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Apple bites back: Zittrain, Sulmeyer on the privacy-security showdown between the tech giant and FBI

Apple Inc.'s refusal to help the FBI retrieve information from an iPhone belonging to one of the shooters in the terrorist attack in San Bernardino, Calif., has thrust the tug-of-war on the issue of privacy vs. security back into the spotlight.

Credit: Martha StewartProfessor Jonathan Zittrain, co-founder of the Berkman Center for Internet and Society

As the legal wrangling to untangle the case widens, the Gazette spoke separately with George Bemis Professor of Law Jonathan Zittrain and cyber-security expert Michael Sulmeyer about the inherent tensions in the case, in which two important principles of American life are at odds.

Zittrain is co-founder of the Berkman Center for Internet & Society, which examines law, ethics, and the intersection of the Internet and civil society. Sulmeyer directs the Belfer Center for Science and International Affairs' Cyber Security Project, which investigates the effects and consequences of new technology on international security, political and economic development, and social welfare.

Zittrain and Sulmeyer said that although aspects of this case are unique, national security and privacy have collided before, and technology's rapid evolution will continue to make any balance between the two a moving target.

GAZETTE: Do Apple and other tech companies have an ethical duty to assist the government in matters of national security?

SULMEYER: My own thinking is that most companies, most of the time, actually do want to be helpful in matters of national security. I think what we're seeing in this particular case is a manifestation of the trust between the tech companies and the government, not a fundamental disagreement over the need to respect privacy and the need to ensure the national security.

ZITTRAIN: There are surely instances where a company should weigh the ethics of its decisions, and taken only on its own terms, this would appear to be such a case -- especially because there's no legal barrier to Apple helping out. But the circumstances here give rise to additional ethical and policy considerations. What are the second-order effects of Apple's actively writing software to defeat its own security, and what might such practices do to the overall technology ecosystem? In other words, we need to stay focused on not just the urgent, but the important.

GAZETTE: If Apple complies with the FBI's request, does this open the door to future emergency requests from law enforcement?

ZITTRAIN: It surely does. Here, the government isn't just seeking information in Apple's custody, such as customer communications or a password. It's asking Apple to undertake software engineering. That's what makes this, out of the box, very different from the usual requests that law enforcement makes of a private company.

The demand on Apple is for its engineers to write software to defeat the very thing that they built to prevent [the phone's security] from being cracked. If one government asks for that, so will others -- indeed others might do it whether or not the U.S. successfully carries through with its demand.

SULMEYER: It may, it may not. It all depends on how Apple chooses to implement a particular solution, and what standards the government requires in this case. You can understand why the tech companies view this as a slippery slope, but it doesn't have to be.

GAZETTE: How do you balance privacy concerns with national security?

SULMEYER: This is not the first time that privacy and national security have created some friction for each other. In the '70s, we had the eventual creation of the FISA [Foreign Intelligence Surveillance Act] rules and the separate court. There have been ways of adapting to technology over time, but still with due consideration to core values. I think it's this balance between interests and values that government and the private sector have always negotiated and continue to negotiate. There's never a government policy or decision that isn't some mix of interest and values. This just happens to be the latest manifestation of how our national security interests and privacy values create some friction.

Whether the solution is going to look like past solutions, that I can't tell you. It's important to be able to have these kinds of discussions between the government and the tech community in a little bit more confidence, so that they negotiate proposals and ideas. There will be a time for scrutiny and for public comment and review and discussion. But it seems to me there also needs to be an antecedent period of time where they can try to get to ground truth with each other. We can get there; we can get to a positive solution where multiple parties feel like they've been successful. It just doesn't look that way at the moment.

ZITTRAIN: The usual way we strike a balance is through a legislature -- like the U.S. Congress -- trying to very mindfully strike a balance and to set boundaries on when and how law enforcement can make requests, and how those requests can be made publicly known so that they can be debated later. And an independent judiciary can weigh the legislature's action against what the Constitution permits.

But there's a larger looming question. It's not squarely brought by this case, but it's close: "Should Apple and other companies be able to build tools that they themselves can't crack?" (Shredder companies aren't told to hold back on how many cross-cuts their shredders make in their customers' sensitive documents.)

This question is not squarely joined here because it seems like Apple, with enough effort, can crack its own security. But there are successive versions of iPhones that Apple could build -- especially in the wake of a situation like this -- that would be intended to be immune to the kind of order in this case. That's what I meant by second-order effects. And if Apple doesn't do it, others, including overseas manufacturers, can.

That's part of the so called "going dark" debate for which the Berkman Center just released a report coming out of a group with a very diverse membership. That debate is a much bigger one, with higher stakes. And to start demanding limits on what people's hardware and software can do is a much heavier lift for the government to make.

GAZETTE: Is Apple's stance a principled stand in reaction to Snowden/WikiLeaks [cases of the past], or is it more of a branding and business decision?

ZITTRAIN: They're surely blended. Apple in particular has held out the fact that its business model, unlike some of its competitors -- including Google -- is not driven by advertising, which then in turn is driven by those companies processing personal information.

Apple may have found some traction, if not in the market itself, in market observers thanking them for that position and encouraging them to take it further.

But it's tricky for Apple to have gone public with this, when I think in the public's eye it looks like a no-brainer that they should offer help to get into this particular phone. Apple may feel that if it ends up compelled to help in this case, it may as a practical matter be very difficult to produce phones that governments around the world can't demand access to.

SULMEYER: It's hard to say [whether Apple's stance is principled or not]. I would not claim to be in touch with the climate and culture of Silicon Valley. But just like we talked about the government having its interests and its values, a lot of times its values are going to reflect and inform each other. I don't think Apple's being disingenuous, but neither do I think the tech companies are inclined to go out of their way to do things that will hurt their business interests. In any event, I don't think they're trying to hurt national security.

GAZETTE: Now that there's a stalemate, what do you expect will happen next, and how does this battle affect Apple's business?

SULMEYER: The good news for Apple is they make a great product and people like it. So, it's an open question whether and how the resolution of this particular issue affects the overall perception of the product. The good news for Apple is that if they continue to make good products, that carries a lot of weight. But it would not be surprising if further litigation ensued.

ZITTRAIN: Apple isn't exactly refusing the government's order; it's not refusing to play ball. By continuing the legal process it's precisely playing ball: asking the judiciary to fully weigh in on what the limits of government demands should be here. If it loses, it will no doubt undertake to obey the government order. That's how the rule of law should work. In the meantime, I suppose the phone will sit in the FBI's custody for a while -- in a baggie in a drawer -- while litigation settles a bit more the proper application of the All Writs Act and the extent to which Apple should have to make its engineers cooperate in creating the software needed to defeat the protections on the its phone.

The real question is what their future phones will look like and how much of a role the U.S. and other governments will seek to play in trying to limit how Apple can build them.

GAZETTE: Is Apple's encryption really that good, or is the request an indication that the government's technical sophistication is pretty weak?

ZITTRAIN: This doesn't have to do with the government's lack of sophistication. Instead it has to do with Apple being uniquely positioned to sign certificates to make an Apple phone accept a software upgrade that it would otherwise reject, and that upgrade -- a security downgrade, to be clear -- would be what would make it possible to test lots of passwords against the phone until the government gets the right one.

This interview originally appeared in the Harvard Gazette on February 18, 2016. It has been lightly edited for clarity and length by the publication.

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Harvard Law School remembers Justice Scalia

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Clinic files cert petition in final attempt to hold corporations accountable for supporting Apartheid

Photo courtesy of the International Human Rights Clinic

Harvard Law School's International Human Rights Clinic and its partners filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant's knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute, and whether corporations can be held liable at all under the ATS.

The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the "denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime." According to the petition, "IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans."

In 2015, the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that "IBM's purpose was to denationalize black South Africans and further the aims of a brutal regime." And in a 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein's Iraqi regime to not just know but rather intend that it be used against civilians.

The petition argues that, if left to stand, the Second and Fourth Circuits' rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.

"The Second Circuit's standard is so restrictive," said Clinical Professor Tyler Giannini, co-director of the International Human Rights Clinic, "that it is now easier to convict individuals of international crimes before the International Criminal Court than to find individuals civilly liable under the ATS for the same acts." In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust. If the Supreme Court does not take the case and reverse the Second Circuit's decision, these U.S. corporations will be shielded from liability for universally condemned conduct.

"The ruling is particularly troubling given that no other forum exists to bring this case," said Clinical Professor Susan Farbstein, co-director of the Clinic.

The certiorari petition focuses on three legal issues:

1. whether the Second and Fourth Circuit's heightened "specific intent"mens reastandard for aiding and abetting, which is inconsistent with domestic and international law and in direct conflict with the Ninth and Eleventh Circuits, should stand;


2. whether ATS claims against U.S. nationals that committed tortious acts in the United States should be permitted to proceed under the Supreme Court's 2013 ruling in Kiobel that requires "claims touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritorial application;" and


3. whether the Second Circuit's holding that ATS claims are not permitted against corporations is still good law despite being undermined by the reasoning ofKiobeland rejected by six other appellate courts.

The clinic has been involved with this case since Fall 2005, with dozens of clinical students contributing to the fact-finding, research, and writing of briefs over the years. Since Fall 2015, the following students have worked on the case: Mira Chernick '16, Brian Klosterboer '16, Hannah Flamm HKS '16, Laura Dismore '17, Katerina Gross '17, Kiri Toki LLM '16, Roi Bachmutsky '17, and Lan Mei '17.

Antonin Scalia '60 (1936-2016)

Credit: Justin Ide/Harvard University News Office

Harvard Law School Dean Martha Minow issued the following statement upon news of the death of Associate Justice Antonin Scalia '60:

Justice Scalia will be remembered as one of the most influential jurists in American history

Harvard Law School Dean Martha Minow

"Justice Scalia will be remembered as one of the most influential jurists in American history -- he changed how the Court approaches statutory interpretation, and in countless areas introduced new ways of thinking about the Constitution and the role of the Court that will remain important for years to come. He was a man of great learning. He was also one of the most effective writers in the history of the Court, and he had an exceptional gift for the memorable phrase. He had a terrific sense of humor, which was accompanied by great personal warmth. At Harvard Law School we are deeply grateful that he returned so often to meet with our students, to judge our moot court competitions, and -- as he so loved to do -- joust with law professors and students alike. He will be greatly missed. We are so proud to host the annual Scalia lecture series, and we will honor his legacy in that way and others in the future."

Antonin Scalia: Harvard Law School Class of 1960 Credit: HLS Yearbook 1960

Justice Scalia's last appearance at Harvard Law School was in November of 2014, when he came for the inaugural lecture in a series of lectures established in his honor. That day, he was in the audience to hear his longtime friend and colleague, The Honorable Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit, deliver the inaugural Scalia lecture.

Credit: Martha StewartOn Nov. 17, 2014, Antonin Scalia (left), associate justice of the U.S. Supreme Court, attended the inaugural lecture given by his former colleague, Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals

During that same visit, Justice Scalia judged the final round of the Law School's 2014 Ames Moot Court Competition in characteristic style, treating the student oralists to a genuine experience of what it was like to appear and argue before him in the United States Supreme Court.

Credit: Martha Stewart

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Harvard Gazette: The costs of inequality -- Increasingly, it's the rich and the rest

Economic and political inequities are interlaced, analysts say, leaving many Americans poor and voiceless

Second in a series [in the Harvard Gazette] on what Harvard scholars are doing to identify and understand inequality, in seeking solutions to one of America's most vexing problems.

"We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can't have both," Associate Supreme Court Justice Louis Brandeis said decades ago during another period of pronounced inequality in America.

Echoing the concern of the Harvard Law School (HLS) graduate, over the past 30 years myriad forces have battered the United States' legendary reputation as the world's "land of opportunity."

The 2008 global economic meltdown that eventually bailed out Wall Street financiers but left ordinary citizens to fend for themselves trained a spotlight on the unfairness of fiscal inequality. The issue gained traction during the Occupy Wall Street protest movement in 2011 and during the successful U.S. Senate campaign of former HLS Professor Elizabeth Warren in 2012.

What was once viewed as a fringe political issue is now at the heart of the angry, populist rhetoric of the 2016 presidential campaign. Personified by outsider candidates Bernie Sanders and Donald Trump, economic inequality has resonated with broad swaths of nervous voters on both the left and right.

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Smart poor kids are less likely to graduate from college now than dumb rich kids. That's not because of the schools, that's because of all the advantages that are available to rich kids.

-- Robert Putnam

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Lawrence Katz, the Elisabeth Allison Professor of Economics in Harvard's Faculty of Arts and Sciences (FAS), says the most damaging aspects of the gap between the top 1 percent of Americans and everyone else involve the increasing economic and political power that the very rich wield over society, along with a growing educational divide, and escalating social segregation in which the elites live in literal and figurative gated communities.

If the rate of economic mobility -- the ability of people to improve their economic station -- was higher, he says, our growing income disparity might not be such a problem.

"But what we have been seeing is rising inequality with stagnant mobility, which means that the consequences of where you start out, whether it's in a poor neighborhood, whether it's from a single-parent household, are more consequential today than in the past. Your ZIP code and the exact characteristics of your parents seem to matter more," said Katz. "And that's quite disturbing."

The growing gap between the rich and the rest isn't a matter of who can afford a yacht or a Manhattan penthouse, analysts say. Rather, it's the crippling nature of these disparities as they touch nearly every aspect of daily lives, from career prospects and educational opportunities to health risks and neighborhood safety.

The widening income gap also has fueled a class-based social disconnect that has produced inequitable educational results. "Now, your family income matters more than your own abilities in terms of whether you complete college," said Robert Putnam, the Peter and Isabel Malkin Professor of Public Policy at Harvard Kennedy School (HKS). "Smart poor kids are less likely to graduate from college now than dumb rich kids. That's not because of the schools, that's because of all the advantages that are available to rich kids."

Credit: Stephanie Mitchell/Harvard Staff Photographer Theda Skocpol, Victor S. Thomas Professor of Government and Sociology in Harvard's Faculty of Arts and Sciences.

"It's long been known that the better educated, those with higher incomes, participate more" in politics on "everything from voting to contacting politicians to donating," said Theda Skocpol, the Victor S. Thomas Professor of Government and Sociology at FAS. "What is quite new in recent times is ... very systematically, that government really responds much more to the privileged than to even middle-income people who vote."Economic inequality also feeds the political kind, driving everything from the actions of our political representatives to the quality and quantity of civic engagement, such as voting and community-based public service.

Money eases access

The U.S. Supreme Court's unlacing of campaign-finance laws that limited how much donors could give candidates or affiliate organizations, coupled with allowing donors to shield their identities from public scrutiny, have spawned a financial arms race that requires viable presidential candidates, for example, to solicit donors constantly in a quest to raise $1 billion or more to win.

Given that rulebook, it's hardly surprising that the political supporters with the greatest access to candidates are usually the very wealthy. Backers with both influence and access often help to shape the political agenda. The result is a kind of velvet rope that can keep those without economic clout on the sidelines, out of the conversation.

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In the current election cycle, 158 families have given half the money to candidates.

-- Lawrence Lessig

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"Something like the carried-interest provision in the tax code, when you explain it to ordinary citizens, they don't like the idea that income earned by investing other people's money should be taxed at a lower rate than regular wage and salary income. It's not popular in some broad, polling sense. But many politicians probably don't realize it at all because ... politicians spend a lot of their time asking people to give money to them [who] don't think it's a good idea to change that," said Skocpol. "There's a real danger that, as wealth and income are more and more concentrated toward the top, it does become a vicious circle."

"Money has corrupted our political process," said Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at HLS. In Congress, he said, "They focus too much on the tiny slice, 1 percent, who are funding elections. In the current election cycle [as of October], 158 families have given half the money to candidates. That's a banana republic democracy; that's not an American democracy."

Lessig was so unhappy with how political campaigns are funded that he briefly ran for president on the issue. Reviewing his efforts during a Harvard forum on the topic in November, he described his candidacy as a referendum on the campaign-finance system, but also on the need to reform Congress, which he called a "broken and corrupted institution" undercut by big donors and gerrymandered election districts.

How we got here

Christopher "Sandy" Jencks, the Malcolm Wiener Professor of Social Policy at HKS, believes that the past 30 years of rising American inequality can be attributed to three key factors:

• The decline in jobs and employment rates for less-skilled workers, which has increased the number of households with children but no male breadwinner.


• The demand for college graduates outpacing the pool of job candidates, adding to the gap between the middle class and upper-middle class.


• The share of income gains flowing to the top 1 percent of earners doubling as a result of deregulation, globalization, and speculation in the financial services industry.

The U.S. government does "considerably less" than comparable democracies to even out disposable family incomes, Jencks says. And current state and local tax policies "actually increase income inequality."

"All the costs and risks of capitalism seem to have been shifted largely to those who work rather than those who invest," he said.

Compounding the economic imbalance is the unlikely prospect that those at the bottom can ever improve their lot.

"We have some of the lowest rates of upward mobility of any developed country in the world," said Nathaniel Hendren, an associate professor of economics at FAS who has studied intergenerational mobility and how inequality transmits across generations.

Source: CBPP.org

Hendren, along with Harvard economists Katz and Raj Chetty, now at Stanford University, looked at the lasting effects of moving children to better neighborhoods as part of Moving to Opportunity, a short-lived federal housing program from the '90s. Their analysis, published in May, found that the longer children are exposed to better environments, the better they do economically in the future. Whichever city or state children grow up in also radically affects whether they'll move out of poverty, he said.

For children in parts of the Midwest, the Northeast, and the West, upward mobility rates are high. But in the South and portions of the Rust Belt, rates are very low. For example, a child born in Iowa into a household making less than $25,000 a year has an 18 percent chance to move into the upper 20 percent of income strata over a lifetime. But a child born in Atlanta or Charlotte, N.C., has only a 4 percent chance of moving up, their study found.

Credit: Judy Blomquist/Harvard Staff

What unites areas of low mobility, Hendren says, are broken family structures, reduced levels of civic and community engagement, lower-quality K-12 education, greater racial and economic segregation, and broader income inequality.

In addition, 90 percent of American workers have seen their wages stall while their costs of living continue to rise.

"When you look at the data, it's sobering. Median household income when last reported in 2013 was at a level first attained in 1989, adjusting for inflation. That's a long time to go without any gains," said Jan Rivkin, the Bruce V. Rauner Professor of Business Administration at Harvard Business School (HBS).

Wage inequality is on the rise for both genders. Within that range, the gap between men and women remains a hot-button issue despite gains by women in the past three decades. Broadly, the ratio of median earnings for women increased from 0.56 to 0.78 between 1970 and 2010.

Source: U.S. Bureau of Labor Statistics. Graphic by Judy Blomquist/Harvard Staff

But according to Claudia Goldin, the Henry Lee Professor of Economics at FAS, the gender earnings gap is not a constant, varying widely by occupation and age. While women in their late 20s earn about 92 percent of what their male counterparts earn, women in their early 50s earn just 71 cents on the dollar that the average man makes. For some career paths, like pharmacists, veterinarians, and optometrists, corporatization has closed the gap between men and women.

Even so, wiping away the gender pay gap isn't a cure-all for the larger issues of inequality.

"If you reduce gender inequality to zero, you've closed inequality ... by a very small percent," said Goldin. "I'm not saying there aren't things that we can't fix, but I am telling you, without a doubt, they're going to move the lever by very little."

Underinvestment in "the commons"

Rivkin says that the pressures of globalization and technological change and the weakening of labor unions have had a major impact. But he disagrees that political favoritism toward business interests and away from ordinary citizens is the primary reason for burgeoning inequality. Rather, he says that sustained underinvestment by government and business in "the commons" -- the institutions and services that offer wide community benefits, like schools and roads -- has been especially detrimental.

Last spring, HBS conducted an alumni survey for its annual U.S. Competitiveness Project research series, probing respondents for their views on the current and future state of American businesses, the prospects of dominating the global marketplace, and the likelihood that the resulting prosperity would be shared more evenly among citizens.

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What is quite new in recent times is ... very systematically, that government really responds much more to the privileged than to even middle-income people who vote.

-- Theda Skocpol

---

The survey findings, released in September, showed that most HBS alumni were skeptical that living standards would rise more equitably soon, given existing policies and practices. A majority said that inequality and related issues like rising poverty, limited economic mobility, and middle-class stagnation were not only social ills, but problems that affected their businesses.

"My sense is that a larger and larger number of business leaders are waking up to the idea that issues of inequality, and particularly lack of shared prosperity, have to be addressed for the sake of business," said Rivkin, the project's co-chair.

The surging power of the very wealthy in America now rivals levels last seen in the Gilded Age of the late 19th century, analysts say. One difference, however, is that the grotesque chasm between that era's robber barons and tenement dwellers led to major social and policy reforms that are still with us, including labor rights, women's suffrage, and federal regulatory agencies to oversee trade, banking, food, and drugs.

Hendren said there's no less chance today of rising or falling along the income spectrum than there was 25 years ago. "The chances of moving up or down the ladder are the same," he said, "but the way we think about inequality is that the rungs on the ladder have gotten wider. The difference between being at the top versus the bottom of the income distribution is wider, so the consequences of being born to a poor family in dollar terms are wider."

What price inaction?

Unless America's policymakers begin to chip away at the underlying elements of systemic inequality, the costs to the nation will be profound, analysts say.

"I think we will pay many prices. We will continue to have divisive politics. We won't make the investments we need to provide the majority of kids with a better life, and that would be really not fulfilling," said Katz.

Partisan gridlock in Washington, D.C., has diminished the effectiveness of government -- perhaps the most essential and powerful tool for addressing inequality and citizens' needs. By adopting a political narrative that government should not and cannot effectively solve problems, legislative inaction results in policy inaction.

Credit: Kris Snibbe/Harvard Staff Photographer Lawrence Katz, Elisabeth Allison Professor of Economics in Harvard's Faculty of Arts and Sciences.

"It's definitely been a strategy" to justify starving government of resources, which in turn weakens it and makes it less attractive as a tool to accomplish big things, said Skocpol. "In an everybody-for-themselves situation, it is the better-educated and the wealthy who can protect themselves."

Surveying the landscape, Katz sees reasons to be both hopeful and worried.

"The optimism is that there are regions of the U.S., metropolitan areas that have tremendous upward mobility. So we do have models that work. We do have programs like Medicare and the Earned Income Tax Credit that work pretty well. I think that if national policy more approximated the upper third of state and local policies, the U.S. would have a lot of hope," said Katz. "My pessimistic take would be that if you look at two-thirds of America, things are not improving in the way we would like."

Putnam is heartened that inequality has been widely recognized as a major problem and is no longer treated as a fringe political issue.

What can be done?

Jencks says there are many steps the federal government could take -- if the political will existed to do so -- to slow down or reverse inequality, like increasing the minimum wage, revising the tax code to tax corporate profits and investments more, reducing the debt burden on college students, and improving K-12 education so more students are better prepared for college and for personal advancement.

"Strong regulation and strong support for collective control over the things that society values is much more prevalent in societies that have lower levels of inequality," he said.

Though labor rights have been eroding for decades, Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at HLS, still thinks that unions could provide an unusual way to help equalize political power nationally. Unions used to wield both economic and political clout, but legislative and court decisions reduced their effectiveness as economic actors, cutting their political influence as well. At the same time, campaign finance reform to limit the influence of wealth on politics has failed.

To restore some balance, Sachs suggests "unbundling" unions' political and economic activities, allowing them to serve as political organizing vehicles for low- and middle-income Americans, even those whom a union may not represent for collective bargaining purposes.

"The risk that economic inequalities will produce political ones ... has led to several generations of campaign finance regulation designed to get money out of politics. But these efforts have not succeeded," Sachs wrote in a 2013 Yale Law Review article. "Rather than struggling to find new ways to restrict political spending by the wealthy ... the unbundled union, in which political organization is liberated from collective bargaining, constitutes one promising component of such a broader attempt to improve representational equality."

Still, given the historic labor and wage trend lines, Goldin said the economic forces that perpetuate unequal wages -- and inequality more broadly -- won't simply disappear even with a spate of new laws.

"I think it is naive of most individuals to think that for everything there is something that government can legislate and regulate and impose that makes life better for everybody," she said. "That's just not the case."

Even so, with Congress stalled over fresh policies, analysts say that much of the innovation concerning inequality has moved to state and local levels, where partisanship is less calcified and the needs of constituents are more evident.

In Oregon and California, for example, residents will be automatically registered to vote upon turning 18, a move that Skocpol says should bolster civic participation and provide protection from onerous new voter-identification laws.

While it's clear that investing in children and their education pays lifelong dividends for them, those gains take 20 years to be realized, said Katz. That's why it's critical that their parents get help and live in less vulnerable situations.

"There is certainly evidence that if we reduce the degree of economic and racial and ethnic segregation of our communities, we can move in that direction," said Katz, who is working on an experiment to expand the Earned Income Tax Credit in New York City to help younger workers without children who are struggling to break into the labor market.

Changes to the minimum wage, the tax system, and the treatment of carried interest "are all debates in which our society should engage," said Rivkin, who cautioned that those would be hard-fought political battles that wouldn't yield results for at least a decade.

Of course industry needs to run its businesses productively and profitably, but it can do so without harming "the commons," Rivkin said. "Business has been very effective at pursuing its narrow self-interest in looking for special tax breaks. I think that kind of behavior just needs to stop." Drawing on an idea from HBS Finance Professor Mihir Desai, Rivkin suggests that businesses treat their tax responsibilities as a compliance function rather than as a profit center. That money could then go back into investment in "the commons," where "lots of common ground" exists among business, labor, policymakers, educators, and others.

"The businesses should be working with the local community college to train the workers whom they would love to hire; the university should be getting together with policymakers to figure out how to get innovations out of the research lab into startups faster; business should work with educators to reinvent the school system," said Rivkin.

Putnam suggests more widespread mentoring of low-income children who lack the social safety net that upper- and middle-class children enjoy, a topic he explored in his book "Our Kids: The American Dream in Crisis."

He recently convened five working groups to develop a series of white papers that will offer overviews of the key challenges in family structure and parenting; early childhood development; K-12 education; vocational, technical, and community colleges; and community institutions. The papers will be shared with mayors and leaders in churches, nonprofits, and community organizations across the nation, where much of the reform effort is taking place.

"There's an increasing sense that this is a big deal, that we're moving toward an America that none of us has ever lived in, a world of two Americas, a completely economically divided country," said Putnam. "That's not an America I want my grandchildren to grow up in. And I think there are lots of people in America who, if they stop and think about it, would say, 'No, that's not really us.'"

The Clean Power Pause

BY DAVID ZOPPO - In a one-page order, the Supreme Court agreed yesterday to stay the Clean Power Plan, delivering a crushing blow to one of President Obama's signature domestic achievements.

The Eminent Donald Trump Has A Weakness

BY JASON PYE - For Donald Trump, now a candidate for the presidency with a shot of winning a major party's nomination, there are real political implications for his support of eminent domain.

Fried shares expertise on life's contracts

Credit: Jon Chase/Harvard Staff Photographer

Harvard Law School Professor Charles Fried sees contracts in every aspect of daily life.

"When you get into a taxi, that's a contract," he said. "You don't have to sign a piece of paper; you don't need to. The assumption is that the driver will take you where you want to go, and that you'll pay him when you arrive. The same is true of going to a restaurant. It's not written down, but it's understood that you'll pay at the end of the transaction."

That understanding, Fried said, is critical to contracts in particular, and human interactions in general. "Understanding is the basis of getting anything done together; it's the foundation of collaboration. Not only are you working together, but you're going in the same direction, at a speed that works for everyone. That understanding is how the world works."

Fried spoke at the Faculty Speaker Series at the Harvard Ed Portal in Allston last week, drawing from his HarvardX course "Contract Law: From Trust to Promise to Contract." More than 40 people from Allston, Brighton, and Cambridge turned out to hear his thoughts on the theoretical background of contracts, trust, and promises, while hundreds more from around the world -- including countries such as the Democratic Republic of Congo, Vietnam, Canada, Colombia, Brazil, and the Dominican Republic -- joined in via online streaming video.

One of the best depictions of a breakdown in understanding, Fried said, is the parable of the Tower of Babel. Fried examined a painting by 16th-century artist Pieter Bruegel the Elder on the subject ("Tower of Babel," 1563). Taken from the Book of Genesis, the parable claims that the people of the city were determined to build a tower so tall that it would reach the heavens. Affronted, God "confuse[d] their language," rendering the builders unable to communicate.

While the parable is generally taken as an ancient explanation for the evolution of different languages, Fried noticed something deeper in Hieronymus Bosch'stower rendition: work didn't just stall, but began to collapse completely.

"It's an absolute wreck," Fried observed. "When they could no longer understand each other, they can't go any further. Contracts are about collaboration, and collaboration requires mutual communication and understanding. You must have understanding to move into the future together."

Leanne Fan, who consults with the Allston-Brighton Community Development Corporation, attended the event "to hear from a world-class academic on his subject."

"I've always wanted to have a layman's understanding of contracts and I work in affordable housing," she said. "It's great to know that if you want to learn more, you can through HarvardX. We live in an amazing time, and it's a great opportunity."

Although Fried's HarvardX course "Contract Law: From Trust to Promise to Contract" began in late January, you may still sign up here.

This article, Professor shares expertise on life's contracts, by Jennifer Doody, Harvard Correspondent, was published in the Harvard Gazette on February 3, 2016.

Maryland Property Owners No Longer Have To Prove Their Innocence In Civil Forfeiture Cases

Between 2000 and 2013, Maryland police and prosecutors received more than $80 million from the U.S. Department of Justice, according to a recent report from the Institute for Justice.

Maryland Case Could End States' AR-15 Bans

This 4th Circuit ruling found that the semiautomatic rifles and magazines that hold more than a certain number of rounds which are banned by Maryland's Firearm Safety Act "are in common use by law-abiding citizens." Therefore, they can't be banned as being "unusual"--an exception to the right to bear arms carved out by the U.S. Supreme Court.

Harvard Law Review elects 130th president

Credit: Leslie Brown Michael Zuckerman '17

The Harvard Law Review has elected Michael Zuckerman '17 as its 130th president. Zuckerman succeeds Jonathan Gould '16.

"The Law Review will have a wonderful year under Mike's leadership," said Gould. "Mike is a brilliant editor whose deep dedication to the Law Review's mission and community have earned him the admiration of his peers, all of whom will benefit from his wisdom, kindness, and tireless work ethic in the year ahead. Mike will make a terrific president, and I look forward to watching him lead the Review in the coming year."

Zuckerman grew up in Princeton, New Jersey, and graduated from Harvard College in 2010 with an A.B. in Social Studies. Before entering Harvard Law School, he served as a research assistant to Harvard Kennedy School professor and former presidential adviser David Gergen and as an associate at the Boston Consulting Group.

"Jon is an extraordinarily hard act to follow," said Zuckerman. "He has led the Law Review not just with remarkable legal insight and skill, but also with deep humanity and uncommon judgment. All of us within the Law Review community have been extremely lucky to benefit from his leadership. I look forward to working alongside my phenomenal fellow editors to continue the tradition of excellence that Jon and his class are passing on to us."

The Law Review, founded in 1887 by future Supreme Court Justice Louis D. Brandeis, LL.B. 1887, is an entirely student-edited journal with the largest circulation of any law journal in the world. It is published monthly from November through June.

New Congressional Task Force To Address Obama's Executive Overreach

The president's frequent taunting of Congress, his boasts that he'd goaround them to make law with his "pen and phone" when Congress doesn't do his bidding, this week resulted in the creation of the bipartisan, six-month Executive Overreach Task Force of 2016 by the House Judiciary Committee. Democratic committee members spoke [...]

Former FDA commissioner reflects on public health regulation

Credit: Martha Stewart

In a visit to Harvard Law School on Jan. 20, former U.S. Food and Drug Administration commissioner Dr. Margaret A. Hamburg HMS '83 reflected on her six-year tenure at the agency and shared her thoughts about the future of public health regulation. The talk was moderated by Lecturer on Law Peter Barton Hutt '59, senior counsel at Covington & Burling and former chief counsel to the F.D.A.

Hamburg was appointed F.D.A. commissioner in 2009, at what she described as a time of low morale at the agency. She said she approached the position with three broad priorities: increasing public understanding of the agency's work; improving "regulatory science" expertise to assess safety, efficacy, quality, and performance; and adapting the agency to globalization.

Hamburg had previously served as assistant secretary for policy and evaluation at the Department of Health and Human Services and commissioner of the New York Department of Health and Mental Hygiene. She said her experience at DOHMH, in particular, helped her learn the importance of public health law. "Law gave us the tools, using science as our guide, to implement the programs and policies necessary to promote the public health."

It wasn't until she was heading the F.D.A. that she fully understood "the essential and unique role that the [agency] plays not just in American life, but around the world." She described the realization as "not only very sobering but also very invigorating."

"I've never had a job, and I never expect to have another job, where I really have [the same] sense of mission and that what I'm doing really matters in the lives of all of you and every American," she said.

Addressing the challenges of globalization was a particular priority for Hamburg. Nearly 40 percent of drugs Americans consume today are made elsewhere, she said, as are about 50 percent of all medical devices. Approximately 80 percent of the active pharmaceutical ingredients used in the United States are manufactured outside the U.S. Because other countries increasingly produce the food and medical products that American consumers use in their daily lives, Hamburg said, the F.D.A. has had to create new working relationships with regulatory authorities around the world.

Hamburg discussed how she learned to negotiate with the Washington establishment as commissioner. Early on, she said, she learned about the need for more transparency, predictability, and partnership.

She noted a few of the highlights of her tenure, including a Gallup poll ranking FDA as most improved in public confidence (when she started, F.D.A. had ranked just above the IRS) and the passage of legislation in food safety, drug regulation, and tobacco regulation.

Credit: Martha StewartHamburg and Barton Hutt with Professor Glenn Cohen and Holly Fernandez Lynch, faculty director and executive director of the Petrie-Flom Center.

In a Q&A session, Hutt pressed Hamburg on media criticism saying that the FDA has increased its rate of approval for drug applications. Hamburg responded that in recent years there is "much more engagement early on in the R&D process so that the right studies get done, the right questions get asked, and of the course the science is advancing."

When asked about her relationship with the media generally, Hamburg said she considered it her duty as commissioner to "protect others so they could do their important work." A key part of the job, she said, was to categorize problems as "a pseudo-crisis, a PR issue...[or] a genuine crisis where F.D.A. had an essential role to play."

"One of the things that kept me up at night was that there are so many things to worry about, so many things that can go wrong," Hamburg said. "FDA is dramatically under-resourced, and I never felt that we had all the tools we needed--the people, the dollar resources, the laboratories, etcetera--to fully and adequately do our job."

The event was sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Center for Bioethics at Harvard Medical School, with support from the Oswald DeN. Cammann Fund.

Rise Of The Licensing Cartel

BY SEN. MIKE LEE - Occupational licensing has grown not because consumers demanded it, but because lobbyists recognized a business opportunity where they could use government power to get rich at the public’s expense.