Media Mentions

An op-ed by Noah Feldman. Tesla Motors has taken the first step toward challenging a year-old Michigan law that bars direct-to-consumer auto sales in the state. I trust you’ll agree with me that the law is a blatant piece of protectionism, designed to help car dealers at the expense of consumers. But that still leaves an important -- and interesting -- question: Is the law not merely dumb, but unconstitutional, too?

After a lull in activism over race relations at Harvard Law School, about 100 affiliates gathered at a “community meeting” Thursday afternoon to discuss the school’s controversial seal, which is currently under review...Alexander J. Clayborne, a Law student affiliated with Royall Must Fall, said he was pleased at the turnout of faculty and staff at Thursday’s meeting. While he called the conversations that took place “robust,” he expressed disappointment at what he called a one-sided approach in favor of changing the seal. He said he had hoped Law School affiliates with opposing views would attend and debate the merits of the seal change with the activists. “Student activists are accused of stifling free speech on campus, but whenever there is an opportunity to engage with people who disagree, the people who disagree don’t show up,” Clayborne said. “That’s a level of intellectual cowardice that needs to be called out.”

An op-ed by Fady Khoury, S.J.D. candidate. What does Israel’s new stop-and-frisk law mean? What should you do about it? Prior to the new law, which was passed in the Knesset on Tuesday, police were authorized to search anyone without a warrant if they had reasonable suspicion (probable cause) that the person was carrying a weapon illegally (on their person or in their car), or was planning to commit a crime with a weapon. One can question what constitutes reasonable suspicion within that framework, but in short, at least there existed an objective element the officer needed to seek: a weapon. The suspicion that someone is carrying a weapon can’t just be made up, although we know there has always been an element of arbitrariness — after all, we are talking about the Israeli Police.

Aging media mogul Sumner Redstone stepped down as executive chairman of Viacom on Thursday and was replaced by CEO Philippe Dauman, a move that immediately disappointed investors. Although the decision mimicked a similar move at sister company CBS, Thursday's action has the potential to set off a future board fight...Lucian Bebchuk, a Harvard law professor and director of its program on corporate governance, said the board conflict highlights the problems of companies with two classes of stock — one set that holds voting power, and another that does not. He said in an email that Viacom's corporate structure is now "highly problematic and fraught with risks for public investors." "The company's CEO is unaccountable to public investors and accountable only to a person whose health prevents him from actively monitoring the affairs of the company," Bebchuk said.

Commissioner Rob Manfred was at Harvard Law School on Tuesday for a brief but informative talk, one that covered new ground on several key issues. The conversation began with a half hour of questions from Professor Michael Klarman and was followed by 20 minutes of questions from students in the audience...Manfred was a graduate of Harvard Law in the class of 1983, after which he worked at a large law firm called Morgan, Lewis, & Bockius, where he specialized in labor and employment law. It was that practice that led him to baseball, as the firm was hired by the league around the time of the 1990 lockout. Manfred would continue to work with MLB as outside counsel through the 90s, a period which included several highly contentious labor struggles, including the 1994 strike.

The Illinois Board of Elections rules Ted Cruz is a “natural born citizen” because his mother was a U.S. citizen and eligible to be on the ballot. Harvard Law's Laurence Tribe explains why “the Illinois Board of Elections doesn’t know what it's talking about.

Threats of insurrection have always been met with more than easy bromides, however. But even so, it’s startling to see how much the debate has changed recently. Harvard law professor Cass Sunstein, a former official in the Obama administration, has asked whether it’s time to reject the “clear and present danger” standard in favor of one that suppresses “explicit or direct incitement to violence, even if no harm is imminent.”

But, for these reasons, several prominent legal scholars—Jack Goldsmith of Harvard Law School, Ryan Goodman of New York University Law School and Steve Vladeck of American University's Washington College of Law—have suggested that any new authorization of force against ISIS include a sunset provision which would "force the next Congress and president to decide after several years of experience whether and how the authorizations should be updated, or whether, if conditions warrant, they should be allowed to expire."

While the US Food and Drug Administration (FDA) sits on the fence over whether to approve preclinical or clinical trials using mitochondrial replacement techniques (MRT) to help prevent the transmission of certain diseases passed from mother to child, the Institute of Medicine (IOM) of the National Academies of Sciences, Engineering, and Medicine came out with a new report on Wednesday detailing how it believes FDA should allow such trials and regulate them. ...Glenn Cohen, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School, wrote on the center’s blog Wednesday: “The big headline is they have recommended FDA largely move toward allowing [MRT] to go forward under a regulatory pathway with restrictions, the most important of which is the transfer only of male embryos (to avoid germ-line issues)."

To hear FBI Director Jim Comey tell it, his agency is going blind: Shielded by software that uses encryption to secure text or voice communications, criminals and terrorists are planning attacks and exploits on the very same platforms that you might use to stay in touch with your mom. ... A new report signed by technical experts, civil-liberties advocates, and former government officials backs up McConnell’s view. The authors of the report, released Monday by Harvard University’s Berkman Center and funded by the Hewlett Foundation, say there are already more than enough ways for the government to gain access to data they want—even if encryption is on the rise.

Harvard Law School Professor Charles Fried sees contracts in every aspect of daily life. “When you get into a taxi, that’s a contract,” he said. “You don’t have to sign a piece of paper; you don’t need to. The assumption is that the driver will take you where you want to go, and that you’ll pay him when you arrive. The same is true of going to a restaurant. It’s not written down, but it’s understood that you’ll pay at the end of the transaction.” That understanding, Fried said, is critical to contracts in particular, and human interactions in general.

General Michael Hayden, former director of the Central Intelligence Agency and the National Security Agency, argued that the government should not have the keys to encrypted communications. Gen. Hayden spoke with John Bussey, associate editor of The Wall Street Journal, at the CIO Network Conference here Monday evening. ... Similarly, a study out, Monday, from the Berkman Center for Internet & Society at Harvard University said that law enforcement is not likely to go dark anytime soon, with new technologies such as networked sensors and the Internet of Things producing new data sources. Also, metadata is not encrypted and is already used for surveillance activities. While the encryption debate continues, companies–and ordinary Americans–may still need to get their heads around the fact that the U.S. government can’t protect them in cyberspace like they do in other domains.

Two patients in Washington state are suing insurers for restricting their access to the latest hep C treatments, the newest episode in the saga over hep C pricing as insurers grapple with the meds' costs and often limit coverage as a result. ... "With both private and public insurers, the issue comes down to the requirement that insurance is required to cover medically necessary care," Kevin Costello, litigation director at the Center for Health Law and Policy Innovation at Harvard Law School, said in a statement. "When an insurer limits coverage only to its sickest members, it amounts to an irrational and short-sighted rationing of care. From the perspective of an individual living with HCV who is excluded from the cure, that care is the very definition of 'medically necessary.'"

An op-ed by Noah Feldman. There’s something mystifying about the animated pop video released this week by the Chinese Communist Party to illustrate President Xi Jinping’s “Four Comprehensives” policy a year after its announcement. If you’re expecting the loyalty dance of the Cultural Revolution, or the terrifying elegance of red flags being silently waved, you’re in for a surprise. The new video is cloyingly cute and almost self-consciously trivializing, without a shred of cultural pretension.

An op-ed by Noah Feldman. International human-rights litigation in the U.S. is still alive, despite the U.S. Supreme Court’s best efforts to kill it. The latest evidence is a decision this week by the U.S. Court of Appeals for the 4th Circuit to allow part of a lawsuit alleging human-rights violations in Somalia in the 1980s to go forward. The case is thoroughly fascinating, on both the facts and the law. It sheds light not only on the state of human-rights law in the U.S., but also on the U.S. government’s murky record of enabling violations by its military allies.

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.