Media Mentions

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim...If the conservative justices need any more convincing, they may be swayed by a brief filed by Charles Fried, an eminent libertarian scholar at Harvard. Fried, who co-authored the brief with Robert Post, a prominent liberal law professor at Yale, notably served four years as solicitor general in the Reagan administration.

In the days before the 2016 election, Donald J. Trump expressed “great respect” for the “courage” of the F.B.I. and Justice Department for reopening the investigation into Hillary Clinton’s private email server. Sixteen months later, he has changed his mind. The agencies have been “disgraceful” and “should be ashamed,” President Trump declared Friday...At the start of his administration, Mr. Trump targeted the intelligence community for his criticism. But in recent months, he has broadened the attacks to include the sprawling federal law enforcement bureaucracy that he oversees, to the point that in December he pronounced the F.B.I.’s reputation “in tatters” and the “worst in history.”...“I can’t think of another time when this has happened,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush.

As President Trump hammers away at the Justice Department’s credibility, one voice has been notably absent in the department’s defense: the one at the top. The attorney general, Jeff Sessions, has been largely quiet and even yielding as the president leads the most public and prolonged political attack on the department in history, a silence that breaks with a long tradition of attorneys general protecting the institution from such interference. “What is unusual is the F.B.I. and the Justice Department being attacked, the president leading the charge and the attorney general missing in action,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “Why isn’t he sticking up for the department?”

Artificial intelligence is taking the healthcare industry by storm as researchers share breakthrough after breakthrough and vendors quickly commercialize advanced algorithms offering clinical decision support or financial and operational aid...Establishing a high level of trust in the data used to fuel machine learning tools will be essential for ensuring that the resulting care quality is high and patients are receiving the help they need to manage chronic conditions or acute illnesses. “We are increasingly using very complicated algorithms and cutting edge artificial intelligence to predict and guide health care, such as recommending a certain dose of insulin to a diabetic patient,” says I. Glenn Cohen, Faculty Director at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

...As the Trump presidency stumbles into its second year, Robert Mueller, the powerful independent prosecutor investigating the president’s Russia ties, appears startlingly close to concluding a case that could offer damning evidence that Trump or his subordinates committed an obstruction of justice in the Russia affair, former prosecutors and Washington insiders say...“It seems clear that Mueller is coming to the end of the obstruction investigation, but it’s impossible to know where he stands on the collusion investigation and what his timeline would be,” Alex Whiting, a Harvard Law School professor specializing in criminal prosecution issues, said of Mueller.

The Harvard Law Review elected second-year Law student Michael Thomas [`19] the 132nd president of the journal last week. Thomas, who was born in St. Vincent and the Grenadines, grew up in Brooklyn, N.Y. and graduated from Princeton University in 2012 with a degree in sociology. Between studying at Princeton and at Harvard Law School, Thomas worked in the office of Counsel to the Mayor in New York City and served as a summer associate at Paul, Weiss, Rifkind, Wharton & Garrison last year. Thomas succeeds ImeIme A. Umana [`18], the publication’s first black woman president. In an email, Umana praised her successor and wrote she thinks the Law Review is in good hands under Thomas. “The Law Review is lucky to have Michael at the helm. He is an incisive and thoughtful editor. More importantly, he is a compassionate peer,” she wrote.

Precision medicine and artificial intelligence (AI) are complicated by design: Both scientific fields rely on extreme specificity, complex equations, and forces that can’t be seen. As both fields begin to alter the healthcare landscape, they could plant a number of legal landmines. Can algorithms or biomarkers be patented? Will centers be able to access the large data sets they need to perform accurate AI? What control over their data should patients have? And how will practice be affected by differing legal frameworks in the US and Europe? A new collaborative initiative between Harvard Law School and the University of Copenhagen plans to explore those issues. Recently announced by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard and the Center for Advanced Studies in Biomedical Innovation Law (CeBIL) at Copenhagen, the effort will be called the Project on Precision Medicine, Artificial Intelligence, and the Law (PMAIL). It will be led by Harvard Law School professor I. Glenn Cohen.

An op-ed by Cass Sunstein. In the last 35 years of U.S. regulatory policy, both Democratic and Republican presidents have agreed that cost-benefit analysis is an excellent idea. For that reason, it was welcome news this week when the Federal Communications Commission, led by Chairman Ajit Pai, voted to create an Office of Economics and Analytics, and to incorporate its work into the agency's decision-making. This development should have long-term benefits for communications policy in the U.S.

An op-ed by Alex Whiting and Ryan Goodman. The New York Times is reporting additional details about the drafting on Air Force One of the false statement that Donald Trump, Jr. provided to the press about the June 9, 2016 Trump Tower campaign meeting with Russians, as well as a previously undisclosed conversation among the President and his aides the following day concerning the potential risks and ramifications of the false statement. One participant in this later conversation will reportedly reveal everything he knows to Special Counsel Bob Mueller—that is Mark Corallo, who served as a spokesman for Mr. Trump’s legal team at the time.

Give Tavis Smiley this much: He isn’t slinking away. Unlike other prominent men who’ve been publicly accused of sexual harassment, Smiley is doing what he’s always done — talking. Almost incessantly, in fact. Since his talk show was dropped by PBS amid accusations of workplace misconduct, Smiley has given multiple interviews professing his innocence...“You can’t say that women are right and truthful and men are liars,” said [Stephanie] Robinson at one point. “And I think that is what is happening in the court of public opinion. It’s problematic that we allow people to come out and say whatever they want to say publicly about someone, destroy someone’s life and family and they don’t have to put more out on the table to speak to the credibility and veracity” of their allegations.

Republican antics concerning the memo drafted by House Intelligence Committee Chairman Devin Nunes (R-Calif.) threaten to damage our national security, the FBI and the entire congressional oversight process. Meanwhile, President Trump faces a constant drip-drip-drip of new revelations giving heft to a possible obstruction-of-justice charge...Taking a step back, the Nunes lunacy concerning release of the memo may well do more harm to Republicans and implicate both the White House and Nunes himself. Constitutional lawyer Laurence H. Tribe says, “Both the President’s release of the memo despite the warning of FBI Director [Christopher] Wray and the actions of Nunes in concocting a phony smear of Rosenstein seem to me to be important parts of an ongoing conspiracy to obstruct justice.”

The story of President Trump's energy policy centers on removing regulations. He says he's good at it — even the best. "We have eliminated more regulations in our first year than any administration in history," Trump said in his first State of the Union address. That's not necessarily true. But in some ways, it's not necessarily false...Much of the focus has been on EPA, where Pruitt has proved a deft field general, said Jody Freeman, another Obama climate adviser. After a delayed start, he's now staffed up with political pros and EPA veterans familiar with the rules they're tasked with changing or undoing..."Scott Pruitt has been among the most disciplined, so that's why people are really worried," said Freeman, who is now at Harvard Law School. "There's the contrast — Rick Perry over there shooting from the hip, and here's Scott Pruitt being careful."

An op-ed by fellow Francis Shen. As final preparations are made for the Super Bowl Sunday, traditional excitement for the game is being countered by criticism about player safety...As a professor whose research is devoted to the intersection of neuroscience and law, I have often found myself at the heart of these football debates. I have testified multiple times in front of the state Legislature, and teach a seminar devoted entirely to “sports concussions and the law.” Given this background, I often get surprised looks when I defend the value of collision sports. Some find it hard to reconcile my love of the brain with a policy stance that they think promotes brain damage. But I think you can embrace neuroscience and the NFL.

The Justice Department has effectively shuttered an Obama-era office dedicated to making legal aid accessible to all citizens, according to two people familiar with the situation. The division, the Office for Access to Justice, began as an initiative in 2010 under former Attorney General Eric H. Holder Jr. to increase and improve legal resources for indigent litigants in civil, criminal and tribal courts...The office gained prominence when the Harvard Law professor Laurence H. Tribe became a senior counselor, a position created by the Obama administration.

It’s not easy to feel good watching the NFL. CTE may or may not be destroying players’ lives as they play their hearts out for the fans...Is it ethical to watch the Super Bowl at all?...[Glenn Cohen]: Yes. But while watching fans should consider what they can do to help protect and promote the health of NFL players. As you know, my team released a major 493 page report that received national coverage “Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations.” In that report we consider the ethical role of 20 separate stakeholders in promoting and protecting NFL player health and make.

An op-ed by Noah Feldman. It’s highly unusual for the FBI director to confront the president publicly -- because technically, the director works for the president. That’s why Christopher Wray generated immediate attention and controversy Wednesday for the bureau’s open statement urging Donald Trump not to release the classified Republican House committee memo that reportedly criticizes efforts by the Federal Bureau of Investigation to obtain a surveillance warrant on a former Trump campaign adviser.

An op-ed by Toby Merrill and Eileen Connor. For years, predatory for-profit colleges have exploited the promise of higher education, cheating students and leaving them in mountains of debt they never should have had. Making it worse, the industry has been enabled by a Department of Education that has made excuse after excuse about why it can not step in to help students. Last week, the Education Department ran out of excuses.

My guest for this episode of Fast Forward is Lawrence Lessig, a professor of Law and Leadership at Harvard University, where we recorded the show. In 1999, he wrote Code and Other Laws of Cyberspace; he has since updated that book and written many others. He's also the co-founder of Creative Commons and made a run for president in 2016, which he sadly did not win. He's also the creator of the Lessig Method of Presentation. I encourage you to Google it and look at the YouTube videos; it will change the way you give presentations. I know it changed the way I give mine.

The Education Department’s plan to provide only partial loan forgiveness to some students defrauded by for-profit colleges could reduce overall payments by about 60 percent, according to a preliminary analysis obtained by The Associated Press...The department said some students will now be getting only partial loan forgiveness to make the process fair and protect taxpayers from excessive costs...Eileen Connor, a litigator at Harvard University’s Project on Predatory Student Lending, which has represented hundreds of defrauded Corinthian students, criticized the projections. “I think that is terrible. It’s another example of the Department of Education picking the side of fraudulent schools and not doing right by those who have been hurt by them,” Connor said.

An op-ed by Jack Goldsmith. Over the weekend some conservative commentators pushed back on my tweet-claim that President Trump has “threaten[ed] DOJ/FBI over and over in gross violation of independence norms.” The Justice Department and its component the FBI “aren’t independent, nor should they be,” argued Sean Davis of The Federalist. “Few things are more damaging to a democratic republic than men with guns and badges and wiretaps believing they are accountable to no one,” he added. Or, as Kurt Schlichter of Townhall stated more succinctly, “When did bureaucrats become ‘independent’ of elected officials. Never.”

An op-ed by Noah Feldman. By now we’re accustomed to hearing President Donald Trump complain that the Department of Justice and the Federal Bureau of Investigation don’t do what he tells them. The basis for his frustration is a serious mismatch between the U.S. Constitution as it’s written and the unwritten constitutional norms that Trump is blamed for breaking. The written Constitution puts the Justice Department and the FBI squarely under the president’s control. The unwritten, lower case “c” constitution says that the president may not politicize criminal investigations and prosecutions.