Media Mentions

An op-ed by Jonathan Zittrain and Will Marks: Long before cryptocurrency speculators got involved, art prices were capricious—as the British artist Banksy no doubt understands. Recently, the work “Game Changer,” which he delivered unsolicited to an English hospital last year, earned it $23.2 million at auction—about $20 million more than experts had predicted...Last month a company called Injective Protocol took the spirit of “Morons” to a new extreme: After purchasing one of 500 prints of that work for just under $100,000, the company scanned the print and then destroyed it. A copy of the resulting digital file was then placed on IPFS—a distributed data-storage network whose initials stand for interplanetary file system—for anyone to see. A “non-fungible token,” or NFT, that points to the work was exchanged for almost 230 units of a cryptocurrency called Ether, about $400,000. All things considered, the purchaser of that token might have been in on the joke rather than the butt of it: Some NFTs are selling for tens of millions of dollars. These high prices suggest that regulators may not be moving quickly enough to protect unsuspecting investors. Impulsively buying GameStop shares on Robinhood is risky enough—the equivalent of placing a long-shot Kentucky Derby bet because the horse had a cool name. Worse still is losing your money because you didn’t understand what a horse race was and thought your wager was actually buying a horse.

The government can't force a person to be vaccinated, but it's likely within its power to require proof of a COVID-19 vaccine to engage in certain activities, including attending events. "Vaccine passports," a means of proving a person's vaccination status, have been floated as a way of increasing capacity at certain events as America crawls toward normalcy...Congress could potentially have the power to mandate vaccines under the commerce clause, experts told Newsweek and states could institute mandates under the 10th Amendment. However, a mandate can't force someone to be vaccinated against their will, it can only impose restrictions on a non-vaccinated person. Those who aren't vaccinated could be prevented from engaging in interstate travel, Laurence Tribe, a Carl M. Loeb University professor at Harvard Law School, told Newsweek, and entering places where social distancing and mask-wearing wouldn't be sufficient in preventing virus transmission. "Private businesses could require proof of vaccination by those seeking entry unless prohibited from doing so by state or local law," Tribe said.

On Monday, the Supreme Court said it was kosher to copy someone else’s computer code in some cases. That handed Google a win in a decade-long court battle with Oracle over the guts of the Android smartphone system...In the Google v. Oracle America case, Google said it was standard practice to copy what are called application programming interfaces, or APIs, a set of instructions to make sure that technologies from different companies can work together. Oracle said that Google stole its software and demanded billions of dollars. Each company said it was trying to save the tech industry from ruin...Kendra Albert, a clinical instructor at the Harvard Law School Cyberlaw Clinic, told me that the decision could lead to more legal protections for artists, people who create fan fiction and a group that Albert represents that archives old software such as past editions of Microsoft Excel.

An op-ed by Noah Feldman: The Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers. Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

A podcast by Noah Feldman: A case currently before The Supreme Court presents the single largest legal battle the NCAA has ever faced. The case, which comes after years of player activism, argues that the current limits on athlete compensation constitute a violation of antitrust law. It’s a case that could challenge the entire college sports system. Dr. Eddie Comeaux, professor at UC Riverside who studies the student athlete experience discusses the history, current structure and power imbalances within the NCAA. Dr. Comeaux also offers radical re-imaginings for a more equitable, student-centered college athletics system.

An op-ed by Jonathan Gould, Kenneth Shepsle and Matthew Stephenson: Democrats are frustrated with the Senate filibuster blocking their legislative agenda. But the main problem with the filibuster isn’t that it’s bad for Democrats — it’s that it’s bad for democracy. Not only does the filibuster paralyze the Senate, but the 41-senator minority that can block popular legislation often represents an even smaller minority of Americans. That’s not how representative government is supposed to work. Yet eliminating the filibuster, as many are now urging, also poses a danger to democracy. Given the Senate’s extreme malapportionment — with two senators per state regardless of population — Senate majorities often represent fewer than half of the country’s citizens. For example, the 2017 tax cut passed with the support of 51 senators who represented only 43 percent of the population. Getting rid of the filibuster would alleviate minority obstruction today, but it would also increase the risk of minority rule in the future. There is a way out of this dilemma: Democratize the filibuster.

After a 10-year legal battle, the Supreme Court ruled on Monday that Googledid not violate Oracle’s copyrights related to the Java programming language. But the momentous case that attracted briefs from many major tech companies and computer scientists may end up as a mere footnote in the history of software. That’s because the court’s opinion in favor of Google leaves intact how software developers have largely worked for decades, copying parts of existing applications that trigger functions and features and adding them to new ones...Companies including Microsoft, IBM’s Red Hat, and Mozilla filed briefs in favor of Google’s position, warning that upholding Oracle’s demands would make it much harder for new software development. “It’s a good decision for interoperability of software,” says Harvard University law professor Rebecca Tushnet, who wrote a friend of the court brief urging just such a ruling. Allowing the sharing of APIs without too much copyright protection should result in “increasing the creation and dissemination of new works.”

Today, the most important piece of testimony Chief Arradondo delivered was that Derek Chauvin should have taken his knee off of George Floyd’s neck after the first few seconds. The Senate parliamentarian, Elizabeth MacDonough, has ruled that Senate Democrats can pass two more bills this year with a simple majority vote, paving the way for President Joe Biden’s infrastructure plan to pass with 51 votes, bypassing the 60- vote procedural threshold for most legislation in the Senate now. Democratic Congressman Tim Ryan of Ohio is interviewed. In an op-ed for the right wing newspaper "The Washington Examiner", Congressman Matt Gaetz said quote, "I am absolutely not resigning". Donald Trump lied about campaign fundraising from the beginning to the end of his political career. Guests: Kirk Burkhalter, Marq Claxton, Tim Ryan, Laurence Tribe, Tim O’Brien.

An op-ed by Sebastian Negrón-Reichard ‘24: March marked the 104th anniversary of granting U.S. citizenship to residents of Puerto Rico. This citizenship, however, is not truly equal. Unless the Biden-Harris administration is ready to support statehood as the solution to this problem, the administration has an opportunity to fulfill an important campaign promise and make things right for Puerto Rico. Recently, the U.S. Supreme Court granted certiorari to review the case of United States v. Vaello-Madero. This means the court will review the First Circuit’s determination that the exclusion of residents of Puerto Rico from Supplemental Security Income (SSI) violates the due-process clause of the Fifth Amendment. The case originated when New York resident José Luis Vaello-Madero moved to Puerto Rico and was stripped of his SSI benefits. The program, which provides cash assistance to low-income people over 65 or with disabilities, no longer was available to him because he now lived in Puerto Rico. Instead, he was entitled to a separate, Puerto Rico-specific, program with far fewer benefits. Before the First Circuit held Puerto Rico residents were eligible to SSI, Puerto Rico, Guam and the U.S. Virgin Islands were excluded from SSI payments, while the residents of the 50 states, the District of Columbia, and the Commonwealth of the Northern Mariana Islands were eligible.

An op-ed by Emma Svoboda ‘23: China’s brutal repression campaign against the Uighurs in Xinjiang, labeled a genocide by the United States, has also implicated the region’s nearly 1.6 million ethnic Kazakhs. Kazakhstan, which shares a long border with Xinjiang, was an epicenter of activism in the early months and years of the crackdown—many of the first victims who testified on the world stage were ethnic Kazakhs who had witnessed the camps and fled to Kazakhstan. This left Kazakhstan’s government, led by authoritarian strongmen but weak in comparison to China’s Xi Jinping, walking a fine line: heeding its compatriots’ calls to support Kazakhs and fellow Turkic Muslims in China without risking China’s immense economic investments in Kazakhstan. But this economic dependence, now at its strongest point in history thanks to Kazakhstan’s central role in the Belt and Road Initiative, has crippled Kazakhstan’s ability to stand up to China, even when advocating against mistreatment of its own compatriots. While at several points in 2017 and 2018 it appeared that the Kazakh government was willing to take a stand against China’s policies in support of ethnic Kazakhs, the past two years have made clear that that trend is definitively over. Far from the safe haven activists hoped it could become, Kazakhstan is now a hostile place for Xinjiang victims.

An op-ed by Jeremy Lewin ‘22: Judge Laurence Silberman recently urged the Supreme Court to overturn New York Times v. Sullivan (1964), the landmark decision that severely curtails the ability of public officials and (under later precedents) public figures to secure damages for lies about them. Judge Silberman is a conservative, but progressives should join him in calling for a reconsideration of Sullivan. Reforming speech law may be our best chance to confront America’s escalating crisis of truth as algorithmically charged echo chambers exploit cognitive biases, and the sheer volume of digital content makes fact-checking impossible. As President Obama warned in 2020, we are fast approaching an “epistemological crisis” in which democracy will cease to function and progress on challenges like climate change will prove impossible. This slide is fueled by the virtual costlessness of lying. Hyperpartisanship and moral decay have reduced the reputational cost of public deceit. Sullivan makes things worse by stripping away nearly all risk of legal liability for lying about public figures or issues. By requiring plaintiffs to prove “actual malice,” it bars accountability except on a showing of a conscious intent to lie, or very close to it. Scrapping Sullivan would increase the risk of huge damage awards for playing fast and loose with the truth, thereby heightening the incentive to be honest. Progressives should eagerly embrace such movement toward a more truthful society.

An op-ed by Dorit R. Reiss, I. Glenn Cohen, and Carmel Shachar: Covid-19 vaccines offer a way out of the global crisis that has upended — and cut short — lives for more than a year. Three vaccines have now received emergency use authorization (EUA) from the FDA. One question that employers and universities must rapidly consider and act upon is whether to mandate that returning employees and students be vaccinated. Some employers are starting to require Covid-19 vaccines, and Rutgers University became the first university to mandate them for students and employees. One argument against mandates is that individuals cannot be required to get a vaccine that is being distributed under an EUA, as opposed to a full license, an argument made in a recent First Opinion. That would potentially delay Covid-19 vaccine mandates until the FDA approved the first vaccine under a biologics license application (BLA) — and so far the timing of that is unknown. Important nuances lead us to a very different conclusion: There are few to no legal barriers to employers or schools requiring vaccines being distributed under EUAs.

The stock market has had quite a year. Plenty of cash is sloshing around, the pandemic recession notwithstanding, thanks to loose monetary policy, rampant inequality, crypto-speculation, and helicopter drops of cash...Indexing has also gone small, very small. Although many financial institutions offer index funds to their clients, the Big Three control 80 or 90 percent of the market. The Harvard Law professor John Coates has argued that in the near future, just 12 management professionals—meaning a dozen people, not a dozen management committees or firms, mind you—will likely have “practical power over the majority of U.S. public companies.” ... As John Coates, the Harvard professor, notes: “For the most valuable public company in the world, three individuals can in principle swing the vote of 17 percent of its shares. Generally, a significant fraction of shareholders do not vote, even if in contested battles. As a result, the 17 percent actually represents more like 25 percent or more of the likely votes in contested votes. That share of the vote will generally be pivotal.” In fact, the Big Three cast roughly 25 percent of the votes in S+P 500 companies.

Attorneys all seem to agree: When a prosecutor dismisses charges against a defendant, that's an ultimate win. The defendant can heave a sigh of relief, and walk free without the burden of a trial and the potential costs associated with it. But to criminal defendants who allege police misconduct and plan to file civil lawsuits, a dismissal could mean doom. A case involving a Brooklyn man who sued the New York Police Department on misconduct allegations in 2014 presents a compelling case in point: the man, Larry Thompson, was arrested and charged with misdemeanors...If the high court embraces the majority rule, prosecutors will have too much power in crushing the ability of individuals who have been arrested and prosecuted without any real basis to bring lawsuits to seek damages, Rudin said. Nancy Gertner, a retired federal judge and professor at Harvard Law School, agreed. "That would mean that prosecutors essentially are the gatekeepers. All they have to do is dismiss the charges," said Gertner, who served in the District of Massachusetts between 1991 and 2011. Gertner said civil rights law has been "gutted" by judicial interpretations, particularly on qualified immunity. For that reason, it's significant that the high court is stepping in to provide guidance. "The underlying issue is terribly important," she said.

Red states that sued the Biden administration for tinkering with the estimated cost of emitting greenhouse gases may have fired a premature opening shot in the legal war over the president's climate agenda, environmental lawyers say. But the lawsuit provides a preview of the courtroom brawls that will ensue once the Biden team finalizes a new social cost of carbon, a key metric that assigns a dollar value to the harm caused by planet-warming emissions. "I think this particular complaint is unlikely to go anywhere," said Hana Vizcarra, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. "But it's a precursor to what we're going to see in response to any rulemaking that comes out of this administration." ... Hannah Perls, a legal fellow with Harvard Law School's Environmental and Energy Law Program, said she still expects the Biden administration to lower the discount rate in its final social cost of carbon.

An op-ed by Noah Feldman: Across the country, a series of laws are being proposed that would restrict transgender girls from participating in girls’ sports. The proposals are part of a concerted effort by a number of conservative organizations to turn transgender rights into a wedge political issue. The laws are cruel and alarming — and would almost certainly be found unconstitutional, even at a very conservative Supreme Court. That’s because less than a year ago, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII anti-discrimination law protects transgender employees from workplace discrimination. Under the logic of that precedent, the proposed restrictions on girls’ sports may well violate an analogous federal law, Title IX, that prohibits discrimination on the basis of sex in schools. The Bostock decision, issued by the Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. Even now that Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Bostock won’t be overturned anytime soon.

An op-ed by J. Mauricio Gaona: President Joe Biden’s decision to explore the root causes of forced migration from Central America to the United States is a step in the right direction. But it will lead only to long-term solutions. In fact, political preferences aside, both Biden and Vice President Kamala Harris have shown a type of leadership that is rarely found in American politics: governing with a long-term vision. As Harris will soon find out, one of the most complex geopolitical problems in the 21st century involves dissimilar root causes forcing Central American migrant children to seek protection abroad: drug trafficking, domestic violence, cultural forms of discrimination, gang violence, state violence and corruption, institutional inequalities, and climate change. The solution for both unaccompanied children fleeing persecution, conflict, and poverty in Central America and the U.S. struggling to end detention as its first, if not only, institutional response may be found not in the south but in the north. Canada, a country that not long ago faced public backlash to end the systematic detention of unaccompanied children across its provinces, has been developing some of the world’s most effective programs on reception and resettlement of refugees while substantially reducing the detention of migrant children in the country.

Testimony continued for the fourth day in the murder trial of former police officer Derek Chauvin as witnesses offered often emotional testimony on the death of George Floyd. Alan Jenkins, a professor of practice at Harvard Law School, joins CBSN with more on how this case could change accountability for police officers.

President Joe Biden has requested that Education Secretary Miguel Cardona prepare a report on the president’s legal authority to cancel up to $50,000 in student debt per borrower, White House chief of staff Ron Klain said in an interview on Thursday with Politico...On the campaign trail, Biden said he supported $10,000 in student loan forgiveness, but he is under mounting pressure from members of the Democratic Party, advocates and borrowers to go further by canceling $50,000 per person and to do so through executive action...During the 2020 Democratic presidential primary, Massachusetts Sen. Elizabeth Warren vowed to forgive student loans in the first days of her administration, including with the announcement an analysis written by three legal experts, based at the Project on Predatory Student Lending at Harvard Law School, who described student debt forgiveness through executive action as “lawful and permissible.” Others say Biden would run into court challenges if he tried to nix the debt on his own.

An op-ed by Noah Feldman: The “For the People Act” currently being proposed by House Democrats would transform the way the U.S. runs federal elections. Known as H.R. 1, the bill would make it substantially easier to vote. It would also counteract restrictive legislation enacted by Republican state legislatures in recent years. One provision stands out from the rest: the one that would end state-level gerrymandering by requiring that all legislative districts be set by independent, nonpartisan commissions, rather than by the state legislatures. The good news is that this provision would do more to restore election fairness than all the rest of the act taken together. Its benefits would be worth the cost of breaking the filibuster. The bad news is that a conservative Supreme Court might hold that it is unconstitutional for Congress to prescribe a system for states to design districts. That would undercut the legislation and allow gerrymandering to continue. The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

A letter by David J. Harris and Katy Naples-Mitchell: Who counts when it comes to “mass shootings” and gun reform? The March 24 editorial “A new window for gun reform” misconstrued the crisis of gun violence. In particular, we take issue with the statement that “the last mass shooting incident in a public place was in March 2020.” Over the past year, if one defines a mass shooting as one in which there are multiple victims, there have been hundreds, more than in recent years, including at restaurants, gas stations, bowling alleys, and grocery stores. However, few have captured the national spotlight. Nearly 50 percent of these unprecedented yet unnoticed mass shootings have targeted Black people and communities of color. Evidently they don’t register when, as professor Charles Ogletree pointedly questioned more than 30 years ago, we “expect them to happen there.” According to data released in February by the Centers for Disease Control and Prevention, young Black men and teens are killed by guns at a rate 20 times their white counterparts. Black women and girls are also at highest risk: four times more likely to be killed than white women and girls. Stricter gun control laws won’t solve this public health crisis.