Media Mentions

New York regulators approved an aggressive Clean Energy Standard this week that calls for 50% renewable energy and includes income supports to keep three upstate nuclear plants online. A close reading of the Public Service Commission’s order reveals the state believes it has no choice but to support the plants, or risk falling short on emissions goals. At the same time, the order has been carefully crafted to pass federal or legal scrutiny, though a challenge is all but inevitable...Ari Peskoe, senior fellow in electricity law at Harvard Law School, said he concluded the New York order would not be preempted — at least, not based on the Hughes argument. “The distinction, and the PSC was very deliberate — the commission is not adjusting a wholesale rate. What they’re doing is valuing the carbon-free attribute," Peskoe said. "They’ve been smart about how they’re going about it." That's not to say some party won't make that argument. But “Hughes is a really narrow decision," Peskoe said.

An op-ed by Cass Sunstein. Improbably, the U.S. Constitution has become a runaway bestseller. The reason, of course, is Khizr Khan’s speech at the Democratic convention, and in particular these words posed to the Republican presidential nominee: “Let me ask you: Have you even read the United States constitution? I will gladly lend you my copy.” Pointedly, Khan added, “In this document, look for the words 'liberty' and 'equal protection of law.'” Khan’s words have pointed the Constitution's thousands of fresh readers toward a text that might well surprise them. Still, James Madison, father of the founding document, would be pleased.

...Following Whitfield, fellow scholar Kenneth Mack brought the past into the present. Mack, a Harvard Law School classmate of President Barack Obama, now teaches at his alma mater. But racial challenges persist: Last fall, someone defaced portraits of Mack and other black professors with electrical tape. "There's a lot of work to be done," the educator said. That's one reason Mack has written "Representing the Race: The Creation of the Civil Rights Lawyer," a history of the pioneering African-Americans who first fought for equality. "It is about a group of men and women who changed America," he told a Woodstock audience. "The past is more complicated than we think it is, and it helps us understand the present is more complicated than we think it is. To see what I'm getting at, you've got to hear the stories."

An op-ed by Randy Barnett and Lawrence Lessig. Hillary Clinton and Donald Trump are disliked by more voters than any major-party nominees in at least three decades. Independents easily outnumber either Democrats or Republicans. And polls show voters overwhelmingly want another choice. There is no shortage of great leaders in the United States with integrity, strength and vision, but there is something standing in their way: A morass of state laws meant to keep particular Americans from threatening the two existing major parties. Fundamentally, these laws prevent rivals from emerging that might replace the existing non-responsive parties—the way the Republicans emerged to replace the Whigs over the issue of slavery. And like poll taxes and literacy tests, they unjustifiably block ballot access.

The long-term health prospects for thousands of Massachusetts residents are about to improve. As of Monday, MassHealth will require private insurers that manage coverage for two-thirds of the state Medicaid plan’s members to loosen rules that cruelly prevent people infected with hepatitis C from receiving drugs that cure the disease...Massachusetts’ limits on hepatitis C medicines have been at odds with US Centers for Medicare and Medicaid Services’ policy, which mandates that Medicaid insurance plans cover the new drugs. MassHealth also has faced scrutiny from health care advocates, who note that the disease is especially prevalent among lower-income residents who don’t have other treatment options, or who are reluctant to seek preventive medical care. “We’re dealing with a population that has a history of exclusion and distrust of the health care system,” says Robert Greenwald, director of Harvard Law School’s Center for Health Law and Policy Innovation, and a prominent critic of limits on hepatitis C coverage.

An op-ed by Susan Crawford. Last year, the European Parliament adopted a regulation aimed at protecting open Internet access. That seemed like good news, almost as uplifting as the recent D.C. Circuit decision that seemed to guarantee open access here in the states. Both actions seem to protect the consumer-friendly principle of net neutrality from its self-interested foes. But neither are enough in themselves.

An op-ed by Cass Sunstein. When President Barack Obama is trying to persuade Americans not to do something, he has a go-to line: “That’s not who we are.” Whether the issue involves discrimination, immigration, torture, criminal violence or health care, he invokes the nation’s very identity. And he likes to follow it by adding, “We are better than that.” In this way, throughout his political career, Obama has embraced the American tradition of rugged individualism, while arguing that it has always been bound by “an enduring sense that we are in this together.” America, he says, is “sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” Indeed, Obama’s constant emphasis on “who we are” is his most original contribution to presidential rhetoric.

An op-ed by Noah Feldman. Only Donald Trump knows whether he was serious about asking Russia to hack into Hillary Clinton’s e-mail server, now in government hands, to find 30,000 emails that were erased as private. But let’s assume Vladimir Putin was listening. Did Trump commit a crime by inciting lawless action? Or are his words protected by the First Amendment? Trump was probably making a political statement, trying to change the subject from a possible pro-Trump Russian hack of Democratic National Committee e-mails to Clinton’s own e-mail scandal. Political statements are ordinarily at the core of free-speech protection.

An op-ed by Noah Feldman. Two prominent legal decisions accidentally converged Wednesday, each likely to be deplored by a different political constituency. Baltimore prosecutors dropped all charges against three police officers who had been accused in the death of Freddie Gray, which will frustrate supporters of the Black Lives Matter movement. And a federal judge is allowing John Hinckley Jr., who tried to kill President Ronald Reagan, to move into his mother’s house in a “convalescent release” -- a decision already criticized by Donald Trump, among others. The two decisions have something important in common: They both came from conscientious public officials who were following the laws that govern their jobs. You may not like one or both of them. But if you value the ideal of a government of laws, not men, you should accept the decisions as understandable consequences of the law.

...Given this show of discipline, it may come as a surprise to learn that in recent years, some serious behavioral issues have convulsed the Milton Hershey School. But the problem isn’t the students. The problem is the adults in charge. Thanks to a historic gift by M.H.S.’s founder, the Hershey Trust Company has an endowment of $12.3 billion and an ownership stake in Hershey Company, giving it control of the candy dynasty behind Kit Kat, Reese’s and Hershey’s Kisses, to name a few. With Hershey now the subject of a $23 billion takeover bid, the trust is enduring one of its periodic turns in the klieg lights, and the timing is hardly ideal. A leaked internal memo has revealed back-stabbing, allegations of insider trading and the threat of something called a “suicide parachute.”...For good measure, the state legislature passed a law that year mandating that Hershey cannot be sold without the approval of the attorney general. While arguably a boon for the community, the law, according to Robert H. Sitkoff, a professor at Harvard Law School, was also indefensible. “Imagine if the legislature of New Jersey passed a bill that said Princeton had to invest more than half of its endowment in one local company?” Mr. Sitkoff said. “That’s what the Pennsylvania Legislature did in 2002. It’s outrageous. The trust is supposed to be rescuing needy kids.”

...Officials in previous GOP administrations...Charles Fried, former U.S. solicitor general under Reagan and current Harvard Law professor -- "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. ... It is to [Mitt[ 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.

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.