Media Mentions

An op-ed by Cass Sunstein: Employers, like most people, tend to trust their intuitions. But when employers decide whom to hire, they trust those intuitions far more than they should.

Are you having a crushingly tedious day at work? Try playing Google autocomplete. Type the start of a question into the world’s most trusted search engine, and marvel as the aggregated curiosity of the global crowd is marshalled to anticipate your inquiry. ...Professor Jonathan Zittrain of Harvard Law School has since described the potential for “digital gerrymandering” — tech corporations influencing the outcome of elections by, say, sending voting reminders to some users and not others. Facebook and Twitter already know your political leanings. Digital gerrymandering is possible whenever personalised information is served up by an intermediary, and it can tilt the game when margins are narrow.

A bipartisan group of congressional members and candidates is filing a federal suit Friday against the Federal Election Commission, seeking to force the agency to act on a complaint it brought against 10 super PACs in July. ... The powerhouse legal team working on the case — which includes Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush — faces an uphill fight. Half a dozen federal appellate courts have held that contribution limits cannot be placed on groups doing independent spending.

An op-ed by Noah Feldman: It’s easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there’s a deeper point that matters more and shouldn’t be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

When the Supreme Court announced its ruling last June that the Constitution guarantees the right to same-sex marriage, Diann Rust-Tierney was sitting in the front of the ornate courtroom in Washington D.C., waiting to hear the result of a death penalty case. ... “The stars seem to be lining up in a way so that the court is going to have to grapple with it,” said Robert Smith, a researcher with Harvard Law School’s Fair Punishment Project. “It would be unfathomable 10 or 20 years ago that this issue would be so debatable—and yet, today, the demise of the death penalty feels inevitable.”

An op-ed by Noah Feldman: Striking a blow against popular sovereignty by referendum, the U.K. High Court of Justice held Thursday that Britain can’t leave the European Union without an act of Parliament. Because British constitutional thought is so different from its U.S. and European equivalents, the decision will be difficult for the U.K.’s Supreme Court to overturn. It’s now much more likely than not that the courts will save Britain from its ill-conceived Brexit vote. The people may have spoken -- but the court said that wasn’t good enough.

An article by Heidi K. Gardner,  Harvard Law School Center on the Legal Profession:  Recent reports of the persistent pay gap between men and women law firm partners have prompted debates about the role of origination credits in that inequity. Thoughtful scholars, law firm leaders and partners, and consultants to the industry are typically careful not to point fingers or suggest that the bias is intentional. But the statistics can’t help but make a number of people uncomfortable or defensive.  Until now, we have relied mostly on interviews, self-reported surveys, and anecdotal evidence about the root causes of the inequitable distribution of origination credits in so many firms.  Those who are invested in the status quo point to the potential subjectivity in such data sources as a way to discredit the findings.  Even those who are keen to change the system are often at a loss about how to affect change. My empirical research at Harvard Law School’s Center on the Legal Profession gives some new insights into the foundation of this problem and some possible ways forward.

Donald Trump's refusal to release his tax returns is beginning to seem less an aberration than a prelude. And that has open-government advocates worried that a decades-long standard of transparency is at risk of extinction. ...  Beyond the information and revelation of the documents themselves, open-government advocates argue, this nonlegal standard of disclosure has represented a rare example of political compromise. "Democracy doesn't work if the attitude of people running for leadership is 'I will get away with whatever I can get away with and what the law doesn't specifically prohibit,'" said Yochai Benkler, a Harvard Law professor and advisor to the Sunlight Foundation. "That is a barely acceptable way for people who work in the private sector."

A nonpartisan Boston-based organization is training election protection volunteers to monitor the voting process across the country on Election Day. Given the heated political rhetoric ahead of Nov. 8, the Lawyers’ Committee for Civil Rights and Economic Justice says it's seeing increased desire from folks wanting to get involved, including here in Massachusetts. At a recent packed, all-ages training session at Harvard Law School, Sophia Hall detailed volunteer poll monitoring. ... Hall says the focus is on places with a combination of past voting issues and diverse demographics. "As we've seen nationally with litigation about voter ID laws and early voting, we know that the group that's most likely to be disenfranchised is going to be people of color and low-income individuals, as well as students and elderly people," Hall said.

At a lecture Thursday, Harvard Law School Dean Martha L. Minow emphasized the benefits of resolving bioethical issues through mediation, rather than litigation Minow gave her speech at the Harvard Medical School’s annual George W. Gay Lecture, an event HMS describes on its website as “quite possibly the oldest medical ethics lectureship in the United States.” ...She began by discussing Zubik v. Burwell, a 2016 Supreme Court case brought by a group of religious non-profits challenging the contraception coverage requirement in the Affordable Care Act. Minow called the case, which was ultimately sent back to the lower courts without a decision, a key example of the interplay between medicine and law, and an example of the justice system failing to resolve a bioethical issue.

An op-ed by Noah Feldman. Is the middle-finger gesture obscene? Not in Pennsylvania, according to a state appellate decision filed this week reversing a man’s conviction for giving his ex-wife the finger. Decided in the shadow of the First Amendment, the decision raises the ever-intriguing question of what counts as obscenity. It also calls into question the old idea that obscene speech is exempt from the constitutional rules governing freedom of speech.

Who’s up for government regulation of the Internet? Yes, my skin is crawling at the thought, just like yours. Still, some kind of government action seems inevitable. Online vandals, thieves, and spies are running wild on the global network. Tougher, smarter laws may offer our only hope of fending them off...Bruce Schneier, a fellow at Harvard’s Berkman Klein Center for Internet and Society, said that only a similar response by the government will bring the Internet under control. “The market can’t do this,” Schneier said. “What we have here is a market failure.” Schneier wants mandatory security standards for all IoT devices sold in the United States. For instance, a manufacturer could not sell an Internet router that didn’t require the user to set up a strong password. It’s hardly a foolproof cure. Passwords can still be beaten. But today, many devices don’t require passwords at all, making them open gateways for criminals.

In the back of the Apple Store in Berkeley, California, at the end of the bar where those “geniuses” repair iPhones and MacBooks, is a placard with this warning: “If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.” Read the safety instructions in the manual, it tells consumers. Or else. The Apple Store posted the notice to comply with a Berkeley city ordinance—the first in the nation—requiring retailers to alert consumers to the federal guidelines for safe cellphone use...Berkeley is represented by Lawrence Lessig, a Harvard law professor and cyberlaw expert who last year ran for president as a Democrat to push for an overhaul of campaign finance. The two are now jousting over the Berkeley ordinance in federal court. Lessig, who helped craft the Berkeley ordinance in a way that he hoped would withstand a cellphone industry lawsuit, is not charging the city for his services. He volunteered because he believes corporations discourage governments from imposing regulations by filing First Amendment lawsuits that are prohibitively expensive to defend, he tells Newsweek. “I’m a constitutional scholar, and I am very concerned,” he says.

Harvard students excited for the possibility of legalized marijuana in Massachusetts may find it sobering that, if Harvard follows the paths of other universities, the drug will likely remain banned on campus even if Massachusetts Ballot Question 4 passes...Legalizing marijuana on a campus that receives federal funds could potentially jeopardize those funds, according to Harvard Law School professor Charles R. Nesson. Nesson recently lectured at the Harvard Ed Portal in Allston on Question 4. “The operative question I think is whether this acts as an in terrorem effect,” Nesson said, referring to Harvard’s federal funding as a deterrent to permitting cannabis. “I just can’t imagine Harvard taking any step but the most conservative one: go the slowest, stay the closest to the ground.”

...In one way or another, Harvard Law professors helped shape Obama’s legacy. But the relationship between the Law School and the next president has yet to be defined. A trove of emails from Clinton’s campaign chairman John Podesta, leaked by Wikileaks in October, show that a few Law professors have caught the campaign’s attention. And Clinton’s campaign has contacted at least one about serving in her administration if she wins next Tuesday. There is no indication that Trump’s campaign has contacted any Law professors. “I think law is about policy choices so by definition we are always involved in policy choices,” Law professor Christine A. Desan said, referring to her fellow faculty members...fewer Law School faculty members are actively and openly advising either candidate in this election—a noticeable shift from previous elections, said Law Professor and former U.S. Solicitor General Charles Fried.

...“The Massachusetts ballot measure is poised to be the single most progressive piece of farmed animal protection legislation ever passed in the United States,” said Christopher Green, executive director of Harvard Law School’s Animal Law & Policy Program. “Having this happen in our backyard as our program gets off the ground has allowed us to analyze the process in the classroom and given our students the opportunity to gain invaluable experience working directly on the campaign.” Thomas has found a welcome partner in the HLS program. With his recent gift of $1 million and a subsequent matching gift of $500,000 to support individual donations of up to $50,000 through December, he is hoping to make farm animals central to animal cruelty prevention. It’s a shared concern...The program’s work reaches well beyond U.S. borders. Its faculty director, Kristen Stilt, is collaborating with Harvard’s South Asia Institute to examine animal agriculture from the Middle East to Asia.

An article by Samuel Moyn. On the death of Sigmund Freud, W.H. Auden memorably observed that he was “no more a person now but a whole climate of opinion.” And this was 1939—he had seen nothing yet of Freud’s influence. Across the North Atlantic, Freud’s new science of psychoanalysis transformed common sense and was itself transformed in a host of new applications. In the humanistic disciplines, and especially in literary study, engagement with psychoanalysis became almost obligatory. The general public was equally enthralled by Freud’s ideas. His books circulated widely, on college campuses especially, and his thought traversed popular culture from fiction to film... In light of such wide influence, it is rather shocking how swiftly, if just beyond conscious notice, Freud’s relevance has waned in the past two decades.

...The Glaxo case, which resulted in record penalties of nearly $500 million and a string of guilty pleas by executives, upended the power dynamic in China, unveiling an increasingly assertive government determined to tighten its grip over multinationals. In the three years since the arrests, the Chinese government, under President Xi Jinping, has unleashed the full force of the country’s authoritarian system, as part of a broader agenda of economic nationalism....“The executive so accused has an obvious conflict of interest in overseeing such an investigation,” said John Coates, a Harvard Law School professor. “Even if the executive were entirely innocent of the whistle-blower’s charge, giving that same executive the role of investigating the whistle-blower smacks of retaliation.”

An op-ed by Noah Feldman. Pope Francis is continuing along his remarkably liberal path, most recently by praising Martin Luther at a ceremony in Sweden beginning a yearlong 500th anniversary commemoration of the Reformation. Yet despite the pope’s openness, and the corresponding good faith of the Lutherans, the two sides were unable to effect a reconciliation. The episode raises two questions: Why try? And how is it that, in this post-theological age, not even Christian believers can get past their own wars of religion?

...Over the past 12 years, inter-country adoption in America has dropped off by a staggering 75 percent, with last year’s total of 5,647 the lowest since 1981. Other major receiving countries have experienced the same sharp decline—driven not a by global decrease in orphans, but by the changing politics of adoption...Child welfare advocates like Harvard Law professor Elizabeth Bartholet go even further, arguing that children have a fundamental human right to a permanent family, and that countries denying international adoption while keeping children in state care are guilty of violating human rights.

Nina Paley’s breakout came when her animated rendition of the classic Indian epic Ramayana, called Sita Sings the Blues, racked up nearly a million views on YouTube. Roger Ebert, the famed film critic, gave the “whimsical” film a resounding four stars, while others dubbed the movie a cultural “tour de force” and the “Greatest Break-Up Story Ever Told.” Yet rather than collecting her bounty of advertising revenue and relishing her overnight fame, Paley waived all copyrights to her masterpiece — and instead copylefted, all wrongs reserved. “The law is an ass I don’t want to ride,” says Paley. Apparently neither do a growing number of other artists...Meanwhile, the costs of copyright are hidden but steep, argues Lawrence Lessig, Harvard Law professor and co-founder of Creative Commons. The regime quashes inspiration in a world where no one can build off another’s work without paying them an arm and a leg in licensing fees.