Media Mentions

If Michael R. Bloomberg is elected president, he says he would be “extremely reluctant” to order the military to attack another country without congressional authorization or an imminent threat to the United States. But he left himself wiggle room, stopping short of saying it would be unconstitutional for him to use force without lawmakers’ approval in other situations...Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in George W. Bush’s administration, said that while many of Mr. Bloomberg’s responses were fairly conventional, his stated inclinations about when he would unilaterally use force abroad seemed narrower than recent presidents of both parties. “While preserving wiggle room, the thrust is that the president should not use force except in cases of self-defense, pretty narrowly conceived,” he said. “That position would rule out Trump’s use of force in Syria in response to chemical weapons attacks, Obama’s use of force in Libya and in some strikes in Iraq, and some of the broader statements of self-defense power made during the George W. Bush administration.”

Samantha Power never imagined she would write a memoir. But Power, who served as United Nations ambassador under President Obama, told a Harvard T.H. Chan School of Public Health audience on February 25, 2020 that she thought it was important to share her experiences—about being an immigrant from Ireland, her career, dealing with anxiety, romance, even baseball—and of what it was like trying to achieve major goals despite sometimes questioning her ability to do so. Speaking before a standing-room-only crowd in Kresge G1, Power said that she wished that more people—public officials, doctors, lawyers, or others—would open up more about what it’s like to try to improve the state of the world, because the process “is very shrouded from the outside. And that means you end up making all the mistakes the first time yourself. What I hope to do is spare people some of the many mistakes that I’ve made along the way.”

An article by Richard Lazarus: Reports emerged in January from inside the Trump administration that the president was preparing a new thrust in his Ahab-like quest to destroy every last fiber of the Obama administration’s programs to address the threat of climate change. Trump has his sights on one of President Barack Obama’s signature accomplishments—the slashing of greenhouse gas emissions by cars and trucks. Fortunately, there is good news in the bad news. Law and science still matter and the president’s legal and scientific work in repealing the Obama climate programs during the past three years have been so consistently shoddy that almost every one of his efforts to date is likely to be overturned by the courts. The president and his political appointees at the Environmental Protection Agency are making the same mistake over and over. They first decide what they want the answer to be, and then try to twist the law and the science to back that conclusion. The problem is that law and science don’t work that way. They are not so easily manipulable.

An op-ed by Hilary Hurd ’20 and Benjamin Wittes: The Democratic presidential candidates have been sparring over whether Sen. Bernie Sanders (I-Vt.) has been adequately forthcoming about his medical records. At a debate in Las Vegas this month, former South Bend, Ind., mayor Pete Buttigieg said Sanders needs to disclose “full medical records, do a physical, and release the readout.” The Sanders campaign says demanding greater detail on Sanders’s health resembles “the kind of smear” that demands for Barack Obama’s birth certificate represented. It’s easy to understand why Sanders is not eager to release more of his health history. He’s a 78-year-old who weighs 179 pounds and recently had a heart attack. And he’s not the only one. Of the major Democratic candidates, only Sen. Elizabeth Warren (Mass.), former vice president Joe Biden and Sen. Amy Klobuchar (Minn.) have released comprehensive medical reports. Of course, President Trump as a candidate famously released — in lieu of his physical — a letter from a doctor declaring that “if elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency” — a letter it later emerged that Trump had dictated himself.

In an era when millions of songwriters upload music to the internet—and just about any song can be plucked from obscurity by TikTok teens—it seems inevitable that the same melodies end up in different songs. There have been a number of high-profile music copyright-infringement cases, including a multimillion-dollar decision against Katy Perry for her song “Dark Horse.” A jury found that she’d infringed upon the copyright of Flame, a Christian rapper who’d posted a song with the same melody to YouTube, even though Perry insisted that she’d never heard of the song or the rapper. For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies? ... “I just don’t get it,” Lawrence Lessig, an eminent copyright scholar at Harvard Law School, told me in an email. “Whether or not melodies can be represented in math, they are not just math. So that seems like a dead end.” Lessig did agree that it’s unfair that anyone can be dinged for “copying” work even if they could not be shown to have consciously done so. “The whole doctrine of subconscious copying is absurd. So I get the motivation,” he said.

An op-ed by Cass Sunstein: After an unprecedented delay, the Donald Trump administration has released what is required by law to be an annual report on the costs and benefits of federal regulations. The good news in this important document is that in the last two years, the costs of federal regulations have been stunningly low. The less good news is that in the last two years, the benefits of federal regulations have been...stunningly low. A central reason is that in this period, relatively few regulations have been issued that had a significant economic impact.

An Apple Inc shareholder proposal critical of the company’s app removals in China received a relatively high level of support at the iPhone maker’s annual meeting on Wednesday, enough to push the company to respond, experts said. ... “A total this high is a striking warning — and it must have come from big institutional investors, not just retail shareholders — that Apple’s human rights policy in China has become a material risk for the company’s reputation,” said Stephen Davis, a senior fellow at Harvard Law School’s Program on Corporate Governance. “Apple will be under great pressure to respond rather than ignore this vote,” Davis said.

In October, the Supreme Court heard a lawsuit from Stephens challenging her termination based on Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of “sex.” ... Gorsuch ignored that research, citing only a minority of scholars who agree with him. “I admire Justice Gorsuch’s writing,” Cass Sunstein, a Harvard law professor and former Obama-administration official, told me. “But his discussion in Gundy isn’t close to historical standards. There’s a ton of terrific work on the nondelegation doctrine, and he cites none of it. Then there is some not-terrific material, which he does cite.”

An article by Lawrence Lessig: After almost two years of hard work, suffering thousands of hours of television ads, endless digital ads, house parties, town halls, coffee shop speeches, and millions and millions of robocalls, New Hampshire voters have given us their insight in to the 2020 Democratic presidential campaign: Bernie Sanders convinced 25.6% of them, Pete Buttigieg won over 24.1%, and Amy Klobuchar surprised everyone by rallying 19.6%. But the views of the rest of New Hampshire, more than 30% of the votes cast – which is more than total votes of the frontrunner – will not count in the final results because no candidate getting less than 15% of the vote will get any delegates from New Hampshire. We could have learned so much more. No one should underestimate the gift that New Hampshire gives to the rest of America. Most of America pays little attention to primary races. Most never attend a public meeting or meet a candidate running for any federal office. But New Hampshire takes its first-in-the-nation primary responsibility very seriously. Almost 300,000 turned out, about 20% higher than in 2016. And that is on top of a practically endless engagement with candidates in every possible public place – as well as countless living rooms across the state.

A coalition of 39 states, including Nevada will look into the marketing and sales of vaping products by Juul Labs, including whether the company targeted youths and made misleading claims about nicotine content in its devices, officials announced Tuesday. Attorneys general from Nevada, Connecticut, Florida, Oregon and Texas said they will lead the multi-state investigation into San Francisco-based Juul, which also is facing lawsuits by teenagers and others who say they became addicted to the company’s vaping products. The state officials said they also will investigate the company’s claims about the risk, safety and effectiveness of its vaping products as smoking cessation devices. Juul released a statement saying it has halted television, print and digital advertising and eliminated most flavors in response to concerns by government officials and others...The scope of the investigation by dozens of states leaves Juul with little choice but to change its marketing practices, said James Tierney, a former attorney general of Maine. “When you see these kinds of numbers, it means they’re in a world of hurt,” said Tierney, a lecturer at Harvard Law School. “They can’t seriously litigate this.”

An article by Noah Feldman: Here’s the good news about President Donald Trump’s call for Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all future cases involving his administration: It won’t move the two stalwart liberal justices an inch. Better still, questions of any justices’ recusals are decided by — you guessed it — the justices themselves. Sotomayor and Ginsburg can do whatever they want, and that isn’t going to include being pushed around by Trump, or by anyone else for that matter. Nevertheless, it’s serious business that Trump has suggested that there were “obviously inappropriate” things in Sotomayor’s recent dissent criticizing his administration for repeatedly seeking emergency actions from the Supreme Court. Trump is wrong: There’s nothing improper in the dissent. It’s perfectly appropriate for justices to criticize an administration’s legal positions in strong terms. What’s really inappropriate is that the President of the United States is trying to undercut the legitimacy of individual liberal justices — and of the Supreme Court itself. That isn’t normal and it isn’t OK.

Students from Harvard University recently traded in their classroom in Massachusetts for a free stall barn in Wisconsin. Six students from the prestigious institution, which is located just outside of Boston, visited America’s Dairyland to conduct research. As Wisconsin-based researcher Bill Oemichen, one of the trip’s organizers, explained, “a number of these students work for the U.S. Congress, work for federal agencies, and they want to look at our typical practices on a Wisconsin dairy farm.” ... Dairy farmers Art and Lori Meinholz hosted the students on their farm in Middleton, proudly showing them around their operation and answering any question that was asked. Art admitted that the thought of having Harvard students on his farm was a little intimidating at first, but considers the visit a huge success. “In today’s world we need to help out wherever we can to try to educate people,” Meinholz said. The Harvard students themselves were equally excited about the opportunity. One student explained that after visiting the farm he has a newfound respect for all of the hats farmers have to wear. “Your farmer here is a machinist, an agronomist, an environmental scientist (increasingly), a financial wizard,” the student said.

An article by Hana Vizcarra: In recent years, the drumbeat for more expansive climate-related corporate disclosures has grown louder and more consistent within a broader swath of the financial community. This intensifying call argues for considering more climate-related information legally material under existing U.S. securities disclosure law. A key component of materiality as defined in U.S. securities law—who is a “reasonable investor”—is evolving when it comes to climate-related information. This evolution may soon impact what climate-related information courts consider material. There are myriad articles on corporate responsibility and environmental, social, and governance (ESG) issues across multiple disciplines. U.S. securities law and its disclosure regime, including the meaning of “materiality” as defined by the U.S. Supreme Court in TSC Industries, Inc. v. Northway, Inc., have likewise been the subject of much discussion. Recent papers have also considered the materiality of ESG issues for purposes of disclosure under U.S. securities law. Fewer have considered how courts view the materiality of sustainability and ESG issues or the materiality of climate-related information specifically.

A podcast by Matthew Stephenson: A new episode of KickBack: The Global Anticorruption Podcast is now available. This episode features my interview with Roberto de Michele and Francesco De Simone, who work as the state modernization specialists at the Inter-American Development Bank (IDB). In our conversation, we discuss the work that the IDB does on anticorruption, transparency, and related issues, and also how the IDB (or any other entity working in this area) can assess the impact of its projects. We further discuss the relationship between grand and petty corruption, and closely associated questions concerning incremental versus disruptive anticorruption reform strategies. (This discussion includes some discussions of the recommendations of the report prepared by an outside expert advisory group commissioned by the IDB, which Rick discussed shortly after it came out.) Toward the end of the interview, we talk about the impact that scholarly research has had on Roberto and Francesco’s thinking on anticorruption-related topics, and we conclude the interview with a discussion of the current state of corruption in the Americas–considering both the optimistic and pessimistic views of where things are going in the region.

An article by Noah Feldman: Don’t let the appearance of a split verdict in the Harvey Weinstein case mislead you: the prosecutors’ decision to charge Weinstein with being a serial sexual predator was a success despite the jury’s decision to acquit on those charges — even as it convicted him of two felony sex crimes, including rape. The strategic advantage of charging Weinstein as a predator was always that it would enable the prosecution to introduce more evidence, including evidence of sexual assaults from women who were not the primary victims in this case. That extra testimony very likely contributed to the jury’s decision to convict Weinstein on two felony charges. It bolstered the primary victims’ testimony, notwithstanding the absence of physical evidence and other challenges associated with their cases. The important legal background here is that, in a criminal case — including in a case of sexual assault — testimony is ordinarily limited to evidence about the specific criminal conduct alleged. If the prosecution wants to introduce evidence of other bad acts by the defendant, it needs to have a valid legal reason to do so — such as a pattern of conduct. We want juries to convict on the actual criminal charge, not because they think the defendant is generally an immoral person or prone to crimes in the abstract.

An article by Emma Broches '20 and Julia Solomon-Strauss '20: A recent U.N. report warned about both the continued threat posed by Islamic State fighters and the challenges related to the effective prosecution of returned fighters and those who are financing terrorism. Meanwhile, the U.S. Department of Justice continues to prosecute individuals involved in terrorism in a number of ways. These new proceedings included charges against an individual who is already incarcerated and a successful push to denaturalize a man convicted of terror charges in advance of his release late this year. More broadly, the Justice Department continues to lodge new complaints against Americans who have supported the Islamic State, and courts continue to sentence or convict these individuals. In one case, this included an individual who was sentenced to 30 years on a material support charge—substantially more than 13.5 years, the average sentence for material support in 2019. Here, we provide an update on recent international terrorism prosecutions in the U.S. and highlight new and ongoing cases, both of individuals allegedly associated with the Islamic State and of those with ties to other groups.

At the midpoint of the Supreme Court's current term, the justices have now heard arguments in some of the biggest environmental cases in years, but decisions in those disputes are still pending. By this summer, the justices will have decided a case that could more clearly establish the scope of the Clean Water Act and a challenge that could more firmly define states' role in federal Superfund cleanups. The court has so far been slow to issue opinions while Chief Justice John Roberts was spending half of his days at impeachment trial proceedings across the street on Capitol Hill. The most consequential environment and energy case that remains on the court's calendar this term is a dispute over the Atlantic Coast pipeline's crossing of the Appalachian Trail. The justices will decide whether the 4th U.S. Circuit Court of Appeals appropriately reached a decision in favor of conservation groups that the Forest Service did not have the power to authorize the natural gas project to pass beneath the trail. "It's going to press some of the justices on the textual question, and the environmentalists are pushing textualism front and center in this case," Harvard Law School professor Richard Lazarus said during a recent conference organized by the Environmental Law Institute and the American Law Institute. "It will be a fascinating case to watch," he said.

In January, Google announced its Chrome browser would begin phasing out support for third-party cookies. Chrome is by far the most popular browser in the world, and its elimination of cookies will effectively kill off this key advertising and data-tracking tool for good. While this looks like a win for privacy on some level, what happens next could end up being much worse for everyone’s privacy, said Elizabeth Renieris, a fellow at the Harvard Berkman Klein center and a data protection and privacy lawyer. “They’re not really changing underlying tactics [of how they track us], they’re just channeling it all through Google,” Renieris told Digital Trends. “How privacy-preserving is this, actually? What’s Google’s motivation for doing this? Is it to preserve privacy? Potentially, but probably not.” ... Renieris confirmed that cookie tracking is still very fragmented: there are a lot of black boxes, false impressions, and fraud, she said. Mobile tracking is different than browser tracking, and a lot gets lost in translation right now. “The downside to this is that it’s hard to trace who has your data,” she said. The upside though, is no one really has a full picture of who you are. A consumer’s privacy is accidentally protected in this way.

Carl Tebell finally received word in December that he had been granted an honorable discharge from the U.S. Navy nearly 70 years after he was drummed out for being gay. He is still waiting to receive his newly issued DD 214 discharge paperwork in the mail so he can access medical care at a U.S. Department of Veterans Affairs facility in San Francisco…Advocates for LGBT veterans estimate that roughly 114,000 U.S. service members were “involuntarily separated” from the military due to their sexual orientation between the end of World War II and the repeal in 2011 of the homophobic “Don’t Ask, Don’t Tell” policy that barred LGBT people from serving openly in the military. While many of those veterans could likely qualify to correct or upgrade their discharges, just 8% had done so as of 2018, according to a report presented that April at a conference held at the Legal Services Center of Harvard Law School.

The years of almost unfettered enthusiasm about the benefits of the internet have been followed by a period of techlash as users worry about the actors who exploit the speed, reach and complexity of the internet for harmful purposes. Over the past four years – a time of the Brexit decision in the United Kingdom, the American presidential election and a variety of other elections – the digital disruption of democracy has been a leading concern...In light of this furor, Pew Research Center and Elon University’s Imagining the Internet Center canvassed technology experts in the summer of 2019 to gain their insights about the potential future effects of people’s use of technology on democracy...One of the most extensive and thoughtful answers to the canvassing question came from Judith Donath, a fellow at Harvard’s Berkman Klein Center currently writing a book about technology, trust and deception and the founder of the Sociable Media Group at the MIT Media Lab. She chose not to select any of the three possible choices offered in this canvassing, instead sharing two possible scenarios for 2030 and beyond. In one scenario, she said, “democracy is in tatters.” Disasters created or abetted by technology spark the “ancient response” – the public’s fear-driven turn toward authoritarianism. In the second scenario, “Post-capitalist democracy prevails. Fairness and equal opportunity are recognized to benefit all. The wealth from automation is shared among the whole population. Investments in education foster critical thinking and artistic, scientific and technological creativity. … New voting methods increasingly feature direct democracy – AI translates voter preferences into policy.” Her full mini-essay can be read here.

The Federal Energy Regulatory Commission approved four separate orders to narrow exemptions of buyer-side mitigation (BSM) market rules in the New York Independent System Operator's (NYISO) capacity zones during Thursday's public meeting, which critics say will stifle the competitiveness of clean energy resources. The decisions would make it more difficult for new clean energy projects expected in the state to clear NYISO's capacity auction. Clean energy advocates say bidding into NYISO's capacity market is critical to the financial viability of projects like offshore wind and energy storage...Critics of the BSM have accused such subsidy-reducing actions of enabling fossil fuel plants to remain open despite plans for retirements. Within ISO-NE, the 448 MW Merrimack coal plant recently got an extended lease on life by clearing the capacity auction without trading, to get replaced by cleaner resources, in the substitution auction, also referred to as the CASPR secondary auction. "I think the fact that this old coal plant that barely operates is still in the market and didn't come out through the substitution auction highlights a deficiency in how the system is operating right now," Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School told Utility Dive regarding the ISO-NE auction results.