Media Mentions

Earlier this week, a federal appeals court ruled that President Donald Trump couldn’t block his critics on Twitter. More specifically, the court determined that Trump’s Twitter account is a “public forum” where citizens have a right to engage with his comments, the same way they’d be able to attend a town hall. This ruling could shape how all government officials use social media — from the US president to local garbage collectors...Kendra Albert, an instructor at Harvard Law School’s Cyberlaw Clinic, believes the Second Circuit’s decision is unnecessarily ambiguous. The Trump administration has argued that its account is government speech, or speech that the government is performing on its own behalf, which isn’t regulated by the First Amendment. Albert argues that the original ruling clearly separated the account’s “government speech” content from the interactive forum in the replies. “The lower court decision actually does a really good job of explaining why it matters that people are blocked, even if they can just log out of Twitter and see the president’s tweets otherwise,” Albert said, “and it’s because there’s sort of this discursive space going on underneath the tweet.”

The mission of a new panel created to advise the State Department on the definition of human rights and its role in American diplomacy may stand in conflict with what some of its members have said in the past...While Pompeo has insisted that the goal is to prevent authoritarian regimes from redefining human rights on their own terms, Mary Ann Glendon — the incoming chair, a Harvard Law professor and a former U.S. ambassador — recently advocated an approach of “flexible universalism,” in which she advises human rights activists to give more weight to local governments’ own traditions when appealing to them on the grounds of human rights.

An op-ed by Lawrence Lessig:  Gerrymandering is obviously democratically obnoxious. With modern technologies, it’s also increasingly democratically dangerous. It is inconsistent with the principles of equality and free association. Without doubt, it should be excised from our republic. Yet the fury generated by Chief Justice John G. Roberts Jr.'s opinion last month declining to end the practice shows precisely why Roberts may have been right.

For the Trump administration to establish a “Commission on Unalienable Rights” to examine the meaning of human rights, as it did this month, is a little like Saudi Arabia forming a commission on multiparty democracy or North Korea a commission on how to end famine. It would be hilarious if it weren’t so ominous...For Pompeo, religious rights are plainly human rights; as to the rest, it’s unclear. As head of the commission, he has appointed Mary Ann Glendon, a Harvard professor known as a zealous opponent of abortion and same-sex marriage. Other political opinions are represented, but the body is predominantly conservative and religious.

An op-ed by Cass Sunstein:  Since the April release of special counsel Robert Mueller’s report, debate has escalated among Democrats in the House of Representatives over the question of impeachment. A lot of the discussion has focused on political questions. Which party would benefit? Is it a serious problem that impeachment proceedings would be, as Speaker Nancy Pelosi (D-Calif.) has suggested, “divisive”? Is impeachment a criminal or a “political” proceeding? It certainly isn’t a criminal proceeding, and it has an inescapable political component. But under the Constitution, impeachment is fundamentally a question of law, not politics. If, after assessing the facts, the House concludes that a president — Democratic or Republican — has clearly committed “high crimes and misdemeanors,” then impeachment isn’t optional. In that event, the House has a duty to act, regardless of any potential political fallout.

Human rights group have lashed out at a new panel formed by the Secretary of State Mike Pompeo, which aims to reevaluate the role of the the State Department in dealing with human rights issues...The appointment of Pompeo’s former mentor, Mary Ann Glendon, to head the board has also alarmed human rights activists. A staunch conservative and Catholic activist, Glendon is the former ambassador to the Holy See (the Vatican) under former President George W. Bush. A Harvard law professor who has written extensively against abortion rights, Glendon has supported a constitutional amendment to ban same-sex marriages. She’s also known for her opposition to the use of condoms in the fight against the spread of HIV/AIDS. In 2018, she received an award — the Evangelium Vitae Medal from the University of Notre Dame’s Center for Ethics and Culture — for her lifetime work as one of the “heroes of the pro-life movement.”

The future of the U.S. power grid may ride in part on an obscure tussle over transmission in the Lone Star State. Front and center is a new law in Texas — enacted as S.B. 1938 — that gives incumbent utilities first dibs on building new transmission lines. Critics say the measure effectively cuts out new entrants, clashes with the state's history of competition and could raise the costs of transmission projects that factor into consumers' power bills. Proponents counter that the language preserves Texas' approach to electricity and should help ensure reliability and affordability..."As competitive transmission expands, it's certainly plausible that other utilities will go to their state legislatures and ask for this kind of protection," said Ari Peskoe, director of Harvard Law School's Electricity Law Initiative

T-Mobile screwed over millions of customers when it collected their geolocation data and sold it to third parties without their consent. Now, two of these customers are trying to pursue a class-action lawsuit against the company for the shady practice, but the telecom giant is using another shady practice to force them to settle their dispute behind closed doors...T-Mobile, as well as other massive corporations, can lean on this mechanism to legally prevent individuals from both grouping together under a common mission as well as shield disputes from the public—just as Amazon has done with its terms of service, for example. “A lot of wrongdoing and harmful practices get protected or suppressed as a result of that,” Deepak Gupta, an attorney teaching a forced arbitration seminar at Harvard Law School, told Gizmodo in May.

When Apollo 8 Commander Frank Borman returned from the first voyage that orbited the moon, he addressed Congress to talk about the feat. Except he didn’t have the words to describe it in the way he wished he could, calling himself an “unlikely poet, or no poet at all.” So the astronaut instead recited the words of a poet to express the awe he felt looking down upon the planet we all call home: “To see the earth as it truly is, small and blue and beautiful in that eternal silence where it floats, is to see ourselves as riders on the earth together, brothers on that bright loveliness in the eternal cold—brothers who know now they are truly brothers.”  Those words were by Archibald MacLeish LL.B. 1919, a three-time Pulitzer Prize-winning poet, playwright and lawyer who a half century ago served as a literary interpreter of events beyond the imagination of most observers...On the...[day after the Apollo 11 landing], the [New York] Times presented the biggest headline in its history on its front page, which included two bylines. One was of a science reporter who wrote the news story. The other: Archibald MacLeish. As former Times editor A. M. Rosenthal later revealed: “What the poet wrote would count most, but we also wanted to say to our readers, look, this paper does not know how to express how it feels this day and perhaps you don’t either, so here is a fellow, a poet, who will try for all of us.”

Champions of human rights around the world are reacting with understandable suspicion to Secretary of State Michael R. Pompeo’s announcement that he is creating a “Commission on Unalienable Rights” that will “ground our discussion of human rights in America’s founding principles.” Pompeo said the commission — which will be headed by Harvard Law professor Mary Ann Glendon, who served as U.S. ambassador to the Vatican during the George W. Bush administration — wouldn’t opine on policy.

A letter to the editor by 19 Boston area faculty members, including Laurence Tribe, Dehlia Umunna, and David Harris.  WE ARE 19 FACULTY MEMBERS at universities across the Boston area, including Boston College, Boston University, Harvard University, and Northeastern University. We wish to respond to The Boston Globe’s recent article, “Stopping injustice or putting the public at risk? Suffolk DA Rachael Rollins’s tactics spur pushback,” which contained reporting that appears to us to be, at best, seriously misleading.

“Bear with me,” Jonathan Zittrain urged the audience as his talk — up to this point, a romp through the early history of the internet — lurched into Kantian philosophy: “I’m about to get all ‘East Coast’ on you.” Zittrain, faculty director of Harvard’s Berkman Klein Center for Internet and Society, was in Palo Alto, Calif., delivering an energetic presentation on the ethical responsibilities of tech companies toward consumers in the era of artificial intelligence. About the shift of technology environments from unowned to owned and tightly controlled, he asked, “When is it that ‘can’ implies ‘ought’?” His provocative keynote was the culmination of a Harvard Tech Startup Night hosted by Harvard Office of Technology Development (OTD) and the law firm WilmerHale at its Palo Alto offices.

The State Department established a new group to examine and define human rights, drawing skepticism from critics who worried the Trump administration was furthering its conservative political agenda. Secretary of State Mike Pompeo said Monday the Commission on Unalienable Rights will conduct “an informed review of the role of human rights in American foreign policy” and provide him with “advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights.”...The new commission will be headed by human rights scholar Mary Ann Glendon of Harvard Law School, a former U.S. ambassador to the Holy See. Ms. Glendon said the commission will begin its work at a time when “basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators.”

The Trump administration said Monday that it will review the role of human rights in American foreign policy, appointing a commission expected to elevate concerns about religious freedom and abortion. Human rights groups accused the administration of politicizing foreign policy in a way that could undermine protections for marginalized populations, including the gay, lesbian and transgender community. Democratic senators have raised concerns about the panel’s intent and composition, fearing it would consist of members who “hold views hostile to women’s rights” and blow away existing standards and definitions...The commission will be chaired by Harvard Law School professor Mary Ann Glendon, a former U.S. ambassador to the Holy See. A conservative scholar and author, Glendon turned down an honor from Notre Dame the year President Barack Obama gave a commencement address there, protesting the school’s decision to recognize him in spite of his support for abortion rights...Glendon, who joined Pompeo at the State Department for the announcement, said she was honored to do the job at a time when “basic human rights are being misunderstood by many, manipulated by many and ignored by the world’s worst human rights violators.”

The three largest index-fund managers have grown so big that they ultimately could hamper the performance of public companies and the economy, according to research from corporate-governance scholars. The researchers—Lucian Bebchuk, professor of law, economics and finance at Harvard Law School, and Scott Hirst, a law professor at Boston University School of Law—recently published two papers that raise issues for investors...“We show and document that the Big Three have incentives to underinvest in stewardship and to be excessively deferential to the corporate managers of portfolio companies,” says Prof. Bebchuk. “Given this analysis and empirical evidence, we worry that the increased concentration of shares in the hands of institutional investors will not produce the improved oversight of public companies that would be beneficial for public companies and the economy,” he says.

Donald Trump is arguing he has made America an environmental leader, despite moving to gut dozens of rules meant to safeguard clean air and water and rescinding every major US effort to stem the climate crisis...Joe Goffman, a senior lawyer at the Environmental Protection Agency under Barack Obama, said Trump has been stalling environmental efforts since he signed an early executive order, in March 2017, to unwind Obama policies. “From his very first weeks in office the president has made it a priority to go backwards in terms of air quality and climate protections,” Goffman said.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

A Wisconsin military veteran should not get relief from tax liability on income his ex-wife embezzled, since he must have known of the ill-gotten funds after she was arrested, convicted and jailed, the government told the Seventh Circuit. Rick E. Jacobsen is seeking so-called innocent spouse relief for taxes, interest and penalties owed on the embezzled income for 2011. His claim that he lacked actual knowledge of crimes committed by his ex-wife, Tina Lemmens, does not hold water since Jacobsen had access to bank statements showing the embezzled money, the U.S. said. The actual knowledge legal standard is used to determine whether a person must have been aware of a specific act...Carlton M. Smith of the Federal Tax Clinic at Harvard Law School, who represents Jacobsen, told Law360 that the lower court put too much weight on the actual knowledge factor in light of the fact that Jacobsen qualified for four of the seven factors and that the original purpose of spousal relief was to offer protection against a spouse who fails to report embezzled funds. "The taxpayer concedes that the court is not bound to consider all factors as having the same weight, and that even as many as two or three positive factors can be outweighed by one negative factor," Smith said. "However, the taxpayer argues that four positive factors can't be outweighed by one negative factor when there are only seven factors."

The House Ways and Means Committee lawsuit, in its quest for President Donald Trump’s tax returns, sets in motion a legal battle that may not be resolved before the 2020 presidential election. Courts will be asked to decide not just whether the panel’s request for six years of Trump’s personal and business returns is legitimate, but also whether Congress can sue the executive branch. How quickly it all happens will likely depend on the judge assigned to the case, according to tax practitioners and professors. The issue could eventually reach the U.S. Supreme Court...A second question has to do with the specific request for the tax returns. While Section 6103(f) doesn’t require the committee to explain the reasoning for its request to Treasury, some say a court may still ask for one. “Supreme Court precedent could be interpreted as requiring Congress to have a satisfactory motivation for the request,” said Harvard Law School professor Thomas J. Brennan. “So there’s debate to be had about what sort of rationale is needed.”...The courts may also decide that they can’t rule on the dispute because it involves a “political question,” a term that has special legal meaning. “There are some questions the Supreme Court has said have to be resolved by the political process rather than by the judiciary,” said Howard E. Abrams, who is a visiting law professor at Harvard Law School. The technical term the court would use is that the case is “nonjusticiable.”

The Trump administration’s legal strategy for overturning Obama-era power plant carbon dioxide controls goes beyond simply arguing it has the right to regulate differently, to contend that its way is the only way. If successful, the Environmental Protection Agency could close the door on any future Democratic administration using that section of the Clean Air Act to expansively regulate climate-warming emissions from power plants. The power sector was the second-largest emitter of greenhouse gases in the U.S. in 2017, according to EPA data. But the legal tactic is also risky, critics and supporters both say. If the argument fails, it could fail big—sending the EPA’s repeal and replacement of the Obama-era rule, known as the Clean Power Plan, back to the agency for a redo...“They’re playing a purist’s game,” Joseph Goffman, former senior counsel in the EPA’s air office during the Obama administration, said in an interview. “The authors of this strategy are very, very skeptical of any kind of climate policy and dead set against the EPA using the Clean Air Act as an authority for such a policy.” Goffman is now executive director of Harvard University’s Environmental and Energy Law Program. “The current EPA leadership is trying to shrink the EPA’s Clean Air Act authority over greenhouse gases so it’s small enough that they can ‘drown it in a bathtub,’ ” he added, likening the agency’s tactics to Americans for Tax Reform President Grover Norquist‘s famous quote about cutting the size of the federal government.

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.