Media Mentions

A former law clerk for one of the nation's most-renowned appeals court judges accused him Thursday of a crude, prolonged campaign of sexual harassment. Attorney Olivia Warren said during a House hearing that, during a clerkship that began in 2017, 9th Circuit Judge Stephen Reinhardt repeatedly insulted her over her appearance, made vulgar comments, and disparaged other women who had leveled allegations of sexual harassment and assault. Reinhardt, a Jimmy Carter appointee long viewed as the leading liberal stalwart in the nation's largest judicial circuit, died in 2018 at age 87. "Mainly, he suggested I was horrifically unattractive," Warren testified. "He questioned whether my husband could ... be real given how unlikely it seemed to him that any man could ever be attracted to me. He speculated to me that if my husband in fact existed he was doubtless a ‘wimp’ or gay."

NPR's Noel King talks to former Justice Department official Jack Goldsmith about Attorney General William Barr's public rebuke of President Trump for his Twitter attacks on the Justice Department.

Last April, the head of the Environmental Protection Agency, Andrew Wheeler, proclaimed at an auto show here that he would soon roll back President Barack Obama’s stringent fuel efficiency standards. That, the administration contends, would unleash the muscle of the American auto industry. It would also virtually wipe away the government’s biggest effort to combat climate change. Nearly a year later, the rollback is nowhere near complete and may not be ready until this summer — if ever. “They look like they’re headed to a legal train wreck here,” said Richard Lazarus, a professor of environmental law at Harvard University...“If the costs to the economy exceed the benefits, and there are no environmental benefits, the courts would classically look at this as an arbitrary and capricious policy,” said Mr. Lazarus, who specializes in environmental law at Harvard. “That makes it very vulnerable to being overturned.”

Settle in for a drawn-out legal battle over the Federal Energy Regulatory Commission's new plan for energy resource participation in the biggest electricity market in the country. Legal experts say potential lawsuits targeting FERC's recent "minimum offer price rule," or MOPR, for the PJM Interconnection capacity market will take awhile to get off the ground. FERC's commissioners have yet to say whether they will agree to a rehearing requested by dozens of state officials, environmental groups and some trade associations, and the agency could use tolling orders to further delay the process. But even if the timing of possible litigation is unclear, the legal arguments over the December order are already coming into focus...Under the new rule, for example, a nuclear power plant that receives state subsidies for reducing carbon emissions could be kicked out of PJM's capacity market. The subsidies are protected under state law and the courts, so ratepayers will continue to pay for them, but PJM would have to pretend those resources — in this example, nuclear power — do not exist, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "Ratepayers end up overpaying because PJM will be procuring enough resources for the entire region," he said. "But at the same time, ratepayers will also be paying these resources outside the market through these state programs."

An article by Todd Carney, JD '21: Over the last three years, the world has seen two European democracies, Slovakia and Malta, face major political scandals regarding the murder of a journalist in each of their countries. Slovakia and Malta are not the only countries to make headlines over the scandals of murdered journalists. Both Russia and Saudi Arabia have faced allegations regarding their governments murdering journalists. This raises the question of what international legal protections exist for journalists? Though international law of course does not sanction the murder of people in general, journalists can be more at risk, especially when journalists are doing political reporting on problematic practices of a corrupt government. In response to the danger posed to journalists, there should be more legal protections establish on the international level to defend journalists globally. This piece looks at the current protections under international law for journalists and how further protections could be established.

An article by Aditi Shah JD '20:  When, if ever, must the federal court door be open to an asylum-seeker facing expedited removal who claims that the government violated his statutory, regulatory and constitutional rights? In less than a month, this question will be argued before the Supreme Court. At stake are the fates of noncitizens being forced to return to the persecution they fled, the government’s ability to administer an important part of the immigration system, and the judiciary’s role in holding the executive accountable. This term, the Supreme Court granted the government’s petition for certiorari in Department of Homeland Security v. Thuraissigiam, a case about how much judicial review is constitutionally required for immigrants facing expedited removal. The court agreed to review the U.S. Court of Appeals for the Ninth Circuit’s holding that 8 U.S.C. § 1252(e)(2), the provision of the Immigration and Nationality Act governing habeas proceedings, is unconstitutional under the Suspension Clause as applied to the respondent, Vijayakumar Thuraissigiam. The case implicates contentious debates about the constitutional rights of asylum-seekers and carries practical consequences for government regulation of expedited deportation.

Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment... Professor Rebecca Tushnet of Harvard Law School and Professor Jessica Litman of University of Michigan Law School strongly cautioned the Subcommittee against conflating all internet service providers with Google and Facebook.  “Only a few services receive millions of [takedown] notices,” Tushnet said. “Most don’t need and couldn’t survive a requirement to use technological mechanisms to filter out rare infringements. If Congress changes 512 to target Google and Facebook, it will ensure that only they are left, making the problem of market concentration even worse.”

They need it, but they resent that they need it. They've acquired it, but are almost embarrassed by it. They rail against it, but end virtually every speech or debate closing remarks asking people to please give it to them. The Democratic presidential contenders have a love-hate relationship with money, which is essential to running a presidential campaign but which – among Democrats at least – carries a sort of dirty quality that has contenders competing not just for dollars but for dollars they claim are cleaner than everyone else's...Modern politicking has gotten very complicated for the Democratic field, which is seeking to appear the most sympathetic to poor and middle-class Americans while simultaneously struggling to amass war chests that will force the others out of the race. "On the one hand, I think it's good Democrats are concerned about money. I do think money is a corrupting influence in our government," says Harvard Law School professor Lawrence Lessig, author of the book "They Don't Represent Us: Reclaiming Our Democracy" and a one-time Democratic presidential candidate who ran on a platform of reforming money in politics. But "I also think the way it's playing out in the presidential election is a little bit crazy," he adds.

The first of 2020’s big copyright hearings started with a nod to Chumbawamba. Senator Thom Tillis (R-NC) had looked up which band topped the charts in 1998, the year Congress passed the Digital Millennium Copyright Act — one of the most influential and controversial laws governing the internet. Then, Tillis paused soberly. “I don’t know if we’re talking a lot about Chumbawamba” these days, he said. And the DMCA itself? “Almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.”...The 1998 DMCA attempted to outline how copyright should work on the then-nascent internet, where you could almost freely and infinitely copy a piece of media. But it’s been widely criticized by people with very different stances on intellectual property. Supporters of tougher anti-piracy rules, for instance, argue that its “safe harbor” rules don’t motivate websites to keep pirated content offline. Conversely, internet freedom advocates say its takedown system provides a de facto censorship system for the web. And the DMCA’s reach touches far-flung issues like farm equipment repair, which makes it unavoidable even for industries with no piracy problems. This week’s hearing focused on two pieces of the law: Section 512, which spells out platforms’ liability for pirated content, and Section 1201, which limits cracking digital copy protection. “Most service providers don’t need and can’t get expensive filtering technology” that they’d need to implement a “stay-down” system, said Harvard Law School professor Rebecca Tushnet. “If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive.”

Some of Justice Scalia’s papers are now publicly available. The legal and academic papers of the late U.S. Supreme Court Justice Antonin Scalia are now available for public viewing, at the Harvard Law School Library. The collection includes photos, postcards and notes, too. The library plans to release the collection in stages, and most of what’s available now was created before 1986, when Scalia was appointed to the Supreme Court. He also was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and documents from specific cases will not be shared until after other judges or justices involved are dead.

There has been a lot of reaction to Attorney General William Barr's intervention in the Roger Stone case — when he called for a shorter sentence than the seven to nine years prosecutors recommended. Here & Now's Robin Young speaks with Charles Fried, who served as solicitor general under former President Reagan. Now he's a professor of law at Harvard Law School.

Perhaps you remember the scene from the 2013 thriller “Escape Plan,” when an inmate played by Arnold Schwarzenegger slugs a fellow prisoner played by Sylvester Stallone, knocking him flat on his back. Stallone gets up, dusts himself off, and delivers one of his famous haymakers to Schwarzenegger’s jaw. Yet the behemoth is unfazed, even laughing. “You hit like a vegetarian,” he says, in his trademark Austrian-accented English. And while the line may lack the gravitas of “I’ll be back” or even “Hasta la vista, baby,” it resonates enough to get Stallone to try to hit him harder. Because no real man wants to be accused of being an herbivore, right? This old-fashioned notion that tough guys — and tough women — must eat meat was challenged on Tuesday night at Harvard Law School (HLS), during a screening of the popular documentary “The Game Changers,” which includes the aforementioned clip as a call to vegetarian arms. Hosted by the Animal Law & Policy Program and the Office for Sustainability, the screening was followed by a panel conversation including some of the athletes profiled in the film, as well as doctors and scientists, all advocating a plant-based diet. The main message? Those who eat a vegetarian, vegan, or plant-based diet pop a wallop, too.

The judge who will sentence Roger Stone is an Obama appointee who’s drawn scorn from the president for her handling of the criminal case against Paul Manafort and a civil lawsuit involving Hillary Clinton. U.S. District Judge Amy Berman Jackson will decide on Feb. 20 how much prison time to give Stone, a longtime Republican political operator and presidential confidant who publicly antagonized her before his trial. The Justice Department complicated her task on Tuesday when it backed off its recommendation of a seven- to nine-year prison sentence for Stone. Later in the day, President Donald Trump took direct aim at Jackson...“She is very smart, works very hard and is very fair,” said Nancy Gertner, a retired federal judge who teaches sentencing at Harvard Law School. “The fact that the president feels free to trash a federal judge is outrageous to the Nth degree, particularly with a judge that’s about to sentence Stone.”

Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist, discusses his column: "Trump Has Hijacked Roger Stone’s Sentencing." Hosted by Lisa Abramowicz and Paul Sweeney.

An op-ed by Martha Minow:  Why have four federal prosecutors withdrawn from the case they successfully pursued against Roger Stone, and why does it matter? The four were “career lawyers” at the U.S. Department of Justice; they pursued criminal charges against Roger Stone, a friend and advisor of President Donald Trump, and their case produced a conviction on seven counts, including witness tampering and lying to investigators following Stone’s work for  Trump's 2016 presidential campaign. Pursuing usual procedures, they requested a sentence of seven to nine years, which ordinarily would then be left to the judge for a decision. But then, President Trump — apparently in response to strong lobbying through the media and perhaps behind closed doors — took to Twitter and called the situation “a miscarriage of justice.” His tweet actually said “cannot allow this miscarriage of justice.” Leaders at the Department of Justice submitted a revised request for a lower sentence — and the White House maintained it had nothing to do with the change...Without public confidence in the integrity of investigations and prosecutions, respect for the criminal process, convictions and the rules themselves can crumble.

The public release this month of the first set of materials from the Antonin Scalia Collection was a pivotal moment for curators and archivists at the Harvard Law School Library...Harvard Law Today recently sat down with Ed Moloy, the library’s curator of modern manuscripts, and Project Archivist Irene Gates to discuss the Antonin Scalia Collection, the work of archiving, preserving, and making it public, and other collections held by the Harvard Law Library.

A federal judge gave his blessing to the $26.5 billion merger between T-Mobile and Sprint on Feb. 11, several months after the deal got final antitrust approval from the U.S. government. A group of attorneys general from 13 states and the District of Columbia had sued to try to block the merger, arguing it would reduce competition in the telecommunications industry and raise customer prices by billions of dollars. Let me add a third reason the judge should have blocked the deal: It will likely increase economic inequality. Research on inequality, including my own, has generally focused on how economic growth, tax policy and the use of technology affects it. Less attention has been paid to another important factor: enforcement of antitrust laws...Finally, anti-competitive behavior frequently arises when there is common ownership of corporations. The airline industry provides a great illustration of this. From 2013 to 2015, the same seven shareholders controlled 60% of United Airlines, 27.5% of Delta, 27.3% of JetBlue and 23.3% of Southwest. Harvard law professor Einer Elhaug argues this kind of common ownership of multiple companies in an industry is very likely to lead to anti-competitive prices.

For decades after Watergate, the White House treated the Justice Department with the softest of gloves, fearful that any appearance of political interference would resurrect the specter of Attorney General John Mitchell helping President Richard M. Nixon carry out a criminal conspiracy for political ends...For the most part, modern presidents have stayed away from cases involving their friends or associates, at least publicly...One notable exception was President Barack Obama, who during the 2016 presidential campaign said that he did not believe that Hillary Clinton had harmed national security by using a private email server but was guilty only of carelessness — remarks that Republicans immediately criticized as interference with an open F.B.I. investigation...But while Mr. Obama was guilty of a single lapse, said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush, Mr. Trump has continually injected himself into federal investigations and prosecutions involving his political friends and enemies. “Even assuming that Bill Barr is acting with integrity, it is impossible for people to believe that because the president is making him look like his political lap dog,” Mr. Goldsmith said. “Trump makes it impossible to have confidence in the department’s judgment.”

A federal judge gave his blessing to the US $26.5 billion merger between T-Mobile and Sprint on Feb. 11, several months after the deal got final antitrust approval from the U.S. government. A group of attorneys general from 13 states and the District of Columbia had sued to try to block the merger, arguing it would reduce competition in the telecommunications industry and raise customer prices by billions of dollars. Let me add a third reason the judge should have blocked the deal: It will likely increase economic inequality....Anti-competitive behavior frequently arises when there is common ownership of corporations. The airline industry provides a great illustration of this. From 2013 to 2015, the same seven shareholders controlled 60% of United Airlines, 27.5% of Delta, 27.3% of JetBlue and 23.3% of Southwest. Harvard law professor Einer Elhauge argues this kind of common ownership of multiple companies in an industry is very likely to lead to anti-competitive prices. And that’s exactly what researchers have found. A 2018 paper showed that ticket prices are 3% to 11% higher due to common ownership, and studies of the banking and other industries have found similar effects.

Sen. Thom Tillis, R-N.C., said Tuesday that landmark legislation passed in 1998 to protect innovation and free speech on the internet while still fighting copyright infringement needs to be updated and that he wants to craft a reform bill by the end of the year. Tillis, who chairs the Senate Judiciary Committee’s intellectual property panel, kick-started the process of updating the Digital Millennium Copyright Act by convening a hearing with experts who talked about the pros and cons of the law as it operates today...There has been an exploding number of take-down notices under the law’s safe harbors, known as Section 512, he said....But Rebecca Tushnet, a First Amendment professor at Harvard Law School, opposed making the kinds of changes sought by those two witnesses, saying that even though “the system is by no means perfect ... like democracy, it's better than most of the alternatives that have been tried.” “Changes to 512 would be likely to make things much worse,” she said. Tushnet recommended, among other things, focusing on antitrust in copyright and telecom in any reform of the 1998 law.

Puppy toys should have nothing to do with car engines. But a recent court complaint says Amazon.com Inc. halted sales of a “puppy sleep aid” after being told a storefront selling on its marketplace infringed two patents—one registered in 1895, and another directed to a Japanese “combustion device.” “Neither patent is enforceable. Neither patent is owned by any Defendant,” the complaint says. As Amazon expands its reign over e-commerce and gets more aggressive about rooting out counterfeiting, it’s taking a more active role in judging intellectual property disputes between merchants on its platform... “Amazon, with its size, now substitutes for government in a lot of what it does,” said Rebecca Tushnet, a First Amendment and copyright law professor at Harvard University. “It is being asked to run a judicial system, without the commitments to transparency and precedent of a real judicial system.” ...But “many of its initial attempts to deal with bad actors on its site, while clearly done in good faith, assumed that the initial set of bad actors (counterfeiters) was the problem to be dealt with, and its response then created a new set of opportunities for new kinds of bad behavior,” Tushnet said.