Media Mentions

An op-ed by Noah Feldman: The summary of special counsel Robert Mueller’s report submitted to Congress on Sunday by Attorney General William Barr can only be described as a significant win for President Donald Trump. Mueller did not find that the Trump campaign coordinated with or colluded with Russian efforts to subvert the 2016 election. And Mueller did not reach a conclusion on whether Trump himself committed obstruction of justice.

An op-ed by Noah Feldman: Critics upset at U.S. Secretary of State Mike Pompeo for saying that God might have put Donald Trump in office to protect Israel from Iran should take a step back and look at the big picture. Pompeo was responding to a leading question on the Christian Broadcast Network, and his response was actually pretty diplomatic: “As a Christian, I certainly believe that’s possible.” ... Rather than debating God’s plan for the world, it’s far more pragmatically valuable to ask whether there are defensible non-theological reasons for Trump’s policy toward Israel.

An op-ed by Noah Feldman: We don’t know what’s in it yet. But we can already say that the Mueller report is a win for democracy. We can say so definitely because on Friday afternoon, special counsel Robert Mueller officially filed a report with Attorney General William Barr on what he has learned about Russian interference in the 2016 election. Lest we forget, that was far from a foregone conclusion throughout much of the past two years.

An op-ed by Cass Sunstein: Attorney General William Barr has produced an exceptionally brief summary of what is undoubtedly a lengthy report from special counsel Robert Mueller. For an issue of this magnitude – involving potentially serious misconduct by a successful presidential campaign and a sitting president – it is best to insist on a principle of neutrality, and to evaluate the summary not in political terms, but as a matter of fact and law.

Education Secretary Betsy DeVos’ attempts to swiftly roll back major Obama-era policies at her agency are hitting a roadblock: federal courts. Judges have rebuffed DeVos’ attempts to change Obama policies dealing with everything from student loan forgiveness to mandatory arbitration agreements to racial disparities in special education programs. ... “It speaks to the Department of Education’s unwillingness or inability to follow the basic law around how federal agencies conduct themselves,” said Toby Merrill, who directs the Harvard Law School’s Project on Predatory Student Lending, which has brought some of the lawsuits against DeVos. Every administration has wins and losses in court, Merrill said, but most have done better at making sure they follow the legal rules of the road for rulemaking. “At the very least, they cross their Ts and dot their Is and therefore are less vulnerable to some of the procedural challenges that have been the undoing of so many of this Department of Education’s policies,” she said.

Last year, the Food and Drug Administration approved a device that can capture an image of your retina and automatically detect signs of diabetic blindness. This new breed of artificial intelligence technology is rapidly spreading across the medical field, as scientists develop systems that can identify signs of illness and disease in a wide variety of images, from X-rays of the lungs to C.A.T. scans of the brain. These systems promise to help doctors evaluate patients more efficiently, and less expensively, than in the past. ...Ideally, such systems would improve the efficiency of the health care system. But they may carry unintended consequences, a group of researchers at Harvard and M.I.T. warns. In a paper [co-authored by Jonathan Zittrain] published on Thursday in the journal Science, the researchers raise the prospect of “adversarial attacks” — manipulations that can change the behavior of A.I. systems using tiny pieces of digital data. By changing a few pixels on a lung scan, for instance, someone could fool an A.I. system into seeing an illness that is not really there, or not seeing one that is.

This week, we’re joined by Susan Crawford, the John A. Reilly Clinical Professor of Law at Harvard School of Law. Crawford talks about her new book Fiber, which focuses on how cities in the United States are trying to build communications networks with this seemingly limitless technology, yet still get pushback from regulators and incumbent companies alike.

United Food and Commercial Workers Local 400 are organizing the campaign workers for Sen. Bernie Sanders', I-Vt., presidential campaign, but they are not endorsing his bid. The union can’t, in fact, because it has to represent the interests of the workers and not management, even though the workers all presumably want Sanders to win. In fact, the union will even push for the workers’ having the right to go on strike against the campaign. ... Wilma Liebman, former chairwoman of the National Labor Relations Board, said that just because organizing a campaign staff is novel, there’s no reason why it cannot be done.“Collective bargaining can be very flexible and adapted to the parties’ needs,” said Liebman, now senior research associate at Harvard Law School’s labor and worklife program. "Some contracts are lengthy, spelling out detailed rules and procedures. Some are just a few pages long, setting out just basic values and principles."

An unusual coalition of business, labor and immigration rights groups wants to change the way federal regulators interpret their own rules — but that effort has sparked fears that consumer and worker protections could be gutted in the process. The fight is due to play out in a Supreme Court argument set for Wednesday. The case involves James Kisor, a Marine veteran who is demanding that the Department of Veterans Affairs provide him with retroactive disability payments for post-traumatic stress disorder he developed while serving in brutal battles in Vietnam. ...And they say that, because much of the law that applies to regulation is interconnected, any broad ruling striking down Auer could have unintended consequences. "Cooking up a new approach to precedent yields a toxic brew that can be harmful even to its creators," wrote Adrian Vermeule, a professor at Harvard Law School.

Health care providers in Mississippi continue to break the law by sending patients large, out-of-pocket medical bills that they don’t have to pay, concludes a Harvard Law School report recently released. The Legislature passed a law in 2013 to prohibit what is known as “balance billing” – when a provider bills a patient for the difference between the initial charges and the amount paid after insurance benefits are assigned. The Center for Health Law and Policy Innovation of Harvard Law School found that Mississippi’s anti-balance billing law needs revising. ...In its report, the Center for Health Law and Policy Innovation of Harvard Law School found that Mississippi’s anti-balance billing law, which was one of the first and strongest enacted in the country, needs revising. “Despite the state’s leadership on this issue, Mississippians like Mills report that they are still receiving balance bills — in violation of state law. In fact, a January 2019 poll reported that four in 10 Mississippians have received or have a family member who received a surprise medical bill,” the report reads.

A hearing in the Fourth Circuit on appeal of a lower court ruling allowing the District of Columbia and Maryland to sue President Trump under the Constitution’s emoluments clause went, to put it mildly, poorly. All three judges are GOP appointees, one by Trump himself.  ... Constitutional scholar Larry Tribe conceded, “It’s always treacherous to read too much into the questions counsel are asked by appellate judges, but the questions the Fourth Circuit panel asked ... voicing skepticism — unwarranted, in my view — about harm to the State of Maryland and to DC suggest to me that these judges, unlike District Court Judge [Peter J.] Messitte, might have been readier to support standing for the competing hotels and restaurant workers like those who joined the CREW lawsuit that’s currently on review in the Second Circuit, where the district court failed to grant standing.” Tribe is co-counsel in the Second Circuit suit.

An op-ed by Dustin Lewis: What are some of the chief concerns in contemporary debates around legal reviews of weapons, means or methods of warfare involving techniques or tools related to artificial intelligence (AI)? One session of the December 2018 workshop on AI at the frontiers of international law concerning armed conflict focused on this topic. In this post, I outline a few key threshold considerations and briefly enumerate 16 elements that States might consider as part of their legal reviews involving AI-related techniques or tools.It is imperative, in general, for States to adopt robust verification, testing and monitoring regimes as part of the process to determine and impose limitations and—as warranted—prohibitions in respect of an employment of weapons, means or methods of warfare. Where AI-related techniques or tools are—or might be—involved, the design and implementation of legal review regimes might pose particular kinds and degrees of challenges as well as opportunities.

Recent advances in artificial intelligence have the potential to affect many aspects of our lives in significant and widespread ways. Certain types of machine learning systems—the major focus of recent AI developments—are already pervasive, for example in weather predictions, social media services and search engine results, online recommendation systems. Machine learning is also being applied to complex applications that include predictive policing in law enforcement and ‘advice’ for judges when sentencing in criminal justice. Meanwhile, growing resources are being allocated to developing other AI applications. ...We asked some of the experts to distill—in under 300 words—some of the key issues and concerns that they believe we aren’t thinking enough about now when it comes to the future on AI and armed conflict. ...Naz K. Modirzadeh, Founding Director & Dustin A. Lewis, Senior Researcher, Harvard Law School Program on International Law and Armed Conflict. "Looking to the future of artificial intelligence and armed conflict, those of us concerned about international law should prioritize (among other things) deeply cultivating our own knowledge of the rapidly changing technologies. And we should make that an ongoing commitment. There is a perennial question about subject-matter expertise and the law of armed conflict; consider cyber operations, weaponeering and nuclear technology. When it comes to the increasingly impactful and diverse suite of techniques and technologies labeled ‘AI’, the concern takes on a different magnitude and urgency. That’s in no small part because commentators have assessed that AI has the potential to transform armed conflict—and not just the conduct of hostilities.

An op-ed by Noah Feldman; European regulators are cracking down on the big technology companies — witness the 1.49 billion euro ($1.7 billion) fine against Google on Wednesday. At the same time, however, the U.S. Supreme Court is cautiously entering the business of protecting them. In a decision that on the surface looks minor, but is actually an important signal, the court on Wednesday sent a class-action suit against Google back to the lower courts to determine whether any of the plaintiffs actually had standing to sue.  The justices’ action strongly hinted that a majority thinks the suit should never have been allowed to go forward in the first place. If that’s right, it’s an affirmation of the court’s new constitutional idea that it isn’t enough for Congress to create new legal rights that can be used against tech companies. There must be what the court calls “concrete” harm to users. That determination, crucially, rests with the Supreme Court, not with Congress.

President Donald Trump continued his attacks on the late Arizona senator John McCain (R) today — this time complaining that he “didn’t get a thank you” for approving his state funeral. During an official White House event at an Ohio tank factory on Wednesday afternoon, Trump spent several minutes criticizing McCain, who passed away last August from brain cancer. The president’s comments marked the fourth time in less than a week that he’s lashed out at the former Republican senator. ...“Trump now claims credit for the McCain funeral! He says 'as president' he had to 'approve' it,” Harvard Law School professor Laurence H. Tribe tweeted. “BS! Lying in state at the Capitol was up to Congress, not POTUS. This despot has the gall to say a hero’s burial is within his control. What a putz.”

The U.S. Supreme Court on Wednesday stopped short of prohibiting a form of class action settlements in which funds awarded go to unrelated third parties and lawyers but not to the parties making claims. The justices in Frank v. Gaos, which involved an $8.5 million internet privacy settlement with Google, did not address the legality of class settlements featuring only “cy pres” funds going to third-party groups and organizations and not to plaintiffs. ...Cy pres critics claim it has become a common litigation tactic, but an amicus brief by Harvard Law’s William Rubenstein said only 18 cy pres-only settlements have been approved by federal courts in the last 20 years.

Huawei’s lawsuit against the United States government could end up lifting the air of “mystery” surrounding the Chinese telecommunications equipment manufacturer should details of its ownership structure and relationship with the Chinese government be revealed, according to a leading Chinese law professor. The US Congress has banned federal agencies from using Huawei equipment due to national security concerns, but the Shenzhen-based firm argues the ban is unconstitutional as it singles out a person or a group for punishment without trial. ...“Huawei’s case will turn on whether the court thinks the NDAA is a punishment or a prophylactic qualification,” said Nikolas Bowie, an assistant professor at Harvard Law School. “On one hand, this is a classic example of punishment. Members of Congress said they were giving Huawei the corporate death penalty because of fears of what Huawei has done in the past and might do in the future. “On the other hand, the NDAA can be interpreted as a prophylactic qualification – a regulation – rather than a punishment. Congress certainly has the power to decide that certain types of business are so dangerous to national security that they’re prohibited from working with the government.”

An op-ed by Alex Whiting, Ryan Goodman and Nancy Gertner: In public remarks last month, Deputy Attorney General Rod J. Rosenstein hinted about the fate of special counsel Robert S. Mueller III’s report on the results of the investigation into Russian interference in the 2016 presidential campaign. While not speaking about any particular case, Rosenstein reiterated the department’s policy of not publicly commenting on the evidence in cases where charges are not brought. This might affect the report’s release, as Mueller is expected to abide by the Justice Department’s policy that a sitting president cannot be indicted. Rosenstein described his message he has given to prosecutors and agents during his tenure: “If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.” Attorney General William P. Barr’s message at his confirmation hearing in January was much the same: “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person.” The policy reflects a basic norm within the Justice Department. Then-FBI director James B. Comey was widely condemned, including by the department’s inspector general, for violating it during the 2016 presidential campaign when he publicly criticized Hillary Clinton’s conduct regarding the use of a private email server while secretary of state, even as Comey announced that the FBI had not found sufficient evidence to recommend criminal charges. Yet a closer look at the department’s policy suggests that Rosenstein’s approach might not apply to the Mueller report.

An op-ed by Cass Sunstein: Many advocates of a Green New Deal insist that air pollution and racial justice are related and must be addressed simultaneously. In 2018, they point out, researchers from the Environmental Protection Agency concluded that black Americans suffer disproportionately from exposure to emissions.  More recent research does not merely provide fresh details about the relationship between environmental degradation and racial justice. It adds disturbing new findings about apparent inequities across racial lines. In brief: African-Americans and Hispanics are subject to far more air pollution than they cause by their consumption choices. By contrast, white people are subject to far less air pollution than they cause by their consumption choices.

An op-ed by Noah Feldman: With elections looming, Israel is locked in a constitutional struggle for its democratic soul. The latest development: Israel’s high court, in a decision reversing the nation’s elections commission, has banned the leader of a Jewish-supremacist far-right party for running for Knesset while allowing a left-wing Arab party that calls for Palestinian equality and challenges the Jewish nature of the state. The decision matters because of a change to Israel’s unwritten constitution. In 2018, the Knesset enacted a controversial new “basic law” — the closest thing to a constitutional amendment the country has — on the topic of Israel as a nation-state. The basic law declared self-determination to be the right of Israel’s Jews, but not of other Israelis.

Rep. Devin Nunes (R-CA) is suing Twitter. More specifically, Nunes is suing Twitter, a Republican strategist, and two parody Twitter accounts, one purporting to be Nunes’s mother, the other purporting to be Nunes’s cow. (The account is @Devincow). First reported by Fox News, the complaint seems to be part of a plan almost destined to backfire spectacularly in the public eye: one of the more combative and well-known figures in Congress (particularly for his defenses of President Donald Trump) deciding to sue a notoriously free-wheeling social media platform, two parody Twitter accounts, and a Republican operative who uses it frequently for $250 million over tweets like these. ... But the question isn’t necessarily “Is Nunes’s lawsuit shambolic,” but “What does Nunes hope to achieve with his shambolic lawsuit?” So I spoke with Mark Tushnet, a First Amendment professor at Harvard Law School. After going through the complaint, Tushnet said that Nunes’s only real legal claim against Mair is for libel — a written statement that is harmful to someone else’s reputation. And because Nunes is a public figure, the standard for libel is higher. As Tushnet said, “[Nunes] has to show that the defendants made false statements of fact either knowing that they were false or with reckless disregard of their truth or falsity.”