Media Mentions

An op-ed by Noah Feldman: Former Republican president Donald Trump is trying to block the Republican National Committee from using his image in their fundraising efforts. He has no legal case: Trump is a public figure and can’t stop anyone from using his image in the course of political speech. But if you think of it in terms of U.S. campaign finance customs rather than in terms of free speech, Trump has a point. And that is very rare indeed. First Amendment principles are clear: public figures really are different when it comes to image control. It’s one thing for an ordinary person to be able to control the use of her image. That makes both legal and economic sense, because as a private person you should be able to choose who gets to display and make a profit from what you look like. But when you have run for president and won and dominated the political conversation for the last five years, you should not be able to control the use of your image in a political context. Such censorship would detract too much from the valuable exchange of political ideas. Imagine if the Democratic National Committee, not the RNC, were using Trump’s image to convince voters to donate money to discourage Trump from returning to politics. We would all have the instinct that this should count as protected political speech. It would be bizarre if Trump could use his own image to promote his own candidacy but the other side couldn’t use his image to take the opposite position.

A podcast by Noah Feldman: Alice Hill, former Special Assistant to President Obama and Senior Director for Resilience Policy on the National Security Council, explains what Texas’ electrical grid collapse means for our country’s infrastructure at large. She also makes recommendations on how we can start preparing infrastructure now for extreme weather events.

A book by Harvard Law Professor Alexandra Natapoff on America's "massive" misdemeanor system has inspired “Racially Charged: America’s Misdemeanor Problem,” a new documentary on how the system punishes the poor and people of color.

In 1883, a Jerusalem antiquities dealer named Moses Wilhelm Shapira announced the discovery of a remarkable artifact: 15 manuscript fragments, supposedly discovered in a cave near the Dead Sea. Blackened with a pitchlike substance, their paleo-Hebrew script nearly illegible, they contained what Shapira claimed was the “original” Book of Deuteronomy, perhaps even Moses’ own copy...In a just-published scholarly article and companion book, Idan Dershowitz, a 38-year-old Israeli-American scholar at the University of Potsdam in Germany, marshalls a range of archival, linguistic and literary evidence to argue that the manuscript was an authentic ancient artifact. But Dershowitz makes an even more dramatic claim. The text, which he has reconstructed from 19th-century transcriptions and drawings, is not a reworking of Deuteronomy, he argues, but a precursor to it, dating to the period of the First Temple, before the Babylonian Exile...When Dershowitz outlined his theory to Noah Feldman, a professor at Harvard Law School and chairman of Harvard’s Society of Fellows, where he was about to begin a fellowship, the older scholar warned him off. “I said, ‘You’re crazy, I don’t want to hear it, you’re going to destroy your career, go away,’” Feldman recalled. “He would keep emailing me details, and I would reply TGTBT — too good to be true.” (Feldman was eventually persuaded enough to help fund Dershowitz’s research, through the law school’s Julis-Rabinowitz Program on Jewish and Israeli Law.)

Word that the White House plans to pick Lina Khan, a Columbia Law professor whose research has spurred a rethinking of competition law, for a seat on the Federal Trade Commission has Washington and business types speculating that the Biden administration is preparing to get tough on antitrust...Concerns about political donations already top investors’ E.S.G. proposals, according to new research from Roberto Tallarita, an associate director of Harvard Law’s corporate governance program. Among the findings from his survey of shareholder public interest proposals from 2010 to 2019: Political spending initiatives made up 16 percent of all shareholder efforts, and on average drew support from 28 percent of companies’ investors, the highest level for such proposals. Companies sought S.E.C. permission to exclude only 19 percent of political spending proposals, compared with 37 percent of climate change initiatives and 57 percent of animal welfare ones. That suggests that demands for transparency on political spending are becoming mainstream and are generally accepted by management teams and the S.E.C. as a legitimate issue. “If the S.E.C. mandates disclosure of political spending, as it might, it will be in large part, as Gensler made clear in his confirmation hearing, thanks to the constant pressure from investors,” Mr. Tallarita said.

When President Biden announced the nomination of Merrick Garland as the next attorney general, Biden criticized incendiary rhetoric against the press as contributing to the Jan. 6 assault on the U.S. Capitol. A new president—and new leadership at the Department of Justice—will mean turning a corner on a strenuous four years, in which the Justice Department was repeatedly drawn into then-President Trump’s attacks on journalists and First Amendment rights...Though the concern over politicized regulatory actions will wane with Trump’s departure, we urge the Biden administration to support concrete steps to prevent antitrust or other common regulatory tools (for instance, the securities laws, tax audits by the IRS, or oversight of the telecommunications industry) from being misused in this way. In their recent book “After Trump,” which was published by the Lawfare Institute, former White House counsel Bob Bauer and Harvard law professor Jack Goldsmith propose amending the Inspector General Act to empower inspectors general to investigate official acts that constitute a “reprisal against or an attempt to harass or intimidate” news media organizations or journalists. Given the Justice Department’s resistance to permitting discovery into facts that might support selective enforcement defenses, the Bauer-Goldsmith proposal would be a welcome check against executive branch overreaching in any administration.

Waste companies have long been comfortable dealing with regulations about tracking and reducing greenhouse gas emissions, but heightened attention may make that more complex in the years ahead. The pressure to address contributions to climate change is starting to come from new sources. Growing numbers of customers and investors are insisting that all industries — waste included — record greenhouse gas emissions and shrink their carbon footprints. In a relatively short period, considering how a company may be exacerbating the effects of climate change morphed from a peripheral concern for investors to a mainstream inquiry. “I continue to be impressed by how quickly this conversation has changed, and how rapidly it's evolved in the last few years,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program. In January, for example, the chief of the investment group BlackRock, which has holdings in several major waste companies, wrote a letter to CEOs urging them to bring their net emissions to zero by 2050. In many cases that objective would be more aggressive than the climate targets set by the industry’s largest companies. The request comes with force, as the firm has begun to hold companies accountable for their climate-related choices.

Constitutional law Professor Laurence Tribe joins Lawrence O’Donnell to discuss the civil lawsuit filed by Rep. Eric Swalwell (D-CA) against Donald Trump for the former president’s involvement in the Capitol invasion. Prof. Tribe says the lawsuit is “quite invulnerable to any legal challenge” and an “important way for accountability to take place.”

A drop in your daily step count. A missed period. A loss of hearing. If it’s collected by a smartwatch or wearable, that health data isn’t protected the same way your medical records are. And as wearables like smartwatches and headphones sweep up an increasing amount of health data — flagging potential medical issues that could be used for ad targeting or to discriminate against someone — some lawmakers and researchers are calling for a reconsideration of the current approach. In a sign of the increasing urgency of the problem during the current virtual care boom, U.S. senators last month reintroduced a bill that would make it illegal for companies like Apple, Amazon, or Google to sell or share the data collected by wearables...Legal experts consider the move a step in the right direction, but caution that further action is needed to address the vast amounts of information being absorbed by health tech startups and technology giants alike. “We are on a collision course with how to regulate health data as all the different types of wearables and health tech explode,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard. “HIPAA doesn’t extend to the world of health tech, and it should,” she added...Harvard law professor Glenn Cohen likens the situation to an iceberg, where the tip represents the data covered by HIPAA and the rest represents all the information that is not shielded by the law. Today, there is nothing stopping an employer or insurer from using that unprotected data to price its products or deny someone a job. “I like to remind people that the ‘P’ in HIPAA isn’t privacy,” Cohen said. “The law made sense when we were talking about health care information, not health information” more broadly.

To read the diary of Gustave de Beaumont, the traveling companion of Alexis de Tocqueville, is to understand just how primitive the American wilderness once seemed to visiting Frenchmen...If Tocqueville were to visit cyberspace, it would be as if he had arrived in pre-1776 America and found a people who were essentially powerless. We know alternatives are possible, because we used to have them. Before private commercial platforms definitively took over, online public-interest projects briefly flourished. Some of the fruits of that moment live on. In 2002, the Harvard Law professor Lawrence Lessig helped create the Creative Commons license, allowing programmers to make their inventions available to anyone online; Wikipedia—which for all the mockery once directed its way has emerged as a widely used and mostly unbiased source of information—still operates under one...All of that began to change with the mass-market arrival of smartphones and a shift in the tactics of the major platforms. What the Harvard Law professor Jonathan Zittrain calls the “generative” model of the internet—an open system in which anyone could introduce unexpected innovations—gave way to a model that was controlled, top-down, and homogeneous. The experience of using the internet shifted from active to passive; after Facebook introduced its News Feed, for example, users no longer simply searched the site but were provided a constant stream of information, tailored to what the algorithm thought they wanted to read.

After spending nearly $5.5 billion in 10 months on its Farmers to Families Food Box program, the USDA said on Monday it was open to suggestions on a replacement. “While the food box effort served some communities well, it faced challenges in others,” said the Agricultural Marketing Service, which oversees the food giveaway. Agriculture Secretary Tom Vilsack said last week the food box program might emerge in a new format because of its success in delivering perishable foods to people isolated from grocery stores but a decision was yet to be made. The food box program is funded through the end of April in its current form...A month ago, a report by the Harvard Law School’s Food Law and Policy Clinic and the National Sustainable Agriculture Coalition said the food box program “has accomplished much and can serve as a model for future USDA fresh food purchasing and distribution efforts.” It had eight recommendations for improvement, including stronger emphasis on purchases from small and medium-sized producers.

When I spoke to the Princeton University legal scholar and political philosopher Robert P. George in August, he offered a vivid zoological metaphor to describe what happens when outrage mobs attack academics. When hunted by lions, herds of zebras “fly off in a million directions, and the targeted member is easily taken down and destroyed and eaten.” A herd of elephants, by contrast, will “circle around the vulnerable elephant.” ... George was then recruiting the founding members of an organization designed to fix the collective-action problem that causes academics to scatter like zebras. What had begun as a group of 20 Princeton professors organized to defend academic freedom at one college was rapidly scaling up its ambitions and capacity: It would become a nationwide organization...Today, that organization, the Academic Freedom Alliance, formally issued a manifesto declaring that “an attack on academic freedom anywhere is an attack on academic freedom everywhere,” and committing its nearly 200 members to providing aid and support in defense of “freedom of thought and expression in their work as researchers and writers or in their lives as citizens,” “freedom to design courses and conduct classes using reasonable pedagogical judgment,” and “freedom from ideological tests, affirmations, and oaths.” ... Some of the founding members from outside of Princeton include Randall L. Kennedy, Orlando Patterson, Jeannie Suk Gersen, Janet Halley, and Cornel West at Harvard; Brian Leiter and Dorian S. Abbot at the University of Chicago; Sheri Berman at Barnard; and Kathryn L. Lynch at Wellesley.

Google’s Chrome browser said this week that it won't deploy other web-tracking tools after phasing out third-party cookies in 2022. But that won’t transform your online experience, or stop you from seeing ads for whiskey if you’ve just looked up how to mix a Manhattan. “You’re 100% still being targeted,” Elizabeth Renieris, an affiliate of Harvard University’s Berkman Klein Center for Internet and Society, told Yahoo Finance. Even though Google won't replace cookies with other tools that track you individually, it is looking at alternatives that will place users into larger groups with similar interests, which advertisers can buy ads against. And while that might not be what hardline privacy advocates want to hear, the truth is advertisements sustain most of the websites you visit every day. Without them, we’d be looking at a very different internet where websites charge you directly for the content they offer.

An article by Omar S. Haque, M.D., Ph.D., Michael A. Stein, J.D., Ph.D., and Amelia Marvit: Throughout the medical school admissions process, training, and licensure activities, students and physicians with histories of mental illness face structural barriers that result in discrimination and discourage disclosure and care seeking. From the Department of Global Health and Social Medicine, Harvard Medical School, Boston (O.S.H), and the Harvard Law School Project on Disability, Cambridge (M.A.S.) — both in Massachusetts; and the University of Southern California, Los Angeles (A.M.).

In this episode of Third Degree, Elie Honig is joined by Harvard Law student and former Trump administration speechwriter Eli Nachmany ‘22 to discuss the Manhattan District Attorney’s growing investigation into former President Trump’s financial records, and how history will remember former Attorney General Bill Barr.

When news broke late last year that a massive, years-long Russian cyberespionage had penetrated large parts of the U.S. federal government and its information technology systems, policymakers were quick to describe the breach as “an act of war” and that the United States must strike back. But the breach that leveraged weaknesses in software developed by the company SolarWinds was not an act of war. It was an act of espionage. The United States has experienced cycles of outrage over Russian espionage before and mislabeling espionage as an act of war risks leading the United States toward the wrong response. To understand why the SolarWinds breach was an act of espionage, and not an act of war, it is worth considering the technical details of the breach...Today, a number of different policy proposals have been floated in response to the SolarWinds breach. One former supply chain security official at the Department of Homeland Security has argued in favor of greater oversight of software suppliers. Others have proposed greater incentives for software firms to build secure products. The computer security expert Bruce Schneier recently noted that the economic incentives for companies to fix their own cybersecurity problems before they impact customers are misaligned. Companies can transfer the risk of a data breach or cybersecurity incident to their customers or to taxpayers with little or no financial impact.

Food bank operators and lawmakers are pushing President Joe Biden’s administration for systematic changes to the federal food box program to help feed hungry Americans during the coronavirus pandemic. Nonprofit leaders also foresee a future need for continued government assistance, even when the nation finally recovers from Covid-19. “The nationwide network of food banks really are dependent upon government food right now,” said Pamela Irvine, president and CEO of Feeding Southwest Virginia. Her nonprofit has received about 1 million pounds of food through the Farmers to Families Food Box program—an Agriculture Department initiative that buys and distributes boxes of produce, meat, and dairy to food banks in an effort to help families put food on the table and give agriculture producers an economic boost...Overall, the initiative helped mitigate distributor job loss, involved small-to-mid-sized farms initially, reduced food waste to an extent, and made improvements in its first four rounds, according to a February report by Harvard Law School’s Food Law and Policy Clinic and the National Sustainable Agriculture Coalition. The program should make adjustments to step up support for minority- and women-owned farms, compensate small and specialty farms adequately, and restore non-combination boxes—those consisting solely of either produce, meat, or dairy—among other provisions, the groups recommended. “With changes, this Program also could serve as the model for a long-term food system solution,” said professor Emily Broad Leib, the faculty director for the Food Law and Policy Clinic.

An op-ed by Cass Sunstein: Why do people credit falsehoods? Why don’t they dismiss them? Here is a large part of the answer: Most of the time, we tend to believe other people. When they tell us things, we assume that they are telling the truth.To be sure, we consider some people untrustworthy, perhaps because they have so proved themselves; perhaps because they belong to a group that we think we should distrust. But on average, we trust people even when we should not. We pay too little attention to clear evidence that what is being said is false. We fail to discount for the circumstances. For instance, what if I said: In recent months, scientists have found that climate change is unlikely to be a serious problem. On balance, most people will be unaffected by it. People in the United States and Europe are unlikely to be affected at all. To be sure, there will be some harmful effects elsewhere, including Rwanda and South Africa, but even there, those effects will be small. Remarkably, most of the world’s population will be better off, because the world will be warmer. Actually that is false; I made it up. But if you’re like most people, that false statement might well linger in your memory, making you think, at least for a little while and in some part of your mind, that climate change isn’t a serious problem. (Sorry.)

An op-ed by Noah Feldman: Yesterday’s  Supreme Court arguments in a major voting rights case portend what appears to be the future of election law: The continuing withdrawal of the court from the role of policing elections for racial fairness. Call this the Roberts Doctrine. The chief justice has been pushing the agenda of judicial disengagement from voting rights issues since 2012, when he wrote a landmark decision in the case Shelby County v. Holder, striking down section 5 of the Voting Rights Act of 1965. The new case, out of Arizona, addresses Section 2 of the same act. The court may well be poised to weaken that part of the law to make it harder to challenge a state’s voting practices as racially discriminatory. If it does, this will continue the judicial pullback from a role the courts have played since 1964, when the Supreme Court established the principle of one person, one vote. The Roberts Doctrine reflects the chief justice’s particular jurisprudence, one profoundly influenced by the thinking of the late Justice Felix Frankfurter, who retired from the court in 1962 and died in 1965. Frankfurter was the father of the modern doctrine of judicial restraint. When Roberts follows Frankfurter in declining to strike down legislation, as he partly did in the Affordable Care Act case, liberals like it. When he follows Frankfurter in restraint around election law challenges, as he did in rejecting former president Donald Trump’s judicial challenges to the 2020 election results in Pennsylvania, liberals applaud that, too.

Advocates inundated the docket this week in a U.S. Supreme Court case concerning green cards for certain temporary protected status holders, with groups including Harvard University and the Service Employees International Union backing permanent residency for all TPS recipients...Representatives from the Harvard Immigration and Refugee Clinical Program emphasized that the transient nature of the category placed a psychological burden on holders who were unable to transition to a different visa program, requiring some to pay hefty registration fees repeatedly and barring them from sponsoring family members still trapped in unstable countries.

Private equity firms are proving there’s still plenty of profit in the U.S. coal industry despite a decade of falling demand for the fossil fuel. They are spending billions of dollars buying coal-fired plants on the cheap - and getting paid even when they are not providing power. Since the end of 2014, at least five U.S. private equity firms have bought coal plants in markets where regulators pay them to be on standby to provide emergency power when demand surges with extreme hot or cold weather, according to a Reuters review of U.S. regulatory disclosures and credit-rating agency reports...FERC did not respond to requests for comment, and the White House declined to comment. “I’m confident, in the next couple of years, FERC will order changes,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. Policy changes could make it harder for highly-leveraged private equity owners of coal plants, like Lightstone, to refinance their debts, according to Richard Donner, a credit analyst at Moody’s Investors Service. About $1.7 billion in the company’s debt comes due in 2024. Even so, Lightstone’s creditors are the ones with the greatest risk, according to Peskoe. “Somehow the private equity guys always make out OK,” Peskoe said. “It’s everyone else who doesn’t.”