Media Mentions

Yochai Benkler and Joan Donovan offer perspectives on the pervasive threat of disinformation.

A federal judge whose ruling last week to strike down California's three-decade-old assault weapons ban garnered swift backlash is drawing more criticism over his claims about Covid-19 vaccines, firearm injuries and other subjects....Constitutional law scholar Laurence Tribe, a professor emeritus at Harvard Law School, said Benitez's assertions are "utterly without factual foundation.""They are irresponsible in the extreme, whether described as purported 'facts' or repackaged as opinions," Tribe said in an email. "His entire theory about which firearms are protected by the Second Amendment has no basis in the text, history, or judicial interpretation of the Amendment and swallows its own tail by making the circular assertion that the weapons in common use at any given time are those protected by the Amendment."

An op-ed by Noah Feldman: American Indian tribes have won a small victory at the Supreme Court. In the case, U.S. v. Cooley,  justices held that tribal police on a reservation can arrest and search people who are not Native American when there is probable cause to suspect them of a federal or state crime. The decision was unanimous, almost certainly for a quirky reason: The court’s liberals favor tribal sovereignty on reservations and the court’s conservatives favor expansive police power to stop and search. Conservatives also hate throwing out convictions on procedural grounds.

Premal Dharia, inaugural director of Harvard Law School’s Institute to End Mass Incarceration, recently moderated a discussion on felons and jury service.

An appellate court in Wisconsin has ruled that Chrystul Kizer, a child sex-trafficking victim charged with killing her alleged abuser, may be able to use a state law intended to help trafficking victims accused of crimes. The law, known as the affirmative defense, will give Kizer, now 20, a chance to present evidence to a Kenosha judge, and possibly a jury, that her actions were a “direct result” of the trafficking she experienced. If successful, she could be acquitted of some or all of the charges against her, rather than face a mandatory life sentence — and could break legal ground for trafficking victims accused of crimes. ... “We could not have gotten a better decision‚” said Diane Rosenfeld, director of Harvard Law School’s gender violence program, which was involved in writing a brief in the case. “If the state had taken more seriously what Volar was doing, not only to Chrystul but to all these other girls, arguably Chrystul wouldn’t have been in this position."

COVID-related costs along with the Biden Administration’s plans to invest heavily in slowing Climate Change and in building infrastructure leave little money for other mega-budget initiatives. But four long-time partners who are fighting for food waste and loss prevention policy believe this is actually an opportune time to call on the federal government to support their agenda. The partners are the World Wildlife Fund (WWF), Harvard Law School Food Law and Policy Clinic, ReFED, and the National Resource Defense Council. They recently finished their U.S. Food Loss & Waste Policy Action Plan that asks Congress and President Biden to take action to halve food waste by 2030, in line with the target set by the U.S. Environmental Protection Agency (U.S. EPA) and the U.S. Department of Agriculture (USDA). ... Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, illustrates by expounding on two Action Plan areas: food donation and date labeling. Her office has tried to advance policy around both for years.

An op-ed by Dana Montalto, clinical instructor at Harvard Law School’s Veterans Legal Clinic: A veteran with a fever and hacking cough that suggest a possible coronavirus infection tries to make a doctor’s appointment, only to be turned away by a receptionist who personally decides the would-be patient can’t see a physician. A former service member and sexual assault survivor at risk of suicide is denied access to mental health services by a bureaucratic gatekeeper stationed at the therapist’s front desk. These are two of thousands of examples of veterans seeking the Veterans Affairs healthcare they’re legally entitled to — and being wrongly refused it. This is due to a pervasive misunderstanding, and misapplication, of the rules regarding other-than-honorable discharges.

Dentons Chair Joseph Andrew says there’s a “fear factor” in competitors’ reaction to news that his law firm is launching a private equity-backed global consulting business. Competitors view Dentons Global Advisors as a sign of what may be to come if U.S. law firms are able to receive outside investment, Andrew said in an interview. The firm’s ability to tap private equity capital will serve as “jet fuel” for the firm’s continued acquisitions, he said. ... “What law firms have been worried about for 30 years is accounting firms doing legal work, but they now realize that turnaround is fair play,” said Robert Couture, a senior research fellow at Harvard Law School’s Center on the Legal Profession and a former executive director of McGuireWoods. “The law firms can bring on billable professionals and a heck of a lot of expertise that doesn’t necessarily require a JD.”

In the past few years universities across the country have made efforts to acknowledge and address evidence of their historical links to slavery. But many of their students are not satisfied with the pace of progress. The Associated Press recently wrote about how students and activists are pushing institutions to examine their pasts more seriously. These efforts are taking place at Brown—where “undergraduate students voted overwhelmingly for the university to identify the descendants of slaves who worked on campus and begin paying them reparations”—and at Georgetown, the University of Georgia, Trinity College, and the University of Virginia, among others. ... Later that year, the Harvard Corporation decided to abandon the Harvard Law School shield, which paid homage to slave owner and benefactor Isaac Royall Jr. Rosenberg’s article featured insights from Bell professor of history Sven Beckert, who led the student-inspired Harvard and Slavery Project that began in 2007.

Should convicted felons be allowed to serve on juries, sitting in judgment on their fellow citizens? On June 2, Premal Dharia, inaugural director of Harvard Law School’s Institute to End Mass Incarceration, moderated a discussion of this question, at an event co-sponsored by the Radcliffe Institute between two invited speakers: Brendon D. Woods, the chief public defender in California’s Alameda County, and James M. Binnall, an associate professor of law, criminology, and criminal justice at California State University, Long Beach.

This year’s wave of new voting restrictions across the South may seem a response to the 2020 election, but its origins stem in no small part from the Supreme Court, which over the last decade has reshaped election law to elevate the power of state lawmakers over the rights of their voters. ... Harvard Law Professor Nicholas Stephanopoulos, who teaches election law, said he wouldn’t speculate about the intent of the justices. “But across the right to vote, redistricting, the Voting Rights Act and campaign finance, the court’s decisions have benefited Republicans,” he said. “And partisan advantage explains these decisions better than rival hypotheses like originalism, precedent, or judicial nonintervention.”

Because the device’s ability to measure speed had never been formally tested, a judge should not have admitted evidence from a GPS ankle monitor that showed a defendant’s movements matched those of a suspected shooter, the Supreme Judicial Court has found. Prosecutors built their case in Commonwealth v. Davis on a somewhat wobbly three-legged stool...Applying “serious scrutiny” to technology is critical in cases like Davis, where the other evidence is circumstantial, raising the risk of a wrongful conviction, said Katharine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, which filed a joint amicus brief in Davis with the New England Innocence Project...Pointing to the court system’s evolving understanding of the limitations of cross-racial identifications and systemic racism more broadly, Naples-Mitchell noted that the SJC was more precise than prosecutors had been in distinguishing between braids and dreadlocks, which is the type of sweeping generalization that all too often inures to the detriment of Black and Latinx defendants.

John S. Kim, cofounder of Sendbird, which offers real-time chat and messaging for mobile apps and websites, relocated from his native South Korea to San Francisco five years ago...Long a hotbed of entrepreneurialism and a beacon of hope for immigrants, America is now known for a convoluted, highly politicized immigration policy that puts roadblocks in the way of foreign-born founders. The result for years has been that immigrants who want to start businesses here contort themselves into one of the visa categories, such as E-2 (for investors from countries that have treaties with the U.S.) or O-1 (for individuals of extraordinary ability), or try to cobble together something out of a half-dozen other categories—none of which is really designed for them... “America loses competitiveness gradually. It’s like a tire leaking air,” says Vivek Wadhwa, a fellow at Harvard Law School and author of the 2012 book The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent. “The fact is that the best and the brightest are not coming here anymore.”

An op-ed by Noah Feldman: A lawsuit in Texas is challenging a hospital’s requirement that its employees get vaccinated against Covid-19 before returning to work. The case isn’t going anywhere, legally speaking. But the central claim is worth examining because it’s at the core of a lot of vaccine hesitation. The Texas plaintiffs, either working in concert or in parallel with a New York-based law firm that is in turn linked to the anti-vaccination movement, claim that administering mRNA vaccines now should be treated as a form of experimentation. And they maintain that requiring employees to be vaccinated eliminates their capacity to consent. This, they insist, amounts to a violation of the Nuremberg Code, a guideline developed in the post-World War II trial of Nazi doctors for crimes against humanity that says humans should not be subject to medical experiments without their consent. The Texas hospital is not violating that principle, because the vaccines at issue aren’t experimental — they have already gone through a series of clinical trials with voluntary subjects. Another reason the Texas plaintiffs’ argument has little legal purchase is that the Nuremberg Code isn’t the law, either under the Texas state statutes or federal law. The word “code” is a bit of a misnomer. Usually in legal context, a code is a body of law that has been authoritatively deposited or laid down by some responsible authority. The Nuremberg Code isn’t that.

After George Floyd’s killing last year, Harvard Business School Professor Mihir Desai says he channeled his thoughts and emotions the best way he knew how—by writing a case study. His aim was to design a classroom exercise that would give M.B.A. students a deeper understanding of the country’s racial scars and what role businesses might have in processing them, he says. He soon seized on a historical event he felt deserved more attention: the Tulsa Race Massacre of 1921, in which armed white mobs attacked Greenwood, a prosperous, albeit segregated Black neighborhood in the Oklahoma city that later came to be known as Black Wall Street. Over 24 hours, as many as 300 people were killed and more than 190 of the community’s businesses burned to the ground. Prof. Desai’s case study, “The Tulsa Massacre and the Call for Reparations,” asks students to explore ways to reckon with the attack’s financial fallout for its victims and their descendants. He uses the Tulsa case as a launchpad to discuss the use of reparations to respond to the effects of slavery in the U.S. and its aftermath. Students are also asked to consider the role of business in addressing racial-justice issues more broadly.

An op-ed by Evelyn Douek: Content moderation is eating the world. Platforms’ rule-sets are exploding, their services are peppered with labels, and tens of thousands of users are given the boot in regular foul swoops. No platform is immune from demands that it step in and impose guardrails on user-generated content. This trend is not new, but the unique circumstances of a global public health emergency and the pressure around the US 2020 election put it into overdrive. Now, as parts of the world start to emerge from the pandemic, and the internet’s troll in chief is relegated to a little-visited blog, the question is whether the past year has been the start of the tumble down the dreaded slippery content moderation slope or a state of exception that will come to an end. There will surely never be a return to the old days, when platforms such as Facebook and Twitter tried to wash their hands of the bulk of what happened on their sites with faith that internet users, as a global community, would magically govern themselves. But a slow and steady march toward a future where ever more problems are sought to be addressed by trying to erase content from the face of the internet is also a simplistic and ineffective approach to complicated issues.

Police Commissioner Dennis White, fighting for his job on the eve of a termination hearing, released a sworn statement Tuesday in which he recounted telling former mayor Martin J. Walsh that he had been the subject of a restraining order when he was accused in the late 1990s of threatening to shoot his former wife...The sworn statement was released in the form of an hourlong video of White being interviewed by his attorney, the latest part of an effort to dissuade Acting Mayor Kim Janey from ousting White at an administrative hearing scheduled for Wednesday...Employment experts described White’s series of video affidavits as a public relations campaign designed to pressure City Hall. But ultimately, experts said, Janey must decide if she wants White as her police commissioner, not whether he was guilty of domestic violence in the 1990s. “How could he possibly assume the position, so tainted by the controversy?” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, in an e-mail. “For sure, he had every right to want to clear his name, and a legal right to do so, but ... having done all of this, how confident would Janey or any other mayor be in his taking a position of such responsibility?”

The power grid serving nearly 20% of the U.S. population is about to throw a roadblock in President Joe Biden’s plan to decarbonize the electricity sector. PJM Interconnection LLC, which keeps the lights on for 65 million people from Chicago to Washington, D.C., is expected to clear a fleet of new natural gas plants-- and even extend the lives of some coal plants -- when it releases the results of its massive electricity auction Wednesday. That’s because Trump-era changes to the way the auction is structured give a leg up to fossil fuels, at the expense of zero-carbon sources such as nuclear, wind and solar. “The market has been trending toward renewables, but this is pulling it back,” said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “It’s fighting the future.” As much as 4 to 6 gigawatts of new gas capacity and several clunker coal plants could clear the auction, according to some estimates, while nuclear and renewables are expected to be the big losers. Such an outcome would further entrench fossil fuels in the biggest U.S. power market, and runs counter to the president’s goal of eliminating greenhouse gases from the power industry by 2035.

Today in our series on civil rights Supreme Court cases, we examine the anticanon decision of Plessy v Ferguson. Steven Luxenberg, Kenneth Mack, Keith Plessy and Phoebe Ferguson walk us through the story of Homer Plessy, the Separate Car Act of 1890, an infamous opinion and a famous dissent.

Months into President Joe Biden's first term, supporters of former President Donald Trump are still touting the "big lie" that Trump actually won the 2020 election. One of the prominent supporters of these theories is Trump's former lawyer Sidney Powell, who is facing a $1.3 billion defamation lawsuit for promoting the big lie. In defending herself against the lawsuit, Powell has argued that no reasonable people would have believed her assertions of fraud. But outside court, Powell has continued to play to Trump's base and bolster theories related to the big lie. During an event in Dallas on Sunday that was also attended by prominent peddlers of the QAnon conspiracy theory, Powell suggested Trump could be reinstated as president even now, saying that "it should be that he can simply be reinstated, that a new Inauguration Day is set." ... It's worth noting that Powell said "should," so it's possible she's not suggesting that the current law allows a president to "simply be reinstated" but that it should. Even so, Harvard University Law School Professor of Constitutional Law Laurence Tribe told CNN it's "still weird and wild," adding that it's likely "it would be unconstitutional if a law was passed to that effect." Tribe referred to Powell's comments as "part of a fantasy world that is truly dangerous to democracy."

A committee created by the California state legislature to study the state’s penal code and propose improvements in the law has recommended that California repeal its death penalty and expeditiously reduce the size of its death row. At the conclusion of a virtual meeting on May 14, 2021, the California Committee on Revision of the Penal Code (CRPC) unanimously voted to recommend that the state abolish the death penalty. It was the first ever policy vote on the death penalty by the Committee, which was established by an act of the state legislature in 2019...In March 2021 the Committee heard presentations from death-penalty scholars Carol Steiker and Jordan Steiker, siblings who respectively teach at Harvard Law School and University of Texas at Austin School of Law, Elisabeth Semel, the director of UC Berkeley’s Death Penalty Clinic, and UCLA Law professor Sherod Thaxton, among others, on constitutional issues and issues of innocence, costs, racial and geographic bias, and mental health related to capital punishment. It also received submissions from the California District Attorneys Association, the Prosecutors Alliance of California, the California Innocence Coalition, and the Office of the State Public Defender.