Media Mentions

An op-ed by Noah Feldman. Should the First Amendment protect what doctors can say to their patients in the privacy of the examining room? Weighing state prohibitions on gay conversion therapy, liberals have tended to think the state should be able to regulate medical treatment without worrying about free speech. Now the shoe’s on the other foot: Florida’s ban on physicians asking patients about gun ownership puts liberals in the position of wanting to protect the doctor-patient relationship. The U.S. Court of Appeals for the 11th Circuit upheld the Florida “docs vs. Glocks” law this week on the ground that the state’s interest in protecting gun ownership outweighs physicians’ free-speech interests -- a result sure to trouble liberals.

Boston-area universities are closely watching a Supreme Court case that could derail the use of race in admissions, a practice that several universities, including Harvard and MIT, say is fundamental to creating a diverse student body....a strong ruling one way or the other would create a “powerful atmospheric and cultural impact” on private schools, said Harvard Law School professor Lawrence Tribe. “Then the impact on privates would be indirect but massive,” Tribe said, but he explained that a ruling striking down race-based affirmative action is unlikely. Another legal analyst said a ruling against affirmative action would be a “body blow” to the many recent efforts to increase diversity. “The events of the past two or three years have made it clear that we have to be proactive about addressing equal opportunity and addressing racial attitudes,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

The news making waves in law libraries lately has been the announcement of Harvard Law School Library’s “Free the Law” initiative (also reported in the The New York Times). By digitizing their comprehensive collections of printed law reports, Harvard will make publicly available free, open and wide-ranging access to American case law for the first time. The Harvard Law School Library is to be lauded for this initiative, another in a series of projects from their Library Innovation Lab, including The Nuremberg Project to digitize their collections of source materials on the Nuremberg Trials; the H2O project to build a platform to create, share and remix open course materials (casebooks); and the Perma.cc service to address the problem of link-rot and help journals, scholars, courts and others create web citation links that will never break.

It took Harvard Law School (HLS) nearly 200 years, since its founding in 1817, to amass its collection of United States case law reporters—one of the world’s largest collections of legal materials. It will take the HLS Library about three years to scan and digitize that collection and, in partnership with legal technology startup Ravel Law, make it freely available to the public online. If all goes according to plan, by early to mid–2017, the “Free the Law” project will have digitized the “official print versions of all historical U.S. court decisions,” according to the HLS Library blog...According to Adam Ziegler, manager of special projects at the Innovation Lab, the collaboration between Harvard and Ravel came about because HLS had “the vision and the content”—in the form of printed case law—to make the law digitally available, but not the financial and technological means to make this a reality. Ravel is responsible for designing and managing the online output. The raw case law material digitized by HLS and Innodata will be added to the Ravel platform, which allows users to view case connections and use data visualization tools to pinpoint influential cases on a given issue. As Steve Chapman, Manager of Digital Strategy for Collections at Harvard Law School, described it, “anybody who chooses to access Ravel has a means to engage with the law.”

Congress has avoided authorizing the war against the self-described Islamic State for nearly a year and a half, but it had no problem voting Friday to spend billions more on it. Wait -- did lawmakers also just vote to authorize it? Jack Goldsmith, a Harvard Law School professor who previously served in the Justice Department's Office of Legal Counsel, says that because lawmakers voted for a $1.1 trillion government spending bill that clearly appropriates money for the fight against the Islamic State, they also voted to approve the war itself. Goldsmith explained his reasoning in a Thursday post on the legal blog Lawfare: A 2000 Justice Department opinion states that Congress can "authorize hostilities through its use of the appropriations power" if a spending bill is directly focused on a specific military action. The year-end spending bill that lawmakers passed Friday includes $58.6 billion for Overseas Contingency Operations for military activities. House Appropriations Committee chairman Hal Rogers (R-Ky.) has specifically said some of those funds will be used to "combat the real-world threat of the Islamic State of Iraq and the Levant (ISIL)." That means that, at least for the period of time covered by the funding bill -- it goes through Sept. 30, 2016 -- lawmakers just voted to authorize the war against the Islamic State, Goldsmith said.

An op-ed by Bonnie Docherty: Incendiary weapons inflict almost unrivaled cruelty on their victims. Photos taken after an incendiary weapon attack on a Syrian school show the charred bodies of children, who must have experienced unimaginable agony. The weapons cause excruciatingly painful burns, and treatment for survivors requires sloughing off dead skin, which has been likened to being flayed alive. While individuals often react to accounts of such suffering with horror, government efforts to minimize the harm from these weapons by strengthening international law have been unacceptably slow. ...Over the past two years Human Rights Watch has documented new use of incendiary weapons in Syria and Ukraine, and it is investigating allegations of use in Libya and Yemen in 2015. A report [PDF] recently released by Human Rights Watch and Harvard Law School's International Human Rights Clinic provides evidence of these attacks, along with a five-year review of developments on the issue and recommendations for next steps.

An op-ed by Noah Feldman:  Five years ago today, the self-immolation of Tunisian fruit sellerMohamed Bouazizi sparked the Arab Spring. At this distance, it's possible to ask a difficult question: Has the Arab Spring been good for the Arabic-speaking world? Are most people better off than they were five years ago? It's also possible to give a disturbing answer, one born of deep respect and admiration for those who bravely protested and in many cases gave their lives for dignity, justice and democracy.With the exception of Bouazizi’s home country of Tunisia, the uprisings associated with the Arab Spring have either been thwarted by dictators and monarchs or led to civil war and anarchy. Extraordinary as it was, the Arab Spring wasn't enough to lift the citizens of the countries involved out of political subjugation and into collective self-government.

Last week, human rights group Fortify Rights called on the Myanmar government to drop charges against Muslim men on discriminatory grounds. There has been continued persecution of the Muslim community in the country – particularly against the Rohingya, who are subject to arbitrary arrest, institutional discrimination, detention, harassment, and killings. ...One of the defendant’s lawyers, Nandar Myint Thein, told The Intercept that the prosecution didn’t submit any “real evidence.” Matthew Bugher, a Fortify Rights representative in Myanmar and formerly a Global Justice Fellow at Harvard Law School, told The Diplomat, “Frankly, we have no clue what motivated the government to arrest these individuals… the only thing that we can be certain about is that the government failed miserably to support its case against the defendants.”

The debate over whether tech companies should be required to break encrypted Internet communications for national security reasons has heated up since the Dec. 2 attack in San Bernardino, California, and reports on Friday that suspects in the Nov. 13 Paris attacks used the encrypted platform WhatsApp to plan their deadly rampage. ...In that light, the debate over encryption “doesn’t seem like a tailored response to the threat" but rather, "something law enforcement have been trying to pursue" for some time, said Andy Sellars, a fellow at Harvard Law School’s Berkman Center for Internet and Society and an advocate for digital rights. "Encryption is how we bank online, share medical records, private emails, etc.,” he added, so what lawmakers are proposing “could compromise our daily activities in a way ISIS never could.”

The U.S. government is sitting on a growing pile of debt backed by little more than parental love. That’s because parents can borrow tens of thousands of dollars a year for their kids’ college education without showing they can pay it back. About 3 million parents have $71 billion in loans, contributing to more than $1.2 trillion in federal education debt. As of May 2014, half of the balance was in deferment, racking up interest at annual rates as high as 7.9 percent. “It’s deeply problematic that the federal government is making relatively high-interest loans without thinking about, much less checking, whether the people they’re lending to will be crippled by this debt,” said Toby Merrill, a Harvard Law School lecturer who has counseled defaulted parents through the school’s Project on Predatory Student Lending. “We’re impoverishing the less-privileged population who are aging. That’s a terrible policy.”

...“We can stay out a little longer,” [Owen] Labrie tells me after lunch. With glasses, an untucked shirt and a sweater, the 20-year-old has the casual mien of a college student, but Labrie is not in school. He was supposed to be a sophomore at Harvard by now. Instead, he’s on a kind of parole, with a strict curfew. The former prep school superstar was convicted earlier this year on misdemeanor and felony sex charges involving a younger girl, and he has to get to his mother’s soon, or he’ll be subject to arrest. ... You can understand prosecutors wanting to use the Internet predator statutes to widen the scope of their investigation of Labrie. It allowed them broader subpoenas. It was a wrench in their toolbox, and they used it. “But that’s a total dodge,” says Nancy Gertner, a Harvard Law professor, Democratic appointee to the federal bench and a women’s rights attorney who is not the only feminist troubled by Labrie’s case, especially how it began as a three-week plea deal and ended up as a felony and a lifetime on the sex registry. “They had discretion.”

Ted Cruz and Mike Lee released an interesting bill last week: the RESULTS Act, intended to provide for reciprocal approvals of drugs and devices. (For example, if, say, Canada approves Drug X for sale up north, FDA would have to consider doing so as well.) But Harvard scholar Rachel Sachs believes the law’s title is a bit of a misnomer

Melancholy, upbeat, serene, and infectious are just some of the words that describe Vince Guaraldi’s quintessential holiday soundtrack, “A Charlie Brown Christmas,” whose unforgettable blend of jazz and carols has enchanted listeners for 50 years. The music, many agree, is the backbone of the beloved animated special starring cartoonist George M. Schulz’s “Peanuts” gang. ... For many, including Harvard Law School faculty assistant Brad Conner, the composer’s fusion of Latin rhythms and blues riffs with traditional Christmas music served as an introduction to jazz. As a boy growing up in West Virginia, Conner loved the show’s animation, but it was Guaraldi’s music that captivated him.

An op-ed by Noah Feldman. Japan's Supreme Court has rejected an equality-based constitutional challenge to a law requiring couples to adopt either the husband’s or the wife’s last name. The decision is fascinating in its own right, reflecting the contemporary moment for feminism in Japan. It also raises a much broader question: How much should a constitution reflect the distinctive values of the society in which it operates, and how much should it express fundamental rights recognized almost universally?

During Tuesday’s Republican presidential debate, frontrunner Donald Trump doubled down on his call for “closing off parts of the Internet” in order to stymie terrorist groups’ online recruitment efforts. “I would certainly be open to closing areas where we are at war with somebody,” Trump said, referring to the Islamic State of Iraq and Greater Syria, or ISIS. “I sure as hell don’t want to let people that want to kill us and kill our nation use our Internet.”...“The Internet is designed to be decentralized,” says Andy Sellars, a staff attorney for the Digital Media Law Project housed at Harvard University. “It’s designed to be that no single power could deny its use. That’s served the Internet quite well because it’s allowed it to grow in unexpected ways.”

The Florida postal worker who landed a gyrocopter at the U.S. Capitol on April 15 to protest campaign finance laws is planning to run for Congress, his attorney said in a court filing Wednesday. Douglas Hughes, 62, of Ruskin, Fla., is asking a court for permission to travel to campaign on curbing the influence of money in politics, a job that would include meeting voters, making speeches and soliciting endorsements, his lawyer said. Hughes’s bid might also test whether felons can run for Congress in Florida...To support his bid to travel, Hughes’s attorney included a letter from Harvard law professor Lawrence Lessig, a respected constitutional scholar who last month ended his own quixotic bid for the Democratic nomination for president as a campaign finance reform advocate. In a letter to the judge dated Nov. 25, Lessig acknowledged that Florida’s constitution might be read to bar any person convicted of a felony to hold office. However, Lessig said, that provision also might be read to apply only to state offices, and, if not, would violate the Constitution, which alone sets requirements for congressional office. “It is my view that Florida law cannot be held to restrict the ability of Mr. Hughes to run for Congress from the state of Florida,” Lessig wrote. “That conclusion thus creates a substantial interest for him to be able to travel throughout Florida to pursue the work of his campaign.”

Walter J. Leonard, the chief architect of an admissions process at Harvard that has been emulated across the United States, opening colleges and universities to more women and minorities, died on Dec. 8 in Kensington, Md. He was 86...Martha L. Minow, the Harvard Law School dean, said the plan “had a ripple effect across the nation” as other institutions, facing demands for greater diversity, adopted similar ones of their own.

An op-ed by Albert W. Alschuler and Laurence H. Tribe (corrected version). Federal law bars billionaire Robert Mercer from giving as much as $6,000 to Ted Cruz’s presidential campaign. Thirty-nine years ago, in Buckley v. Valeo, the Supreme Court upheld limits on contributions to candidates. But federal law did not block Mercer from giving $11 million to a super PAC whose mission is to urge voters to support Cruz. A federal statute formerly limited contributions to super PACs to $5,000, but in 2010 a federal court held this statute unconstitutional.

An op-ed by Cass Sunstein. These days, Americans don’t think a lot about Taiwan. That’s a shame. A thriving democracy in a region with too few of them, Taiwan also faces unique challenges, not least because of its ambiguous legal status and the possibility that it will eventually be absorbed into China -- perhaps by force. Elections next month, which a pro-independence party is expected to win, could mark a turning point. Americans have plenty of reason to pay attention.

An op-ed by Noah Feldman. U.S. Army Sergeant Bowe Bergdahl deserted his post in Afghanistan in 2009 -- there isn’t much doubt about that. But the charge of desertion isn't the reason he faces life imprisonment in his court-martial, announced Monday by the commanding officer at Fort Bragg, in North Carolina. Under the Uniform Code of Military Justice, the maximum punishment for desertion is five years. The potential life sentence comes from a now-obscure charge with origins in the articles of war enacted by the Continental Congress on Sept. 20, 1776: the charge of misbehavior before the enemy.

He may no longer be running for President, but he still has plenty to say about the American political system. Lawrence Lessig is a Harvard Law professor and author of “Republic Lost, The Corruption of Equality and the Steps to End It.” He is a former candidate for the 2016 democratic nomination and ran on a platform of eliminating the influence of money in politics.