Media Mentions

An op-ed by Noah Feldman. It’s more than a little eerie to hear that authorities have declared a state of emergency in Ferguson, Missouri. The state of emergency, aka the state of siege, casts a long shadow over the history of government attempts to produce and maintain public order. States of emergency are the favored tool of dictators and would-be dictators who want to suspend regular, constitutional procedures. Their invocation often heralds a crackdown on civil liberties. In the case of St. Louis County, the reality is more complicated. The declared state of emergency does in fact give the elected county executive, Steve Stenger, almost absolute authority to declare a curfew and thereby order arrests and end protests.

An op-ed by Cass Sunstein. What would you think if a presidential candidate -- Republican or Democrat -- proposed a new federal program claiming to reduce poverty, boost employment, improve the health of infants and mothers, and increase the likelihood that people would graduate from college? You’d probably think the candidate was blowing a lot of smoke. Yet the earned income tax credit is doing every one of these things.

When the American Psychological Association (APA) voted 156-1 last week to ban psychologists from participating in national security interrogations, the lone dissenter was retired Colonel Larry James, a former chief psychologist at Guantanamo Bay and Abu Ghraib. He is also one of the people who inspired the vote in the first place...In 2010, the Harvard Law School International Human Rights Clinic filed two ethical complaints against James for his work at the prison facilities, one in each of the two states he’s licensed to practice—Louisiana and Ohio. The complaint alleges that during his tenure at Guantanamo in 2003, “boys and men were threatened with rape and death for themselves and their family members; sexually, culturally, and religiously humiliated; forced naked; deprived of sleep; subjected to sensory deprivation, over-stimulation, and extreme isolation; short-shackled into stress positions for hours; and physically assaulted.” In 2009, Harvard Law Professor Bill Quigley and Deborah Popowski, then a fellow at the Harvard Law School Human Rights Program, described an incident involving James at Guantanamo.

In the 1990’s and accelerating into the 2000’s, a number of major law firms adopted a two-tier partnership structure, mainly for economic reasons, legal experts said...Recently, though, that model has been coming under pressure. “When the market went in the downturn, firms found themselves with a lot of non-equity partners who had very little incentive to actually go out and get business, who were being paid a lot of money,” said David Wilkins, a professor at Harvard Law School who has studied the legal profession.

Five hundred years ago, cities were both smaller and more autonomous, their citizens happily exempt from the laws and obligations of the feudal countryside. Today, the situation is reversed. Roughly three-quarters of the developed world is urbanized. The bigger, richer, and more numerous that cities have become, the more their power has been absorbed by both nation-states and supranational bodies, like the European Union. ...Or, much like Congress on these issues, they might do nothing at all. Skeptics argue that the GPM threatens to add, not subtract, from the bureaucracy that makes it difficult for civic leaders to do their jobs. Some argue that mayors need more basic authority before lending it to others. Referring to Barber’s book, Harvard law professor Gerald Frug notes, “The more useful title would be ‘If Mayors Ruled Their Cities.’ ”

Senate Republicans announced new legislation Tuesday to bar the government from forcing business to provide insurance for drugs and services that violate their moral beliefs, tapping into renewed debates over religious liberty, abortion and the persistent legal fight over Obamacare’s birth control mandate...Holly Lynch, a bioethics expert at Harvard Law School who closely tracks the debate, said the new bill didn’t balance its focus on rights of conscience with a women’s access to services. “All these senators are doing is focusing on one side of the equation, and that is a serious problem,” she said.

President Obama’s climate-change plan will face a fierce challenge in the courts this fall, when lawyers for at least 15 states join the coal and power industries to block the carbon-reducing rules before they take effect...But other experts in environmental law say the outcome is hard to predict. “EPA will not have smooth sailing,” said Harvard Law professor Richard Lazarus, noting the high court’s June ruling against another clean-air rule came as a “dose of cold water” for environmental advocates.

An epic legal battle is about to begin over President Obama's plan to address climate change, in which the Environmental Protection Agency is putting in place new limits on greenhouse gases from power plants. Critics argue the plan is on shaky legal ground, but the administration says it's prepared to defend the regulations in court...Others say the EPA is likely to prevail on that point. Harvard law professor Jody Freeman, a former legal expert on energy and climate change for the Obama administration, says the final version of the regulations is "far more legally defensible than the draft was." For example, Freeman notes that the draft version set emission targets for entire states instead of specific polluters. "Now, what EPA has done is put the regulatory burden directly on the power plants themselves to cut their pollution," she says. "That's just much more direct, and it aligns better with the Clean Air Act."

An op-ed by Charles Ogletree and Kevin C. Peterson. This week Americans recognize the 50th anniversary of the Voting Rights Act. But when it comes to protecting one of our most fundamental rights, is this a time of national rejoicing or mourning? Weeping? Or reaping? Two years ago the 1965 Voting Rights Act was effectively eviscerated. The animating legal mechanisms that gave the act its authority — allowing blacks and other groups to steadily gain electoral equity — was ruled unconstitutional by the Supreme Court, a decision resulting in an immediate avalanche of anti-voting-rights legislation spanning from Texas to North Dakota, from Pennsylvania to Alabama.

Obama's announcement of a final rule to reduce carbon emissions on Monday (03.08.2015) drew international attention to the United States. The administration appears to have responded to a growing desire for politicians to take the fight against climate change more seriously. The American public has been demanding more government action as severe droughts and forest fires ravage the western US...."It's a transformational moment in the US, both in the business sector and in politics," Jody Freeman, founding director of the Harvard Law School Environmental Law and Policy Program, told DW. "The push at the national level is a signal that is going to drive change in the private sector."

An op-ed by Noah Feldman. What counts as discrimination? In our post-Ferguson era of heightened awareness of disparate racial treatment by police, no domestic question is more pressing. The U.S. Court of Appeals for the 5th Circuit has just addressed it in the context of a Texas voter identification law -- and gave a measured, socially astute answer. The court held that there wasn’t sufficient evidence to say that the law requiring all voters to show an acceptable ID was intentionally racist. But it said the effect of the law nonetheless was racially discriminatory -- because it made it disproportionately harder for blacks and Latinos to vote than for whites.

An op-ed by Noah Feldman. A goodly portion of the Washington legal establishment has filed a friend of the court brief asking the U.S. Supreme Court to reverse the conviction of a securities fraudster. But the court shouldn’t take the bait, or the case. The court doesn’t, and shouldn’t, engage in what it calls error correction, except maybe in death penalty cases. And the Washington lawyers, who know this perfectly well, aren’t on board primarily to establish a principle. They’re engaged in a low-stakes process of mutual benefit that's well-known to legal insiders but, if successful, would amount to a distortion of the court’s processes on behalf of fancy -- and expensive -- former government lawyers.

An op-ed by Cass Sunstein. Thursday's Republican debate will pit System 1 candidates (above all Donald Trump) against System 2 candidates (above all Jeb Bush). Let me explain. Social scientists, most prominently Daniel Kahneman, have distinguished between "fast thinking," undertaken by what they call the mind's System 1, and "slow thinking," which characterizes System 2. System 1 is automatic, intuitive, focused on the present and often emotional. System 2 is deliberative, calculating, focused on the long term and emotion-free.

An op-ed by Susan Crawford. In the 2007 best-seller “Spook Country,” William Gibson foresaw “the locative”: virtual fantasies layered over the real-world grid, visible to anyone with the right geo-aware gear. In the book, the charismatic Bobby Chombo is the only guy around with the technical chops needed to make the locative work. So when an artist wants to, say, digitally re-create the death of River Phoenix on Sunset Strip, he or she needs Chombo’s help. Cities are real-world grids: you can see that instantly on a Google map. But it’s not so easy to see the city as a civic entity. The stuff that counts — the interaction between people and city services — is hidden in plain view, invisible to almost everyone. That may be about to change. The opportunity: make it possible for cities to show their work and engage with citizens in a meaningful way, using the existing idea of 311. And make everyone who’s interested a Bobby Chombo.

An op-ed by Jody Freeman and Richard Lazarus. After releasing the Clean Power Plan this week the Obama administration must shift from offense to defense. The plan, which set the first national limits on carbon pollution from existing coal- and natural gas-fired power plants, faces two significant risks: one legal, the other political. The administration must address them to achieve the plan’s ambitious goal of cutting carbon emissions 32% below 2005 levels in 2030.

More than a year ago, in a decision that stunned many American Internet companies, Europe’s highest court ruled that search engines were required to grant an unusual right — the “right to be forgotten.” Privacy advocates cheered the decision by the European Court of Justice, which seemed to offer citizens some recourse to what had become a growing menace of modern life: The Internet never forgets...Recent developments — including a French regulator’s order that all of Google’s sites, including American versions, should grant the right to be forgotten — suggest the new right may not end with Europe...“France is asking for Google to do something here in the U.S. that if the U.S. government asked for, it would be against the First Amendment,” said Jonathan L. Zittrain, who teaches digital law at Harvard Law School. He pointed out that, if enacted, the French regulator’s order would prevent Americans using an American search engine from seeing content that is legal in the United States. “That is extremely worrisome to me.”

An op-ed by John Coates and Ron Fein. Corporations are taking over the First Amendment. That’s not new, but it’s accelerating—and we have the data to prove it. Many people are familiar with the Supreme Court’s 2010 Citizens United decision, which held that corporations have a First Amendment right to spend unlimited amounts of money to influence elections. But the problem goes beyond election spending. Just one year after Citizens United, in a less widely reported decision, the court struck down a Vermont confidentiality law that prohibited sale of drug prescription data for marketing purposes. As the court explained, the law limited the “speech” of pharmacies and data miners that sell this data for use by pharmaceutical sales representatives.

An op-ed by Jody Freeman and Kate Konschnik. With the release of President Obama’s Clean Power Plan, a flood of legal challenges will begin. Already, opponents have denounced the new rule limiting carbon pollution as unconstitutional. Behind the rattling sabers, however, there’s a quieter story worth noticing. Many big players in the electric power industry will gain more with the rule in place than if the courts strike it down. In fact, many power companies have worked with the administration to get the best possible deal, and with states to discuss compliance strategies. Given their financial interests, some of these utilities may even wind up helping the government defend the rule.

An op-ed by Cass Sunstein. When it comes to regulating greenhouse gases, some people think the more stringent the rules, the better. Others favor the more pragmatic approach championed by President Ronald Reagan: The benefits of any regulation must justify its costs. The Barack Obama administration's rules for existing power plants, announced Monday, pass Reagan's test with flying colors -- and offer some nice surprises along the way.

An op-ed by Jody Freeman. Now that the Obama administration has released the full details of its highly anticipated Clean Power Plan today, industry and state opponents are champing at the bit to challenge it in court...For those handicapping the litigation, however, the government’s odds of success just got a significant boost. A close analysis of the language in the final plan released today suggests that EPA has addressed each of these problems in subtle but significant ways, and the legal battle will now likely be much harder for the challengers.

A few weeks after Hillary Clinton was sworn in as secretary of state in early 2009, she was summoned to Geneva by her Swiss counterpart to discuss an urgent matter. The Internal Revenue Service was suing UBS AG to get the identities of Americans with secret accounts. If the case proceeded, Switzerland’s largest bank would face an impossible choice: Violate Swiss secrecy laws by handing over the names, or refuse and face criminal charges in U.S. federal court. Within months, Mrs. Clinton announced a tentative legal settlement—an unusual intervention by the top U.S. diplomat. UBS ultimately turned over information on 4,450 accounts, a fraction of the 52,000 sought by the IRS, an outcome that drew criticism from some lawmakers who wanted a more extensive crackdown. From that point on, UBS’s engagement with the Clinton family’s charitable organization increased...The flood of donations and speech income that followed exemplifies why the charity and its fundraising have been a running problem for the presidential campaign of Mrs. Clinton, the Democratic front-runner. Republicans as well as some Democrats have raised questions about potential conflicts of interest. “They’ve engaged in behavior to make people wonder: What was this about?” says Harvard Law Professor Lawrence Lessig, who is a Democrat. “Was there something other than deciding the merits of these cases?”