Media Mentions

An op-ed by Cass Sunstein: With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here. To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world. If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress? Thomas doesn’t think so.

Facebook Inc. CEO Mark Zuckerberg is mulling the use of decentralized technology for his social media behemoth. Speaking with Harvard Law Professor Jonathan Zittrain on Wednesday, Zuckerberg said blockchain technology could be implemented as an alternative way for users to access, store and manage their private data. “Basically, you take your information, you store it on some decentralized system and you have the choice of whether to log in to different places and you’re not going through an intermediary,” he said in the Facebook Live interview.

While many attorneys go their entire careers without arguing a case before a top state appellate court, Liz Soltan managed the feat before even graduating from Harvard Law School, and without missing a single class. The Massachusetts Supreme Judicial Court's Rule 3:03 allows senior law students to appear before the court on behalf of an indigent plaintiff. Soltan, a third-year law student working for the Harvard Legal Aid Bureau, a student-run legal service, handled the oral argument on behalf of a pair of Boston dry cleaner employees who said they were cheated out of $28,000 in wages and overtime pay and sought attorneys' fees stemming from the litigation. “It was a great experience. A lot of prep went into it,” Soltan told Law360. “I was so nervous that a lot of it is a blur. But I felt that it went well and I was optimistic. It was kind of fun to be up there, having a conversation with the justices.” Soltan is not the first law student to argue before the SJC, but it is rare to have a student present a case to the top court.

El Paso County in Texas has joined forces with the Border Network for Human Rights to file a federal lawsuit against President Donald Trump over his decision to declare a national emergency in order to build his US-Mexico border wall. "The injunction requested by the county of El Paso and the Border Network for Human Rights is amply justified by the complaint filed today," Harvard law professor Laurence J. Tribe said in a statement. Tribe is one of America's foremost experts on constitutional law and is famous for representing former Vice President Al Gore in the 2000 Supreme Court case Bush v. Gore. He added, "President Trump’s effort to usurp Congress’s powers and abuse the U.S. Military manifestly subverts the Constitution and inflicts grievous harm on the 800,000 residents of a successful community that the President has shamelessly used as a poster child for his political posturing.

Hosted by June Grasso. Guests: Retired Navy Admiral James Stavridis, former military commander of NATO, and Bloomberg Opinion columnist: "Trump Is Risking an ISIS Resurrection." Clive Crook, Bloomberg Opinion editor: "Trump Is Rooting for Ocasio-Cortez’s Democrats." Noah Smith, Bloomberg Opinion columnist: "Design a Green New Deal That Isn’t Over the Top." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "Kavanaugh Shows How Conservative He Is on Abortion."

This is the tech news you need to know this Thursday. .... Mark Zuckerberg started his 2019 challenge of doing public debates. Zuckerberg took part in an interview with Harvard Law School professor Jonathan Zittrain. Mark Zuckerberg said he doesn't want "a camera in everyone's living room," but seemed to forget that Facebook sells a camera that goes in living rooms. Jonathan Zittrain pointed out that Facebook sells a camera-equipped device for the living room — Facebook Portal, its smart speaker with video calling.

An op-ed by Noah Feldman; President Donald Trump can’t just pull funding for high-speed rail from California as payback for the state’s challenging the constitutionality of his border wall. There are laws governing decisions by agencies like the Department of Transportation. Those laws require that agencies give principled policy reasons for their actions — not recite doubtful pretexts for decisions taken on political grounds. If the Transportation Department actually pulls the funding, as it has said it plans to do, California will challenge the decision in court. And the odds are pretty high that the state will win, regardless of what happens in the separate legal challenge to the border wall.

This year marks the 100th anniversary of the founding of the Bauhaus. That most influential of art schools lasted only 14 years, from 1919 to 1933, when the Nazis shut it down. But the many events noted on the website Bauhaus at 100 give a sense of the global scale of that influence. Closer to home, no fewer than four shows are currently on display in Greater Boston, with another opening next month, “Arresting Fragments: Object Photography at the Bauhaus,” at the MIT Museum. ... Thanks to that Harvard connection, three of the four shows are in Cambridge. The largest and most ambitious, “The Bauhaus and Harvard,” runs at the Harvard Art Museums through July 28. “The Bauhaus at Home and Abroad,” at Harvard’s Houghton Library, is small and surprisingly enchanting (all hail the Bauhaus jazz band!). It runs through May 24. “Creating Community: Harvard Law School and the Bauhaus” is at Langdell Hall through July 31.

An op-ed by Lawrence Lessig:  The New Hampshire Legislature, now controlled by the Democratic Party, had an extraordinary opportunity to allow voters in New Hampshire to speak more clearly in the upcoming 2020 presidential primary. Last week, the House Election Law Committee decided to keep the voters quiet. The issue is how voters will be allowed to express their preferences through their primary vote. The tradition is that voters vote for one candidate and one candidate only. The candidate who wins the most votes is then declared the winner. But obviously, in a field of a dozen candidates, “the winner” is an ambiguous idea. If one candidate gets 22 percent of the vote, and the rest get less, in what meaningful sense does that candidate represent the will of New Hampshire voters? More importantly, given the gaggle of candidates we know will run, how do voters decide whom to support? Does a vote for one candidate not likely to win waste that vote? Should the voter pick the less compelling candidate, because she believes others are likely to pick that candidate, too? This conundrum is what the system called “ranked choice voting” is intended to solve.

President Trump has a peculiar view of government in general, and of the Justice Department, specifically. He views himself as having unlimited authority over the executive branch — without regard to either constitutional or statutory obligations. It’s the “unitary executive” on steroids. Combine this with his mob-based worldview, in which he imagines that his wiseguys (e.g., Roger Stone, Michael Cohen) “fix” things just like others did for other presidents. Trump demands to know, “Where is my Roy Cohn?” The result is a reflexive, constant demand from Trump to make his troubles go away — not by cooperating, but by eliminating the key person atop the investigation. ... “As part of Trump’s ongoing corrupt pattern of efforts to deflect the federal investigation from his own criminal conduct in winning the presidency, his attempt to put a conflicted and thus legally ineligible person in charge of the [Southern District of New York-Cohen] prosecution solely to protect himself could well constitute the crime of obstruction under 18 U.S.C. Section 1505,” says constitutional scholar Laurence H. Tribe.

An op-ed by Jesse M. Fried and Charles C.Y. Wang: Senators Chuck Schumer of New York and Bernie Sanders of Vermont recently announced they would introduce legislation to prohibit a public firm from repurchasing its own stock, unless the firm first invests in employees and communities, including paying workers at least $15 per hour and offering “decent” pension and health benefits. Welcome to the newest form of virtue-signaling on Capitol Hill, in which Democratic senators demonstrate their concern for employees by proposing bills that severely restrict — or even outlaw — buybacks. The proposals are based on misleading measures of corporate capital flows, as well as on a profound misunderstanding of how the US economy works. If enacted, such bills could threaten not only the capital markets but also the workers and communities the senators claim to care about.

It’s now being widely reported that special counsel Robert S. Mueller III is set to wrap up his investigation and deliver a report to Attorney General William Barr as soon as next week. Which has raised a big question: How much will Barr disclose about Mueller’s findings to Congress? ...  “The special counsel regulations in no way restrict the fullest possible public disclosure by the attorney general of Mueller’s findings and the evidence backing them up,” Harvard Law professor Laurence Tribe told me. Tribe also noted that if Mueller has chosen not to indict Trump because of Justice Department policy protecting a sitting president, that would argue in favor of transmitting as much information as possible to Congress “for consideration in the context of possible impeachment.”

Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.

An employee suing an employer for unpaid wages can recover attorneys' fees when winning a "favorable settlement," even when a court does not sign off on the deal, according to a Massachusetts Supreme Judicial Court ruling Tuesday with potentially wide-ranging implications. ...The employees’ case was presented to the high court by Liz Soltan, a Harvard Law School student arguing as a student practitioner with the Harvard Legal Aid Bureau. She told Law360 Tuesday the court's decision might help combat wage theft, which studies have suggested may be problem costing workers in the Commonwealth $700 million annually.  “Wage theft is such an epidemic in Massachusetts, especially among low income and immigrant workers, this is the kind of ruling we needed for access to justice,” Soltan said. “I am hoping it'll mean more lawyers are going to feel secure in taking these cases.”

An op-ed by Ryan Manucha ’19: Many are familiar with the issue of impartiality in the context of international-investment arbitral panels. Less talked about, however, is how these same concerns bear on arbitrators in disputes under the Canadian Free Trade Agreement. Canada’s provinces and territories are all party to the little-known Canadian Free Trade Agreement. It is the successor to the Agreement on Internal Trade of 1994. The CFTA is a hybrid between an internal free trade agreement and a domestic multi-lateral investment treat, and it includes a dispute-resolution mechanism akin to that which can be found in most international trade and investment arrangements.

An op-ed by Noah Feldman: Justice Clarence Thomas wants to get medieval with the First Amendment. In a fascinating and bizarre opinion issued Tuesday, Thomas invoked the original meaning of the Constitution and the 18th-century common law of libel to assault a landmark freedom-of-the-press decision, New York Times v. Sullivan. Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.  

... Eviction initiations in Massachusetts spiked in 2008, following the Great Recession. Each year since then, landlords have sued about 40,000 heads of household across the state seeking to evict them, according to data gathered by the New England Center for Investigative Reporting. The state doesn’t track how many of these have resulted in actual evictions, but the Eviction Lab at Princeton University found that in 2016, there were roughly 15,708 forced removals in Massachusetts — an average of nearly 43 a day. ...Juliana Williams, a 68-year-old retired Boston public school teacher, sits on a bench outside of Courtroom 10 one day late last year. As she waits for the judge to call her case, she has plenty of company: yellow-shirted activists from City Life, there to show support. Also there is Nicole Summers, a lawyer who works for the WilmerHale Legal Services Center of Harvard Law School, as well as a law student who is helping with her case.

On Friday, President Donald Trump declared a national emergency in order to secure funding for the border wall. The declaration has been widely criticized as a legally questionable end run around Congress, which refused to fund the border wall in full in the latest shutdown deal that Trump himself signed. Indeed, even prominent Republicans warned the president that the move could set a dangerous precedent. ... Any president who takes climate change seriously should be wary of following in Trump's footsteps and using emergency powers to address global warming, according to Joseph Goffman, the executive director of Harvard Law School's Environmental and Energy Law Program—even if the courts ultimately uphold what Goffman says is a clear abuse of Trump's presidential powers. "First of all there's a possibility that congress will try to amend or change the statute in order to limit the president's power," Goffman says, "and so a deft successor to Trump would probably want to avoid provoking that." Second, he adds, any president who understands the scale of the societal transformations that climate change necessitates, and the broad political and public support that such efforts will require to succeed, would not want to anger an entire political party through unilateral action.

Danielle Teuscher decided to give DNA tests as presents last Christmas to her father, close friends and 5-year-old daughter, joining the growing number of people taking advantage of low-cost, accessible genetic testing. But the 23andMe test produced an unexpected result. Ms. Teuscher, 30, a nanny in Portland, Ore., said she unintentionally discovered the identity of the sperm donor she had used to conceive her young child. ...I. Glenn Cohen, a professor and bioethicist at Harvard Law School, agreed and questioned whether such a contract is “contrary to public policy” and thus unenforceable. The mother of a child conceived with donated sperm might well argue that in trying to determine whether the child has any inherited medical issues, she inadvertently discovered a donor’s identity. A sperm bank likely can’t prevent her from obtaining that medical information, he said.

The recent government shutdown damaged the Internal Revenue Service, an agency already struggling with budget cuts and aging computer systems, according to the IRS’s in-house watchdog. IRS employees are working through more than five million pieces of correspondence and tens of thousands of backlogged audit responses and amended returns, according to an annual report released Tuesday. ...Also, experts expect average refunds are likely to be larger this year, but fewer people are likely to get them, which presents its own challenge for the IRS. Keith Fogg, a clinical professor of law at Harvard Law School, said Tuesday that if 1% or 2% of taxpayers shift to owing money at filing time, that can create lots of extra work for the IRS as employees negotiate installment plans and respond to collections notices.“Even people who owe only a small amount of money, if they don’t have that small amount of money, [they] are going to put a big burden on the system,” he said.  

Sixteen states on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. ...The states’ best chance could be to argue that the border wall doesn’t meet the statutory definition of a military construction project, as the president asserts, Harvard law professor Mark Tushnet said.“It’s not a slam dunk for them,” he said, “But there’s a decent chance they will ultimately prevail.”