Media Mentions

An op-ed by Nancy Gertner. Just when we have finally come to see the opioid crisis as both a public health and public safety problem, Governor Charlie Baker and others would have us careen in the opposite direction. Take the case of Manuel Soto-Vittini of Peabody. Salem Superior Court Judge Timothy Feeley sentenced Soto-Vittini to probation for possession with intent to distribute 15 grams of heroin and a small amount of cocaine. Soto-Vittini had no criminal convictions, just a dismissed drug-possession charge from a decade ago, when he was 22.

The New York Times reports on an encounter between President Trump and Attorney General Jeff Sessions at Trump’s Mar-a-Lago property in March 2017...If the report is accurate, Mueller is looking at a possible obstruction of justice claim based on conduct over a substantial period of time — from Trump’s failed effort to extract a pledge of loyalty from former FBI director James B. Comey, to asking Comey to lay off fired national security adviser Michael Flynn, to Comey’s firing, to Trump holding a threat of imaginary “tapes” over Comey’s head, to drafting on Air Force One a phony explanation of the June 2016 Trump Tower meeting. Pushing for Sessions to reverse his recusal, like any other single action, is unlikely to support an obstruction charge...The fight over Sessions’s recusal marks another instance in which the White House has reached down into the Justice Department in ways no other administration has done. “Asking Sessions to ‘unrecuse’ himself despite his conflict of interest, in palpable violation of the Department of Justice recusal rules, can only have one purpose: the corrupt obstruction of justice,” says constitutional scholar Laurence Tribe.

An op-ed by Jonathan Zittrain. Last month the F.B.I. issued an urgent warning: Everyone with home internet routers should reboot them to shed them of malware from “foreign cyberactors.” Putting aside the strangeness that for once power-cycling a device could perform an effective exorcism upon it, the episode reveals more than just the potential for disruption of internet access for people using equipment they never expect to have to physically manage. It also underscores how unprepared we are to manage downstream-networked devices and appliances — the “internet of things” — that are vulnerable to attack. A longstanding ethos of internet development lets anyone build and share new code and services, with consequences to be dealt with later. I call this the “procrastination principle,” and I don’t regret supporting it. But it’s hard to feel the same way about the internet of things.

In a few short decades, Frida Kahlo has gone from mainly known as the wife of of prominent Mexican painter Diego Rivera to becoming a pop culture icon. These days, she has far surpassed her husband’s fame. Converse, Forever 21 and Zara have sold shoes and clothes with Frida’s image. In a few short decades, Frida Kahlo has gone from mainly known as the wife of of prominent Mexican painter Diego Rivera to becoming a pop culture icon. These days, she has far surpassed her husband’s fame. Converse, Forever 21 and Zara have sold shoes and clothes with Frida’s image...The toymaker Mattel launched the Frida Kahlo Barbie as part of its “inspiring women” series. But some of Frida’s descendants say the doll betrays Frida’s very essence by eliminating her signature unibrow, lightening her eyes and thinning her hips. “The question really is who controls how people are interpreted. And when you can be made into a cultural icon,” says Rebecca Tushnet, who teaches intellectual property law at Harvard University.

President Donald Trump might be dead certain that he has the "absolute right to PARDON myself," but experts are divided. No American president has ever tested the idea. Nor has a court has ever ruled on the question of whether such an extreme action is allowed under the U.S. Constitution. But 44 years ago, when the Justice Department was faced with the possibility that President Richard Nixon might try to pardon himself, a top lawyer in the department in a memorandum to the deputy attorney general said the answer to that question was an unequivocal "No."...Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School: "The constitutional arguments about self-pardoning are ... complex, and no one should have strongly held views about the correct analysis," Tushnet told CNBC.

...It’s impossible to expect a true sense of privacy among 55,000 people, but users and bioethicists alike have lingering questions about Facebook’s use of data. “How much of Facebook is truly closed?” asked Glenn Cohen director of Harvard’s Petrie-Flom Center for Health Law, Biotechnology and Bioethics. “How visible are your posts? Could someone take a screenshot of something you said and repost it?”...Cohen is also concerned about the possibility of so-called anonymized data being used for commercial reasons. Imagine what kind of connections future data miners could make based on your social media posts, fitness trackers, voting record, purchasing history and perhaps even genetic data.

You may think of your virtual assistant as a kind of trusty companion, giving out weather forecasts, recipes, news and all sorts of ephemera on request. But these devices also pose a host of security risks that render users vulnerable to hacks, eavesdropping, data siphoning and other threats that might not be immediately apparent. That danger was highlighted Thursday when Amazon.com Inc. said one of its Echo home speakers mistakenly recorded a private conversation and sent it to someone in the owners’ contact list...Don’t buy one at all. “That is my personal solution,” says Bruce Schneier, a cybersecurity expert who lectures on public policy at Harvard University. For Mr. Schneier, the real threat to our privacy is companies like Google and Amazon, which are also vulnerable to hacks and whose privacy policies can be vague and hard to decipher.

Today, the European Union cements its status as the global leader in data privacy. The E.U.’s sweeping new data privacy law is taking effect, ushering in new restrictions on what companies can do with people’s personal data and setting tough penalties for those that break the rules...The European law, known as the General Data Protection Regulation, or GDPR, requires companies that collect data on E.U. citizens to use simple language to explain how they handle it. Companies must get explicit consent from consumers before doing anything with their information and allow them to request copies of their data or delete it entirely. The law also mandates that companies report data breaches on strict timelines. Fines for violations could cost them 4 percent of their global profits...What’s more, the GDPR’s ripple effects in the United States may have gone far enough, said Jonathan Zittrain, director of the Berkman Klein Center for Internet and Society at Harvard. “In some ways Europe may be doing the job for us,” he said, “since companies above a certain size will be adopting GDPR-friendly practices for all users, not just Europeans.”

Officials in Cambridge have tapped the former chief justice of the state’s highest court to review the Police Department’s internal probe of the forcible arrest last month of a visibly distressed black Harvard University student who was naked and allegedly hallucinating on drugs. In a statement Friday, City Manager Louis DePasquale and Police Commissioner Branville Bard Jr. announced that former chief justice Roderick L. Ireland of the Supreme Judicial Court will conduct “an independent review of the Police Department’s internal review associated” with the April 13 apprehension of Selorm Ohene...City officials said the Police Department’s internal review of the incident is ongoing, and that once it’s completed, Ireland will “review the findings and issue his report.” Ireland’s findings will be made public, but there’s no timetable for completion. “No charges have been filed against the student,” the release said. Ohene’s attorneys, Harvard Law professors Ronald S. Sullivan Jr. and Dehlia Umunna, also weighed in Friday, saying in a separate statement that they were “delighted to learn that no charges will be filed” against their client.

A federal court has ruled that the Education Department violated privacy laws with regard to students defrauded by the Corinthian for-profit college chain. In a break with Obama administration policy, Education Secretary Betsy DeVos announced in December that some students cheated by the now-defunct schools would only get a part of their federal student loan forgiven. In order to determine how much to forgive, the agency analyzes average earnings of graduates from similar programs. But a California district court ruled late Friday that the department's use of Social Security Administration data in order to calculate loan forgiveness violates the Privacy Act. The court ordered that the Education Department stop the practice and stop debt collection from these students...The decision marks an important victory for students challenging the partial loan forgiveness rule. Toby Merill, director of the Project on Predatory Student Lending at Harvard University, which is representing the students, hailed the decision. "The notion that students got anything other than negative value from Corinthian has been roundly disproved by student experience and the judgment of employers and the legitimate higher education sector," Merill said in a statement."

As his deputy headed to the White House last week to handle a high-profile confrontation over an FBI informant, Attorney General Jeff Sessions was en route to a law-enforcement summit in Bulgaria, followed by meetings with the prime minister to talk about terrorism and border security. A few days later, when Deputy Attorney General Rod Rosenstein hosted an unusual follow-up briefing for lawmakers to discuss intelligence material on the informant, Mr. Sessions was meeting with the interior minister of Croatia about Justice Department training programs that help overseas police and prosecutors fight corruption. The split-screen display of the two most senior Justice officials stems from Mr. Sessions’ recusal from any investigation into President Donald Trump’s 2016 campaign, having been a high-profile backer of the candidate...“If Sessions stands up too forcefully to the president, he risks his job,” said Harvard law professor Jack Goldsmith, an official in the George W. Bush Justice Department. “But at some point it should become intolerable for a person of integrity to work for a president who is so hostile to him, the institution he leads and its values.”

An op-ed by Benjamin Sachs. NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines. The owners did provide the players with an alternative, of sorts: If a player does not wish to stand and salute the flag, he can stay in the locker room and wait for the anthem to end. This new league policy is meant to enforce a particular vision of patriotism, one that involves compliance rather than freedom of expression. The policy is also illegal — for a host of reasons.

As the Federal Energy Regulatory Commission prepares to revive a review of the implementation of the Public Utility Regulatory Policies Act, energy industry experts say that FERC might make some regulatory updates this time around, which could end up making it harder for renewable facilities to sell power to utilities under the law...The most substantive possible PURPA changes, however, would need to come from Congress, which last enacted substantive amendments to the law in the 2005 Energy Policy Act. “The fundamental goal of the law is to encourage the development of these qualifying facilities that Congress outlined, and FERC does not have the authority to rewrite that goal,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, in a phone interview Tuesday. “That goal is embedded in the law.”

Do we really need to litigate every school dress code in federal court? The ACLU and the National Women’s Law Center think so. They argue that rules against inappropriate attire perpetuate “gender stereotypes” in violation of Title IX, the federal law that prohibits sex discrimination in education. Since its passage in 1972, Title IX has unleashed a flood of opportunity for women and girls in the classroom and on the playing field...In short, Title IX has been an incredible success. Unfortunately, however, the law that was intended to break down barriers to opportunity is now being misused to change the way students and teachers think about gender generally...As such, Melnick joins a growing chorus of principled liberal voices, including feminist scholar Laura Kipnis, former federal judge Nancy Gertner, legal affairs reporter Stuart Taylor, and Harvard Law professor Jeannie Suk, who have opposed the use of Title IX to chill speech, deny due process, and prevent educators from resolving controversial issues without litigation.

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants. “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.” The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

While President Trump demands an investigation into the investigators investigating the investigation, the clamor to impeach grows evermore fervent in some quarters. Dahlia Lithwick explores the legal and constitutional questions surrounding impeachment with constitutional scholar and Harvard Law Professor Laurence Tribe, co-author of To End a Presidency: The Power of Impeachment.

An op-ed by Tali Sharot and Cass R. Sunstein. Suppose you need to see a dermatologist. Your friend recommends a doctor, explaining that “she trained at the best hospital in the country and is regarded as one of the top dermatologists in town.” You respond: “How wonderful. How do you know her?”Your friend’s answer: “We met at the Republican convention.” Knowing a person’s political leanings should not affect your assessment of how good a doctor she is — or whether she is likely to be a good accountant or a talented architect. But in practice, does it?

An op-ed by Noah Feldman. The best way to understand why a federal district court was wrong Wednesday, when it held that Twitter users have a constitutional right not to be blocked by President Donald Trump’s personal account, is to consider the lawsuits that will come next. I can point to a variety of reasons the decision was wrong, some of which I’ve already explored in an earlier column. It should be overturned on appeal. But chief among the problems is that the government doesn’t ultimately control what the court called the “interactive space” of replies to the president’s tweets — Twitter Inc. does.

It only took a single tweet—amplified by the #MeToo movement—to force a national debate about how large law firms force associates and other workers address alleged workplace misconduct...“We have a lot of concerns about people not knowing what they’re getting themselves into when they sign these contracts, because they feel like they don’t have any option,” said Molly Coleman, a first-year law student at Harvard Law School who helped organize a campaign scrutinizing their use.

The Justice Department held two unprecedented, highly controversial briefings for two groups of lawmakers concerning an ongoing criminal and counter-intelligence investigation....According to constitutional scholar Laurence Tribe, the sessions “exemplify the slow but steady collapse of the most basic norms of investigatory, prosecutorial and judicial independence and display Trump doing in plain sight what Richard Nixon worked so hard to hide from public view.” He explained, “What disturbs me most is that not even sacrificing our counterintelligence shield against foreign adversaries with no factual basis is beyond this president — and that not even such transparent treachery is likely to be recognized by the public for the betrayal it clearly is once Trump enlists his Fox allies to label responsible investigation as ‘Spygate.’ ”

If you wanted to measure just how different the Supreme Court is with the addition of Neil Gorsuch instead of Merrick Garland — who should be sitting in Justice Gorsuch’s seat but for the outrageous machinations of Senate Republicans — read the court’s Monday ruling in Epic Systems v. Lewis...Justice Gorsuch appears to imagine workers and employers negotiating under Marquess of Queensberry rules, engaged in a fair and equal face-off over working conditions and terms of employment. It’s a neat little story, and, “If you lived on the moon, with no knowledge of the realities of labor relations or the politics of class actions, you’d think it was obviously correct,” as Harvard law professor Noah Feldman wrote.