Media Mentions

A decade ago, the consensus was that the digital revolution would give effective voice to millions of previously unheard citizens. Now, in the aftermath of the Trump presidency, the consensus has shifted to anxiety that online behemoths like Twitter, Google, YouTube, Instagram and Facebook have created a crisis of knowledge — confounding what is true and what is untrue — eroding the foundations of democracy. These worries have intensified in response to the violence of Jan. 6, and the widespread acceptance among Republican voters of the conspicuously false claim that Democrats stole the election...Yochai Benkler, a law professor at Harvard, contends in an email that “it’s a mistake to conceive of technology as an external force with a known definitive effect on social relations.” “Radio,” Benkler argues, was as available for F.D.R.’s fireside chats as it was for Hitler’s propaganda. Ten years ago the internet in general, and Facebook in particular, was widely perceived as a liberation. Now it’s blamed for the collapse of liberal democracy. Digital media has distinctive characteristics that “can work both to improve participation and democratic governance and to undermine it,” Benkler adds. “It was citizens’ video journalism capturing the evidence and broadcasting it on social media, coupled with the mass protests,” he notes, “that changed the public conversation about police shootings of Black Americans. And it was also social media that enabled the organization and mobilization of Unite the Right in Charlottesville.”

An op-ed by Noah Feldman: Federal district court judge Jesse Furman has issued his ruling in the Citigroup-Revlon lawsuit involving a $900 million mistake. Due to human error, Citigroup employees made debt payments to Revlon’s creditors that Revlon didn’t intend for them to make. Remarkably, Furman ruled in favor of the creditors, who won’t have to give back the money it received in error. Citigroup and Revlon will now have to eat the costs of the bank’s mistake. The outcome is fascinating as an instance of strict judicial rule following. As Furman framed his opinion, the legal rule was clear: Under New York law, a creditor can keep a mistaken payment as long as he has “no knowledge” that it was sent in error. The case then came down to a question of fact: whether the creditors knew they were getting paid by mistake at the moment they got the payment. After hearing witness testimony, Furman concluded they did not. From there, it followed that they could keep the money. Seen from the perspective of common sense, the result is (I think) absurd. But the fault lies not in the judge’s application of the binding legal rule. It lies in the rule itself, at least as applied to sophisticated financial institutions. It makes almost no sense to focus on the magic moment of receipt of funds in deciding whether the courts should be able to rectify a mistake. The New York State courts, who adopted the rule, should re-think it.

A book review by Ronald Sullivan: A decade ago, Sudhir Venkatesh, a Columbia University professor of sociology, made quite a splash with his book “Gang Leader for a Day: A Rogue Sociologist Takes to the Streets.” His research consisted of shadowing a Chicago gang for 10 years, and it yielded valuable insights on the inner workings of the drug trade. Notwithstanding his book’s provocative title, however, Venkatesh never became a gang leader; rather, he closely observed gang life and culture by gaining unprecedented access. Georgetown law professor Rosa Brooks took this a step further, as recounted in her fascinating book “Tangled Up in Blue: Policing the American City.” Brooks did not simply observe policing in America. This highly educated, tenured professor became the police...The two stories work together to show that race and class conspire to create conditions that leave poor, Black citizens with mostly bad choices in order to survive. These choices include committing crimes. But these crimes have victims, who are mostly poor and Black. The victims of crime require and request more policing. But more policing results in the negative interactions between the police and Black citizens that have sparked so many recent protests. This is what Harvard scholar Randall Kennedy calls a “negative good” in his groundbreaking work, “Race, Crime, and the Law.” It is a “good” for police to respond to neighborhoods with heightened crime, but a “negative” when over-policing leads to harms to the very community law enforcement purports to protect. “Tangled Up in Blue” puts this tension on full display.

In late December 2020, I concluded a fifty-page book chapter on the drafting of Section 3 of the Fourteenth Amendment that began by declaring “Section 3 is the most forgotten provision of the forgotten Fourteenth Amendment.” Less prophetic words were never spoken...Section 3 applies to any person “who, having previously taken an oath … as an officer of the United States.” Does that clause apply to the Office of the President of the United States? During the controversy over the emoluments clause, Mr. Trump’s lawyers claimed that the president is not an officer of the United States and, therefore, not subject to the ban on accepting gifts from foreign governments. The overwhelming weight of scholarship and evidence is against this proposition. Norman Eisen, Richard Painter and Laurence Tribe point out, “[T]he text of the Constitution . . . repeatedly refers to the President as holding an “Office.”  For example, Article II, Section I provides that the President “shall hold his office during the term of four years.” It further provides that no person except a “natural born citizen . . . shall be eligible to the office of President,” and addresses what occurs in the event of “the removal of the President from office.”

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

A case recently argued before the Massachusetts Supreme Judicial Court pits the religious freedom of a Christian college against a professor’s right to seek redress for alleged workplace discrimination. Specifically, the SJC in DeWeese-Boyd v. Gordon College, et al. was asked whether the First Amendment’s “ministerial exception” — which the U.S. Supreme Court first recognized in its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church + School v. E.E.O.C. — bars the claims of a professor at an evangelical Christian college who says that she was discriminated against after vocally and publicly opposing her employer’s policies relating to LGBTQ+ individuals. One of the plaintiff’s lawyers, Hillary Schwab of Fair Work in Boston, called DeWeese-Boyd an important case that could impact thousands of workers in Massachusetts, including anyone who works at a religiously affiliated school or hospital...While the purpose of the Department of Pastoral Care that employed the plaintiff in Penn “was to provide religious care to the hospital’s patients,” the purpose of the social work program at Gordon College is something else entirely, argues a brief signed by the Charles Hamilton Houston Institute of Race and Justice, GLBTQ Legal Advocates + Defenders, Lawyers for Civil Rights, and the Massachusetts Employment Lawyers Association, among others.

Republican lawmakers in battleground states are rushing to enact stricter voting laws that Democrats worry could dampen Black and Hispanic turnout, but the moves could end up backfiring because of the changing face of the GOP coalition. The flurry of legislation includes attempts to impose voter ID requirements and roll back pandemic-related expansion to mail-in access, steps that may inadvertently limit the participation of many of the older, rural and blue-collar voters that Republicans now depend on. State legislatures across the country are considering more than a hundred bills that would increase voter ID requirements, tighten no-excuse vote-by-mail, and ban ballot drop boxes, among other changes...This flood of legislation comes despite research showing that voter ID laws passed over the last decade not only don’t hamper minority turnout, but may even boost it by motivating angry Democrats and spurring stronger get-out-the-vote efforts. Nick Stephanopoulos, a Harvard professor who studies voting laws, said that the suburban, college-educated voters moving toward the Democratic Party are the least likely to be affected by new restrictions, since they have the resources to overcome them and tend to be regular voters already.

On January 20, while the country was focused on the presidential inauguration, the Alaska Supreme Court heard arguments in a case that could upend the big money systems that have come to fund the nation's elections. It's time for the rest of the country to pay attention. The case comes from Lawrence Lessig, a law professor at Harvard and founder of the organization EqualCitizens, who spent Inauguration Day on Zoom arguing against super PACs...Lessig's case asks the Alaska court — and potentially the US Supreme Court — to recognize a different type of corruption. His argument relies on originalism, an interpretive technique that examines how ordinary people would have understood the Constitution back when it was first proposed. In support of his originalist argument, Lessig marshals impressive evidence that the framers' generation had a deep and capacious understanding of political corruption. People back then understood bribery, of course. But they also worried about institutional corruption: even if a particular individual isn't taking bribes, an institution as a whole can become corrupted by an improper dependence on anything other than the support of voters. And super PACs corrupt the system by making politicians far too dependent on a small number of super-wealthy donors.

Friday is the delayed start of the tax filing season. Like everyone else, the already short-staffed IRS had a tough time adjusting to working during in the pandemic, plus it had to figure out how to get two rounds of relief payments out, which put the agency a little behind. In 2020, the filing deadline was extended to July 15 to make things a little easier. This year, the traditional April 15 cutoff is back, so the next few months are likely to be fairly stressful at the IRS, and this year’s tax season is probably going to be a lot more stressful for many filers as well. And the calculations may be a bit more complicated, especially for people who lost their jobs or had their hours cut back. “A lot of people don’t realize that when you get unemployment, it’s taxable. So they might not have had adequate withholding,” said Keith Fogg, a professor at Harvard Law School who also runs the federal tax clinic there. “Last year, a lot of people are pulling money out of their retirement accounts to try to make ends meet, which is creating more taxable income,” he said.

President Joe Biden is hoping to turn the page after the U.S. Senate acquittal of Donald Trump over the deadly storming of the Capitol building, even as Mr. Trump is vowing to stage a political comeback. Mr. Biden declared that the country would learn from the threat to its political system to ensure that such violence never happens again. He is hoping his administration and Congress can now focus on pandemic relief, immigration and his cabinet appointments...Whether Mr. Trump will face criminal charges is unclear. Constitutional scholar Laurence Tribe contended that, despite Mr. Trump’s acquittal, the trial had made a definitive statement about his unprecedented actions as president. “The impeachment permanently establishes a historical record of how this president was probably the most dangerous in American history,” said Prof. Tribe of Harvard Law School. “His astonishing and long-lasting campaign to overturn a fair election and hold onto power by whatever means possible distinguishes him from any other president.”

Donald Trump, who as president incited a riot in an effort to stay in office despite losing the 2020 election, was acquitted by the U.S. Senate on Saturday, putting an end to his second impeachment trial. He was not acquitted because he was innocent. He was acquitted for one reason: Donald Trump and his supporters have a toxic sense of entitlement, believing that they should never lose an election...Harvard Law colleague Laurence Tribe agreed that Trump's acquittal in the first impeachment trial paved the way for the misconduct that got him impeached a second time. "The first impeachment led almost inevitably to the second once Trump, whose whole modus operandi is built on lying, cheating, and stopping at nothing to secure power and fame was validated by the Senate's unfortunate acquittal the first time around," Tribe told Salon by email. "Having thought nothing of exposing the people of Ukraine to slaughter at the hands of Russia by threatening to withhold congressionally appropriated aid in an effort to pressure Ukraine's president Zelensky into injuring Biden by pretending to be investigating him and his son criminally, Trump upped the ante by threatening criminal prosecution of Georgia's Secretary of State Raffensperger in order to get Raffensperger to steal that state's electoral votes from Biden and, when that failed, by inciting insurrection by an armed and angry mob in a treasonous attempt to overturn the results of the 2020 election."

Jamie Raskin had finished a face-to-face interview with the Guardian and was on his way home. It was late on Saturday night in October 2018. But then he thought of a point he hadn’t made and, ever fastidious, restarted the conversation by phone. “Straight white men are already a minority in the Democratic caucus but when the big blue wave hits, we’re going to be moving much closer to parity in terms of women and men, at least on the House side,” he said, a prediction that came true a month later in the midterm elections...Raskin graduated from Georgetown day school in 1979 then studied at Harvard and its law school, where he was an editor of the Harvard Law Review and his teachers included Professor Laurence Tribe. Tribe recalls that Raskin and his wife, Sarah, met in his class on the constitution. “He is one of the most impressive students that I have ever come to know and is also an extremely impressive human being,” he said. “The courage that he has shown in the face of unthinkable personal tragedy has been something to behold. As the lead impeachment manager he couldn’t possibly have done a better job. I’ve taught quite a few impressive people, like President Obama and Chief Justice [John] Roberts and Justice [Elena] Kagan, and he is right at the top of the students that I feel very proud to have played at least some small role in educating.” Tribe remains in touch with Raskin, who told him he feels his late son is “with him” during this effort. “He is fully aware of the enormous historical import of this trial and the weight he carries on his shoulders and he’s carried it with grace,” Tribe said. “But for his awareness of that, I think he would be spending more time with his family because they’re still in mourning.”

An op-ed by Gary Corn and Jack Goldsmith: Today the technology and law programs that we supervise at the American University Washington College of Law and the Hoover Institution at Stanford University, are publishing a report entitled “Chinese Technology Platforms Operating in the United States.” The report sets forth a framework for understanding the various threats posed by Chinese-owned technology platforms operating in the United States (e.g. TikTok), and for assessing the various costs and benefits of proposed responses to these threats. The report is a joint-product by a group of people with diverse backgrounds, experiences, and perspectives on these matters: Jennifer Daskal, Chris Inglis, Paul Rosenzweig, Samm Sacks, Bruce Schneier, Alex Stamos, Vince Stewart and the two of us. Some background and elaboration: Among the many challenges the Biden administration has inherited, a frayed U.S.-China relationship figures prominently. The Trump administration's approach to China was driven by China’s emergence as a great power competitor, and frictions inherent in that recognition manifested across a range of issues not the least of which were trade and regulation of Chinese technologies. The Trump administration took direct aim at a number of technologies, from Huawei’s 5G to Chinese manufactured small drones. In late 2020 and early 2021, it took steps to effectively ban TikTok, WeChat and other Chinese-owned apps from operating in the United States, at least in their current form.

An op-ed by Vivek Wadhwa and Alex Salkever: We love Tesla — we’re huge fans of the way the company has made electric cars cool.  The Palo Alto, Calif.-based company’s Model 3 is probably the most appetizing lower-cost electric vehicle (EV) on the market today, and is well on its way to becoming a massive success. And Tesla’s rapid escalation in battery production has forced down prices of lithium-ion batteries. Yet we’re rejoicing in the news from Schmidt Automotive Research that Tesla has lost market share in the world’s largest EV market, the European Union. We’re rejoicing because this is a clear sign of global interest in EVs. In the European Union, Tesla’s loss in market share derived partly from large incumbent automakers’ increasing vigor in making their own EVs more attractive, through both pricing and design diversity. A broader, deeper market for these fuel-efficient, pollution-free vehicles is good for the planet and will further reduce prices. EVs’ path to further improvement also makes complete sense. In reality, internal combustion engines (ICEs) are today’s horse-and-buggy: well understood, reliable, and with a great infrastructure, but ultimately unable to compete. At the rate at which battery prices (and, by extension, EV prices) are falling and adoption is increasing, all car makers will have commenced publicly phasing out ICEs. General Motors has already taken the plunge and will phase out combustion engines by 2035.

On a morning in May, 2019, forty-three lawyers, academics, and media experts gathered in the windowless basement of the NoMad New York hotel for a private meeting...Since its founding, in 2004, Facebook had modelled itself as a haven of free expression on the Internet. But in the past few years, as conspiracy theories, hate speech, and disinformation have spread on the platform, critics have come to worry that the company poses a danger to democracy. Facebook promised to change that with the Oversight Board...The idea for the Oversight Board came from Noah Feldman, a fifty-year-old professor at Harvard Law School, who has written a biography of James Madison and helped draft the interim Iraqi constitution. In 2018, Feldman was staying with his college friend Sheryl Sandberg, the chief operating officer of Facebook, at her home in Menlo Park, California. One day, Feldman was riding a bike in the neighboring hills when, he said, “it suddenly hit me: Facebook needs a Supreme Court.” ... Currently, users can appeal cases in which Facebook has removed a post, called “take-downs,” but not those in which it has left one up, or “keep-ups.” The problem is that many of Facebook’s most pressing issues—conspiracy theories, disinformation, hate speech—involve keep-ups...“This is a big change from what you promised,” Evelyn Douek, a Harvard graduate student who consulted with the team, fumed, during one meeting. “This is the opposite of what was promised.” Users also currently can’t appeal cases on such issues as political advertising, the company’s algorithms, or the deplatforming of users or group pages. The board can take cases on these matters, including keep-ups, only if they are referred by Facebook, a system that, Douek told me, “stacks the deck” in Facebook’s favor.

Constitutional law scholar and Harvard Law professor Noah Feldman says Republicans are clinging to the constitutionality argument to avoid convicting Trump.

Perry Connelly quickly noticed that something was off when he began working at the Amazon fulfillment center in Bessemer, Alabama, last spring. Managers were unfriendly to the point of not acknowledging employees when they walked past, and they were quick to write people up for infractions that seemed minuscule or made-up, such as too much time “off-task.” “The main thing was just the disrespect,” the 58-year-old told The Daily Beast. Any concern, even one related to safety, went unattended unless it was an emergency, he said...Nearly 6,000 workers at the Bessemer warehouse began a vote this week to determine whether they will become the first Amazon employees in the country to form a union...Just like the town of Bessemer, a large portion of the warehouse employees are Black. “It’s significant that it’s a movement of primarily Black workers and women—the workers that have been most impacted by the pandemic,” Benjamin Sachs, a professor of labor and industry at Harvard Law School, told The Daily Beast. A win at the Bessemer warehouse would be a “huge victory for economic and racial justice,” Sachs said, and workers with positive experiences with unions often go on to unionize other workplaces.

Multiple members of Boston's delegation in the Masachusetts statehouse said Monday that state approval looks likely for the cancellation of a special mayoral election that after Mayor Marty Walsh’s resigns to become U.S. labor secretary. If the current election schedule goes forward, the city would potentially hold four contests — a special election, the regularly scheduled November contest, and preliminary elections preceding each — within five months. But unless the legislature approves Boston's request, the city can't do away with a special election. That got us here at GBH's Curiosity Desk to ask why...Here in Massachusetts, home rule became the law of the land in the 1940s. "Home rule, it sounds great," said Gerald Frug, a professor at Harvard Law School. "You can do what you want. But there’s less there than meets the eye." "There’s a home rule grant to cities that allows them to do certain things without going to the legislature every time. But that’s a limited set. It’s more limited than people think," Frug added. The upshot is that even with home rule, cities and towns still must still seek approval from the legislature for all sorts of things — including, but not limited to, elections.

The young plaintiffs behind an ambitious climate lawsuit are taking their case to the U.S. Supreme Court, despite warnings from environmental lawyers that the attempt could backfire. Lawyers for the 21 children and young adults in Juliana v. United States quickly announced plans Wednesday to file a Supreme Court petition after the U.S. Court of Appeals for the Ninth Circuit refused to revive their claims that the federal government has violated their constitutional right to a stable climate system. Julia Olson, who represents the plaintiffs, said she and her clients were unmoved by detractors who worry a Supreme Court fight would undermine broader environmental litigation...Outside lawyers, many of whom are sympathetic to the plaintiffs’ novel claims, say taking the issue to the high court could spell disaster for environmental interests if the justices agree to review the case. The Ninth Circuit’s rehearing denial is “no doubt enormously disappointing” to the plaintiffs after their more than five-year effort to make the government take action “urgently needed to avoid the truly catastrophic consequences of climate change that the entire planet now faces,” Harvard Law professor Richard Lazarus said. “For making clear the depth of the government’s past decades-long lapses in the face of industry malfeasance, the plaintiffs and their lawyers deserve the nation’s thanks,” he said. But Lazarus cautioned that seeking Supreme Court review would be “a serious strategic mistake” for those who care about climate issues. “The result would far more likely be the establishment of binding legal precedent by the Supreme Court that sets back critically important efforts to address the climate issue rather than a Supreme Court ruling that promotes those efforts,” he said.

An op-ed by Noah Feldman: The opening of former President Donald Trump’s impeachment trial highlighted three realities: The breach of the Capitol on Jan. 6 was a horrific episode that both mainstream political parties reject. Trump’s lawyers are woefully unprepared. And enough Republican senators will claim the trial is unconstitutional to assure that Trump won’t be convicted. So, what’s the point of the rest of the trial? The trial still matters because the theater of impeachment has a deadly serious purpose. In fact, Trump’s lawyers have already begun to fulfill one of its central functions: They are admitting, in a way that Trump himself has not, that the Jan. 6 attempt to disrupt the democratic process was a serious threat to democracy itself. Impeachment is designed to color in the red lines on the map of constitutional democracy. The lines have a purpose and a message: Stay inside them, and you may be voted out of office or otherwise held accountable by the voters. Cross them, and the system is supposed to stand up and take extraordinary steps to punish you. If it doesn’t, the system itself is profoundly weakened. Seen for what it is, the impeachment is an object lesson in delineating the fundamental, unbreakable rules of democracy. It offers civic education in the deepest sense to the entire country, and indeed the world.

From ridesharing to electric cars to self-driving vehicles the line between application, potential and promise is often very blurry. In this episode we take a reality check on the future direction of the automotive industry. Guests: Dr. Wulf Stolle – partner with Kearney (Europe); Dr. Ashley Nunes – senior Research Associate, Harvard Law School; Professor Shirley Meng – Director of Sustainable Power and Energy centre, University of California, San Diego; Nick Kilvert – ABC science reporter.