Media Mentions

The Federal Energy Regulatory Commission's recent victory before the U.S. Supreme Court bodes well for the Environmental Protection Agency when the justices eventually consider substantive challenges to the Clean Power Plan, legal analysts told Bloomberg BNA. The court ruled 6-2 that the Federal Power Act unambiguously extends FERC authority to regulate demand response rates in the wholesale energy market (FERC v. Elec. Power Supply Ass'n, 2015 BL 18590 (U.S. 2015); 15 ECR, 1/25/16). Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that she was surprised both by the margin of victory and that the court so emphatically upheld FERC's demand response rule. “The interesting thing is that an agency took an old law that was written decades ago and which couldn't possibly have anticipated the modern grid, and the agency had to adapt that law to deal with modern policy,” and the court resoundingly upheld those actions, Freeman said.

An op-ed by Noah Feldman. The European Union and the United States reached a new deal Tuesday on privacy protections for Europeans’ data that gets sent to U.S. servers. The agreement, to be called Privacy Shield, replaces an agreement repudiated by the European Court of Justice in October. That’s good news for major corporations like Facebook and Google that want continued access to their European users’ data. But the new agreement requires scrutiny itself, which European regulators and probably the ECJ are going to give it. Notwithstanding the powerful business interests at stake, there’s reason to think that the agreement may have loopholes that make it difficult for those bodies to uphold.

An op-ed by Adam Ziegler. Google “robots and lawyers.” What do you get? The first few pages of my results are about 80% predictions of lawyers’ demise, 10% claims of lawyers’ supremacy and 10% ads by lawyers seeking clients maimed by robots. A welcome new addition to these results is “Can Robots Be Lawyers? Computers, Lawyers and the Practice of Law,” by UNC law professor Dana Remus and MIT professor Frank Levy. The authors demonstrate that their question — “Can robots be lawyers?” — is a complicated one that deserves less hyperbole, a deeper understanding of tech and greater respect for the professionalism of lawyers. Their piece is the most thoughtful analysis I’ve seen of automation’s impact on legal practice. It’s well worth the read for lawyers aspiring to tech excellence. But what if, instead of obsessing over how tech will impact lawyers, we became preoccupied with how tech will impact clients? What if we traded our lawyer-centric perspective for a client-centric one?

Tech companies and privacy advocates have been in a stalemate with government officials over how encrypted communication affects the ability of federal investigators to monitor terrorists and other criminals. A new study by Harvard's Berkman Center for Internet and Society convened experts from all sides to put the issue in context...Some of the ways the data used to be accessed will undoubtedly become unavailable to investigators, says Jonathan Zittrain, a Harvard professor who was one of the authors. "But the overall landscape is getting brighter and brighter as there are so many more paths by which to achieve surveillance," he says. "If you have data flowing or at rest somewhere and it's held by somebody that can be under the jurisdiction of not just one but multiple governments, those governments at some point or another are going to get around to asking for the data," he says.

An op-ed by Noah Feldman. Can Wisconsin make a sex offender who’s completed his sentence wear a GPS monitor on his ankle for the rest of his life? Reversing a lower court judgment last week, the U.S. Court of Appeals for the 7th Circuit said the answer is yes. The opinion, by the influential Judge Richard Posner, presents itself as an exercise in cost-benefit analysis and legal common sense. But the decision is wrong nonetheless, because the right to privacy can’t be balanced away by statistics.

An op-ed by Cass Sunstein. Bernie Sanders is the oldest candidate in the presidential race, but as of now, he seems to be the younger generation’s candidate. According to a recent survey, Sanders is favored by 46 percent of voters between the ages of 18 and 34, where Hillary Clinton is preferred by 35 percent. What’s going on here? Here are two stories, which offer some clues. In 2009, the vast majority of Republican senators opposed my nomination to serve as administrator of the Office of Information and Regulatory Affairs. Democratic senators were overwhelmingly supportive (with the exception of a few relative conservatives). Just one liberal threatened to join the opposition: Bernie Sanders. Before the vote, he agreed to talk to me about his objection. It was simple: I didn’t want to regulate “the banks.” I answered that the job for which I had been nominated didn’t much involve banks, and in any case I agreed that more bank regulation was a good idea. My response was ineffective: He reiterated that I didn’t want to regulate the banks, and went on to vote against me.

An op-ed by Kayleigh McEnany `16. The punditry snicker, the politicians sneer, and the editorialists scoff, but the American people speak and Donald J. Trump rises –commandingly so – confounding the powerful institutions of Washington D.C. and New York and earning him the ire of both. He is a true outsider – no doubt – forgoing political norms, defying the crusty cowardly so-called “Establishment,” and refusing to cower in the face of political correctness. Flanked on both sides, organized forces on the Left and the Right have made every effort to topple Trump, but these efforts have only served to embolden him and broaden his support.

Harvard Law School professor Randall L. Kennedy confronted questions about the intersection of race and politics at the Institute of Politics Monday evening, urging attendees to fight racism but not institutions like Harvard. The event, which comes amidst intense debate and activism about race and inclusion at Harvard and universities across the country, was the first installment of a two-part series called “The Politics of Race: Can We Talk?”...In an interview after the IOP event, Kennedy reiterated his beliefs that activists at the Law School were magnifying problems of discrimination. “We need to avoid needlessly alienating people who might be our allies,” Kennedy said. “Unfortunately, I think some of that is happening at the Law School. Harvard Law School is not the enemy. And if you are constantly treating Harvard Law School as the enemy, you’ll make it the enemy.”

For Sale: 61 years of Supreme Court oral arguments, including audio, transcripts and a suite of multimedia tools. It’s not on Craigslist yet, but Jerry Goldman says options are narrowing for Oyez.org, the private online archive of Supreme Court materials he has been building since the early 1990s and providing free to the public. Mr. Goldman, 70 years old, retires from teaching in May, and when he goes so does Oyez, currently hosted at Chicago-Kent College of Law. The project, which has two full-time staff members and several student employees, costs between $300,000 and $500,000 annually to operate, he says. The sticking point, however, isn’t the annual budget; Harvard Law School, for one, has offered to pick up the operating cost. But Mr. Goldman also wants to be paid for the sweat he’s put into his baby–or at least the intellectual property it represents—something he estimates is worth well over $1 million. “The Harvard Law School Library, and no doubt others, would welcome a chance to steward something as extraordinary as Oyez,” said Jonathan Zittrain, vice dean for library and information resources at the school. But he objects to paying Mr. Goldman personally for turning over the keys. While faculty members generally are allowed to collect royalties for books they write on university time, Mr. Zittrain says the Oyez Project, developed with the assistance of many minds—Mr. Goldman doesn’t write the computer code himself—is a different kind of animal.

For more than two years the F.B.I. and intelligence agencies have warned that encrypted communications are creating a “going dark” crisis that will keep them from tracking terrorists and kidnappers. Now, a study in which current and former intelligence officials participated concludes that the warning is wildly overblown, and that a raft of new technologies — like television sets with microphones and web-connected cars — are creating ample opportunities for the government to track suspects, many of them worrying. “ ‘Going dark’ does not aptly describe the long-term landscape for government surveillance,” concludes the study, to be published Monday by the Berkman Center for Internet and Society at Harvard...Jonathan Zittrain, a professor of law and computer science at Harvard who convened the group, said in an interview that the goal was “to have a discussion among people with very different points of view” that would move “the state of the debate beyond its well-known bumper stickers. We managed to do that in part by thinking of a larger picture, specifically in the unexpected ways that surveillance might be attempted.” He noted that in the current stalemate there was little discussion of the “ever-expanding ‘Internet of things,’ where telemetry from teakettles, televisions and light bulbs might prove surprisingly, and worryingly, amenable to subpoena from governments around the world.”

Hal S Scott, Nomura Professor and Director of the Program on International Financial Systems (PIFS) at Harvard Law School, believes there is a lot of optimism globally about India. But, he insists the implementation of reforms process is needed to spur the growth further. In an interview with Sanjay Jog, Professor Scott, who was in Mumbai to participate in a global meet, notes that India will benefit in the falling oil price..."I think there is an optimism globally about India and it is reflected in change in leadership and unquestionable potential of India. We have example of China which changed its direction and succeeded."

...For five years, the girl’s safety and emotional well-being hung in the balance as the systems set up to protect her — short on staff, financial resources, and clear procedures — struggled to decide who to believe or what to do. The case’s disturbing details provide a window into a system that one recently retired judge described as broken. The state’s family courts are overrun with volatile, complex claims, dozens of judges, lawyers, and advocates said in interviews with the Globe — but woefully short on tools to resolve them...Every day, family court judges must make decisions “based on a very thin slice of data,” said David A. Hoffman, a family lawyer and mediator and a lecturer at Harvard Law School who founded the Boston Law Collaborative. “When there are vulnerable kids involved . . . that’s where the system doesn’t have resources to really figure out if there is abuse or neglect.”

An op-ed by Noah Feldman. Events in Tunisia look, on the surface, like a replay of 2011. A frustrated, unemployed man killed himself Jan. 17 in an act of protest that was intended to remind everyone of the self-immolation of a fruit seller that set off the Arab Spring. Protests then spread from city to city. They focused on rampant unemployment, which was one of the concerns of the protesters last time. Eventually, the government had to call a curfew to make the protests die down, which they eventually did. Deeper down, the situation in 2016 is fundamentally different. The reason is democracy.

Is the law school crisis affecting Harvard? Probably not. The school did choose to take 55 transfer students last year, the fourth largest transfer class in the country. In the prior four years the school took between 30 and 34 transfers each year. Its higher than usual acceptance of transfers has fueled speculation that it was compensating for an original applicant pool that wasn’t strong enough. Whether that’s so or not, several indicators that may show a school faces financial duress have each remained steady at HLS between 2011 and 2015...According to Jessica Soban, assistant dean of admissions at Harvard Law School, the school had a stronger pool of transfer applicants this year and the yield from transfer offers exceeded expectations. Dean Soban resisted speculation, but it certainly appears that the Harvard Law transfer class was getting out of dodge. This is a far more tenable explanation than the school needing an extra $1 million from 20 more transfers.

An op-ed by Noah Feldman. By any measure, Eric Lander, director of the Broad Institute, is one of the most important scientists in the world today. His science is groundbreaking, his institutional power is enormous, and his ethical reputation is sterling. Yet Lander now finds himself the target of immense criticism as a result of … trying to do history. Lander's essay "The Heroes of Crispr," recently published in the journal Cell, has been attacked for its failure to disclose his research center’s stake in a massive patent fight over the extraordinary genome-editing technology Crispr/Cas9, as well as for downplaying the roles of two female scientists, Emmanuelle Charpentier and Jennifer Doudna, who are on the other side of what's been called the biggest patent war in the history of biotech. What went wrong? The lesson of this kerfuffle isn’t only, as some have proposed, that critics are jealous of Lander’s influence or opposed to his big-science ideology and accomplishments. It’s something more subtle and more interesting: There's a huge difference between doing your job and trying to write the history of that job.

A new open source plugin designed to prevent the creation of dead content links online – so called "link rot" – has launched. Amber has been designed by Harvard's Berkman Center for Internet and Society and it provides what it calls a "persistent route" to information on the internet by automatically taking and retaining a snapshot of every page on a website and storing it on the same website's server.

As Massachusetts nears another presidential primary, thousands of residents interested in voting will have to provide proof of identification, find their polling station, and — most important — register before the government-imposed deadline of 20 days before Election Day. But according to activists with the New Democracy Coalition in Boston, these small actions combine to create a voter registration system that is outdated and favors the wealthy and politically astute. Their solution: a statewide database of eligible voters that effectively ends the need for registration...Charles J. Ogletree Jr., a prominent professor at Harvard Law School and former mentor of President Obama...called the expansion of voter registration a civil rights issue. Because, he said, when voting and voter registration is difficult, the most affected populations are the groups to whom voting has been extended to most recently — women, communities of color, and the poor. “The people voting in this state have to understand that every single vote matters and that they have to reach out to people, and people should be not be denied about their race or gender, or sexual orientation,” Ogletree said. Also, he argued, the creation of a statewide of automatic voter registration system would be an important symbolic step.

The founding director of the Broad Institute has come under fire for publishing an article that critics charge fails to disclose a conflict of interest and understates the contributions of women in developing a biotechnology. The article in question—published in the science magazine Cell and written by famous geneticist Eric Lander—outlines the history of CRISPR, a gene editing technology. Critics allege that Lander did not disclose a conflict of interest in the story: the Broad Institute is currently embroiled in a CRISPR-related patent dispute with the University of California...Lander’s colleagues at Harvard and the Broad Institute— including Law School professor Jeannie C. Suk and longtime Lander advisee Pardis C. Sabeti— characterize the attacks on Lander as baseless. “The kind of dedication that I saw firsthand, that Eric Lander had, to supporting and furthering the career of his mentees who were women—that is utterly inconsistent with some idea that he is erasing women’s role in science,” Suk said. Sapeti characterized Lander as an “extraordinary mentor” who pushed many women to have a strong voice at the Broad Institute, and said that the CRISPR narrative was not an issue of gender.

A federal judge in Massachusetts this week issued a mixed ruling in a case challenging tougher regulations on for-profit colleges enacted by that state’s attorney general. The Massachusetts attorney general’s office, which has been among the more aggressive in cracking down on for-profit colleges, largely prevailed in the case as the judge upheld seven of the nine state regulations the for-profit college association in the state had challenged...Toby Merrill, who directs the Project on Predatory Student Lending at Harvard Law School and advocated for tougher regulations, said that the ruling was “a substantial vindication” of the rules. She pointed out that although two provisions were invalidated by the court, the for-profit college group did not challenge the underlying authority of the state to create the rules in the first place.

An op-ed by Cass Sunstein. For all their differences, the presidential candidates share one defining characteristic: All of them are upbeat about the future (as long as they get elected). In one of the most important books of recent years, Northwestern University economist Robert J. Gordon offers a radically different view. When it comes to the American economy, Gordon is a pessimist. He thinks that past growth was a historical anomaly, spurred by a series of great inventions in the late 19th Century, above all electricity and the internal-combustion engine.

An op-ed by Noah Feldman. The University of Missouri won’t fire an assistant professor of communications, school officials say, even though the professor, Melissa Click, has been charged with assault for blocking a student reporter who was trying to take video of protests on the campus. That’s a reasonable policy decision, because everyone’s entitled to the presumption of innocence. At the same time, the university’s acting chancellor, Henry Foley, said something calculated to strike fear in the hearts of untenured professors everywhere: He indicated that university would take account of her actions when she’s being considered for tenure.