Media Mentions

After a federal court ordered Apple to help unlock an iPhone used by an attacker in a December mass shooting in San Bernardino, Calif., the company’s chief executive, Timothy D. Cook, penned a passionate letter warning of far-reaching implications beyond the case. ... “The issue is of monumental importance, not only to the government and Apple but to the other technology giants as well,” said Tom Rubin, a former attorney for Microsoft and the United States Department of Justice, who is now a law lecturer at Harvard University. “Those companies are undoubtedly following the case intently, praying that it creates a good precedent and breathing a sigh of relief that it’s not them in the spotlight.”

Apple prides itself on being a standard-bearer on security and encryption and on protecting customers' privacy. That position has put it on a collision course with law enforcement. Last night, a federal judge in California ordered Apple to help the Justice Department break into an iPhone that was used by a suspect in a mass shooting. Apple is fighting the order. ...And there's also the reality that Apple sells most of its phones outside the U.S. Jonathan Zittrain says if Apple says yes to the U.S. government, it will make it harder to say no in countries with very different values. Zittrain is a cofounder of the Berkman Center for Internet and Society at Harvard. JONATHAN ZITTRAIN: Oh, I would imagine that other countries are watching this dispute with great interest.

Two weeks after suing private insurers for improperly denying costly drugs to patients with hepatitis C infections, Seattle lawyers have expanded the fight to Washington state’s Medicaid provider. ...“It is unlawful to withhold prescription drugs that cure a disease from Medicaid beneficiaries based on the cost of those drugs,” the complaint filed by the firm Sirianni, Youtz, Spoonemore and Hamburger states. Co-filers include Columbia Legal Services and the Center for Health Law and Policy Innovation at Harvard Law School.

(Subscription required) One can expect only the finest teachings from Harvard University, but something is brewing in Cambridge, Massachusetts. Prof. Robert H. Mnookin, the chairman of the Program on Negotiation at Harvard Law School, along with other colleagues, has spent the past year-and-ahalf developing video lectures featuring some of the world’s leading experts in negotiation.

You can’t make this stuff up: An online lecture included as part of a course on U.S. copyright law offered by Harvard University in the U.S. and overseas has been taken down by YouTube due to a copyright claim by Sony Music. ... Adding to the irony, the blocked lecture, which explains aspects of copyright law as it applies to music and licensing, is taught by William “Terry” Fisher, a noted copyright expert who is the WilmerHale Professor of Intellectual Property Law at Harvard Law School. “This was an annoyance last week for my Harvard Law School students and the 400 students from around the world taking the online class,” said Fisher. “But it’s also having a global impact because students enrolled in affiliated courses at universities and cultural institutions in other countries that use the same lectures and readings and are on a different academic schedule now are finding they can’t get access.”  

An op-ed by Noah Feldman: To the public, Justice Antonin Scalia was best known for his hard-line conservatism and his originalist constitutional thought. But to judges and lawyers, not to mention law professors, Scalia was better known for his distinctive philosophy for interpreting statutes, known as textualism. Scalia didn’t invent originalism. But he did invent textualism, at least as practiced by many judges today, and it stands as his most important contribution to legal thought. Scalia’s death at 79 is a good occasion to ask whether textualism is here to stay. My answer is a qualified yes. Although I think Scalia’s originalism is likely to fade, the basic textualist method of interpreting statutes according to the words while eschewing legislative history and purpose has a future -- because it has a past.

Washington and Silicon Valley geared up Wednesday for a high-stakes legal battle over a phone used by one of the San Bernardino, Calif., terrorists, a contest each side views as a must-win in their long fight over security versus privacy....“It’s not really a question of security versus privacy. It’s security versus security,’’ said Bruce Schneier, a fellow at Harvard University’s Berkman Center for Internet and Society. “Saying that all of these devices must be insecure so the FBI can have access would be a security disaster for us as a society.”

The potential outcomes of Texas cases currently before the Supreme Court changed Saturday 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.

The Supreme Court lost one of its most forceful critics of federal wetlands regulations with Justice Antonin Scalia's death, a loss that could shift the balance on how the court approaches some of the most significant water rules of President Barack Obama's tenure, writes Pro Energy’s Annie Snider. Scalia heavily influenced a more critical approach to wetlands rules among his fellow justices, once famously comparing the government to "an enlightened despot" in its implementation of regulations that sought to protect rivers and streams by regulating what individuals and businesses could do on soggy patches of land miles away. "It was Justice Scalia, I think, who woke up that part of the court," Harvard Law Professor Richard Lazarus said. "He brought a very deep skepticism which became infectious for many of the justices on the court."

So-called “three parent babies” may be returning to labs in the United States. But it won’t happen this year and the experiments will probably be limited to male embryos only. A recent advisory report concludes that clinical research into mitochondrial therapy procedures on human embryos is “ethically permissible” as long as it meets several conditions. ... I. Glenn Cohen, JD, the faculty director at Harvard Law School’s Petrie-Flom Center, published a blog post about the report. He described the recommendations that MRT be limited to the transfer of male embryos as “clever and interesting.” He said it could have some negative ramifications, such as requiring that female embryos be discarded or frozen. That move could anger some religious conservatives.

A long-brewing conflict between one of the world's largest and most recognizable companies and the FBI leapt into public view on Tuesday after a federal judge ordered Apple to help government investigators find a way into an iPhone used by one of the shooters in the San Bernardino, California, massacre last December. ...Two separate studies released in February by Harvard University's Berkman Center for Internet & Society have addressed the crypto debate, and both urged a degree of caution in allowing increased government access. The first study took aim at the "going dark" question, and led researchers to conclude that we are likely not headed for a future in which police don't have the tools they need to catch bad guys. The second found that, even if encryption was weakened or halted in the United States, there are literally hundreds of encryption products, many of them free, available from other countries that criminals or terrorists could easily install and use.

Supreme Court Justice Antonin Scalia's record on securities matters in the Roberts Court matched his overall conservative reputation, and his passing could tip the balance in a pending insider-trading case. Scalia voted for a “restrictive,” pro-management outcome in securities-law cases more than half the time, according to a 2014 study by Harvard professor John C. Coates IV of Chief Justice John Roberts's tenure on securities law matters. Coates's study showed that despite the ideologically divided court, the amount of polarization and dissent on securities-law cases under Roberts decreased from previous chief justices' terms.

The Environmental Protection Agency’s so-called Mercury Rule, which curbs mercury released from power plants, offers tens of billions of dollars in health benefits, according to a new review of research from the Harvard School of Engineering and Applied Science. ...Last month, the authors submitted their research to the D.C. Circuit Court, which asked for the review. “The Clean Air Act has been one of our country’s greatest successes stories,” Shaun Goho, a co-author of the paper from the the Emmett Environmental Law and Policy Clinic at Harvard Law School, said in a statement. “Yet, when it comes to mercury and other toxic air pollutants, only one major source of emissions has escaped regulation for the last 25 years: coal-fired power plants. Power plants are the number one source of mercury emissions in the United States and limits on those emissions are long overdue.”

Lawrence Lessig, a Harvard Law School professor and liberal activist, and Antonin Scalia, the late conservative and originalist Supreme Court justice, would not be described as political allies. But Lessig had nothing but praise for Scalia, who died Saturday at the age of 79, when it came to the man’s principles in a USA Today op-ed Wednesday. ... “Whether perfectly or not, what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right,” Lessig wrote, crediting Scalia’s “acts of integrity” for some of his own development as a lawyer.

An op-ed by Noah Feldman: What does the U.S. Constitution really have to say about whether the Senate must put a president’s Supreme Court nominee to a vote? President Barack Obama says the Constitution “is pretty clear on what happens next”: He nominates, and the Senate says yes or no in a timely fashion. Republicans think the Constitution gives the Senate the right, not just the power, to give the president’s nominee a hearing or to refuse to do so. ... They’re both wrong. Here’s what the Constitution says about filling Supreme Court vacancies: nothing.

Commentary by Mark Roe: That claims trading is good overall doesn’t mean it lacks downsides. Funds sometimes buy up claims to create a blocking position in the creditor negotiations, slowing down what would otherwise be a quicker consensual restructuing. Claims trading can lead to conflicts of interest. A senior claimant could buy junior claims or vice versa, or a competitor of the debtor could buy claims on the debtor.

Oh, the irony. First pointed out by Mathias Schindler, it appears that a copyright lecture about music copyright done by famed copyright expert and Harvard Law professor William Fisher has been taken down due to a copyright claim by Sony Music. ... Let's be clear here: this is unquestionably fair use. It's not entirely clear to me if this was an explicit takedown or merely a YouTube ContentID match, but either way there is no reason for YouTube to have allowed this to be blocked.

....“Justice Scalia took no prisoners,” said Harvard University law professor Richard Lazarus. “When you prepared for oral argument, you tended to focus tremendously on him because he could transform an argument.” Mr. Lazarus, who served in the U.S. solicitor general’s office when Justice Scalia joined the court in 1986, said he and other government lawyers watched as the justice on his first day peppered question after demanding question at Justice Department attorney Edwin Kneedler, a former Scalia colleague, in a case about Indian lands. Justice Lewis Powell during the session turned to colleague Thurgood Marshall and quietly said, “Do you think he knows that the rest of us are here?” according to a Powell biography.

An op-ed by Noah Feldman:  Justice Antonin Scalia didn’t invent originalism. The credit for that on the modern Supreme Court goes to Justice Hugo Black, who developed the approach to constitutional interpretation as a liberal tool to make the states comply with the Bill of Rights. But Scalia did more to bring originalism into the conservative mainstream than any other Supreme Court justice. In fact, his role as the godfather of the conservative constitutional rebirth of the 1980s and ’90s derived from his originalist advocacy. But will Scalia’s originalist legacy last? Can the philosophy outlive the man? There is reason to doubt it -- because Scalia is literally irreplaceable, and because the younger conservative justices aren’t originalists of the same stripe.

Justice Antonin Scalia, who died unexpectedly Feb. 13 while on vacation at a West Texas resort, authored nearly two dozen majority opinions and a dozen dissents in environmental law cases during his 30 years on the U.S. Supreme Court. ... Richard J. Lazarus, a professor at Harvard Law School, told Bloomberg BNA that Scalia “was probably environmental law’s greatest skeptic,” but not “because he was against environmentalism.” ... Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that “you could largely predict where Scalia would come out on those cases. He was very consistent that the burden on the larger public to get standing was always going to be greater than for directly regulated entities.”

An op-ed by Lawrence Lessig:  Justice Antonin Scalia was an “originalist” committed to interpreting  the Constitution in the way it would have been understood at the time it was adopted. He was also a conservative who was, as any of us are regardless of our politics, committed to particular outcomes that he hoped the law would support. Sometimes that originalism would conflict with conservatism. As a clerk for Scalia in the early 1990s, and the only liberal clerk in the chamber, I watched him struggle with that conflict. In every case that I knew in my time as a clerk, however reluctantly, in the end Scalia followed originalism, whether the result was conservative or not.