Media Mentions

Amateur psychoanalysts have put Donald Trump on the couch, calling him a sociopath, unhinged, a narcissist. Amid all this psych-talk, there is one group of people who aren't talking as much: the professionals. Or at least they're not supposed to. Professional ethics dictate that psychiatrists and psychologists avoid publicly analyzing or diagnosing someone they've never examined, but there is new and unusually vocal dissension against this long-held gag rule because of what some of them think they hear and see in Trump...In 1973, the psychiatry association adopted the Goldwater rule. Dr. Alan Stone, a professor of psychiatry and the law at Harvard, was the lone board member to vote against it. "I believe in free speech," Stone said. "If psychiatrists want to make fools of themselves, they have that right."

In nearly eight years in office, President Obama has sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that have inserted the United States government more deeply into American life. Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history...The new president had a skeptical streak when it came to the value of regulation, influenced by his friend Cass R. Sunstein, a Harvard Law professor who had long argued that the government should more rigorously assess the benefits of new regulations. Mr. Obama liked that idea so much that he named Mr. Sunstein to lead the White House office that oversees rule-making.

Khizr Khan, the father of a Muslim-American soldier who was killed in the Iraq War, accused Donald Trump of not reading the Constitution. Rep. Chris Collins, a Trump supporter, turned the claim around on Hillary Clinton. During an interview on MSNBC, Collins made assertions about Clinton’s views on the Constitution in the context of the Gold Star father’s Democratic National Convention speech. "He stood next to Hillary Clinton, who has already said she's going to wipe out the Second Amendment..."...We spoke to constitutional law experts Laurence Tribe from Harvard Law School and Matthew Steilen from the University at Buffalo about Collins' claim. In this case, they said executive actions and orders typically do not directly contradict the 10th Amendment.

A talk from the Aspen Ideas Festival about the state of America's democracy. Harvard Law professor Lawrence Lessig believes we've ended up with a democracy where there is unequal freedom to vote, unequal representation, and unequal status as citizens. The good news? He says it's completely fixable. Lawrence Lessig is professor of law at Harvard University. He spoke June 30, 2016 at the Aspen Ideas Festival in Colorado.

Crypto-currency exchange Bitfinex's plan to impose losses on all its trading clients for the theft by hackers of $72 million in Bitcoin rests on two flawed pillars, according to lawyers. The Hong Kong-based exchange said on Aug. 2 that hackers had stolen 119,756 bitcoins from some clients' accounts, the second-biggest such hack in dollar terms, and later said it would spread the losses across all its customers, whether or not they had been hacked or even held bitcoin...Patrick Murck, a fellow at Harvard University's Berkman Klein Center for Internet & Society, said the Bitfinex plan was unlikely to survive a legal challenge. "It might be a pyrrhic victory. You might still end up with less money," said Murck, who is also co-founder of the Bitcoin Foundation and its former general counsel, but the "odds are fairly low" that nobody will test it in court. "It takes one grumpy hold-out ... to blow the whole thing up,” he said.

An article by I. Glenn Cohen and Eli Y. Adashi. A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015. The provision...stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification”. Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017. Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding. Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk.

An op-ed by Cass Sunstein. At the Olympics, we’re witnessing some serious cases of public shaming. Victorious competitors are publicly ostracizing those who once used performance-enhancing drugs. To take just one example, Australian Mack Horton, gold medalist in the 400-meter freestyle, pointedly refused even to acknowledge China’s silver medalist Sun Yang, who had been suspended for doping. “I don’t have time or respect for drug cheats,” Horton said later. Horton and others are aggressively asserting the social norm against drug use. By ostracizing those who violate that norm, they’re giving some important clues about the functions of norms in general -- and how they can be fortified.

An op-ed by Cass Sunstein. A federal court this week upheld the approach that the government uses to calculate the social cost of carbon when it issues regulations -- and not just the cost imposed on Americans, but on people worldwide. It’s technical stuff, but also one of the most important climate change rulings ever. The social cost of carbon is meant to capture the economic damage of a ton of carbon emissions. The assumptions that go into the analysis, and the resulting number, matter a lot, because they play a key role in the cost-benefit analysis for countless regulations

An op-ed by Noah Feldman. How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.

An op-ed by Noah Feldman. A century ago, Donald Trump might have gone to prison for suggesting that “the Second Amendment people” might find a way to stop Hillary Clinton’s agenda as president. Today, the First Amendment protects him -- barely. It’s still a federal crime to threaten the life of the president, and people go to jail for it all the time, despite the apparent abridgment of free speech. But while Trump’s words would probably get him a Secret Service visit if he were an ordinary crazy person, they wouldn’t lead to prosecution.

It’s no secret that there’s a crisis in the lower rungs of America’s criminal defense system. Public defenders, overloaded with cases, struggle to offer even bare-bones defense for defendants who can’t afford their own lawyers. But for the first time, research now shows that the scales of justice are tilted against poor defendants all the way to the Supreme Court, with as many as two-thirds of them represented by lawyers relatively inexperienced in the ways of the nation’s highest court...A recent study was able to quantify the advocacy gap between criminal defense lawyers and the rest of the Supreme Court bar, which many regular court watchers have long suspected. The study – published by Harvard Law Prof. Andrew Manuel Crespo – examined 10 years of Supreme Court arguments ending in June 2015. In two-thirds of the cases, they had argued fewer than two cases before the high court.

An op-ed by Fellow Delcianna Winders. This weekend, the Royal Canadian Circus is coming to Ottawa for the first time. Also for the first time, this circus is elephant-free. For years, the Royal Canadian Circus, put on by the U.S.-based Tarzan Zerbini Circus, has featured elephants who are kept chained and forced to perform under threat of punishment. Endangered elephants can only be moved across borders legally if doing so will help the species. Shackling elephants (who evolved to roam great distances and suffer life-threatening foot and joint problems when confined), forcing them to perform unnatural tricks, and beating them when they don’t obey hardly helps conservation. In fact, studies show that such performances likely undermine conservation efforts. But under a dubious scheme set up by the U.S. government dubbed “pay-to-play,” Zerbini obtained import-export permits in exchange for promising to contribute a small fraction of its profits to conservation.

An op-ed by Susan Crawford. I remember a May 1989 outdoor wedding in Los Angeles during which the perspiring officiant held up a copy of Newsweek. “The Race for Fusion,” the cover read. “Why The Stakes are So High.” It was the height of the frenzy about nuclear reactions at room temperatures, and the media was obsessing about how this “cold fusion” might solve all our energy problems. The minister said something about the marriage being a similar kind of miracle, and the crowd chuckled. I think of that wedding every time I hear the two syllables written as “5G.” Because when it comes to hype, “5G” is this year’s “cold fusion.”

An op-ed by Charles Fried. Increasing numbers of registered Republicans, and former and present Republican officials like myself, will not support Donald Trump for president. That’s the easy part. He has shown us that he is a mean and vindictive bully, striking out in the crudest ways (e.g., his sexist ripostes against Carly Fiorina and Megan Kelly) against anyone who attacks him, and then extending his vile remarks even to their relatives (Heidi and Rafael Cruz, Ghazala Khan). Indeed it is hard to think of any person in recent public life who has displayed a more repellent personality. Richard Nixon might come to mind, but that only because of what showed up in the secret recordings of what he thought were private conversations in the Oval Office. In public, Nixon had the self-control and self-awareness to keep his worst qualities reasonably well hidden. Rochefoucauld said that hypocrisy is the homage that vice pays to virtue, and in this respect at least, Trump is no hypocrite.

Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias. But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing...And the implicit-association test for measuring such bias shows, after being taken by thousands of individuals, that 80 percent of white test-takers and 40 percent of blacks tested show a pro-white bias, said panelist Johanna Wald, director of strategic planning for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The test is easy to take and surprisingly accurate. The key is that these typically are unconscious biases. Wald asked the judges and lawyers to keep three things in mind: Bias is a natural human tendency and useful because we need shortcuts in dealing with so much in life; unconscious biases often are in conflict with our egalitarian values; and yet they predict and determine our actions and decisions more than our explicit values. There isn’t so much a need for more research in the area, Wald said, but a need to identify which research is important in the application of justice and what to do about it. “Unless and until we start to get a handle on that and figure out what to do about that … the outcomes are going to be just as harmful as if they were explicit biases,” she said.

Perversely enough, corporate bankruptcy is not cheap. Protracted fights between duelling bondholders, banks, trade creditors and the companies involved often maximise value only for lawyers. So, to avoid costly and inefficient Chapter 11 brawls, troubled businesses have been increasingly choosing to restructure their balance sheets through out-of-court bond exchanges. Now, though, even these bond exchanges may be threatened by an esoteric court battle over a Depression-era law. According to the US Trust Indenture Act of 1939, which governs the terms of bonds, the right of bondholders to receive principal and interest cannot be altered without their unanimous consent...Harvard Law School bankruptcy expert Mark Roe recently wrote that TIA decisions of late have correctly solved the problem of bondholder coercion. Ultimately, however, he believes Congress or the Securities & Exchange Commission should relax the requirement for unanimity to allow changes to bond terms. Otherwise, we can expect the lawyers — in Chapter 11 bankruptcy cases, or in ordinary court cases figuring out what counts as payment impairment — to become much busier.

Analysts largely agree that the hacking of various arms of the Democratic Party, and the release of hacked emails that deepened divisions within the party just ahead of its presidential convention, is a big deal. But there’s less agreement about whether what we’re witnessing is fundamentally old or new. The answer to that question could shape not just the Obama administration’s response to the hack, but international norms on the limits to foreign influence in democratic elections...As U.S. authorities investigate who was behind the hack, legal scholars and cybersecurity experts have been scrambling to sort the old from the new. Jack Goldsmith, a Harvard Law professor and former George W. Bush administration official, says there’s something novel about the mechanisms and scale of the intervention, in that it seems to have involved not just cyber operations, but also partnering with a third-party organization to publish a massive amount of data. That last step is what made ordinary espionage extraordinary—and what potentially invites more ambitious interventions in American democracy in the future. The U.S. government, he fears, may be unprepared for the onslaught.

An op-ed by Noah Feldman. The American Bar Association is considering adding a rule to its canon of ethics that would prohibit lawyers from discriminating in the course of their jobs. The proposal seems innocuous and probably overdue -- but it has encountered a surprising degree of opposition. So it seems reasonable to ask: Why is this even a thing? How can anyone in good conscience think that barring discrimination by lawyers is a bad idea? The answer is that the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation. In some ways, that’s good. The adversarial system calls for a degree of confrontation and aggression that would be inappropriate in almost any other professional context. Yet it should be possible to craft rules to carve out certain kinds of nastiness -- including discrimination on the basis of race, sex, sexual orientation, or other invidious motives.

...Within the past three years, new drugs with cure rates surpassing 90 percent have come on the market that have dramatically changed the conversation for hepatitis C patients like Cox. The results are like nothing doctors had seen before: patients’ bodies being effectively rid of the virus within just a few months, rather than living with it for decades. But the drugs’ exorbitant prices keep them out of reach for lots of people...“I don’t want to impute bad motives on the part of insurers,” said Robert Greenwald, a clinical law professor at Harvard Law School and faculty director of its Center for Health Law and Policy Innovation, “but I do think they feel more comfortable than they should about basically condemning a population and many people within that population to sickness, ill health and ultimately, for some, death, for having these kinds of restrictions.”

The quality of advocacy at the Supreme Court these days is quite high. “We have an extraordinary group of lawyers who appear very regularly before us,” Justice Elena Kagan said in 2014 at a Justice Department event. But there was, she said, one exception. “Case in and case out,” she said, “the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.” That impression, widely shared by people who frequently attend Supreme Court arguments, has now been confirmed by a comprehensive look at a decade of data. “Criminal defendants are almost never represented by expert counsel in arguments before the Supreme Court,” Andrew Manuel Crespo, a law professor at Harvard, wrote in the new study, which was published in The Minnesota Law Review. In the 10 years ending in June 2015, he found, as many as two-thirds of the arguments on behalf of criminal defendants were presented by lawyers making their first Supreme Court appearances.

An op-ed by Jeannie Suk Gersen....As the first rounds of students have been disciplined for sexual misconduct under the new procedures, scores of them have gone to court to protest their schools’ decisions. The suits, against schools such as Yale, Cornell, and the University of California, San Diego, have alleged that, under intense pressure to be tough on sexual assault, the schools violated basic fairness to accused students. Most remarkably, many of the suits have claimed that the new procedures, which were developed to protect the Title IX rights of sexual-assault victims, in practice violate the Title IX rights of the accused...But, last week, a unanimous Second Circuit appeals panel reversed that decision and held that the accused student could go forward with his claim that the university subjected him to sex discrimination in violation of Title IX. The case will go back to the lower court for trial proceedings, unless Columbia settles with the student, who is seeking damages and wants his disciplinary record scrubbed. Across the country, state and federal courts have recently decided for other accused students who claimed that their schools’ procedures were unfair.