Media Mentions

An op-ed by Hal Scott and Lisa Donner. Ten years after the start of the financial crisis, US policymakers are beginning to deal with the stiff regulatory reaction that it spawned, writes Hal Scott. The US Senate will take up the first bipartisan effort to rein in the impact of the Dodd-Frank financial reform bill on smaller banks within weeks. But that should be just one step in reform. The bill would exempt banks with less than $100bn in assets from the Federal Reserve’s annual stress tests and the Federal Deposit Insurance Corporation’s annual living wills requirement that each bank explain how it could be safely wound down in a crisis.

An op-ed by Arun Vishwanath, faculty associate at the Berkman Klein Center. In the not-so-distant future, we will be presented with the version of the news we wish to read -- not the news that some reporter, columnist or editorial board decides we need to read. And it will be entirely written by artificial intelligence (AI). Think this is science fiction? Think again. Many of us probably don't realize that AI programs were authoring many parts of the summer Olympics coverage, and also providing readers with up-to-date reports, personalized based on the reader's location, on nearly 500 House, Senate, and gubernatorial races during the last election cycle.

“It Can't Happen Here,” a book written by Sinclair Lewis over 80 years ago, concludes with a president all but ending democracy in favor of an authoritarian regime of his own. To get elected, he promised the nation great economic reform and a return to traditional, patriotic values, vowing to save the country from welfare fraud, sex, crime and a liberal media — sound familiar? That book is now the jumping off point for a new book, “Can It Happen Here? Authoritarianism in America.” It's a collection of essays from some of the nation's leading thinkers, theorists and historians on exactly how democracies can crumble. Jim Braude was joined by Cass Sunstein, former administrator for the White House Office of Information and Regulatory Affairs under President Barack Obama and editor and contributor of “Can It Happen Here?” and Martha Minow, former Dean of Harvard Law School, now professor and contributor to “Can It Happen Here?” to discuss their latest book.

Panelists shared personal stories, advice, and a range of historical experiences related to sexual violence at Harvard at an event Tuesday afternoon co-hosted by Our Harvard Can Do Better and the Radcliffe Union of Students...[Diane] Rosenfeld offered advice on activism for current students, encouraging them to demand an audience with the administration, especially with University President-elect Lawrence S. Bacow. “There is absolutely power in numbers. Gather your student groups and have meetings and meetings and meetings with the new President, even before he takes office. Let me him know that you need to be on his radar,” Rosenfeld said.

Two Harvard Law professors have joined nearly 140 professors from universities across the country in signing a public letter that critiques what the authors call “victim-centered practices” in higher education sexual harassment policies and procedures. Law professors Janet E. Halley and Elizabeth Bartholet ’62 signed the letter three weeks ago, along with academics hailing from institutions including Northwestern University and the University of Pennsylvania Law School...“I signed it because I thought it was correct. I’ve seen the bad effects of politically slanted training,” Halley said.

An op-ed by David Harris. Several weeks ago the Boston Globe published an opinion piece by editorial and staff writer David Scharfenberg in which he called for an “honest” commitment to racial integration. He dismissed the “gauzy 1963 version” of integration, insisted that “harping too much” on its virtues “can feel paternalistic,” and lamented the “disastrous busing experiment of the 1970s” which proved that “forced integration…simply doesn’t work.” Even so, he declared integration the “single most important racial justice strategy we’ve got” and a “good start” toward “true racial reconciliation.” There are several basic problems with the article. First, it conflates race and class, creating a set of contrasts between black/urban/poor and white/suburban/affluent, using them interchangeably, without definition, assuming readers share the implied associations.

An op-ed by Noah Feldman. China’s nearly 30-year experiment with time-limited government is officially coming to an end. The Chinese Communist Party has suggested amending China’s constitution to allow President Xi Jinping to serve more than two five-year terms. Considering that the party rules the country, and Xi rules the party, that means two things: The constitution will be amended. And Xi is going to be president for life, much like Mao Zedong or Deng Xiaoping.

Leaving the gun debate to others, I propose that we focus on something more easily fixable about the Florida shooting: the epic failure of data integration that allowed this tragedy to happen...Data management might raise the hackles of civil libertarians. But Harvard Law professor and constitutional scholar Laurence Tribe told me we should be able to satisfy those concerns: “None of the data points you’re talking about involve anything terribly private. The fact that he was doing target practice and shooting cats in the neighborhood and squirrels was hardly a private matter. The fact that he posted his desire to be a professional school shooter, he was exposing that to the world. He was essentially crying out, ‘Somebody stop me!’ And it is unfortunate, unfortunate puts it mildly, that the dots were not adequately connected. We shouldn’t underestimate the magnitude of the task the FBI has. They get hundreds and thousands of leads, some of which may be at least as alarming as this but don’t end up in school shootings. But, I do think we can do better than we’ve done.”

...With 19 people charged by special counsel Robert S. Mueller III (including five cooperating witnesses), some believe a case against Trump is imminent...Advocates for presidential immunity rely heavily on one line by Alexander Hamilton in The Federalist Papers: A president, he said, “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Harvard Law professor Cass Sunstein insists that this quote “means you can’t indict and try a sitting president. He has to be removed first.”

For the second time in two years, the U.S. Supreme Court heard arguments on the constitutionality of union “fair share” fees, and the justices appeared just as ideologically divided as they were the first time...Two law professors’ ears may have been burning during part of the arguments as several justices focused on their amicus brief. Harvard Law School’s Charles Fried and Yale Law’s Robert Post offered a narrower path than overruling Abood. Their brief suggested adopting the statutory duties test proposed by Scalia and three other justices in Lehnert v. Ferris Faculty Assn. in 1991. Under that test, contributions to a public-sector union “can be compelled only for the costs of performing the union’s statutory duties as exclusive bargaining agent.” If those statutory duties can be limited to wages, hours and working conditions, Justice Stephen Breyer suggested to Frederick, “those three terms have a hundred years of history written around them. It shouldn’t be hard to administer and should keep the things like lobbying and so forth out of it.”

A group of Harvard professors from across disciplines discussed the challenges, impacts, and implications of the #MeToo movement at a panel Monday at the Radcliffe Institute for Advanced Study’s Schlesinger Library...[Jeannie Suk] Gersen, a law professor, spoke about the role of due process in adjudicating sexual assault cases, pointing to the need for clarity in definition and accountability for sexual assault charges. “Due process is for innocent and guilty alike,” she said. “I am so heartened that the conversation has included actual real discussion about what we mean when we say sexual harassment, and what that behavior entails.”

The National Labor Relations Board is taking a redo on its controversial decision to limit joint employer liability for affiliated businesses, thanks to ethics questions surrounding Member William Emanuel’s (R) participation in the case. The board announced today that it has vacated its decision in Hy-Brand Industrial Contractors...“This was one of the most important issues that this board was going to deal with and everyone knew that his firm was involved,” former NLRB member Sharon Block told Bloomberg Law of Emanuel’s participation in the case. The board “broke precedent in dealing with an issue of this magnitude” by taking up the joint employment question in a case in which it could have been avoided, Block added.

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.”