Media Mentions

After Donald Trump called on Russian hackers release Hillary Clinton’s deleted emails, the next question was obvious: Did the GOP candidate for president just commit treason? The answer is no—but that doesn’t mean that his comments aren’t dangerous...Harvard Law professor Mark Tushnet said in an interview that because the United States is not engaged in a war with the Kremlin, Russia cannot be considered an enemy—and thus, giving “aid and comfort” to Putin remains in line with the Constitution. “As a legal term, it [treason] means that there’s actually something like a state of war,” Tushnet said. “There isn’t between us and Russia. It can’t be done.”

Senator Claire McCaskill set off a legal debate today when she told MSNBC that Donald Trump should be investigated for potentially violating the Logan Act...Laurence Tribe, a constitutional law professor at Harvard Law and former mentor to President Obama, sided with McCaskill on Twitter: Trump’s “jokes” inviting an adversary to wage cyberwar against the U.S. appear to violate the Logan Act and might even constitute treason. In a follow-up comment to Washingtonian, Tribe elaborated that, while the law has never been “formally interpreted” by the Supreme Court, “it obviously applies to Trump’s overt encouragement of Russian interference with this November’s presidential election.”

An op-ed by Delcianna J. Winders, fellow. The U.S. Department of Agriculture has again renewed the license that chronic animal welfare violator Cricket Hollow Zoo, in Manchester, needs to operate. The agency renewed this license despite recently documenting numerous violations and, indeed, documenting nearly 100 violations over the past three years. The agency renewed this license just months after a judge held that Cricket Hollow was likely to cause serious death or injury to animals. The agency renewed this license despite a pending enforcement action. The agency is complicit in Cricket Hollow’s abuse and neglect of dozens of animals.

For Harvard law professor Laurence Tribe, not only do Donald “Trump's "jokes" about Russia amount to "inviting an adversary to wage cyberwar against the U.S.," but they also "appear to violate the Logan Act and might even constitute treason,” he tweeted Thursday...The latest tweet from the liberal legal giant whose name has been floated as a Supreme Court pick comes after Trump and his campaign brushed aside the backlash over his remark. The Republican nominee himself telling Fox News that he was "being sarcastic." “Imagine what our 1st president would've said about a candidate inviting a foreign power to intrude into a US election for the 45th president,” Tribe previously tweeted Wednesday, adding that he “must have been hallucinating” at hearing Trump’s calls for Russian hackers to infiltrate Democratic presidential nominee Hillary Clinton’s emails.

Do the benefits of allowing social platforms to host your journalism outweigh the disadvantages? Most publishers, however reluctantly, will say yes and adopt the “we are where we are” argument...In his 2008 book The Future of the Internet and How to Stop It, Jonathan Zittrain invoked AOL and the rest as a counterpoint to the internet. He described the latter as a “generative” platform, one that “invites innovation” in contrast to the service offered by the former which he labelled “sterile appliances tethered to a network of control”. At the time of writing his book, Zittrain’s key frame of reference was the Apple iPhone, launched the previous year. Acknowledging that the iPhone was beautifully crafted, he cautioned that the control the company exerted over hardware and software ran counter to “much of what we now consider precious about the internet”.

When Kenneth Mack was a student at Harvard Law School in the 1980s, the campus was a protest ground. It was a time when students and faculty strongly disagreed with each other — a time when the majority of professors were white men. Mack attended Harvard with Barack Obama. They were in the same class together and worked on the independent, student-run Harvard Law Review their second and third years...Mack will be in Woodstock to speak on Saturday for the annual Bookstock literary festival — a three-day event. He’ll be talking about his book, “Representing the Race: The Creation of the Civil Rights Lawyer,” at 3 p.m.

An op-ed by Daniel Ectovitch `18. With the Pokémon Go craze sweeping the nation (including me), T-Mobile figured they could win a public relations coup and potentially a few customers with a brilliant gift: unlimited data when using the Pokémon Go app. There may be a potential darker side to that decision though. By effectively zero-rating Pokémon Go, meaning they are charging zero for using data with it, they may be continuing their quest to try to set a precedent that could undercut net neutrality.

An op-ed by Nancy Gertner. A number of Republicans, including Michael Mukasey, former judge, and Attorney General, have advocated for mens rea reform. (Mens rea is the state of mind required of a defendant guilty of a crime.) So important was the proposed mens rea statute that this group helped derail bipartisan criminal justice reform that did not include it, legislation that would have ameliorated mass incarceration. Their ardor for mens rea reform makes all the more curious their beating the drum for the prosecution of Secretary Hillary Clinton for using a private email server to communicate with state department employees. Republican support for mens rea reform should lead in the opposite direction – backing FBI Director James Comey’s decision to decline prosecution.

An op-ed by Noah Feldman. Not all gifts to politicians are illegal. But it can be difficult to draw the line between what the Supreme Court has called “access and ingratiation,” which is protected by the First Amendment, and quid-pro-quo corruption, which isn’t. The $160,000 in gifts accepted by Democratic vice-presidential nominee Tim Kaine when he was Virginia governor were completely legal. All the same, they shed a distinct light on the Supreme Court’s decision last month to absolve his successor, Bob McDonnell, of corruption charges. Comparing Kaine’s gifts to McDonnell’s suggest that there was an ethical difference -- and also that the court may have been right to find that the difference would be hard to measure legally.

...To discuss the DNC hack, I corresponded over email with Jack Goldsmith, a Harvard Law School professor and fellow at Stanford University’s Hoover Institution...But the truth is that there is no public evidence whatsoever tying Russia to the hack. Attribution for cyberoperations of this sort is very tricky and tends to take some time. Even if the hack can be linked to computers in Russia, that does not show that the hack originated there (as opposed to being routed through there). And even if it originated in Russia it does not show who was responsible. That said, it would not be surprising if the Russians were behind this.

The F.B.I. investigation into the suspected state-sponsored Russian theft of emails and documents from the Democratic National Committee’s computer networks has expanded to determine if aides and organizations considered close to Hillary Clinton were also attacked, according to federal officials involved in the investigation...“There is nothing new in one nation’s intelligence services using stealthy techniques to influence an election in another,” Jack Goldsmith, a professor at Harvard Law School, wrote on the Lawfare blog on Monday. He noted that the United States had engaged in covert actions to influence elections in Indonesia, Italy, Chile and Poland during the Cold War. But he added that “doing so by hacking into a political party’s computers and releasing their emails does seem somewhat new.” It could foretell an era of data manipulation, in which outsiders could tinker with votes, or voter data, or “lose” electronic ballots.

An op-ed by Cass Sunstein. Donald Trump last night offered a funhouse mirror version of one of the greatest speeches in American history: Franklin Delano Roosevelt’s first inaugural address, in 1933. In the midst of a genuine crisis, the Great Depression, FDR began by emphasizing his “firm belief that the only thing we have to fear is fear itself -- nameless, unreasoning, unjustified terror.” Trump sought to foster exactly that. For Trump, “America is a more dangerous environment for everyone than frankly I have ever seen and anybody in this room has ever watched or seen." Quietly and wryly, Roosevelt observed, “We are stricken by no plague of locusts.” He added: “Compared with the perils which our forefathers conquered because they believed and were not afraid, we have still much to be thankful for.”

An op-ed by Ronald Sullivan. Baltimore City State's Attorney Marilyn Mosby is the subject of intense yet wholly unfounded criticism for her office's decision to prosecute six police officers for the death of Freddie Gray. Significantly, a George Washington University law professor, John Banzhaf, has gone so far as to file an ethics complaint against Ms. Mosby. These critiques of Ms. Mosby bespeak a troubling double standard. It appears that some would rather treat police officers with a special legal status, while treating average citizens with the rules reflected in our Constitution. Significantly, enshrined on the main portico of the Supreme Court building is the phrase "equal justice under law." It is a symbolic representation of a core constitutional principle that no person is above the law. Ms. Mosby has exercised her prosecutorial discretion equally with respect to all citizens. Yet many condemn her nonetheless.

A Supreme Court ruling that has made it more difficult to prosecute public officials for corruption could affect a wide range of cases in Massachusetts, including the ongoing investigation into state senator Brian A. Joyce, the indictment of Boston City Hall officials, and the convictions of state probation department officials...“One takeaway from the McDonnell decision is the notion it’s OK to advocate on behalf of constituents,” said Nancy Gertner, a retired federal judge and Harvard Law School professor. “The question is what is legitimate constituent advocacy and what is not.”

The board of the charitable trust that controls Hershey Co said on Friday it had reached an in-principle agreement with the Pennsylvania Attorney General's office that would avoid a legal row in exchange for reforms in how it is run. The settlement could provide stability to the trust following months of infighting and confrontation with the attorney general's office. It could also offer the clarity needed for Mondelez International Inc to make a new approach to acquire Hershey...In 2002, the trust cited the need for diversification as a reason of putting Hershey up for sale. Hershey then attracted a $12.5 billion offer by chewing gum maker Wm. Wrigley Jr. Co. However, the deal was abandoned after Pennsylvania's Attorney General successfully petitioned a court to block the offer amid opposition from the local community. "This portfolio that is meant to rescue needy children is being exposed to needless risk that could be diversified away without compromising expected return." said Robert Sitkoff, a Harvard Law School professor specializing in wills, trusts, estates, and fiduciary administration.

Should scientists be allowed to study your biological specimens — such as blood, urine or tissue samples — if you haven’t expressly given them permission?...“What's being proposed to be changed now is saying, ‘It doesn't matter if those specimens have been de-identified. We're still going to require researchers to get your consent before using them,’” says Holly Fernandez Lynch, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School...“The good ... in proposing this rule change is people don't know how their specimens are being used and if we fail to tell them, we're going to lose trust in the research enterprise,” Lynch says. “We really ought to be telling people what we're doing with their specimen — so that's sort of the justification that's been put forth.”

Harvard law professor and author Cass R. Sunstein took a break from his typically complex, footnote-filled texts to write a book analyzing one of the biggest pop culture phenomena of all time: "Star Wars." In "The World According to Star Wars", Sunstein breaks down the origins of the "Star Wars" mythology, the reasons it became (and is still) so successful and also finds myriad parallels between the events chronicled in the science fiction saga and those happening in today's geopolitical landscape. We asked Sunstein if he sees any parallels between "Star Wars" and the rise of presumptive Republican nominee Donald Trump.

San Francisco wants people who rent out their homes through Airbnb and other online platforms to follow some rules, and it wants the platforms to advertise only those rule-abiding listings — or face steep fines...In its federal lawsuit filed in June, Airbnb states San Francisco’s ordinance violates a federal law that has long shielded websites such as Facebook and YouTube from responsibility for information posted by users. In this case, it’s the legality of vacation listings...“This is going to be the first of many kinds of legal battles around the platform economy. I’m sure that other companies are going to mount similar kinds of defenses when they’re in regulatory crosshairs,” said Vivek Krishnamurthy, assistant director of the Cyberlaw Clinic at Harvard Law School’s Berkman Klein Center for Internet & Society. “At some point,” he said, “governments are going to have to be able to regulate these things.”

Supreme Court opinions are not set in stone. Justices keep editing them after they are issued, correcting factual errors and even misstatements of law. For decades, those changes were made largely out of sight. But in October, on the first day of the term, the court announced that it would start disclosing after-the-fact changes to its decisions...A couple of years ago, Richard J. Lazarus, a law professor at Harvard, revealed that the court had routinely been revising its decisions, altering them without public notice weeks, months and sometimes years after they were first issued. Professor Lazarus urged the justices to disclose the changes. “The court can both make mistakes and admit mistakes without placing its institutional integrity at risk,” he wrote in The Harvard Law Review. To its credit, the court — never one for rapid change — listened.

The Obama administration is taking a hard line on the contractors it uses to collect federal student loan payments, threatening to withhold compensation or new business if companies fail to adhere to new standards for servicing over a trillion dollars in student debt....“It’s a promising first step, but there is still a lot of work to do,” said Deanne Loonin, an attorney on the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. “These policy directives still have to be incorporated into the servicing contracts. Also, so far, there is no clear way for borrowers to enforce these rights. We cannot rely only on the Department of Education to oversee the contracts and ensure that borrowers are protected. There must be rigorous public and private enforcement.”

A traveling sea lion exhibit currently featured at the Barnstable County Fair was cited in May by the U.S. Department of Agriculture for violating the federal Animal Welfare Act, raising concerns among animal welfare advocates and scholars who are calling for fair organizers to stop the show..But a vast majority of citations don't result in enforcement, said Delcianna Winders, an Academic Fellow of Animal Law & Policy Program at Harvard Law School who studies USDA enforcement of the Animal Welfare Act. A December 2014 audit of the USDA by the Office of Inspector General found that penalties issued in 2012 were reduced by 86 percent from the law's maximum penalty even though the cases resulted in death and other egregious violations, according to the report. For every $10,000 penalty, violators pay about $1,400 dollars in fines, Winders said. “This is a longstanding issue that the Office of Inspector General has raised multiple times in the past. Unfortunately, even since this most recent audit, my analysis has shown that penalties continue to be steeply discounted,” Winders said. “The problem is aggravated by the fact that the agency insists on keeping the penalty worksheets secret.”