Media Mentions

An op-ed by Nancy Gertner. Was Robert Mueller, the special counsel, complicit in one of the worst scandals in the F.B.I.’s history — the decades-long wrongful imprisonment of four men for a murder they didn’t commit? This question, which has been raised before, is being addressed again — this time by some of President Trump’s most ardent supporters on the right, especially Fox News’s Sean Hannity but also Rush Limbaugh and others. My friend Alan Dershowitz, the retired Harvard Law School professor, has also weighed in. In an April 8 interview with John Catsimatidis on his New York radio show, Mr. Dershowitz asserted that Mr. Mueller was “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an F.B.I. informer.”

An op-ed by Bruce Schneier. Elections serve two purposes. The first, and obvious, purpose is to accurately choose the winner. But the second is equally important: to convince the loser. To the extent that an election system is not transparently and auditably accurate, it fails in that second purpose. Our election systems are failing, and we need to fix them. Today, we conduct our elections on computers. Our registration lists are in computer databases. We vote on computerized voting machines. And our tabulation and reporting is done on computers. We do this for a lot of good reasons, but a side effect is that elections now have all the insecurities inherent in computers. The only way to reliably protect elections from both malice and accident is to use something that is not hackable or unreliable at scale; the best way to do that is to back up as much of the system as possible with paper.

...Let’s cut through all this: Republicans are petrified of provoking Trump (“the bear”), whom they treat as their supervisor and not as an equal branch of government. The notion that Congress should not take out an insurance policy to head off a potential constitutional crisis when the president has repeatedly considered firing special counsel Robert S. Mueller III and Deputy Attorney General Rod J. Rosenstein defies logic. By speaking up in such fashion, McConnell is effectively tempting Trump to fire one or both of them. That will set off a firestorm and bring calls for the president’s impeachment...“As Senate Majority Leader, McConnell has extraordinary power to control the nation’s legislative agenda — and that power carries great responsibility,” said constitutional scholar Laurence Tribe.

You’ve probably read about concerns over “designer babies,” whose DNA is shaped by gene editing. Greely is focused on a different technology that has gotten much less attention: In a startling bit of biological alchemy, scientists have shown that in mice, they can turn ordinary cells into sperm and eggs. It’s too soon to know if it could be done in people. But if it can, it could become a powerful infertility treatment, permitting genetic parenthood for people who can’t make their own sperm or eggs...Once the genetic profile is done, could it come back to haunt a child if, say, a life insurer or nursing home demanded to see it to assess disease risk? How would the large number of rejected embryos be handled ethically and politically? Perhaps future regulation could limit the number of embryos created, as well as what traits a couple could select for, said I. Glenn Cohen, a Harvard law professor.

new 10-year energy strategy from the Sununu administration prefers Uber to trains, supports nuclear at least as much as wind and solar, and says that electricity cost to ratepayers rather than support for renewables should be topmost in the minds of regulators and lawmakers. The 10-Year State Energy Strategy, released Tuesday by the Office of Energy and Planning, signals several shifts from a 2014 report issued under Gov. Maggie Hassan...The Energy Strategy is much less bullish on renewable energy sources due to fears they will raise the cost of electricity, arguing that subsidizes and mandates in Massachusetts, Connecticut and Rhode Island might “socialize costs” throughout the six-state region, which shares a power grid. “The default assumption is that renewable energy is expensive, which may or may not be true, and expressing concern that New Hampshire is going to pay for it,” said Ari Peskoe, director Director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. “It’s sort of a southern New England versus northern New England issue.”

The Harvard College student whose arrest by Cambridge and Transit police officers has sparked debate over police use of force is now represented by two Harvard Law School professors who said their client won’t be speaking publicly any time soon. Selorm Ohene, 21, a mathematics major at Harvard, was arrested by police last Friday during an encounter...In a statement Tuesday, Harvard Law School professors Ronald F. Sullivan Jr. and Dehlia Umunna said they now represent him. Sullivan is the director and Umunna is the deputy director of the Criminal Justice Institute at Harvard. “He is currently recovering from injuries sustained during his encounter with the Cambridge Police Department,’’ the attorneys wrote in a joint statement. “This has been and continues to be a trying ordeal for Selorm and for his family.”

More than 500 people attended the Massachusetts Black Lawyers Association’s 45th Anniversary Gala at the Boston Park Plaza. Desiree Ralls-Morrison, executive vice president, general counsel and corporate secretary at Boston Scientific, was the keynote speaker. Awards were presented to Melvin Miller, Intisar Rabb, Keith N. Hylton, Maria O’Brien Hylton, Ralls-Morrison, Jonathan L. Allen, Jalessa L. Almonacy, Courtney M. Person and Stephanie N. Johnson.

The Cambridge police have launched an internal investigation into an incident on Friday night in which officers tackled and punched a black Harvard student they were trying to arrest as he stood naked in the median of a busy street. The police, who released a video of the scene on Sunday amid complaints about the officers’ conduct, said that the student, Selorm Ohene, 21, was apparently high on drugs and acting in an aggressive and unruly manner when they approached him and tried to calm him down. He came at them, the police said, with clenched fists...Mr. Ohene is studying mathematics, according to a statement from his lawyers, Ronald S. Sullivan, Jr. and Dehlia Umunna, both of whom are professors at Harvard. They said he is still recovering from his injuries, but offered few other details about the arrest on Friday. The lawyers said it had been a trying ordeal for their client and his family, and they asked the public and the media to respect his privacy.

Social media companies have embraced artificial intelligence tools to scrub their platforms of hate speech, terrorist propaganda and other content deemed noxious. But will those tools censor other content? Can a program judge the value of speech? Facebook founder Mark Zuckerberg told Congress last week that his company is rapidly developing AI tools to “identify certain classes of bad activity proactively and flag it for our team.” It is one of several moves by Facebook as it struggles with an erosion of consumer trust over its harvesting of user data, its past vulnerability to targeted political misinformation and the opaqueness of the formulas upon which its news feeds are built...“The problem is that surveillance is Facebook's business model: surveillance in order to facilitate psychological manipulation,” Bruce Schneier, a well-known security expert and privacy specialist, said. “Whether it's done by people or (artificial intelligence) is in the noise.”

An interview with fellow Leah Plunkett and Anton Kaska. For years, Facebook has collected personal information in order to direct advertising to consumers. But a recent scandal with political consulting firm Cambridge Analytica, which was able to collect this data, has raised huge concerns and a Congressional inquiry.

An op-ed by Noah Feldman. Make no mistake: The presidency of Donald Trump has hit a major inflection point with the investigation of his personal lawyer Michael Cohen by federal prosecutors in the Southern District of New York. Until now, Trump personally was in jeopardy only if special counsel Robert Mueller’s team in Washington finds evidence that he knew about collusion between his campaign and Russia in the 2016 election...Now, however, the Southern District can investigate potential Trump crimes in any area connected to Cohen, a fixer who is known to have arranged payoffs to an adult film star who says she had an affair with Trump. These prosecutors can go back as far as they want before the election, not to mention during and after it.

An op-ed by Jack Goldsmith. I think the question of whether the U.N. Charter is law is misleading or meaningless or both, for reasons that I hope this post will make apparent. But now that I have your attention, I want to sketch a few thoughts about the varied reactions to the airstrikes in Syria by the United States, Great Britain, and France. As Oona Hathaway and I have argued, the U.N. Charter clearly prohibits the strikes, and none of the three recognized exceptions—consent, self-defense, Security Council authorization—are present here. But is that the end of the matter?

An op-ed by Mark Roe. A decade after the global financial crisis, policymakers worldwide are still assessing how best to prevent bank failures from tanking the economy again. Two recent publications – one from the US Department of the Treasury, and another by Federal Reserve economists – provide an indication of where we are. The US Treasury report examined whether to replace the 2010 Dodd-Frank Act’s regulator-led process for resolving failed mega-banks – the Orderly Liquidation Authority (OLA) – with a solely court-based mechanism. The Treasury’s study was undertaken under instructions from President Donald Trump, who was responding to pressure from several Republican congressional leaders – such as Representative Jeb Hensarling of Texas, the chair of the House Financial Services Committee – who advocate replacing regulators with courts.

An essay by Mihir Desai. The Trump Administration's successful efforts at tax legislation stand out as the primary achievement of its first year. But the hurried, largely furtive drafting, and rush to passage at the end of 2017, have helped obscure the new tax regime’s real impact. Much of the reporting and debate has focused on the politicking that went into passing the bill, and the purported effect on the federal budget deficit. That has diverted attention from the true significance of the Tax Cuts and Jobs Act (TCJA). Instead of simply changing rates and addressing loopholes, the TCJA represents a structural change to the income tax and, consequently, will lead to major changes in behavior.

Organized labor managed an increasingly rare feat on Monday — a political victory — when its allies turned back a Senate measure aimed at rolling back labor rights on tribal lands. The legislation, called the Tribal Labor Sovereignty Act, would have exempted enterprises owned and operated by Native American tribes from federal labor standards, even for employees who were not tribal citizens...More than half a million people are employed by casinos and affiliated resorts on tribal trust land, and a vast majority are not citizens of tribes. Thousands employed in other tribal enterprises could have been affected as well. “It’s a very, very troubling step at a moment when we should be doing everything we can to try to protect people’s collective rights and when there are so many people who feel so disempowered in this economy,” said Sharon Block, a former member of the National Labor Relations Board who is executive director of the Labor and Worklife Program at Harvard Law School.

I have long thought Scooter Libby’s conviction was unjust and that President George W. Bush should have pardoned him rather than commute his sentence. However, coming on the heels of the raid on President Trump’s lawyer Michael Cohen’s office and on the same day that Trump phoned Cohen(!), Trump’s pardon of Libby means we are now at risk of a constitutional standoff concerning the pardon power...“Pardoning Cohen would greatly strengthen the case for obstruction because its obvious purpose would be to remove the pressure for Cohen to cooperate with federal prosecutors seeking to learn about the Trump-related skeletons in Cohen’s closet and to give Manafort and other Mueller targets reason to believe in the pardon prospects Trump has dangled in front of them,” says constitutional scholar Laurence Tribe.

If EPA Administrator Scott Pruitt survives the onslaught of accusations of mismanagement and excessive spending with his job still safe, he has his biggest benefactors to thank...So, why is Pruitt still so valuable to Trump donors like Harold Hamm, the Oklahoma oilman who chaired Pruitt’s attorney general reelection campaign and called Trump last week? The answer doesn’t appear to be that Pruitt is a legal genius who has rapidly and effectively gutted regulations in a way that satisfies the courts. “They’re producing a lot of short, poorly crafted rulemakings that are not likely to hold up in court,” Richard Lazarus, a professor of environmental law at Harvard, told the New York Times...Former EPA attorney Joseph Goffman, Harvard Environmental Law’s executive director, has been tracking the dozens of air, water, and climate regulations Pruitt has taken aim at so far. And Goffman has a counterargument: Pruitt has undermined environmental protection in ways that are not so easy or straightforward to untangle with a lawsuit. “He certainly sent the signal that in any given instance his policy preference is achieving lower levels of pollution reduction and achieving pollution reduction on a slower schedule,” Goffman says.

An op-ed by Cass Sunstein. Americans think of July Fourth as Independence Day – the anniversary of their nation’s birth, signaled by the signing of the Declaration of Independence. But if you really want to celebrate the country’s birthday, you might do that today. It’s Patriots’ Day. In a time of national tumult and division, let’s all raise a toast, and shed some tears. Recognized in just four states, Patriots’ Day commemorates the Battles of Lexington and Concord, where the American Revolution began on April 19, 1775. Every American should know the tale.

An op-ed by Jack Goldsmith and Oona Hathaway. Last night, the United States, United Kingdom, and France launched a coordinated attack in Syria, reportedly aimed at sites related to Syria’s chemical weapons program. President Trump stated that he “ordered the United States armed forces to launch precision strikes on targets associated with the chemical weapons capabilities of Syrian dictator Bashar al-Assad.” The president emphasized that “Assad launched a savage chemical weapons attack against his own innocent people,” noted that “[l]ast Saturday the Assad regime again deployed chemical weapons to slaughter innocent civilians near the town of Douma near the Syrian capital of Damascus, and stated that “[t]he purpose of our actions tonight is to establish a strong deterrent against the production, spread, and use of chemical weapons” (emphasis added). As we wrote before Trump’s announcement, there is no apparent domestic or international legal authority for the strikes.

When Mark Zuckerberg talks about Facebook, he constantly uses the word “community” to describe the internet platform. In his 2017 manifesto, Zuckerberg famously argued “Progress now requires humanity coming together not just as cities or nations, but also as a global community.” Indeed, “Facebook stands for bringing us closer together and building a global community.” In his testimony before Congress this week, he again used the term several times. “My top priority has always been our social mission of connecting people, building community and bringing the world closer together,” he told the Senate. The notion of this community of more than 2 billion users worldwide, and over 200 million in the United States, seems core to Zuckerberg’s conception of the platform, and perhaps his own identity. But is Facebook a community?...[Jonathan Zittrain]: “Community” is used all the time by social media and other Internet companies to describe their users. It’s a poor choice of words, adopted no doubt because it makes the relationship between subscriber and company seem less transactional than it really is.

An op-ed by fellow Evelyn Douek. Facebook CEO Mark Zuckerberg testified before Congress this week for over ten hours, but he had very little new to say. The overwhelming theme of the questions from lawmakers on the Senate judiciary and commerce committees and the House Energy and Commerce Committee was that, as Senate Judiciary Chairman Chuck Grassley put it, “the status quo no longer works.” Consensus or even concrete proposals of what to do about it, however, were noticeably lacking. Zuckerberg did shed some light on Facebook’s current thinking about how it will combat hate speech on its platform. The plan epitomizes technological optimism: in five to ten years, Zuckerberg said, he expects artificial intelligence will able to proactively monitor posts for hateful content. In the meantime? Facebook is hiring more human content moderators.