Media Mentions

Early this week, James Clapper, the head of U.S. intelligence, complained to journalists that Edward Snowden’s whistleblowing (my word, not Clapper’s) had sped up wider use of encryption by seven years. That’s great. Now let’s speed it up even more. ...Given these potential problems, it’s tempting to be sympathetic with the law enforcement position on encryption—but history is clear that we can’t trust the government in this arena. As Harvard law professor Yochai Benkler wrote recently, our law enforcement and national security institutions have routinely—and with the impunity so routinely assumed by the rich and powerful—lied, broken laws, and thwarted oversight. “Without commitment by the federal government to be transparent and accountable under institutions that function effectively, users will escape to technology,” he wrote, and as a result we are learning to depend on technology.

These are interesting times for the founding fathers. We’re amid a wholesale rethink of their legacies as they relate to slavery, especially on American campuses. It’s true, of course, of Jefferson: author of the Declaration of Independence and slave-owner. As Annette Gordon-Reed and Peter Onuf write, “It is impossible to understand 18th and 19th century America, and the country the United States has become, without grappling with him and his legacy.” They do so in their new book, “Most Blessed of Patriarchs: Thomas Jefferson and the Empire of the Imagination.”

IOSCO and PIFS-HLS jointly developed a two-phase program aimed at offering IOSCO members an executive education program that is tailored to, and exclusively for, regulators of securities markets. The first phase will cover the fundamentals and intricacies of securities regulation and compliance while the second phase will examine current and future regulatory challenges and emerging issues. This new program is part of IOSCO´s ongoing capacity building efforts and is in response to the needs and growing demands for enhanced education and training of regulators of securities markets globally. ...Prof. Hal S. Scott, Nomura Professor and Director of the Program on Financial Systems at Harvard Law School, said, “We are excited to work for the first time together with a global standard setter in shaping the securities regulators of tomorrow and increasing and enhancing their regulatory skills in protecting investors and ensuring the integrity of the capital markets and strengthening financial stability.”

Was a Harvard Law School student’s remark to a “smelly” visiting Israeli dignitary anti-Semitic—or simply bizarre?  ...“I think what he said was clearly offensive, and he has no right to make a statement in public and have his name remain confidential,” Charles Fried, Beneficial Professor of Law at HLS, told The Daily Beast. “But I’m glad he’s not being disciplined because that would make us look like Erdogan,” he added, referring to the former Prime Minister of Turkey, where speech is not protected under law. 

Years before the government shutdown he helped engineer, and way before he became the most unpopular man in the Senate, Ted Cruz stood among friends during a visit to Harvard Law School. ... Charles Fried, a Harvard law professor and faculty adviser to the Federalist Society who had served as President Reagan’s solicitor general, said the society “made students who didn’t have some standard set of [liberal] beliefs feel less beleaguered.” “If you put down on your CV that you were a member or an officer of the Federalist Society, that’s a signal where your political heart beats,” Fried said.

An op-ed by Noah Feldman: The U.S. government claims the right to eavesdrop at-will on your e-mail when you're writing to someone who lives abroad. Now it wants to be able to use those e-mails to convict you of a crime. That's what's happening to Aws Mohammed Younis al-Jayab -- and he’s not the only one. The legal basis is the 2008 Amendment Act to the Foreign Intelligence Surveillance Act, which says the government may monitor communications from within the U.S. to foreigners abroad, or vice versa, without first obtaining a warrant to authorize the surveillance.

An op-ed by Noah Feldman:  Dr. James Tracy is certainly a crank and also seems to be a terrible person. But Florida Atlantic University violated his academic freedom when it fired him from his tenured professorship in January, and he should win the lawsuit he’s just brought against the school. Academic freedom isn’t absolute, but it certainly extends to a professor’s outside writing on topics of national importance. The stakes of his case are therefore high -- and not just for professors who (ahem) write about politics while still performing their day jobs as teachers and researchers.

A decade ago, if a politician had argued before the Supreme Court that he had a First Amendment right to trade political favors for a Rolex watch, his lawyers may have feared for their professional reputations. But that argument is one basis for ex-Virginia Governor Bob McDonnell’s appeal of his eleven-count corruption conviction in McDonnell v. United States, which the Court hears in oral arguments on Wednesday...McDonnell’s free-speech argument shows how thoroughly the First Amendment has been reinterpreted in recent years. In the mid-20th century, the amendment often protected dissidents and religious minorities from government persecution. Now, it’s frequently invoked by business interests to accomplish goals such as establishing the right of corporations to spend unlimited amounts in elections, or preventing the government from requiring graphic warning labels on cigarette packaging. Indeed, a 2015 paper by Harvard Law professor John Coates argued that “corporations have begun to displace individuals as the direct beneficiaries of the First Amendment.”

An op-ed by Nancy Gertner and Jack Corrigan. The Globe reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed.

An op-ed by Noah Feldman. Congratulations! At long last, the Supreme Court has made it clear that the government can’t punish you for exercising free-speech rights without speaking. In a decision that should count as a blow for constitutional common sense, the court held that the government’s motive in attempting to suppress free speech is what matters, not whether a "speaker" actually said anything.

An op-ed by Noah Feldman. When is a jury trial over? That's a mildly metaphysical question that the Supreme Court will consider on Tuesday in a case where the judge dismissed the jury and then changed his mind. He caught the jurors before they left the building and called them back to consider their verdict again. On the surface, the question may seem trivial. But it's actually profound -- because the answer reveals whether you think a trial is a magic, quasi-divine roll of the dice, as our ancestors believed, or a pragmatic method to resolve disputes, the modern view.

Approximately 20,000 people behind bars in the United States have been wrongfully convicted. One in 25 defendants sentenced to death is later shown to be innocent. These shocking statistics are from the National Registry of Exonerations and the Proceedings of the National Academy of Sciences...The American justice system is not afraid to take a long, hard look at itself and do something about it. Case in point: the office of Brooklyn District Attorney Ken Thompson...Ronald Sullivan, Clinical Professor of Law at Harvard, said that Ken Thompson really has started a national movement. Sullivan said if you look at the Brooklyn data in terms of both exonerations, and in terms of the number of conviction integrity units around the country, it really has awakened the nation.

Last week, ride-sharing pioneer Uber announced it was settling a pair of major class-action lawsuits brought by Uber drivers in California and Massachusetts. The drivers claimed Uber had “misclassified” them as independent contractors, rather than employees, in order to save money. The suit was seen as one of the biggest threats to Uber’s business model to date...Benjamin Sachs, a labor law professor at Harvard Law School, said the drivers association could probably withstand an 8a2 charge if it didn’t have any real power in its dealings with Uber management. “If it’s just a substitute for a suggestion box, and if it’s not a meaningful back and forth, then it might escape 8a2 scrutiny,” Sachs said.

When a Harvard Law School student asked a visiting Israeli dignitary why she was “smelly” at a public event, it generated widespread controversy and renewed an intense debate over free speech on campus. The student—whose name was initially concealed, but has since been identified as third-year Palestinian Law student Husam El-Qoulaq—directed the question to former Israeli foreign minister Tzipi Livni at an event on April 14...El-Qoulaq said his words were not intended to be anti-Semitic. “It just felt very surreal watching people in that room treat her [Livni] as an authority on peace. The conversation had already gotten so absurd, I figured I would just add a little of my own nonsense,” he said. “I obviously regret it. I had no idea my words could be interpreted the way they have.” He published an anonymous apology in the Harvard Law Record, and several Jewish students and alumni later penned a letter in his defense. But discussion of the incident did not end there—it had already sparked a robust debate about accountability and free speech.

Three blind law graduates filed a class action against BARBRI, the largest bar exam preparation course in the nation, claiming it is inaccessible to blind people. The plaintiffs alleged in their complaint that Dallas-based BARBRI Inc. violated the federal Americans With Disabilities Act and its similar Texas statute "by maintaining barriers to the accessibility of its services for blind students who use talking screen reading software and failing to make reasonable accommodations or provide auxiliary aids or services," said the April 25 complaint in Stanley v. BarBri Inc., filed in the U.S. District Court in Dallas...The plaintiffs are: Claire Stanley, an aspiring civil rights lawyer for people with disabilities, who failed to pass the Maryland bar exam in July 2015 after using BARBRI; Derek Manners, a third-year student at Harvard Law School, who will take the bar exam in July and then work for a law firm this fall; and Christopher Stewart, a third-year student at the University of Kentucky College of Law, who will take the bar in July and become a federal law clerk. Manners and Stewart plan to use BARBRI.

...This week, Harvard Law School (HLS) will host the decennial academic conference of the World Trade Organization (WTO), bringing together scholars, government officials, legal practitioners, and representatives from around the world to discuss the present challenges facing the WTO and the future of trade. The WTO, which began in 1995, oversees the crafting and implementation of multilateral trade agreements and rules, monitors their compliance, and resolves disputes among 162 countries. The lead organizer of the event, Mark Wu ’96, is an assistant professor at HLS who specializes in international economics and trade law. He spoke with the Gazette about the most pressing issues affecting trade and the WTO, and how he sees the future of trade policy.

An op-ed by Noah Feldman. Americans think they have a God-given right -- or least a constitutional one -- to the details of celebrity sex lives. Yet disclosures of private information can be sanctioned by law after the fact, as Gawker learned recently when Hulk Hogan recently won a huge verdict against it for publishing his sex tape. There’s another way to deal with undesirable speech. In the UK, the Supreme Court heard arguments last week in the case of a major celebrity who has used the courts to block publication of an article alleging that his spouse was involved in a threesome outside their well-publicized marriage. The British way shows impressive respect for privacy. At the same time, the Internet has made it seem obsolete because the celebrity’s name can be found online after a few Google searches.

A new short film produced in partnership by the Harvard Food Law and Policy Clinic (FLPC) and Racing Horse Productions spotlights how the confusion around expiration date labels contributes to food waste in America. "EXPIRED? Food Waste in America" looks at the specific example of milk in Montana, where the state law requires the sell-by date on all milk to be no later than twelve days after pasteurization. "After the sell-by date passes, the milk may not be sold or donated. As a result of the law, thousands of gallons of milk have been thrown away, and milk prices in the state have risen," writes Harvard Law Today...According to FLPC Director Emily Broad Leib, "date label confusion harms consumers and food companies, and it wastes massive amounts of food, which harms the planet.

Dallas-based BarBri Inc. continues to violate the Americans with Disabilities Act by failing to properly accommodate blind law students who use BarBri’s online and other services to prepare for the bar exam, a lawsuit filed Monday in Dallas federal court claims. In a class action lawsuit, three named plaintiffs are asking the U.S. District Court for the Northern District of Texas to order BarBri, the largest bar exam preparation course provider in the country, to adjust its services to fully accommodate blind law students and to compensate the dozens to hundreds of affected blind students that have each paid thousands of dollars to use BarBri’s prep courses. The three named plaintiffs, Claire Stanley, Derek Manners and Christopher Stewart, plan to take the July bar exam, which they need to pass to become licensed lawyers...Manners, who received his Bachelor’s degree at the University of Texas, will graduate from Harvard Law School this spring.

It has become a truism that the American political system is suffering from dysfunction. But weirdly, even the insurgent candidates, Donald Trump and Bernie Sanders, don’t talk much about how they would fix it. This is a populist insurgency without a clear manifesto. So it’s refreshing to hear Rep. John Sarbanes (D-Md.) present a detailed action plan to try to repair what’s broken...Sarbanes presents his proposal in the current issue of the Harvard Journal on Legislation. It’s a simple idea: Congress should free itself from big-money, special-interest domination by encouraging an alternative system of small contributions that would be matched with public funds.

An op-ed by Noah Feldman. The Washington Redskins are headed for the Supreme Court – in the guise of a dance rock band called The Slants. The Department of Justice has asked the court to review a lower court's holding that the Patent and Trademark Office violated the band’s free-speech rights by denying it a registered trademark on the grounds of offensiveness. The justices are likely to take the case – which would mean that next year they will effectively decide whether the National Football League franchise can also be denied trademark registration. It also means that the question of what to do about names that offend some listeners is going to get its day in court.