Media Mentions

An op-ed by Jack Goldsmith. On Thursday the Justice Department indicted seven Iranians for distributed denial of service (“DDoS”) attacks in 2011-2013 against 46 companies (mostly in the financial sector). The indictment alleges that Iran’s Revolutionary Guard sponsored the attacks. David Sanger of the New York Times reports that intelligence experts have long speculated that attacks “were intended to be retaliation for an American-led cyberattack on Iran’s main nuclear enrichment plant.” Sanger adds that “Iran’s computer networks have been a primary target of the National Security Agency for years, and it is likely that in penetrating those networks — for intelligence purposes or potential sabotage — the N.S.A. could have traced the attacks to specific computers, IP addresses or individuals.” Assuming these experts’ speculations are right, the Iranians were indicted for retaliating against U.S. cyberattacks on Iran’s nuclear weapons infrastructure, and they got caught because the NSA had penetrated Iranian networks. On its face this seems hypocritical. Might the U.S. indictments nonetheless be justified?

...The general-counsel role — the top attorney at a company — once consisted of interpreting laws already on the books and handling shit storms that might arise. Today, though? For some technology companies on the bleeding edge, there’s little common law to pull from. Much of Silicon Valley’s dream work “is not really clearly governed by any well-defined existing bodies of law,” says Vivek Krishnamurthy, clinical instructor at Harvard Law School’s Cyberlaw clinic. Which means that knowing the law might help you write the law. For now, experts say a small yet growing group of young lawyers are stepping into tech; of the nearly 40,000 jobs reported by the class of 2014, fewer than 230 were in non-law technology companies — an option that didn’t really exist for law graduates a decade ago, according to the National Association for Law Placement.

An op-ed by Noah Feldman. The Supreme Court looks like it's going to split 4-4 on whether religious organizations are entitled to have even their health insurance providers exempted from providing contraceptive care under the Affordable Care Act. That much was clear from the justices comments at oral arguments on Wednesday. That will leave unresolved the vexing legal questions at the heart of a challenge to Obamacare brought by the Little Sisters of the Poor: What is religious freedom and what does it mean for a law to impose an unacceptable burden on religious practice?

Now that American law enforcement may have a way into the iPhone used by the San Bernardino, Calif., shooter, it faces a new conundrum: Should it inform Apple so it can fix a vulnerability that may affect millions of consumer devices – even if that disclosure could make it harder for law enforcement to unlock iPhones in the future?...“The security of a product used by so many people – including and especially Americans – is part of national security,” said Jonathan Zittrain, professor of law and computer science at Harvard Law School. “While it is appropriate for law enforcement, with a warrant, to use a security flaw to gain access to which it is legally entitled, the flaw should be patched as soon as possible for everyone else’s sake.”

Memo to the Republican senators who refuse to consider President Obama’s Supreme Court nominee, Merrick Garland: When it comes to business issues, Judge Garland is about as good as you could hope for...Hannah Belitz [`17], a student at Harvard Law School who contributes to the blog On Labor, analyzed 22 Garland opinions involving the National Labor Relations Board and found that he sided with the agency in all but four. She acknowledged that while the language of his opinions speaks repeatedly of a need for judicial deference to agency decision-making, nonetheless “the effect of that deference is favorable to labor and unions.” Her work has been widely cited as evidence that Judge Garland is a captive of “Big Labor.”

six BGLTQ student groups from across Harvard sent an email to University President Drew G. Faust asking her to clarify the results of last semester’s survey about campus sexual assault.The email asks for more specific data about the rate of sexual assault among BGLTQ students and clarifications about how the survey categorized students by sexuality and gender. ...Anna E. Joseph, a third-year student at Harvard Law School and co-president of Harvard Law School Lambda said she and other Law School students spearheaded the letter. They reached out to student groups at other Harvard schools, including the Kennedy School, the Business School, and the Graduate School of Education, to solicit a response from Faust, Joseph said. “We thought we would get President Faust’s attention if we could make it a cross school coalition,” Joseph said. “So we reached out to other LGBTQ organizations and they were super supportive.”

Jesselyn Radack, attorney to whistleblower Edward J. Snowden, called on the U.S. government to prioritize privacy over security during the Harvard Human Rights Journal’s symposium on Thursday at the Law School...The symposium sought to reframe the debate on the relative importance of human rights versus national security, according to Law School student Roi Bachmutsky, who co-chaired the symposium. “We wanted to take the next step and ask, ‘Whose security are we really protecting, by what means, and whose security pays the price by protecting this first group’s security?’” Bachmutsky said.

An op-ed by Noah Feldman. One of Justice Antonin Scalia’s chief policy concerns -- some might call it an obsession -- was class actions, which he saw as excuses for plaintiffs’ lawyers to make money by aggregating small individual claims to the detriment of corporate defendants. On Tuesday the U.S. Supreme Court hinted that, in Scalia’s absence, class-action law might not continue to be interpreted narrowly. It cautiously upheld the use of representative sampling as evidence for common claims among plaintiffs -- a small but meaningful victory for class actions in a decision that, under the precedent established by Scalia, might’ve gone the other way.

An op-ed by Noah Feldman. Before Tuesday, I’d have said that Puerto Rico had no chance to win its legal fight to let its municipalities and utilities declare bankruptcy. That's how the island hopes to resolve its overwhelming debt problems, but the federal bankruptcy code says that it can't. That's what the U.S. Court of Appeals for the First Circuit held last summer, unanimously. The statute seemed so clear that even Judge Juan Torruella, the appellate court’s only Puerto Rican member, concurred in an outraged separate opinion criticizing the federal law. Then Sonia Sotomayor stepped in. Oral arguments before the Supreme Court rarely change the outcome of a case, yet Tuesday's session may turn out to be the exception. In a fascinating and unusual argument, Justice Sotomayor, who is herself of Puerto Rican descent, spoke by my count an astonishing 45 times. Sotomayor left no doubt that she was speaking as an advocate.

“Technology is neither good nor bad; nor is it neutral,” said the late Melvin Kranzberg, one of the most influential historians of machinery. The same is true for the internet and the use of data in politics: it is neither a blessing, nor is it evil, yet it has an effect. But which effect? And what, if anything, needs to be done about it?...All this suggests that data and analytics risk slowing down and perhaps even undoing the welcome redistribution of power to ordinary people that the internet seemed to be able to offer. They create “points of control” in what used to be largely an “open system”, as Yochai Benkler of Harvard University puts it in a recent article in Daedalus, an American journal. The design of the original internet, he writes, was biased towards decentralisation of power and the freedom to act. Along with other developments such as smartphones and cloud computing, he now sees data as a force for recentralisation that allows “the accumulation of power by a relatively small set of influential state and non-state actors”.

On Wednesday, a lawyer for the ex-captain of the Yale men's basketball team told Business Insider his client wants readmission to the Ivy League University. The former basketball captain, Jack Montague, is seeking readmission as part of a lawsuit he's planning to file against the university over its decision to expel him as the result of a sexual misconduct allegation..."As far as I know, the Yale expulsion is a final decision and he has exhausted his Yale appeals," Jeannie Suk, a Harvard Law School professor, told Business Insider. Suk has been vocal about these types of cases in the past, often arguing that the criminal court system, not colleges, should be the adjudicators of alleged sexual misconduct. "A lawsuit will not be able to force Yale to reverse its expulsion, even if Montague prevails against Yale in court. It will be a lawsuit for damages, alleging that Yale violated state and/or federal law in the policy or procedure they used to investigate and adjudicate his disciplinary case," she continued.

Controversy erupted this year over Harvard Law School’s seal, which featured the crest of the once-slaveholding Royall family. But long before the current firestorm, the story of Isaac Royall, Jr. quietly lived on in his former Massachusetts house—now a museum—and his surviving descendants, who caution against forgetting the family's history...A descendant of Isaac Royall, Jr.’s, eight generations later, grew up with the story of his contribution to Harvard, and knew about the crest’s link to her family and its slaves before [Daniel] Coquillette unearthed that information. Sixty-five-year-old global health consultant Julia Royall, who now lives in Seattle, recalled learning her family history as a child. She said that preserving this history was important to her relatives,

Racial-justice activists at Harvard Law School (HLS) won one of the largest public battles over the school’s legacy this month, when the administration agreed to abandon the existing HLS shield. ...On Monday night, Reclaim HLS hosted a critical race theory teach-in by Khiara Bridges, an associate law professor at Boston University, modeled on how she teaches first-year criminal law. “We’re not pretending that we’re disconnected from the real world,” Bridges said as she opened her presentation, alluding to one of the motivating goals of critical race theory: to link activism with academics. The event took place in the student lounge of Wasserstein Hall, which members of Reclaim HLS have occupied for the last month to create opportunities for learning and discussion, and to bring visibility to their demands.

You could almost hear the gasps from media-industry insiders last week when a Florida court handed down a mammoth $115 million judgment against Gawker Media in a privacy suit by former wrestling star Hulk Hogan. But despite the headline-grabbing nature of the award, there are plenty of good reasons to believe the decision should be—and likely will be—overturned. ...As Harvard law professor Noah Feldman pointed out in a recent piece for Bloomberg, a public figure like Hulk Hogan is assumed to have a somewhat more restricted right to privacy than a non-celebrity, thanks in large part to the Supreme Court’s decision in New York Times vs Sullivan. And whatever protection the wrestler might have had was likely watered down even further by the fact that Hogan routinely talked about his sex life on talk shows.

... According to Harvard Law School’s Food Law and Policy Clinic, 90 percent of us throw food away—either always, most of the time or occasionally—when that sell-by date arrives. But what many consumers don’t realize is that those dates aren’t intended to be hard-and-fast deadlines. “They’re a guess by the manufacturer when they think the food will not taste as good or not be at its top quality,” says Emily Broad Leib, the director of the Harvard Law School Food Law and Policy Clinic. “They’re not intended to communicate safety.”

Your company could be doing better. The stock is in the doldrums, and the price-to-book ratio is low. On a variety of financial measures — shareholder returns, revenue growth, operational costs, and so on — the company is underperforming its peers. Cash flow is reasonably healthy, but one of the divisions is starting to falter. Adding insult to injury, management won the last say-on-pay vote by less than a large margin. ...Once activists cash out, how will their targets perform? “The jury is still out,” says Grossman. Despite claims that activist investors are “pumping and dumping,” a recent study of activist interventions between 1994 and 2007 by Harvard Law School professor Lucian Bebchuk and others found that Tobin’s Q and return on assets were consistently higher three, four, and five years following the interventions. Similarly, a McKinsey study of 400 activist campaigns against large U.S. companies found that the median campaign reversed a downward trajectory in target performance, and created a sustained increase in shareholder returns.

Incoming Harvard law students are learning about business concepts, thanks to an online program launched by the Harvard Business School. HBX Credential of Readiness (CORe) teaches business fundamentals and is available to incoming Harvard law students for $300. Last year, 89 percent of students said the program increased their confidence in discussing business topics. "I thoroughly enjoyed my HBX CORe experience and found that a fresh background knowledge in business analytics and financial accounting helped me to better understand the decision-making factors managers often consider in domestic and international trade,” said Abraham Williamson, a first-year student at Harvard Law School and a participant in the pilot offering of CORe last summer. “I would highly recommend HBX CORe to new 1Ls.”

An op-ed by Noah Feldman. The epic patent-infringement battle between Apple and Samsung will go to the U.S. Supreme Court. The court announced Monday that, sometime in the term that begins in October, it will consider the $548 million in damages Samsung paid to Apple last year after the U.S. Court of Appeals for the Federal Circuit lowered the jury’s original $1 billion-plus verdict. Without reading too much into the tea leaves, it seems highly likely that the court took the case in order to change the law of damages in patent-infringement suits.

An op-ed by Noah Feldman. The late Supreme Court Justice Antonin Scalia was best known for his philosophy of originalism, a method of interpreting the Constitution that relies on analyzing the original meaning of the text. On Monday, the court gave its first hint about the fate of originalism on the post-Scalia court: Its survival isn’t assured. In a two-page, unsigned opinion, the court unanimously reversed a ruling by the top court of Massachusetts that stun-gun ownership isn't protected by the Constitutional right to bear arms. The Massachusetts Supreme Judicial Court had taken the originalist view that stun guns aren't covered by the Second Amendment because they didn’t exist when the amendment was enacted and aren’t weapons used by the militias mentioned in the famously eccentric text.

The Supreme Court today strongly asserted Alaska's uniqueness when it comes to federal regulation of public lands in a win for the state and Native groups hoping to limit the government's reach. But the justices' unanimous opinion in the case Sturgeon v. Frost did little to answer whether John Sturgeon -- who brought the case in 2011 -- will be able to use his hovercraft to hunt moose within a national preserve. Instead, the justices sent the case back to a lower court to hammer out some of the thornier issues, meaning Sturgeon may face years of more litigation..."As to the rivers, it really punts on that," said Robert Anderson, a visiting professor at Harvard Law School. "It'll be at least a couple more years of litigation." The decision won't have national significance because it "applied only for Alaska," Anderson said. But it was important for Native Alaskan groups concerned about government regulations reaching into private property within conservation units. "They protected the Native corporation lands," Anderson said.

In a standoff with Apple Inc. over access to a terrorist’s smartphone, the federal government is favoring a technological workaround over a court clash it risked losing. The U.S. Justice Department, which had sued to force Apple to help it gain access to data locked in the iPhone used by an attacker who killed 14 people last year in San Bernardino, California, abruptly switched tack late Monday. It asked a magistrate judge to cancel a court hearing in the case scheduled for Tuesday, instead saying it would test another way of accessing the information...“There’s a lot of people right now who are curious who this third party is,” said David O’Brien, a senior researcher with the Berkman Center for Internet and Society at Harvard University. “It appears the FBI turned away from the opportunity to test its case in court and get a ruling that could have set a precedent.”