue reading

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THIS YEAR IN JERUSALEM

The President of the United States confronted a difficult decision concerning recognition in the volatile Middle East. He was personally sympathetic to the Israeli side.  Many of his closest friends and confidantes were Jews, including some with whom he had participated in business ventures. But now his Secretary of State argued forcefully against recognition. The Secretary’s opposition was shared by almost the entire foreign policy establishment, as well as by the New York Times and the Washington Post. He was warned that if he proceeded with recognition, violence would erupt throughout the Middle East, America’s position at the United Nations would be weakened, and he himself would be accused of pandering for the Jewish vote.

Bucking the advice of his Secretary of State, the President decided in favor of recognition. The Prime Minister of Israel thanked him, and told him that his decision would earn him an immortal place in Jewish history. Jerusalem old city Western Wall with Israeli flag

These events, as recounted by Clark Clifford, occurred 70 years ago, when the President was Harry Truman, not Donald Trump; the Secretary of State was George Marshall, not Rex Tillerson; the Prime Minister was David Ben Gurion, not Benjamin Netanyahu; and the issue was recognition of the State of Israel, not recognition of its capital. With the benefit of hindsight, most would agree that Truman made the right decision in May of 1948. Donald Trump’s decision to recognize Jerusalem as the capital of the State of Israel — though almost universally condemned by the supposed experts on the region today — ultimately will also be seen as the right move. Continue reading

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JUST DESSERTS

Sometimes social change arrives slowly.

Slavery was abolished and equal protection enshrined in the Constitution in the 1860s. Yet nearly a century would pass before segregation was outlawed in public facilities, and racial equality would begin to emerge as a fact.

Sometimes social change travels fast. Thirty years ago, 57% of American adults did not approve of sexual relations, let alone marriage, between gays and lesbians. Gallup did not begin to ask respondents about same sex marriage until twenty years ago. Before then, the issue was not considered controversial enough to warrant polling. In 1996, the Defense of Marriage Act went before Congress. Section 3 of the Act declared: “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It passed with overwhelming bipartisan support. Two thirds of the Democratic senators and representatives voted in favor, along with nearly all Republican members. The Act became law when President Clinton signed it. At the time, Bill Clinton opposed same-sex marriage. So did his wife. So did every notable figure in both major parties.

Wedding

In 2008, when Barack Obama ran for President, he too opposed same-sex marriage, stating: I believe marriage is between a man and a woman. I am not in favor of gay marriage. He continued to oppose same-sex marriage until 2012. Hillary Clinton continued to oppose it until 2013.

That same year, 2013, the Supreme Court, in United States v. Windsor, declared Section 3 of the Defense of Marriage Act unconstitutional, effectively ending federal bars to same-sex marriage. Two years later, in 2015, the Supreme Court ruled in Obergefell v. Hodges that state laws banning same sex marriage were also unconstitutional.  Continue reading

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