Media Mentions

An article by Jack Goldsmith and Robert D. Williams: Just before Christmas, the U.S. Department of Justice unsealed an indictment against two Chinese nationals who allegedly conducted a twelve-year “global campaign[ ] of computer intrusions” to steal sensitive intellectual property and related confidential business information from firms in a dozen states and from the U.S. government. According to the indictment, the defendants conducted these acts as part of the APT10 hacking group “in association with” the Chinese Ministry of State Security.

At his confirmation hearings for the position of U.S. trade representative, Robert Lighthizer, the nation’s chief trade negotiator, promised to fight for all of America’s great industries. Yes, he acknowledged, he had built his three-decade career by lobbying for the steel industry. But he was ready, he said, to make the world safe again for good old-fashioned American capitalism, in all its forms. He recalled a caution he’d received from a senator: “As you go through doing your job, remember that you do not eat steel.” ... The WTO risks irreparable damage from Lighthizer’s battles with China. In an influential article, Mark Wu, a Harvard Law professor who negotiated intellectual-property deals for the U.S. government, made the case that China’s accession to the WTO was premised on a mistaken assumption that the organization could accommodate the country’s authoritarian system.

China’s backsliding on market reform and its trade practices in the past decade is “very disturbing”, said Charlene Barshefsky, the former US trade representative who opened the door to the World Trade Organisation (WTO) for China. ... Mark Wu, a law professor at Harvard University who worked in the Office of the US Trade Representative (USTR) during the George W Bush administration, echoed her analysis. “Undoubtedly, China’s desire to join the WTO played a major role in spurring market-oriented reforms in the late 1990s and early 2000s and prevented them from being undone by conservatives,” said Wu, who was the USTR’s director for intellectual property from 2003-04.

... But I have my own theory: It’s not the movie or the altitude, but rather the intimate audio experience in a moment of solitude. Your headphones — a buffer from the world injecting dialogue into your ear — become a conduit to your soul. When I fly now, I skip the movie, put in my AirPods and take my catharsis in podcast form. ... In a recent essay, the Harvard Law professor Lawrence Lessig argues that podcasts offer more than a helping hand when it comes to journalism’s Internet-era challenges. “The architecture of the podcast,” he says, is also “the precise antidote for the flaws of the present.”

Two disturbing incidents involving acting attorney general Matthew G. Whitaker came to light at the end of an already chaotic week. First, it became clear that ethics officers told him to recuse himself from the Russia probe. Second, President Trump, in what appears to be yet another instance of obstruction of justice, leaned on Whitaker to rein in prosecutors in the Southern District of New York. ... Constitutional scholar Laurence Tribe bluntly says, “The president is totally out of control.” He explains, “Such brazen efforts to rein in career prosecutors for doing their jobs in a professional way just because their legal filings implicate him in evidently criminal behavior is part of a persistent pattern of obstructing justice.”

In 1995, Senator Daniel Patrick Moynihan declared, “Sometime in the next century the United States is going to have to address the question of apportionment in the Senate.” Perhaps that time has come. ... Laurence Tribe of Harvard Law School has recommended that when an earlier constitutional text conflicts with later textual amendments, we should follow “time’s arrow.” We should keep in mind that the original one-state, two-senators rule was written and ratified by property-owning white men, almost half of whom owned slaves, and that the voting-rights amendments were adopted after a war to end slavery.

Harvard Law School professor Vicki Jackson plans to use her year as president of the Association of American Law School to encourage law faculty, students and practitioners to promote democracy, voting rights and fair representation.

Last summer, Boston’s City Council and Mayor Marty Walsh passed Boston's first ordinance regulating short-term rentals in the city, aimed at allowing homeowners to make extra money while stopping investor owners from buying up real estate to establish de facto Airbnb hotels. ... Airbnb lobbied hard against the measure; when it passed, the company threw the book at the City of Boston: Airbnb sued the city in federal court, arguing the ordinance is illegal. The lawsuit here could have national implications. That's because central to the company’s case is a federal law called the Communications Decency Act – or CDA – specifically, one part of that act known as Section 230. It says that internet companies can't be held responsible for what users post on it. “So basically what that means is I cannot be held responsible as the publisher of information that a user puts up there,” says Mason Kortz. Kortz is a clinical instructional fellow at Harvard Law School Cyber Law Clinic.

The Trump administration proposed on Friday major changes to the way the federal government calculates the benefits, in human health and safety, of restricting mercury emissions from coal-burning power plants. ... The Obama administration itself had broadly accepted that it is difficult to put a specific dollar-figure on some health benefits, for instance, avoiding lost I.Q. points in infants or other fetal harm that has been linked to pregnant women eating mercury-contaminated fish. For that reason, the original rule argued against using a strict cost-benefit analysis to decide whether the regulation should be imposed, said Joseph Goffman, the executive director of Harvard Law School’s Environmental and Energy Law Program.

We look back at the year in law and politics. In law, we look at President Trump's travel ban and family separations at the border before the courts. In local politics, 2018 found Massachusetts at the center of the divide in both parties. We have a Republican Centrist Governor in a GOP with little room for centrists and an all Democratic delegation in Congress poised to take new leadership while also divided over the future of their party. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst.

By Annette Gordon-Reed: The documents most closely associated with the creation of the United States—the Declaration of Independence and the Constitution—present a problem with which Americans have been contending from the country’s beginning: how to reconcile the values espoused in those texts with the United States’ original sin of slavery, the flaw that marred the country’s creation, warped its prospects, and eventually plunged it into civil war. The Declaration of Independence had a specific purpose: to cut the ties between the American colonies and Great Britain and establish a new country that would take its place among the nations of the world. But thanks to the vaulting language of its famous preamble, the document instantly came to mean more than that. Its confident statement that “all men are created equal,” with “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness,” put notions of freedom and equality at the heart of the American experiment. Yet it was written by a slave owner, Thomas Jefferson, and released into 13 colonies that all, to one degree or another, allowed slavery.

Three veterans who sued Massachusetts for denying them a Welcome Home bonus should receive the money, a Suffolk Superior Court judge ruled. The ruling could affect an estimated 4,000 veterans who served multiple tours of duty and received an other than honorable discharge from the final one, according to the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, which represented the plaintiffs in the case.

An op-ed by Nancy Gertner and Laurence H. Tribe: Michael Flynn’s sentencing on Tuesday took a turn that no one expected—not the special counsel, not the defense lawyers, not the public. Judge Emmet Sullivan—who was initially appointed as a judge by President Ronald Reagan and promoted by Presidents George H.W. Bush and George W. Bush—announced that he would not give Flynn the sentence the parties agreed upon. Flynn’s cooperation, which special counsel Robert Mueller said deserved probation, would not outweigh the seriousness of his crimes, both charged and uncharged, which the judge believed required prison. The judge even asked whether Flynn’s actions might have amounted to treason, a question many found perplexing. It was a question that could take on a different complexion in light of the redacted material available to the judge but not to the public, given Flynn’s role as Turkey’s secret agent during the Trump transition.

An op-ed by Sanrineh Ardalan, J. Wesley Boyd and Katherine Peeler: Although this December marks the 70th anniversary of the UDHR, we feel compelled to ask whether we have made progress in realizing the principles articulated seven decades ago. Or does it feel like 1948 all over again?

Much has been made of the Justice Department’s standing opinion that a sitting president cannot be indicted while in office. That’s an opinion, not settled law, and one that is the subject of lively debate among legal scholars. ... Likewise, constitutional scholar Laurence H. Tribe posits, “Nothing in the Constitution supports treating amenability to the criminal process as something that kicks in only after a civil officer has been impeached and removed.” He argues, “To treat a sitting president as immune to that process until his presidency ends is to superimpose upon the impeachment framework—a framework designed as the way to remove a president who commits an impeachable offense that might or might not also be a federal crime—something quite extraordinary in a system priding itself on the axiom that no one is above the law.”

Within the world inhabited by President Donald Trump's strongest critics lives an audacious idea—annulment of his presidency. ... Laurence Tribe, a constitutional scholar and the Carl M. Loeb professor at Harvard Law School, noted in his book To End a Presidency: The Power of Impeachment, that although there is no provision for annulment of a presidency, the Constitution “does provide a rough approximation: Stripping the treacherous candidate of his ill-gotten gains."

Ruth Okediji, Smith professor of law, traces her enthusiasm for intellectual-property law to a childhood love of literature and storytelling. When she was seven, her family immigrated to New York City from Nigeria. “I had never heard the word ‘race’ and had never been described as a black person,” she recalls. “I just kept feeling this hostility in the private school that my parents sent me to. When I couldn’t make sense of it, I started going to the New York Public Library. The books raised me.”

Far-reaching discussions about the social impact of AI on the world are taking place among data scientists across the University, as well as in the Ethics and Governance of AI Initiative launched by Harvard Law School’s Berkman Klein Center, together with the MIT Media Lab. This intensifying focus on ethics originated with a longtime member of the computer-science faculty. ... Bemis Professor of International Law and professor of computer science Jonathan Zittrain, who is faculty director of the Berkman Klein Center for Internet and Society, has been grappling with this goal from a proto-legal perspective.

An op-ed by Noah Feldman: A federal appeals court has dismissed all complaints brought against Justice Brett Kavanaugh as a result of his confirmation hearings—because he’s now on the U.S. Supreme Court. Legally, the decision is probably correct. The federal Judicial Conduct Act, passed by Congress, doesn’t apply to the Supreme Court justices. And the Code of Conduct for U.S. Judges, adopted by the federal courts’ policy-making body, doesn’t apply to the justices either.

The United States accused China on Thursday of sustained efforts to steal trade secrets and technologies from at least 12 countries in an enormous hacking campaign – a move that deals a blow to Beijing during negotiations to ease the trade war. ... Mark Wu, a professor at Harvard Law School who studies international trade issues, questioned whether the condemnations would have any effect.

President Donald Trump signed the 2018 farm bill Thursday afternoon, ending months of congressional negotiations over the $867 billion legislation. ... Ultimately, the 2018 bill maintains most programs as they were before, said Erika Dunyak, a clinical fellow at the Harvard Law School Food Law and Policy Clinic.