Media Mentions

An article by Laurence Tribe. Suppose that Trump continues to rack up delegates in the Republican primaries but resistance to his candidacy is growing in the party’s barely surviving establishment. At the Republican convention—to be held 18-21st July in Cleveland, Ohio, to choose that party’s presidential nominee—not all state delegates are obliged by the rules to vote for the candidate who won their state’s primary. Moreover, the selection of those delegates is also an internal party matter—and many in the Republican Party are wary of Trump. Thus, Trump could win the largest number of votes in the Republican primary process, but still not obtain the party’s nomination to run for President. Political commentators are speculating about a contested Republican convention between Trump and a Republican establishment favourite like John Kasich, the Governor of Ohio, or even Senator Ted Cruz of Texas, a more doctrinaire conservative than the relatively unpredictable Trump. All sorts of procedural gambits could be deployed at the convention in a pitched battle to determine the party’s nominee.

An op-ed by Noah Feldman. When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you -- and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.

An op-ed by Noah Feldman. The Constitution grants people accused of crimes the right to a speedy and public trial. Does that include a right to speedy sentencing after conviction? The Supreme Court takes up that question on Monday in Betterman v. Montana, the case of a defendant who had to wait 14 months in a county jail to be sentenced after pleading guilty. Then the court refused to include that period as time served. What’s most remarkable about the case is that not only Montana but also the federal government maintain that the speedy-trial right doesn’t include sentencing at all. The court has never said so before – although to be fair, it also hasn’t said that sentencing is part of the trial either.

Discussions about how to reduce greenhouse-gas emissions frequently center on clean energy, more efficient transportation and sustainable agriculture. But research suggests that if we really want to pay attention to our carbon footprints, we should also be focusing on another, less-talked-about issue: the amount of food we waste each day...“The first step is really figuring out what is the right amount that we need to produce,” said Emily Broad Leib, director of the Harvard Food Law and Policy Clinic and an assistant clinical professor of law. Much of the food that goes to waste could be used by people who aren’t getting enough to eat. But it’s also likely that we could stand to reduce our overall production as well, cutting some of those emissions entirely. “I do think there’s a sweet spot, and we’re not hitting it right now,” Broad Leib said.

The intense political wrangling over Merrick Garland's nomination to the Supreme Court has overshadowed the traditional purpose of Senate confirmation — a serious look at the career and life of the contender...But who is Merrick Garland, and how did he come to be the kind of judge selected to navigate this unprecedented confirmation fight? Harvard Law Professor Laurence Tribe has unique experience to answer the question. He taught both Garland and Obama when they were students at the prestigious school. He continues to advise the White House on legal issues. Tribe discussed Garland's nomination with MSNBC.

Loretta A. Preska, chief judge of the U.S. District Court of Southern New York, said she was concerned about reduced tolerance of free speech on university campuses in a lecture at Harvard Law School on Monday...“I think institutionally, Harvard does a really good job of maintaining free speech,” Hussein E. Elbakri [`18], a student at the Law School, said. “But I think the social pressure not to say certain things, especially in discussions that affect race and gender, has been pretty prevalent in my classes.” Trenton J. Van Oss [`17], a Law School student who coordinated the event, said he was moved by the discussion. Van Oss is a member of the Federalist Society, a group of conservative, moderate, and libertarian Law School students, which sponsored the lecture. “I think one of the things she said that I really appreciated, was the idea that free speech is something that we have to fight for, every generation,” Van Oss said.” We need to work to create a culture of free speech where all views are appreciated.”

Senator Ted Cruz, a candidate for the Republican presidential nomination, has proposed surveilling Muslim neighborhoods. His chief rival, Donald J. Trump, says he would deport millions of undocumented immigrants and allow the use of torture. The campaign has also produced calls for carpet bombing in Syria and steps to rein in the press at home. But you have to wonder: If elected, could a new president intent on pushing or exceeding the boundaries of the Constitution or the law actually follow through?...Noah Feldman, a Harvard law professor, said the greatest bulwark against presidential overreach would be the huge number of people needed to carry out the work. Political appointees and career civil servants could refuse directives. Congress could refuse to pass and finance policies. The Justice Department’s Office of Legal Counsel could declare initiatives unconstitutional. But, Mr. Feldman added, another crisis — say, something like the Sept. 11 attacks — could change the dynamic. Officials might back down. A president could invoke President Lincoln’s suspension, over the objection of the Supreme Court chief justice, of habeas corpus, the foundational right to protest one’s detention. “Could a president unilaterally suspend habeas corpus? Well, all you can say is: It happened once,” Mr. Feldman said.

Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and orderr—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination. "We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

An op-ed by Susan Crawford. I’m looking forward to Tesla’s release of its mass-market Model 3 electric car next week. Owners love their beautiful Teslas, and this one will reportedly cost $35,000 before federal and state tax credits, meaning the net price could be less than the cost of an average American car. But my pulse rate is higher not because of the car itself, or even its pricetag. I’m excited because of what’s inside: a battery that can cost-effectively store enough energy to allow for hundreds of miles of travel. And an operating system that needs constant upgrades.

A new Senate bill tries to make it just a little bit harder for activist hedge funds to exploit healthy companies rather than invest in their future. Sen. Tammy Baldwin (D-Wis.) and Jeff Merkley (D-Ore.) introduced the Brokaw Act on Thursday, which would strengthen disclosure requirements for activist hedge funds that buy parts of companies. Activist hedge funds, unlike other hedge funds, become deeply involved in the companies in which they buy a stake, steering them in a direction that most benefits the fund...Defenders of the bulk of activist interventions, like Harvard Law School’s Mark Roe, argue that its downsides are exaggerated, and that the dearth of corporate investment represents a prudent response to a “weak economy.”

...[Merrick] Garland, now chief judge of the federal appeals court in Washington and President Obama’s nominee to the Supreme Court, has deftly navigated the capital’s high-powered legal circles for decades...Today, he has a talent for letting others talk about themselves. Whether in a meeting or at a party, he leans slightly toward whoever is speaking, head nodding. “He’s absorbing what he hears and integrating it,” said Martha Minow, the dean at Harvard Law School.

An op-ed by Jack Goldsmith. On Thursday the Justice Department indicted seven Iranians for distributed denial of service (“DDoS”) attacks in 2011-2013 against 46 companies (mostly in the financial sector). The indictment alleges that Iran’s Revolutionary Guard sponsored the attacks. David Sanger of the New York Times reports that intelligence experts have long speculated that attacks “were intended to be retaliation for an American-led cyberattack on Iran’s main nuclear enrichment plant.” Sanger adds that “Iran’s computer networks have been a primary target of the National Security Agency for years, and it is likely that in penetrating those networks — for intelligence purposes or potential sabotage — the N.S.A. could have traced the attacks to specific computers, IP addresses or individuals.” Assuming these experts’ speculations are right, the Iranians were indicted for retaliating against U.S. cyberattacks on Iran’s nuclear weapons infrastructure, and they got caught because the NSA had penetrated Iranian networks. On its face this seems hypocritical. Might the U.S. indictments nonetheless be justified?

...The general-counsel role — the top attorney at a company — once consisted of interpreting laws already on the books and handling shit storms that might arise. Today, though? For some technology companies on the bleeding edge, there’s little common law to pull from. Much of Silicon Valley’s dream work “is not really clearly governed by any well-defined existing bodies of law,” says Vivek Krishnamurthy, clinical instructor at Harvard Law School’s Cyberlaw clinic. Which means that knowing the law might help you write the law. For now, experts say a small yet growing group of young lawyers are stepping into tech; of the nearly 40,000 jobs reported by the class of 2014, fewer than 230 were in non-law technology companies — an option that didn’t really exist for law graduates a decade ago, according to the National Association for Law Placement.

An op-ed by Noah Feldman. The Supreme Court looks like it's going to split 4-4 on whether religious organizations are entitled to have even their health insurance providers exempted from providing contraceptive care under the Affordable Care Act. That much was clear from the justices comments at oral arguments on Wednesday. That will leave unresolved the vexing legal questions at the heart of a challenge to Obamacare brought by the Little Sisters of the Poor: What is religious freedom and what does it mean for a law to impose an unacceptable burden on religious practice?

Now that American law enforcement may have a way into the iPhone used by the San Bernardino, Calif., shooter, it faces a new conundrum: Should it inform Apple so it can fix a vulnerability that may affect millions of consumer devices – even if that disclosure could make it harder for law enforcement to unlock iPhones in the future?...“The security of a product used by so many people – including and especially Americans – is part of national security,” said Jonathan Zittrain, professor of law and computer science at Harvard Law School. “While it is appropriate for law enforcement, with a warrant, to use a security flaw to gain access to which it is legally entitled, the flaw should be patched as soon as possible for everyone else’s sake.”

Memo to the Republican senators who refuse to consider President Obama’s Supreme Court nominee, Merrick Garland: When it comes to business issues, Judge Garland is about as good as you could hope for...Hannah Belitz [`17], a student at Harvard Law School who contributes to the blog On Labor, analyzed 22 Garland opinions involving the National Labor Relations Board and found that he sided with the agency in all but four. She acknowledged that while the language of his opinions speaks repeatedly of a need for judicial deference to agency decision-making, nonetheless “the effect of that deference is favorable to labor and unions.” Her work has been widely cited as evidence that Judge Garland is a captive of “Big Labor.”

six BGLTQ student groups from across Harvard sent an email to University President Drew G. Faust asking her to clarify the results of last semester’s survey about campus sexual assault.The email asks for more specific data about the rate of sexual assault among BGLTQ students and clarifications about how the survey categorized students by sexuality and gender. ...Anna E. Joseph, a third-year student at Harvard Law School and co-president of Harvard Law School Lambda said she and other Law School students spearheaded the letter. They reached out to student groups at other Harvard schools, including the Kennedy School, the Business School, and the Graduate School of Education, to solicit a response from Faust, Joseph said. “We thought we would get President Faust’s attention if we could make it a cross school coalition,” Joseph said. “So we reached out to other LGBTQ organizations and they were super supportive.”

Jesselyn Radack, attorney to whistleblower Edward J. Snowden, called on the U.S. government to prioritize privacy over security during the Harvard Human Rights Journal’s symposium on Thursday at the Law School...The symposium sought to reframe the debate on the relative importance of human rights versus national security, according to Law School student Roi Bachmutsky, who co-chaired the symposium. “We wanted to take the next step and ask, ‘Whose security are we really protecting, by what means, and whose security pays the price by protecting this first group’s security?’” Bachmutsky said.

An op-ed by Noah Feldman. One of Justice Antonin Scalia’s chief policy concerns -- some might call it an obsession -- was class actions, which he saw as excuses for plaintiffs’ lawyers to make money by aggregating small individual claims to the detriment of corporate defendants. On Tuesday the U.S. Supreme Court hinted that, in Scalia’s absence, class-action law might not continue to be interpreted narrowly. It cautiously upheld the use of representative sampling as evidence for common claims among plaintiffs -- a small but meaningful victory for class actions in a decision that, under the precedent established by Scalia, might’ve gone the other way.

An op-ed by Noah Feldman. Before Tuesday, I’d have said that Puerto Rico had no chance to win its legal fight to let its municipalities and utilities declare bankruptcy. That's how the island hopes to resolve its overwhelming debt problems, but the federal bankruptcy code says that it can't. That's what the U.S. Court of Appeals for the First Circuit held last summer, unanimously. The statute seemed so clear that even Judge Juan Torruella, the appellate court’s only Puerto Rican member, concurred in an outraged separate opinion criticizing the federal law. Then Sonia Sotomayor stepped in. Oral arguments before the Supreme Court rarely change the outcome of a case, yet Tuesday's session may turn out to be the exception. In a fascinating and unusual argument, Justice Sotomayor, who is herself of Puerto Rican descent, spoke by my count an astonishing 45 times. Sotomayor left no doubt that she was speaking as an advocate.

“Technology is neither good nor bad; nor is it neutral,” said the late Melvin Kranzberg, one of the most influential historians of machinery. The same is true for the internet and the use of data in politics: it is neither a blessing, nor is it evil, yet it has an effect. But which effect? And what, if anything, needs to be done about it?...All this suggests that data and analytics risk slowing down and perhaps even undoing the welcome redistribution of power to ordinary people that the internet seemed to be able to offer. They create “points of control” in what used to be largely an “open system”, as Yochai Benkler of Harvard University puts it in a recent article in Daedalus, an American journal. The design of the original internet, he writes, was biased towards decentralisation of power and the freedom to act. Along with other developments such as smartphones and cloud computing, he now sees data as a force for recentralisation that allows “the accumulation of power by a relatively small set of influential state and non-state actors”.