Media Mentions

Just two months into 2018, President Donald Trump is beset with scandals. His White House is more dysfunctional than ever. He's used vulgar language to describe poor countries and faulted Barack Obama instead of Vladimir Putin for Russian meddling in the 2016 election. And he's continued to lie about pretty much everything. ...News organizations often play the role of unwitting Trump ally. A study of online campaign coverage by the Berkman Klein Center for Internet and Society at Harvard University concluded last summer that "the right-wing media ecosystem," especially Brietbart News and Fox News, were able to force mainstream outlets to report on their favored narratives. They pounced, for example, on controversies over the Clinton Foundation, fueled by a book by a Brietbart editor, producing coverage in the New York Times and elsewhere.

The day after Donald Trump fired Acting Attorney General Sally Yates over her refusal to defend his hastily conceived travel ban, the White House counsel, Donald McGahn, tried some damage control of his own. ... When the White House was caught in a tug of war with the Justice Department and the FBI over the release of a four-page set of talking points about the Steele dossier prepared by Devin Nunes’s staff on the House Intelligence Committee, it was McGahn who provided cover for the document’s declassification and release — while ignoring the staunch opposition to disclosure from Trump’s own law enforcement agencies. Jack Goldsmith, a former Office of Legal Counsel attorney under George W. Bush and now a law professor at Harvard, took McGahn to task for signing off on the stunt, suggesting in no uncertain terms that he is, at worst, an enabler rather than a public servant who cares about what’s best for the American people. “The view is not that McGahn is doing anything unlawful,” Goldsmith wrote in Lawfare, where he’s already offered his share of biting commentary about the current White House counsel. “It is that he is acting dishonorably, and is personally and ethically on the hook for Trump’s mendacious, institution-destroying efforts.”

This month's tragic slaughter in a Florida high school has prompted national outrage and mobilized young people around the state and the country. But it has led to little besides a minimal state proposal in Florida that has not yet been formalized nor passed and to the cancellation of some airline, rental-car, insurance and moving-van discount programs for National Rifle Association members. ..."The Second Amendment conviction about guns is a relatively recent one, the result of a campaign from the NRA to prove there is a guarantee of individual rights to bear arms rather than the guarantee of the right for militias," Martha Minow, dean of the Harvard Law School, said in an interview. "That was not the consensus among scholars, but the NRA promoted the idea so much that it became part of the American canon."

An op-ed by Jonathan Capehart: I’m not a big believer in conspiracy theories, but I’ve been nursing one since the start of special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 presidential election. My dark theory involves Russian tampering with actual votes. ...“You’re far from nuts,” replied Harvard Law School professor Laurence Tribe (emphasis his), who elaborated on the concrete constitutional point made by Toobin. “There’s nothing in the U.S. Constitution that would remotely permit redoing a fraudulently stolen presidential election – whether in the days of Mayor [Richard] Daley and JFK monkeying with the votes in Illinois in 1960, or in the days of [Vladimir] Putin’s grotesque intervention throughout America in 2016, which I’m sure altered the result although the latest indictments pointedly avoid that issue and Mueller’s mandate doesn’t encompass it,” Tribe told me. “What this means is that, in addition to the impossibility of ever knowing for sure whether the [2016] outcome…was altered by Putin’s information war on our democracy, the truth is that, even if we could be certain that it was, we’d have no constitutional remedy.”

The details of that night in New Haven were not all that different from many others. There was the off-campus party. The alcohol. The attempts the next morning to make sense of the memories that weren’t there, and the used condoms that were. What was different was what came next: the report to the police. The prosecutors pressing charges. And now, the trial. ... “This isn’t about which institution is better,” said Janet Halley, a Harvard Law School professor who has written about the legal implications of Title IX enforcement. “It’s about what happens when you put two institutions into the same process and they have different rationalities, different institutional cultures — but above all different rights attached to them.

An op-ed by Noah Feldman: Can Twitter Inc. lawfully block racists’ accounts? That’s the question posed in a lawsuit filed last week by Jared Taylor and his New Century Foundation, an organization that, according to the Southern Poverty Law Center, “purports to show the inferiority of blacks to whites.”  The case goes to the very nature of speech on social media platforms. Taylor’s lawyers are arguing that Twitter is a virtual public square in which the First Amendment should apply. If that were so, not only Twitter but all social media would become subject to constitutional norms that usually only prohibit the government from restricting speech. The online world as we know it would be radically transformed. Social media sites would be unable to curb some of the most vile and dangerous postings.

From the instant replay that decides a game to the bodycam footage that clinches a conviction, people tend to trust video evidence as an arbiter of truth. But that faith could soon become quaint, as machine learning is enabling ordinary users to create fabricated videos of just about anyone doing just about anything. ... News consumers, too, will no doubt shift their expectations. “One possibility is that we all become a lot more skeptical about the media that’s put in front of us,”  says Tim Hwang, director of the Ethics and Governance of Artificial Intelligence Fund at the Berkman-Klein Center and the MIT Media Lab in Cambridge, Mass.

An internal report released this week said a National Labor Relations Board member’s vote in a case tied to his former law firm reveals a “serious and flagrant” ethics problem at the agency and calls into question the validity of a prominent business-friendly decision the Republican majority pushed through last year...Sharon Block, former NLRB member and now executive director of Harvard Law School’s Labor and Worklife Program, said the inspector general report makes it clear that the Hy-Brand decision must be invalidated. Block said the board could ask for input from the parties in the case to show why it should or should not validate the decision...“This issue undermines the credibility of the board, which is already subject to a lot of political attack,” Block said. “It’s really unfortunate that they have done something that at least feeds that perception.”

After Robert Mueller’s indictment of 13 Russians last week, there can be no doubt that the Kremlin meddled with the 2016 election by spreading lies through social media that twisted voters’ judgments. But what about more direct forms of interference: Did Russia shift the election’s outcome by hacking registration rolls or voting machines? The fact is that it’s impossible to say. In September, the Department of Homeland Security informed officials in 21 states that Russians had hacked into their registration systems in the run-up to the election. Whether the hackers manipulated the rolls—removed names or switched their precincts—no one has investigated; perhaps no one could investigate, as so many months had passed before the hack was revealed...In the realm of computer hacking, these sorts of attacks are far from the most sophisticated—and the methods for blocking the attacks aren’t so sophisticated either. “We know what to do,” Bruce Schneier, a noted cybersecurity specialist, said in a phone interview. “It’s not a matter of figuring out the tech. The problem is our political system.”

Investors often use rules of thumb or cognitive shortcuts that simplify decisions. In the world of behavioral economics, these rules or shortcuts are known as heuristics. But investors are sometimes blind to the mistakes they might be making when they use rules of thumb and shortcuts. So, what are some heuristics that investors should use and which ones should they avoid?...For his part, Cass Sunstein, a professor at Harvard Law School, calls selling low myopic loss aversion, which is something you want to avoid. “Investors often react intensely to short-term losses,” says Sunstein. “Fear is not a good adviser.”

An op-ed by Noah Feldman. The reported struggle over security clearance between White House chief of staff John Kelly and presidential adviser (and son-in-law) Jared Kushner is a fascinating example of palace intrigue. But as engrossing as it may be to speculate about whether Kelly is trying to marginalize Kushner by denying him access to the presidential daily brief, we shouldn’t neglect one basic truth. It’s ultimately up to President Donald Trump to decide who he wants to advise him -- and we should all want those counselors to be able to provide the best advice possible.

Three years ago, as they wore long gowns and exchanged vows surrounded by people who love them, Fatma Marouf and Bryn Esplin imagined a growing family. But like so many couples who dream of having children, they keep hitting roadblocks...So early last year, they turned their attention to the idea of fostering refugee children. They were sure they had found their answer. They didn't get far, though, before they were proved wrong...All those feelings have now fueled a lawsuit against the federal government. The complaint was filed this week in Washington's U.S. District Court by Lambda Legal, which defends the rights of the LGBTQ community...Outside legal experts hinted in emails to CNN that Marouf and Esplin probably won't prevail in this case. "If there were a statute that was being violated that would make it an easy win," said Noah Feldman, a professor at Harvard Law School who specializes in constitutional studies and the relationship between law and religion. "But they are relying on the Constitution. And, in general, the Constitution has not been held to require government grantees not to discriminate when they are private actors."

Fox News legal analyst Gregg Jarrett argued on Wednesday that Deputy Attorney General Rod Rosenstein, former FBI Director James Comey, and other former top Department of Justice officials should be prosecuted for fraud and other crimes for their role in spying on a former Trump campaign official...Legal experts say Jarrett’s claims are pure political theater. “There is no evidence whatsoever that crimes were committed in connection with the use of the Steele dossier, and no serious commentator has even come close to making such a suggestion,” Alex Whiting, a Harvard Law School professor specializing in criminal prosecution issues, told me. “I can only conclude that Jarrett is deliberately seeking to misinform his viewers for political reasons.”

The Trump administration has decided that it needs no new legal authority from Congress to indefinitely keep American military forces deployed in Syria and Iraq, even in territory that has been cleared of Islamic State fighters, according to Pentagon and State Department officials. In a pair of letters, the officials illuminated the Trump administration’s planning for an open-ended mission of forces in Syria beyond the Islamic State fight...The executive branch’s claim that the 2001 and 2002 laws provide authority for the United States to indefinitely keep combat forces in Syria amounts to “a tenuous legal justification atop of another tenuous legal justification,” said Jack Goldsmith, a Harvard Law School professor and former Justice Department lawyer in the Bush administration.

An op-ed by Cass Sunstein. Amid all the current political clamor, the Justice Department recently did something that is both technical and important -- and that simultaneously promotes freedom and the rule of law. It deserves bipartisan approval for its announcement that it will no longer rely on “guidance documents” to try to bind the private sector. Under the Administrative Procedure Act, enacted in 1946, federal agencies are allowed to issue “interpretative rules” and “general policy statements,” some of which qualify as guidance documents. Many of these advise members of the public -- companies, hospitals, labor unions, charities, immigrants -- about what the government considers to be their legal responsibilities.

...The initial findings of new research presented at the Enigma conference in January indicate that contractor-employees of “gig” services like Uber, Lyft, TaskRabbit, Handy, Fiverr, and Foodora are generally less safe online than full-time employees of other companies. Why? Because the companies they contract with aren’t communicating or enforcing best security practices as intensely. Kendra Albert, a clinical fellow at Harvard Law School and one of the researchers behind the as-yet unpublished study, says traditional companies commonly install security or device management software on employees’ phones and laptops; gig services, on the other hand, rarely do this for their contractors. Gig worker app platform requirements such as uploads of identity or insurance documentation give the companies reason to trust their contractors, but the companies do little with their platforms to reciprocate that trust, Albert says. “The mistrust that these platforms put in their workers have security consequences,” Albert says.

If you're passionate about craft brews and green living, how about raising a glass of beer made from leftover bread? Toast Ale launched in the U.K. in 2015 in part to help bakeries recycle bread that otherwise would have been wasted — and to help raise public awareness about wasted food...But can a small company like Toast Ale really make a difference? Emily Broad Leib, director of the Food Law and Policy Clinic at Harvard Law School in Cambridge, Massachusetts, certainly thinks so. “Grain products such as bread are some of the most commonly wasted food products in both the U.S. and the U.K.,” Broad Leib told NBC News MACH in an email.

Harvard’s investment decisions often grab headlines. Protesters have blockaded administrative buildings and staged sit-ins in downtown Boston to oppose the University’s investments in fossil fuels and private prisons. And University President Drew G. Faust has publicly opined on whether or not it is wise to divest from controversial assets. Meanwhile, two University committees routinely make a set of less visible—yet ethically challenging—decisions about how to act as a shareholder in its existing investments. At the meetings of these committees, Harvard takes public stances on issues ranging from climate change to the rights of indigenous people in its capacity as a shareholder...Howell E. Jackson, a professor at Harvard Law School and the chair of the ACSR, said the committee carefully researches and deliberates on every proposal it considers. “There is actually a huge amount of background reading,” Jackson said. Once the ACSR makes recommendations about each proxy vote, it sends them to the CCSR, which Jackson said has a tradition of “overwhelmingly following” the ACSR’s recommendations.

Civil rights activists are challenging the legality of four states’ winner-take-all method of allocating U.S. presidential electoral college votes, claiming the practice magnifies some votes at the expense of others and violates voters’ constitutional rights...“The promise of democracy is that all votes count equally,” Lawrence Lessig, a Harvard law professor, said about the suits. “Winner-take-all denies Americans that simple ideal. If you’re a Republican in California, or a Democrat in Texas, your vote for president gets counted only to be thrown away.” The idea for the challenges originated in a crowdfunding campaign organized by Lessig through the website EqualVotes.US.

An op-ed by Lawrence Lessig. Today, in four states across the country, lawsuits will be filed to challenge the way presidential electors are selected in America. The plaintiffs in these suits charge that the “winner-take-all” system—the system by which the candidate who wins the popular vote in a state gets all of the electoral college votes in that state—violates both the 14th Amendment’s principle of “one person, one vote,” and the Free Speech Clause of the First Amendment.

In an interview with Michael Smerconish, HLS Professor Laurence Tribe discusses why restrictions on guns are fully compatible with the Second Amendment.