Media Mentions

An op-ed by Noah Feldman: In the latest setback to the Guantanamo military commissions, the U.S. Court of Appeals for the D.C. Circuit on Tuesday threw out some three years of pretrial rulings by the military judge presiding over the case of the alleged mastermind of the USS Cole bombing. The decision was based on an inexcusable procedural problem: The military judge was pursuing a job in the executive branch while sitting on a case involving charges brought by the executive branch. The appeals court opinion featured a stinging attack on “all elements of the military commission system” for failing “to live up to” the “shared responsibility” of ensuring criminal justice. The ruling highlights an important evolution in the challenges facing the military commissions, which were set up to bring to justice the U.S. detainees at the prison at Guantanamo Bay, Cuba.

The 2019 proxy season is well underway, and it will be a memorable one for many reasons. Initially, the government shutdown stalled the staff’s review process by closing the Division of Corporation Finance for most of January, thereby putting some issuers at risk of acting on proxy matters without definitive guidance. Issuers must also deal with a new staff legal bulletin that adds complexity, requiring board input on two common exclusionary bases. ... Roundtable participants from both the issuer and investment communities agreed that the proxy system faces several structural problems. As Professor John Coates of Harvard Law School said at the roundtable, “there’s room for improvement; no one, I think, has ever said publicly that they would create the system that we have today if they were doing it from scratch.”

The Mueller will be released Thursday morning. We lay out what's at stake politically and legally. McKay Coppins, staff writer for The Atlantic. Author of "The Wilderness: Deep Inside the Republican Party's Combative, Contentious, Chaotic Quest to Take Back the White House." (@mckaycoppins) Nancy Gertner, retired Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. (@ngertner) Mark Updegrove, author, presidential historian for ABC News. President and CEO of the Lyndon Baines Johnson Foundation. Director of the LBJ Presidential Library from 2009 to 2017.

When Jamaican children catch a cold, mothers rub cannabis oil on their chests. Rastafarians smoke cannabis as a religious custom. Some believe that it grew on King Solomon’s tomb. Encouraged by the tropical climate, cannabis grows in many household gardens. ... But it dare not appear too friendly. Jamaican banks that do business with cannabis companies risk having their accounts at American banks shut down. If that happened on a large scale, Jamaica could be cut off from access to American dollars, which would devastate the economy. Jamaica received $2.3bn in remittances in 2017, more than its income from exports of goods. Jamaican officials also risk losing their access to American visas if the country is found to be flouting the United States’ drug laws, says Charles Nesson of Harvard Law School.

Would you eat a six-month-old yoghurt? This is a question you may have asked if you read the recent story about a US grocer and his year-long experiment eating expired food. ...Clearly, this lack of clarity has implications for both the health of the environment and the health of the nation. What you don’t eat, you’ll end up binning, even if you could have safely eaten it; and what you don’t know not to eat could make you sick. A joint report from the Natural Resources Defense Council and Harvard Law School in 2013 said that 40% of American food goes uneaten each year, and the disorienting effect of the US date labelling system is in large part to blame. At the same time, said the report, that system fails to convey important food safety information, “despite the appearance of doing so”.

... A week earlier, the Boy Scouts of America—the national organization that oversees various outdoors programs for about 2 million children, including Cub Scouts, Boy Scouts, and Venturing—had changed the name of its original, 109-year-old program to Scouts BSA. That made Amalie one of its first girl scouts. Not to be confused, of course, with the Girl Scouts—though Amalie said she’s one of those, too. ...And since 1938, when the U.S. Supreme Court told Nabisco and Kellogg Co. that they could both call their cereals “shredded wheat,” U.S. courts have been fairly consistent in allowing competing businesses to share a generic term. And yet, the term Girl Scouts is trademarked. “It’s a complex case,” says Rebecca Tushnet, a Harvard Law School professor who specializes in trademark law. “My prediction is that they’ll probably be able to change to ‘Scouts,’ but the issue will be over whether they have taken reasonable measures to avoid confusion.”

Since November, Lawfare Contributor Michelle Melton ’19 has run a series on our website about Climate Change and National Security, examining the implication of the threat as well as U.S. and international responses to climate change. Melton is a student a Harvard Law school. Prior to that she was an associate fellow in the Energy and National Security Program at the Center for Strategic and International Studies, where she focused on climate policy. She and Benjamin Wittes sat down last week to discuss the series. They talked about why we should think about climate change as a national security threat, the challenges of viewing climate change through this paradigm, the long-standing relationship between climate change and the U.S. national security apparatus, and how climate change may affect global migration.

Sometimes it seems as if the deepest divide in American politics is not so much between Republicans and Democrats as between voters who watch Fox News, and those who don’t.  ...What do the courses run by these stories say about the structure of American media today? What they illustrate is that there is not one media ecosystem, but two separate spheres that respond to different incentives and operate in very different manners, says Yochai Benkler, a professor at Harvard Law School and co-author of “Network Propaganda: Manipulation, Disinformation, and Radicalization of American Politics.” One of these spheres is comprised of right-leaning media, from Fox News to Breitbart and talk radio hosts such as Mr. Limbaugh. The other is a center-left composite of everything else, from the legacy newscasts of the old broadcast networks to most daily newspapers and new liberal internet sites. To find out how news moves through these spheres, Professor Benkler and his co-authors used data analysis tools to study hyperlink connections, Facebook shares, and other marking aspects of some 4 million stories from the 2016 U.S. presidential election and the first year of the Trump presidency. Their study showed that right-leaning audiences concentrated to a large extent on right-leaning outlets insulated from the rest of the media. Center and left-leaning audiences spread their attention more broadly and focused in particular on what is often labeled the MSM.

An op-ed by Noah Feldman: A group of parents filed suit Monday against the New York City Department of Health to block an emergency order requiring measles vaccinations for everyone in four ZIP codes in the Williamsburg neighborhood of Brooklyn. The threat of measles — and the opposition to vaccination — isn’t coming from the hipsters who populate some parts of the neighborhood. The target is a community of mostly Hasidic, haredi (ultra-Orthodox) Jews, who have refused vaccination for quasi-religious reasons and who are now caught in the middle of a measles outbreak that city health officials fear could spread fast and dangerously. One yeshiva’s preschool program has already been closed as a health hazard. Forced vaccination is a classic instance of a situation where the courts have to balance individual liberties against the public interest. The U.S. Supreme Court’s jurisprudence on the topic goes all the way back to 1904. Under existing law, there is strong reason to think the city will win and will be able to fine refusers $1,000 in an effort to compel vaccination.

The Supreme Court yesterday rejected challenges that aimed to dismantle nuclear subsidies in Illinois and New York. By declining a pair of challenges filed by the Electric Power Supply Association (EPSA), the justices preserved two appellate court rulings upholding the states' zero-emission credit (ZEC) policies. Other states with an interest in developing their own incentive programs now have a legally tested blueprint for doing so, legal experts said yesterday. "EPSA asked the Court to expand preemption under the Federal Power Act, a move that might have threatened state renewable energy programs and could have jumpstarted a wave of litigation," Ari Peskoe, director of Harvard Law School's Electricity Law Initiative, wrote after the Supreme Court's order denying review. "Today's denials underscore that states have broad legal authority to enact programs that pay clean energy generators for their production of zero-emission energy."

An op-ed by Cass Sunstein: Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment? To respond to those questions, you don’t even need to know what Yale is accused of doing. The answers are No and No. Yet, in a highly publicized letter to Dean Heather Gerken, Republican Senator Ted Cruz of Texas accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion – and is therefore unconstitutional. Cruz means business. He announced that the Senate Judiciary Committee’s subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

President Donald Trump's attorneys have reportedly warned an accounting firm not to consent to a subpoena directing it to turn over the president's financial information to the House Oversight Committee. ..."It appears that Donald Trump made a practice of wildly exaggerating his wealth and the supposed business acumen that enabled him to amass it," Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Salon last month. He added, "Although there are no legal and especially criminal consequences to that kind of exaggeration on reality television or in talking to journalists at places like Forbes in order to cheat one’s way onto various lists of the wealthiest people around, there are very serious criminal consequences indeed when such lies, in the form of fraudulent financial statements, are used either to extract loans from banks or to obtain insurance on favorable terms from various insurance companies."

South Bend, Indiana, Mayor Pete Buttigieg officially launched his 2020 presidential campaign on Sunday and immediately drew comparisons to a young Barack Obama. “The announcement of Pete Buttigieg was the most inspiring I’ve seen since Barack Obama’s,” wrote Laurence Tribe, a Harvard Law professor and judicial adviser to Barack Obama's 2008 presidential campaign. “His is a campaign not just for an office but for an era.”

Last week, a Greek woman with a history of multiple in-vitro fertilization failures gave birth to a healthy baby with DNA from three biological parents. It was the first successful birth in a clinical trial of a controversial fertility treatment known as mitochondrial replacement therapy, which combines genetic material from the intended mother and father plus a female donor. In the U.S., the procedure is effectively banned because of a congressional amendment passed in 2015 that’s been renewed every year since. But now, a group of scientists, patient advocates, and bioethicists want to see the prohibition lifted. The technique, they say, could help certain women who are carriers of serious genetic diseases have healthy, biologically related children. In the first of a series of meetings meant to draft policy recommendations to Congress, stakeholders will meet Wednesday at Harvard Law School to discuss how to move forward in the U.S. I. Glenn Cohen, one of the organizers of the event and faculty director of the school’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, said a public discussion is needed in the wake of revelations late last year that a scientist in China used the gene editing tool CRISPR to modify twin girls as embryos.

An article by Sejal Singh ’20: ...As of 2017, more than 60 million American workers have signed forced-arbitration agreements in their employment contracts, and 81 of the largest 100 US companies have forced-arbitration clauses in contracts with their customers for financial products, cell phones, and more. The game was always rigged against working people—now, they might not get to play at all. That’s why we launched the Pipeline Parity Project, a grassroots campaign of law students fighting to end forced arbitration, stop workplace discrimination, and unrig the legal system. ...When we started Pipeline Parity Project last spring, we were just a small group of Harvard Law School students furious about a rigged justice system. Just one year later, organized students have secured unprecedented disclosure of forced arbitration in the legal profession and forced some of the country’s largest firms to drop arbitration agreements. Now, we’re building a national network of law students who are trying to rewrite the rules that protect the powerful at the expense of the little guy.

When U.S. prosecutors unsealed a March 2018 indictment accusing Julian Assange of conspiring to illegally access a Department of Defense computer system, they sparked more than just an examination of the case and the accused. ...Harvard Law Professor Yochai Benkler has written about the legal implications of prosecuting WikiLeaks. He told The Guardian he believes the indictment contained “dangerous elements that pose a significant risk to national security reporting. Sections of the indictment are vastly overbroad and could have a significant chilling effect.”

It is a question that thousands of lawyers have faced for decades: can you be a mother and still make partner? Last year, just over half of entrants to law school in the US were women; in Britain, it was two-thirds. Yet in 2018 women made up just 19 per cent of equity partners in British law firms, according to PwC, the consultancy, while a McKinsey study from 2017 showed the same figure. The generally accepted issue is the choice many women face between partnership — on call 24/7 and under pressure to generate business — or starting a family. At the same time, says David Wilkins, director of the Center on the Legal Profession at Harvard Law School, there are limited equity partnership positions as many firms look to cut costs. These factors combine to have “a disproportionate impact on women because they still bear the majority burden of childcare and childraising, and the sole burden of childbearing,” he says.

Brian talks to Cass Sunstein, the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served in the Obama administration as the Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012. In his conversation with Brian, he discusses his new book, “How Change Happens,” which answers the question of how social change happens and how change is impacted by social norms.

Dahlia Lithwick is joined by Harvard Law School professor Carol Steiker, co-author of Courting Death: The Supreme Court and Capital Punishment, to explore recent death penalty cases before the Supreme Court and why the Eighth Amendment has raised tensions among the justices.

Leigh syndrome is a terrible disease. In the worst cases, it emerges shortly after birth and claims one major organ after another. Movement becomes difficult, and then impossible. A tracheotomy and feeding tube are often necessary by toddlerhood, and as the disease progresses, lungs frequently have to be suctioned manually. Most children with the condition die by the age of 5 or 6. ...On Wednesday, the Petrie-Flom Center at Harvard Law School will host a round-table discussion, during which the scientists, ethicists and families at the center of this issue will make the first significant attempt to reconcile the federal ban with the federally commissioned report.

A normal president confronted with a news story suggesting he ordered underlings to illegally transport asylum seekers to so-called sanctuary cities in order to retaliate against political enemies would deny knowledge of such a heinous plot. If need be, he’d make light of it, portray it as if it were idle chatter or a joke. That’s what President Trump’s devoted prevaricators (White Houses staffers) did following The Post account. ... Constitutional scholar Laurence H. Tribe tells me, “If carried out, this offer to pardon high immigration officials if they will break the law on his behalf is the most obviously impeachable action President Trump has taken to date: It would mean this president has seized the power to put not just himself but all who do his bidding beyond the reach of law." He continues, "That doing so is a high crime and misdemeanor is beyond dispute. Any president guilty of such conduct cannot be permitted to remain in office.”