Media Mentions

An op-ed by Noah Feldman. Given the horror of the murder of the five police officers in Dallas last Thursday, it may seem absurd or distasteful to ask whether it was a good idea to kill the sniper with a bomb mounted on a robot. Surely anything that stopped the carnage was justified in the moment, and the police seem to have had no clear shot at the sniper. But the issue is more complicated, and it deserves to be considered carefully. There’s a legal difference between targeting a crime suspect and targeting a wartime enemy. There’s also a difference between using a weapon that can be aimed and using one that puts bystanders at greater risk. And a precedent set under emergency conditions can easily expand in future cases. The step from the robot bomb to a drone strike is barely even incremental: morally and technologically, they’re basically the same.

An op-ed by Noah Feldman. A group of high-profile legal minds wants the Supreme Court to eliminate super-PACs, the advocacy groups that can raise and spend unlimited amounts of cash to praise and attack political candidates. But instead of asking the court to overturn the 2010 Supreme Court case that lifted many restraints on political spending, Citizens United v. Federal Elections Commission, they plan to ask the justices to overturn a lower court decision that interpreted Citizens United to open the door to the super-PACs. The strategy is worth pursuing...Why attack SpeechNow instead of challenging Citizens United directly? The answer is subtle, and it reflects the legal expertise of the group, which includes my senior Harvard Law School colleague Laurence Tribe, the unquestioned master of the dark arts of shaping doctrine through litigation.

Nearly two dozen countries have spent the last three years wrangling over a trade deal that will set the rules governing trade in services for much of the world for decades to come. Yet you’ve likely never heard of it. Other mammoth trade deals have triggered demonstrations across the EU and the U.S. while the so-called Trade in Services Agreement’s technicalities are being worked out largely without political pushback. In fact, it seems to have made it to the homestretch...“It has been more than 20 years since the conclusion of a major trade agreement on services has been made,” said Mark Wu, an assistant professor at Harvard Law School who specializes in international trade law.

An op-ed by Derecka Purnell `17. Today, social media introduced me to Alton Sterling during his brutal, involuntary final moments with Baton Rouge police officers. More times than I can count since Trayvon Martin’s murder, friends, family, and colleagues have reached out to me through a helpless, angry, inspirational, curious, loving, or hopeless “what can I do?” message or phone call. Hours after watching Sterling’s death, I read a law school friend’s post on how we can process police and vigilante killings that are widely publicized. He inspired me to pull this list together. This list is in no way comprehensive or exhaustive, but rather entry steps to further connect people to each other in tangible ways.

How can the U.S. fight the spread of Islamic State propaganda? The militant group’s infamous videos of beheadings, violence and torture have a dangerous allure for would-be radicals, and they proliferate over social media in a way that can make containment seem hopeless. But fighting extremist content online need not be very complicated, according to Dr. Hany Farid, a computer scientist at Dartmouth College...Farid is referring to a technique called “hashing,” which he pioneered nearly a decade ago while battling a different but equally vile online scourge: child pornography. Hashing involves scanning the unique digital fingerprint, or “hash,” of a video or photo, making it easy to find instances of that content and remove it...“There’s a valid concern about overreach,” Vivek Krishnamurthy, assistant director of Harvard Law School’s Cyberlaw Clinic, told HuffPost. “Just because a video is flagged, it doesn’t mean there are no conditions under which it should circulate, like as part of a news report, or a parody.” “Plus, as with other algorithms, the question is, is the tech working correctly?” he went on. “We don’t know enough about how these technologies [like hashing] really work.” Still, Krishnamurthy acknowledged that the government is in a tough position. Militant propaganda is a genuine national security concern, and it can’t be ignored.

An op-ed by Noah Feldman. The legal troubles of the father and son executives of an Iowan egg farm could have repercussions for businesses everywhere: In a case involving a 2010 salmonella outbreak, an appeals court has decided that you can get prison time for violating federal regulations, even if you didn’t know you were breaking the rules. It's a unique decision, and one that the Supreme Court should examine.

An op-ed by Noah Feldman. Germany changed several laws this week in direct reaction to the New Year’s Eve attacks in Cologne by a disorganized group of young Muslim men. One change, implementing “no means no” in German rape law, was long overdue. A second, taking criminal history into account in immigration decisions, was probably inevitable and isn’t out of step with other countries. But a third, which creates criminal liability for being part of an amorphous group and tacitly allowing an assault perpetrated by someone else, is more worrisome. It smacks of collective punishment, deviates from European criminal law norms, and threatens the right of assembly.

An op-ed by Nancy Gertner. The Supreme Court’s decision in the corruption case against former Virginia governor Robert McDonnell will complicate the already complex investigation of union influence in the Walsh administration. The court found that it was not a crime to receive money from a constituent in exchange for introducing him to officials who might be interested in his business and even hosting him at the governor’s mansion. What was illegal was taking money in exchange for a decision on a pending matter, like the award of a specific government contract or a vote for bill. The decision was unanimous and followed other Supreme Court decisions rejecting the government’s novel interpretation of federal criminal statutes.

America still lags behind other developed countries in internet service and availability. As of this year, according to the Federal Communications Commission, roughly 34 million Americans lack access to high speed internet, which the agency describes as having download speeds of at least 25 Mbps and upload speeds of at least 3 Mbps. But that number only tells part of the story. The vast number of those Americans lacking access live in small towns or rural communities, about 23 million people. That’s 39 percent of all rural residents in the country...Susan Crawford of the Berkman Center for Internet & Society says that large corporations don’t see it in their financial interests to connect smaller areas. “They are responding rationally to Wall Street, and Wall Street wants them to keep their profits up very high,” she said. “And for them, it’s not as profitable to run a wire to a remote, isolated area with a few houses in it.”

An op-ed by Emily Broad Leib, Sally Greenberg, and Roni Neff. The July 4 weekend marks our nation’s birthday and the time when Americans celebrate — not only with fireworks, but with picnics, backyard BBQs, pool parties. Sadly, one byproduct of these celebrations are the many tons of food that we will inevitably waste after these family gatherings. Today, 40 percent of food produced in the United States is thrown away each year (over two-thirds of that by consumers). Ketchup with a date label that says it has expired.” Salad dressings that are past their “use by” dates, chips and cheese with passed expiration dates. As a result of confusing date labeling policies, consumers regularly toss out foods that are perfectly safe, wholesome, and still taste good.

An op-ed by Jack Goldsmith. On Tuesday FBI Director Jim Comey stated that Hillary Clinton and her State Department colleagues were “extremely careless in their handling of very sensitive, highly classified information,” but concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” It is highly unusual for the FBI Director to publicly summarize the nature and conclusions of a major investigation, and then announce the FBI’s recommendation to the Justice Department that the focus of the investigation should not be prosecuted. So why did Comey do it?

A powerhouse legal team representing a bipartisan group of congressional members and candidates is unleashing a new effort to overturn the case that birthed super PACs, part of a novel strategy to rein in the big money that has poured into campaigns since 2010. Their immediate target is not Citizens United v. Federal Election Commission, the polarizing decision handed down by the Supreme Court that year. Instead, they are going after a lesser-known case decided by U.S. Court of Appeals for the D.C. Circuit just two months later: SpeechNow.org v. FEC ...A team of attorneys including 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, are taking aim at SpeechNow.org with a new complaint they hope will reach the Supreme Court before the 2020 elections. The thrust of their argument: The lower court erred in its interpretation of a line in the Citizens United decision, a mistake that unleashed a flood of money into elections that the Supreme Court never intended. “The situation left in place by SpeechNow.org is one that Congress never enacted and people would never support,” Tribe said. “The law permits a very severe limit on the amount an individual can give to someone’s campaign, but at the same time that could be evaded by giving millions to super PACs. . . . The Supreme Court never approved anything like that.”

The man who represented the Reagan administration 25 times at the Supreme Court has issued a stinging rebuke of Donald Trump in an exclusive to Slate. Charles Fried, who served as solicitor general from 1985-1989 and now teaches constitutional law at Harvard Law School, tells Slate that Trump is the most risky in a string of recent GOP candidates that have forced a choice between party and country. Here is the full comment: "Though long a registered Republican, this will be the third consecutive presidential election in which my party forces the choice between party and, in John McCain’s words, putting America first. Sarah Palin, McCain¹s erratic and surely regretted choice as running mate, in her voluble and opinionated ignorance was an early precursor of Donald Trump. It was the spirit of Sarah Palin and those who cheered her on that animated the subsequent defeat of such traditional Republicans as Bob Bennett in Utah, Dick Lugar in Indiana, and Eric Cantor in Virginia. Many who survived only did so by pretending to positions they did not hold. There was no more transparent pretender than Mitt Romney in 2012. Now those same forces have given us Donald Trump, whose presumptive presence at the head of the Republican ticket disgraces not only the party but the nation. You sow the wind and reap the whirlwind. It is to Romney's credit that this year, like John Paulson and George Will, he is standing up against the brutal, substantively incoherent, and authoritarian tendencies of Donald Trump."

Harvard Law Professor Kenneth Mack on President Obama's post presidency plans.

The Berkman Center for Internet & Society at Harvard Law School is getting a $15 million donation from Michael R. Klein, who received an LLM from the school. It has been renamed the Berkman Klein Center for Internet & Society, according to a Harvard Law press release, and the donation will help build new, better interfaces between computer science, engineering, law, governance and policy. Klein is a co-owner of ASTAR AirCargo, formerly known as DHL Airways, and a former partner at Wilmer Cutler Pickering Hale and Dorr. He also serves as chairman of the Sunlight Foundation, a nonprofit group focused on government transparency, using open data and reporting.

This 4th of July weekend, "Face the Nation" delves into the minds of past presidents and a great military leader. Authors Annette Gordon Reed, Peter Onuf, Jean Edward Smith, and Doug Brinkley share their insights on presidential politics, past and present.

An op-ed by Cass Sunstein. Facebook has a lot to learn from John Stuart Mill, one of history’s greatest thinkers about freedom and democracy. In 1834, Mill wrote, “It is hardly possible to overstate the value, in the present low state of human improvement, of placing human beings in contact with other persons dissimilar to themselves, and with modes of thought and action unlike those with which they are familiar. . . . Such communication has always been, and is peculiarly in the present age, one of the primary sources of progress.” Last week Facebook announced a change in its News Feed service, designed to put human beings in contact with people similar to themselves, and with modes of thought and action like those with which they are familiar. That is not progress.

An op-ed by Susan Crawford. I live in an apartment. Chances are good that you do, too: Tens of millions of Americans live in apartment buildings, and in medium-to-large cities these structures account for between a quarter and a half of all housing units. More people are renting these days than ever before. And when you move into an apartment, you need the essentials: Water. Heat. And Internet access. Water and heat are regulated utilities. But when it comes to Internet access, people in apartments (called Multiple Dwelling Units, or MDUs) often have the worst of both worlds: all the limitations of a utility framework — no competition, no choices — with zero protections for consumers. That means unconstrained pricing. Network operators like Comcast, Time Warner Cable, and AT&T, in cahoots with developers and landlords, routinely use a breathtaking array of kickbacks, lawyerly games of Twister, blunt threats, and downright illegal activities to lock up buildings in exclusive arrangements.

An op-ed by Noah Feldman. Most states ban felons from voting while in prison, and 10 provide that the prohibition can become permanent. Is this relic of common-law tradition constitutional in the modern age? A reluctant and divided Iowa Supreme Court has declined to overturn felon disenfranchisement. But even the majority opinion managed to suggest that in the future, the constitutional answer should be different. Other courts will be listening. Over time, such bans on those who have served their sentences can and should be overruled.

An op-ed by Noah Feldman. Supreme Court Justice Anthony Kennedy’s vote to reaffirm the validity of affirmative action in higher education admissions and to give bite to abortion rights mark the endpoint of his near-complete transformation into a constitutional liberal. Last year’s gay marriage decision, which Kennedy wrote, was his high-water mark as a creative inventor of new constitutional rights. But Kennedy had expressed skepticism of affirmative action in the past. And while his vote in the 1992 Casey v. Planned Parenthood had blocked Roe v. Wade from being overturned, it weakened Roe’s rights-oriented logic. For Kennedy to write the opinion that will become the new affirmative action precedent, and to join the opinion that makes cost-benefit analysis the new measure of whether state laws violate abortion rights, suggests adherence to a liberal constitutional agenda.

When Judge Anthony Kennedy was put forward for the supreme court by President Ronald Reagan, whose previous two nominations had been rejected, he was asked whether he had ever smoked marijuana. “No,” he insisted, “firmly no.” Kennedy was a safe pair of hands. But in the just ended term, dominated by the death of fellow Catholic and Reagan appointee Antonin Scalia, he has emerged as the pivotal figure and surprised many by tilting America’s highest court to the left...“He’s not easy to predict and there are those who believe that’s a good thing for a judge, that the court has been too polarised for a long time,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School.