Media Mentions

An op-ed by Noah Feldman:  It’s not often that hedge funds and the Constitution come up in the same sentence — let alone the same judicial opinion. But the two are very much in play in an important opinion issued by the U.S. Court of Appeals for the Fifth Circuit. In it, the court handed a win to hedge funds that are challenging the 2012 decision by the Federal Housing Finance Agency to make Fannie Mae and Freddie Mac transfer their profits to the U.S. Treasury in perpetuity — a transformation of those previously quasi-private entities known as the net worth sweep.

An op-ed by Noah Feldman:  Donald Trump says that the Supreme Court has given him a big win on asylum. Don’t be so sure. True, by a vote of 7-2, the justices allowed Trump’s new asylum regulation to go into effect — the one that says you can’t apply for asylum at the southern border if you’ve passed through Mexico and haven’t tried and failed to get asylum there.  But reversing the lower courts that blocked the regulation, pending litigation, isn’t the same thing as upholding it as lawful. The court of appeals still has to issue a final ruling on whether the rule violates federal immigration statutes and whether the government was authorized to issue it without first seeking notice and comment from the public. Then, after final rulings from the appellate court, the Supreme Court will surely weigh in — and still might strike it down.

In January, 2016, Donald Trump was seeking the Republican nomination for the presidency. He claimed that his principal rival, Ted Cruz, might be barred from election to the White House due to his having been born in Canada, albeit of American citizens. In support of his view, Trump noted that the renowned Harvard Constitutional law professor, Laurence Tribe had asserted that Cruz might be vulnerable to a legal challenge on this matter, Specifically, Tribe stated that this issue had not yet been legally resolved and was not “settled law.” Trump attempted to enhance Tribe’s credibility by referring to him as “…a constitutional expert, one of the best in the country,”. Last week, these words of ultimate obsequious approbation came back to haunt Trump.

The U.S. Department of Education tightened rules governing loan forgiveness for students whose for-profit colleges went bankrupt before they could finish their degrees. Education Secretary Betsy DeVos criticized the previous policy as overly lenient and akin to the government giving away “free money.” The for-profit colleges also complained. An initial attempt last year to revise the guidelines sparked a legal challenge by the Harvard Law School’s Project on Predatory Student Lending that forced the department temporarily to abide by the original rules.  In the Aug. 30 announcement, DeVos said that fraud in higher education “will not be tolerated.” The department expects to save taxpayers hundreds of millions of dollars by requiring more documentation from borrowers and narrowing the definition of university misconduct that qualifies students for loan forgiveness. Harvard Law School vowed to bring a new legal challenge against the rules, which are projected to take effect in July 2020.

For generations, it was a basic tenet of donating sperm: Clinics could forever protect their clients’ identities. But, increasingly, donor anonymity is dead. The rise of consumer genetic tests—which allow people to connect with relatives they never knew they had, including some who never intended to be found in the first place—is forcing sperm donation clinics to confront the fact that it is now virtually impossible to guarantee anonymity to their clients. Instead, sites like 23andMe and Ancestry.com are giving customers the genetic clues they need to identify biological parents on their own. ... In a 2016 study conducted by I. Glenn Cohen, a professor of bioethics at Harvard Law School, about 29 percent of potential sperm donors said they would refuse donating if their names were put on a registry. The study suggested that prohibiting anonymous sperm donations would lead to a decline in the number of donors and that those who were willing to be identified would likely demand more compensation.

In her new book, Sharenthood, UNH Law Professor Leah A. Plunkett takes on the digital age of parenting and the excessive sharing of children's images and data online. Plunkett urges adults to think before they click, to understand the risks of sharing chldren's digital information and what some protective measures might be.  Guest: Leah A. Plunkett, Professor at the University of New Hampshire Franklin Pierce School of Law and faculty associate at the Berkman Klein Center for Internet and Society at Harvard University.  Her new book is Sharenthood: Why We Should Think Before We Talk About Our Kids Online.

Uber will not treat its California drivers as employees, the ride-hail company’s head lawyer said Wednesday, despite a new law designed to do just that. The law would create a more stringent test to separate independent contractors from full-time employees. The company’s argument rests on a premise that’s been a cornerstone since its early days: that Uber is a technology company, not a transportation one. ... Elsewhere, though, courts have had little patience for this argument. In California, one federal judge called it “fatally flawed,” arguing the company is “no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs.” “It seems very clear that Uber is a transportation company, not a technology company, despite the fact that it uses an impressively powerful piece of technology to offer transportation services,” says Benjamin Sachs, a professor who teaches labor law at Harvard Law School.

In an excerpt from her just-released memoir, Samantha Power recalls her experience going from Balkans war correspondent to Law School student — and her stumbles along the way.

Hanisya Massey, the owner of Higher Ground Enterprises in Covina, Calif., first heard from a lawyer for Higher Ground Productions early this summer. Barack and Michelle Obama wanted to trademark their company’s name, but the United States Patent and Trademark Office had deemed it too similar to the mark Ms. Massey registered in 2017 for her computer training company. Higher Ground Productions was looking to strike a deal. ... A few weeks ago Higher Ground Productions filed a petition to cancel Ms. Massey’s trademark. Rebecca Tushnet, a Harvard Law School professor and an expert in intellectual property law, said in an interview that the goal of this move would be to determine whether Ms. Massey is actively and regularly using the trademark to conduct business. The Obamas’ filing starts a fact-intensive inquiry that could take years to sort out. “If there’s not sufficient use of the mark, then the registrant has no rights and the Obamas can go ahead,” Ms. Tushnet said. If there is sufficient use, she added, Ms. Massey could have a potential trademark infringement claim.

... Australia, spurred to act in April after one of its citizens was charged in the Christchurch attacks, has gone further than almost any other country. The government is now using the threat of fines and jail time to pressure platforms like Facebook to be more responsible, and it is moving to identify and block entire websites that hold even a single piece of illegal content. ...  Of the 30 or so complaints investigators have received so far that were tied to violent crime, terrorism or torture, investigators said, only five have led to notices against site owners and hosts. “The Australian government wanted to send a message to the social media companies, but also to the public, that it was doing something,” said Evelyn Douek, an Australian doctoral candidate at Harvard Law School who studies online speech regulation. “The point wasn’t so much how the law would work in practice. They didn’t think that through.”

An op-ed by Cass Sunstein: One of the unloveliest ideas in economics goes by the name “value of a statistical life” — VSL for short. In the U.S. government, the current value of a human life is about $10 million. That means that if a highway safety regulation would save 10 lives, it is worth $100 million — a figure that must be weighed against the regulation’s cost.  Because the government’s decisions often depend on the outcome of cost-benefit analysis, the VSL is important. It helps determine whether and when people will be protected from dirty air, dangerous workplaces, unsafe drinking water and unhealthy food. A lot of people rebel against the idea of assigning a monetary value to a human life. In a provocative new book, the New York Times editorial writer Binyamin Appelbaum associates that idea with an assortment of others that he abhors, and through which economists have (in his view) contributed to rise of intolerable inequality.

An article by Leah A. Plunkett, faculty associate at the Berman Klein Center for Internet & Society at Harvard: If Tom Sawyer were a real boy, alive today, he’d be arrested for what he does in the first chapter of Mark Twain’s famous novel. ... Today, parents, teachers, and other caregivers are in Aunt Polly’s position. Sharents make decisions to disclose digital data about children that invade traditional zones of privacy and threaten kids’ and teens’ current and future opportunities, as well as their ability to develop their own sense of self. Sharenting decisions disrupt any common understanding we may have of childhood and adolescence as protected spaces for play.

A coalition of state attorneys general launch antitrust probes into Facebook and Google. They tell us why. Guests: Phil Weiser, attorney general from Colorado. Served in the Obama Administration as a deputy assistant attorney general in the U.S. Department of Justice. Served in President Clinton’s Department of Justice’s Antitrust Division. James Tierney, founding director of StateAG.org, an educational resource on the office of state attorney general. Lecturer in law at Harvard Law School. Attorney General of Maine from 1980 to 1990. Tim Wu, professor of law, science and technology at Columbia Law School. Author of "The Curse of Bigness: Antitrust in the New Gilded Age." Former senior adviser to the Federal Trade Commission for consumer protection and competitions issues that affect the internet and mobile markets. ...

A public records request has revealed 10 pages of emails in which Baton Rouge, Louisiana police officers used racist language, including the n-word, to describe constituents and their colleagues. The records, made public Tuesday by the office of New Orleans attorney William Most, who filed the records request in conjunction with Harvard Law School, revealed two instances in which officers used the unprintable epithet back in 2014 and 2015. ... In the meantime, Professor Thomas Frampton of Harvard Law School wrote in a press release: "The East Baton Rouge District Attorney should have a plan in place to notify criminal defendants and their attorneys. These sorts of emails call into question the credibility of the cases these officers have worked on."

Dr. Ashley Nunes is an academic at the Massachusetts Institute of Technology and Harvard University, previously he led research projects sponsored by the Department of Defense and the Department of Transportation. In this article he argues that to deal with climate change, consumers must accept that there will be some form of financial cost. Climate change took centre stage in New York last week. Over seven hours (yes seven), Democratic presidential hopefuls touted their vision for how best to address rising temperatures. Former vice-president Joe Biden proposed banning new oil and gas exploration on public land, and also promised an end to fossil fuel subsidies. Bernie Sanders went further saying his administration would pursue criminal prosecution of energy companies for “any wrongdoing”. And Elizabeth Warren committed to entirely decarbonising the energy, transportation and construction industry. She subsequently challenged her counterparts to follow suit. The political impetus for tackling climate change reflects electoral reality. Two-thirds of Americans think too little is being done to address the issue. Though policy disagreements persist along party lines (some 60 per cent of Republicans think offshore drilling and coal mining should continue compared to 20 per cent of Democrats), there is broad consensus on the need for action. White House hopefuls aim to curry votes by doing just that. So does the current occupant of 1600 Pennsylvania Avenue: President Trump recently proclaimed his love for the environment, declaring he knows, “more about (it) than most people.”

President Donald Trump, by his simultaneous existence as a real estate tycoon and President, continues to test the US Constitution in ways that the founding fathers didn't anticipate and for which the current legal and political systems are completely unprepared. The founders didn't specifically anticipate a hotelier President pushing his golf resort as the ideal location for an international meeting of heads of state. ... Harvard constitutional law professor Laurence Tribe, who thinks Trump should be impeached, tried to give Trump a lesson Twitter about emoluments recently. "Memo to POTUS: There are TWO Emoluments Clauses. The one you're violating when you line your pocket by having Pence stay at your resort & commute is the Domestic EC. The one you're planning to violate by having the G7 stay at the Doral w/out Congress's consent is the Foreign EC."

Representative Jamie Raskin slammed President Donald Trump, accusing him of violating the emoluments clauses of the Constitution by directing "hundreds of thousands if not millions of dollars" to his personal businesses. Raskin, a Democrat from Maryland, made the remark during an interview with CNN on Monday, saying that the president's actions were "absolutely impeachable." ... Constitutional legal scholar Laurence Tribe, a professor at Harvard University, slammed Trump over both issues in a series of tweets last week. He, like Raskin, pointed out that these were clear violations of the Constitution's emoluments clauses. "The Foreign Emoluments Clause is the core anti-corruption clause of Art I. The Domestic Emoluments Clause is the core anti-profiteering clause of Art II," Tribe explained. "Congress' consent (or lack of it) is key to the first. It's irrelevant to the second. Trump is violating both."

A new study launching in Kansas hopes to take a long-term look at how clearing criminal records can help improve the lives of ex-offenders. Over the next year and a half, Kansas Legal Services will be looking for 300 to 450 Kansans to participate in an expungement study that will offer legal assistance to convicts who want a clean slate. To be eligible for the study, a person must have a conviction eligible for expungement under Kansas law, served their sentence in full including any parole or probation and paid all associated fines and fees. Study participants must also agree to let researchers from the Harvard School of Law Access to Justice Lab track their lives for up to five years to see how their situations — especially housing and job opportunities — change.

An article by Samantha Power:  From the moment I arrived at Harvard Law School in late August of 1995, I feared I wouldn’t last. During the nearly two years I had just spent as a war correspondent in the Balkans, I found myself imagining how gratifying it would be to learn the law and pursue the arrest of Balkan war criminals as a prosecutor at The Hague. But as I struggled to adjust to my new life back in the United States, all I could think about was the place I had left behind. The day before law school began, I had loaded up a Ryder truck in Brooklyn with two suitcases, a bicycle, and my laptop, and driven toward Boston. Just as I reached the city, NPR cut into its radio program with a breaking news bulletin: “NATO air action around Sarajevo is under way.” By my second week at HLS, U.S. air strikes had broken the siege of Sarajevo and brought the Bosnian war to an end.

Democratic presidential candidates broadly agree that President Trump has shaken the presidency loose from its constitutional limits and say that the White House needs major new legal curbs, foreshadowing a potential era of reform akin to the post-Watergate period if any of them wins next year’s election. ... But though the candidates “seem committed to reforming the presidency,” they might have second thoughts from the vantage point of the Oval Office, said Jack Goldsmith, a Harvard law professor and former senior Justice Department official in the George W. Bush administration who reviewed their responses. “The next Democratic president will happily accept new rules on tax releases, but will have a harder time accepting constraints on security clearances and emergency or war powers,” he said. “Institutional prerogative often defeats prior reformist pledges.”

When President Trump won in 2016, corporate America was eager for Republicans to begin rolling back the Obama legacy on everything from banking to the environment. But it seems that for at least some industries, the president and his party have gone too far in rolling back environmental standards. ... Caitlin McCoy, a climate, clean air and energy fellow at Harvard Law School, noted that in the case of the European Union, high gas taxes and factors like affordable public transit, rather than stringent regulations, pushed consumers to seek higher-efficiency vehicles. ... Hana Vizcarra, a staff attorney with Harvard Law School's Environmental & Energy Law Program, credited mainstream investors as well as the general public for pushing the oil and gas industry to take greater action on climate. She noted that corporate actors have always had to balance a mix of pressures, including federal regulations that have driven or suppressed environmental action. "Right now, we are seeing a pretty dramatic shift in terms of how those buckets balance out," Vizcarra said. ...  But former EPA official Joseph Goffman warned against interpreting this period as an invitation to continue to back off regulation that is explicitly geared toward protecting public health and the environment. "We have to be clear about this: Corporate pursuit of self-interest is not a substitute for public policy. They are not working as surrogates to the government; they are working out workarounds to respond to state and federal government," Goffman said.