Media Mentions

Loretta A. Preska, chief judge of the U.S. District Court of Southern New York, said she was concerned about reduced tolerance of free speech on university campuses in a lecture at Harvard Law School on Monday...“I think institutionally, Harvard does a really good job of maintaining free speech,” Hussein E. Elbakri [`18], a student at the Law School, said. “But I think the social pressure not to say certain things, especially in discussions that affect race and gender, has been pretty prevalent in my classes.” Trenton J. Van Oss [`17], a Law School student who coordinated the event, said he was moved by the discussion. Van Oss is a member of the Federalist Society, a group of conservative, moderate, and libertarian Law School students, which sponsored the lecture. “I think one of the things she said that I really appreciated, was the idea that free speech is something that we have to fight for, every generation,” Van Oss said.” We need to work to create a culture of free speech where all views are appreciated.”

Senator Ted Cruz, a candidate for the Republican presidential nomination, has proposed surveilling Muslim neighborhoods. His chief rival, Donald J. Trump, says he would deport millions of undocumented immigrants and allow the use of torture. The campaign has also produced calls for carpet bombing in Syria and steps to rein in the press at home. But you have to wonder: If elected, could a new president intent on pushing or exceeding the boundaries of the Constitution or the law actually follow through?...Noah Feldman, a Harvard law professor, said the greatest bulwark against presidential overreach would be the huge number of people needed to carry out the work. Political appointees and career civil servants could refuse directives. Congress could refuse to pass and finance policies. The Justice Department’s Office of Legal Counsel could declare initiatives unconstitutional. But, Mr. Feldman added, another crisis — say, something like the Sept. 11 attacks — could change the dynamic. Officials might back down. A president could invoke President Lincoln’s suspension, over the objection of the Supreme Court chief justice, of habeas corpus, the foundational right to protest one’s detention. “Could a president unilaterally suspend habeas corpus? Well, all you can say is: It happened once,” Mr. Feldman said.

Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and orderr—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination. "We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

An op-ed by Susan Crawford. I’m looking forward to Tesla’s release of its mass-market Model 3 electric car next week. Owners love their beautiful Teslas, and this one will reportedly cost $35,000 before federal and state tax credits, meaning the net price could be less than the cost of an average American car. But my pulse rate is higher not because of the car itself, or even its pricetag. I’m excited because of what’s inside: a battery that can cost-effectively store enough energy to allow for hundreds of miles of travel. And an operating system that needs constant upgrades.

A new Senate bill tries to make it just a little bit harder for activist hedge funds to exploit healthy companies rather than invest in their future. Sen. Tammy Baldwin (D-Wis.) and Jeff Merkley (D-Ore.) introduced the Brokaw Act on Thursday, which would strengthen disclosure requirements for activist hedge funds that buy parts of companies. Activist hedge funds, unlike other hedge funds, become deeply involved in the companies in which they buy a stake, steering them in a direction that most benefits the fund...Defenders of the bulk of activist interventions, like Harvard Law School’s Mark Roe, argue that its downsides are exaggerated, and that the dearth of corporate investment represents a prudent response to a “weak economy.”

...[Merrick] Garland, now chief judge of the federal appeals court in Washington and President Obama’s nominee to the Supreme Court, has deftly navigated the capital’s high-powered legal circles for decades...Today, he has a talent for letting others talk about themselves. Whether in a meeting or at a party, he leans slightly toward whoever is speaking, head nodding. “He’s absorbing what he hears and integrating it,” said Martha Minow, the dean at Harvard Law School.

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.”