Media Mentions

Judge John Coughenour is a rebel. It’s not because—or not only because—he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s...Nancy Gertner, a Harvard Law professor and former federal judge, wrote in 2010 that judges were “surgeons without Grey’s Anatomy.” And that is the crux of the opposition to Coughenour’s argument: For too long Americans exclusively trusted the wisdom of judges who, of course, were just as a fallible as anyone else. Besides, it was judges themselves who became the first proponents of reform.

An op-ed by Yochai Benkler. The showdown between Apple and the FBI is not, as many now claim, a conflict between privacy and security. It is a conflict about legitimacy. America’s national security agencies insist on wielding unaccountable power coupled with “trust us, we’re the good guys”, but the majority of users have no such trust. Terrorism is real, and surveillance can sometimes help prevent it, but the only path to sustainable accommodation between technologies of secrecy and adequately informed policing is through a root-and-branch reform of the checks and balances in the national security system.

Apple is launching a two-pronged attack in its fight against the FBI: It's going to Congress and it is invoking the First Amendment. But in extending its case to lawmakers and the Constitution, it faces a tough sell, legal experts say..."The government has picked its turf carefully" around a narrow issue that gives it the best chance to make its case, says Jonathan Zittrain, professor of law and computer science at Harvard Law School. "It's a tough lift for Apple because traditional privacy as we know it is not at stake."

Milbank, Tweed, Hadley & McCloy’s decision to reallocate a $1 million gift originally meant to fund student events and journals at Harvard Law School has sparked an unusual public clash between the firm and a group of prominent law professors. After a student group called Justice for Palestine used $500 of Milbank’s funds to buy pizza for a panel discussion about free speech for pro-Palestinian advocates, the firm decided its gift to the school should no longer be used to sponsor student events. The student group had named Milbank as the sponsor of the event on a Facebook page. On Monday, a group of professors at top law schools posted an open letter to the law school community admonishing Milbank for seeking to influence discussions held on a law campus. The following day, Milbank partner Thomas Arena called the letter inaccurate in a response sent to the professors, a version of which was posted to the firm’s website on Wednesday...A statement from Harvard Law School, also published on Milbank’s website, said the firm was never involved in decisions about which events its gift would fund. It does not say how the Milbank funds will be used from now on. “We have an exceptionally strong relationship with Milbank, which has acted appropriately and with integrity in all respects, and we look forward to continuing that strong relationship in the future” the Harvard statement said.

An op-ed by Noah Feldman. Who’s in charge of patent law? The answer lies in an ongoing conflict between two courts: the U.S. Court of Appeals for the Federal Circuit, which was created by Congress in 1982 and given control over the entire patent law docket, and the U.S. Supreme Court, which gets to choose which Federal Circuit cases to review and which to leave untouched.

An op-ed by Noah Feldman. Buried in the middle of President Barack Obama’s speech Tuesday on closing the military prison at Guantanamo Bay, Cuba, was a remarkable statement very close to a repudiation of the military commissions trying Khalid Sheikh Mohammed and nine other terrorists.

An op-ed by Noah Feldman. The fight over whether Apple should write new software to unlock the iPhone used by the San Bernardino, California, killer may be poised to go to Congress -- and that’s the first good news I’ve heard about the confrontation. The case raises profound matters of public policy with constitutional, domestic and international ramifications. A magistrate judge working for the federal district court isn’t the right person to decide these issues, nor would higher courts be in a good position to make wise judgments on appeal. What we need here is a law -- one that reflects, to the extent possible, the legitimate competing values in play.

The use of so-called “health sharing ministries” has soared in the wake of President Barack Obama’s health care reforms, but long-skeptical regulators are raising new questions about the plans’ aims to assist in the cost of medical bills while remaining exempt from rules placed on traditional insurance...Rachel Sachs, academic fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School, says some academics are concerned that the sudden growth in membership within health sharing ministries could threaten the private, individual health insurance market. Members of sharing ministries tend to be healthier because they avoid risky behavior, meaning that people who are sicker or have more expensive conditions to manage turn to the marketplace or to publicly funded Medicaid because ministries won’t share in many of their health needs. This results in adverse selection, particularly as the federal government and states are trying to enroll healthy, young citizens in tax-subsidized private insurance so they can balance the costs for people whose medical needs are more expensive and complex. “I think health sharing ministries seem to be terrific institutions for most of the people in them, but I do have concerns about their effects externally,” Sachs says.

Harvard law professor and political activist Lawrence Lessig declared his unlikely candidacy for president, last summer, on a single-issue platform: campaign-finance reform. He was forced to drop out before the second Democratic debate and has since been overtaken by his better-known (and, to be sure, better-financed) competitors. But that doesn’t mean he is done agitating, especially since the American public has caught on with his anti–Citizens United v. F.E.C. message. Here he expresses his admiration for Donald Trump, frustration with Bernie Sanders, and speculation on the future of both parties.

Books served as a window to the world for a young Charles J. Ogletree Jr. His parents and grandparents may not have been formally educated — they weren’t even high school graduates — but Ogletree says they let him go to the library every Saturday. It was there he’d read and imagine places he’d never been and explore future career paths. “I didn’t read the books for no reason,” Ogletree said. “I read them because I wanted to be somebody who wrote books.” That was back then. Today, Ogletree is a Harvard Law School graduate and professor who’s written several books on education, race and other topics. He serves as both founder and executive director for the Charles Hamilton Houston Institute for Race and Justice — an institute that’s engaged in a wide range of educational, legal and policy issues in the past six years. On Tuesday, Ogletree addressed students on the campus of Kentucky State University as part of its African-American Living Legends series.

The legal showdown between Apple Inc and U.S. law enforcement over encryption, no matter the outcome, will likely accelerate tech company efforts to engineer safeguards against government intrusion, tech industry executives say. Already, an emerging industry is marketing super-secure phones and mobile applications...But even a government victory could have unintended consequences for law enforcement, potentially prompting a wave of investment by U.S. tech companies in security systems that even their own engineers can't access, said Jonathan Zittrain, co-founder of Harvard University's Berkman Center for Internet & Society. "A success for the government in this case may further spur Apple and others to develop devices that the makers aren't privileged to crack," he said.

An op-ed by Susan Crawford. Late last month, CTC Technology & Energy, an independent consulting firm that had been retained by the state of Connecticut, released a report that included some shocking stories about business connectivity in Hartford, the capital of the state. Connecticut has the highest per capita income of all fifty states. Hartford is largely black (38%) and Hispanic (43%). Connecticut as a whole is mostly white (69%). CTC found that high-quality fiber and cable high-speed Internet access services did exist close to the business locations in Hartford that the firm visited. But close doesn’t mean connected. And the businesses CTC talked to said that they’d have to pay sky-high amounts to Comcast to get hooked up — and after that it would cost them enormous monthly fees to have a persistent connection.

Investors are getting more pro-active in addressing directors’ lengthy tenures...The number of S&P 500 directors with tenure exceeding 10 years rose 35% to 2013 from 2007, and for those with tenure of over 15 years, the rise was 31% in the same period, according to research by Yaron Nili, a fellow at the Harvard Law School Program on Corporate Governance, based on data collated from RiskMetrics...And there is more than just long-tenure diluting a director’s independence, said Harvard’s Mr. Nili. The rise in the appointment of retired chief executives or other C-suite executives from other firms, combined with the trend of long terms, is giving rise to a new class of director: The “new insider.” “The increasing use of board members who serve for longer periods and come with a predisposed background as corporate insiders elsewhere is not accidental, but is in fact an effort on the part of companies to import the benefits that an “insider” board would have produced,” Mr. Nili wrote in an article accompanying his research.

...After re-examining the seal’s history roughly 80 years later, a Law School committee will likely decide this week whether to recommend changing the school’s shield. After weeks of reviewing documents detailing the seal’s origins and speaking to Law School affiliates, the committee—composed of students, faculty, staff, and alumni—will release its full report in March to the Corporation, which holds final decision-making authority...“The report that we make to the Corporation will be very detailed,” Bruce H. Mann, chair of the committee reviewing the seal, said. “It will include what we know about Isaac Royall, it will include the origins of the shield, the circumstances in which it was adopted, because all of those really are relevant factors in what should be done with the shield going forward.”...Bianca S. Tylek, a Law School student activist, said that based on the committee members’ backgrounds, the group seems favorable to changing the seal. The committee includes activists and legal historians who study civil rights and race in America. “I think we have a pretty good feeling about the shield changing,” Tylek said.

At a time when Harvard finds itself debating the ways controversial history is remembered on campus, Caribbean historian Hilary M. Beckles told a Harvard Law School audience the best way to deal with a thorny past is confronting it head on. “There’s no point in burying the legacy and memories,” Beckles said. “Let us bring everything to the surface and find a way forward through all of this.” Beckles was the keynote speaker at a panel discussion on reparatory justice for Caribbean countries that facilitated the slave trade, and was joined by other Harvard professors on the panel in the Law School’s Ames courtroom..Alexander J. Clayborne, a third-year Law School student who has helped organize protests, attended the event and said he found the talk “powerful,” especially as it pertained to both global and current events at Harvard...Professors Annette Gordon-Reed, Kenneth W. Mack, and Vincent Brown also participated in the panel.

An op-ed by Noah Feldman. The death of Justice Antonin Scalia and the interbranch dispute about the nomination of his successor draw attention to the U.S. Supreme Court at its most grand and important. But Monday morning, the eight justices sit down for business as usual. One case, about Veterans Affairs Department set-aside contracts, will be decided on the interpretation of a statute. It’s the kind of case that excited Scalia and that most of the other justices consider routine. The other case, Utah v. Strieff, is a little different. It’s about the legal consequences of an illegal police stop. In the era of Ferguson, no topic connected to illegal arrests can be considered unimportant.

The potential outcomes of Texas cases currently before the Supreme Court changed Feb. 13 with the death of Justice Antonin Scalia. But some experts say the fate of several Texas abortion clinics is dependent on a different justice — Anthony Kennedy...Laurence Tribe, a constitutional law professor at Harvard Law School, said he believes Kennedy will vote to overturn the 5th Circuit’s decision. “There is no respectable way to treat the challenged Texas regulations as constitutional under the ‘undue burden’ standard,” Tribe said. Tribe, who recently co-authored a book about the Supreme Court under Chief Justice John Roberts titled Uncertain Justice: The Roberts Court and the Constitution, said Roberts could “conceivably” side with the abortion providers in the Texas case as well, but Kennedy was “more likely” to do so.

The battle over replacing Antonin Scalia on the Supreme Court reminds us yet again of how divided we are...But anger and cynicism is where most voters are stuck, uncertain of what needs to be done, and deeply skeptical that a solution even exists. A solution grounded in simple, constitutional, common-sense principles and actions exists, and a brilliant communicator who has spent most of a decade refining and promoting it also happens to be eminently qualified to serve on the Supreme Court. President Obama must nominate him. His name is Lawrence Lessig and he is an author, Harvard Law School professor, married father of three and tireless advocate for citizen equality...Another friend, professor Alex Whiting, said of Lessig’s work ethic: “There’s normal working hard, and then there’s the kind of working hard that he does, which is sustained and comprehensive and driven in a way that I have just never seen in somebody else.”

Researchers in London last year discovered an online jihadi handbook with instructions on sending encrypted instant messages that would be indecipherable to law enforcement. The tools it recommended—ChatSecure and Cryptocat—are popular throughout the Middle East, making them easily available to extremists from that part of the world. They were also developed largely with money from the U.S. government...It didn’t take long for the team to back [Berkman fellow] Nathan Freitas, a technologist and coder. In 2008, he worked on communication security for a group of “Free Tibet” activists traveling to the 2008 Beijing Olympics, but a number of people in the group were arrested and interrogated by the Chinese Public Security Bureau. After the Olympics, Mr. Freitas convened a group of like-minded coders to work on an encryption tool, which they called Gibberbot, allowing two people to communicate securely through encrypted text messages. They called themselves the Guardian Project.

Prominent legal theorist Charles Ogletree long ago said that an Obama would become the first African-American president. Though it became reality — Barack Obama is in the final year of his second four-year term — it turns out Ogletree was a bit off in his assumption. The Obama he was referring to is First Lady Michelle Obama...Ogletree talked about his relationship with the first couple and the current presidential election during a Feb. 11 conversation prior to his lecture as part of the University at Buffalo Distinguished Speaker Series at Alumni Arena. A professor and author known for his work related to issues of race, equity and social justice, he was UB’s 40th Annual Martin Luther King Jr. Commemoration Speaker.

U.S. Supreme Court Justice Antonin Scalia's funeral on Saturday drew more than 3,300 judges, lawyers, political figures and others to celebrate the life and career of the court's most controversial conservative leader...Another former Scalia law clerk who attended the funeral was Lawrence Lessig, a Harvard Law School professor who briefly ran for president last year. When asked if Scalia would have voted for him if he had become the Democratic candidate, Lessig said with a smile that it was possible. "He was very loyal to his clerks."