Media Mentions

...[David] Clark, and Harvard professor Yochai Benkler, one of the legal experts that shaped the Internet’s development, have issued a warning in joint papers published in the American Academy of Arts and Sciences’ magazine, Daedalus. More than three decades after the worldwide communications network was born, Clark and Benkler say they’re deeply concerned that the Internet is headed in a dangerous direction that its founders never intended...Benkler realized the Internet was like a new Louisiana Purchase – a huge amount of new property suddenly open for adventurous homesteaders to stake a claim. So he switched tracks. Using the Homestead Act as a guide, Benkler helped create a legal framework that protected the Internet from being gobbled up and claimed by corporations. And then, smart phones came along. And Steve Jobs created the iPhone. “I think there’s very little doubt that Steve Jobs in particular was someone who had a vision of a more controlled experience that viewed consumers as people who needed a well controlled, well structured environment to thrive in,” Benkler said. “That was part of his genius, and that was part of his threat.”

“Let’s start not with technology but with values.” That was the opening remark from Jonathan Zittrain, professor of law at Harvard Law School and the Harvard Kennedy School and cofounder of the Berkman Center for Internet and Society, who gave a lively talk January 10 at the 2016 Midwinter Meeting in Boston. Zittrain addressed those gathered for “Creativity, Innovation, and Change: Libraries Transform in the Digital Age,” asking them what libraries’ core purpose is. “Why do we have the books to begin with?” he asked. He noted four goals that he said were nothing new, radical, or subversive:

Trump is quoting from Lawrence's newsmaking interview on Ted Cruz's presidential eligibility with Harvard Law professor and constitutional expert Laurence Tribe. Tribe returns to respond to Trump quoting him and to talk more about his former law student.

An op-ed by Laurence Tribe. There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

An op-ed by Adrian Vermeule. In the spirit of John Lennon, let’s imagine, all starry-eyed, that there’s no U.S. Congress. In this thought experiment, the presidency and the Supreme Court would be the only federal institutions, along with whatever subordinate agencies the president chose to create. The court would hold judicial power, while the president would make and execute laws. The president would be bound by elections and individual constitutional rights, but there would be no separation of legislative from executive power. Would such a system be better or worse than our current system? How different would it be, anyway?

An op-ed by Noah Feldman. On Christmas, hopes for high-level peace talks between India and Pakistan were higher than they’d been in years. Indian Prime Minister Narendra Modi made a surprise visit to his Pakistani counterpart, Nawaz Sharif, and the two shared a very public and symbolic hug. Now, just two weeks later, the optimism is mostly gone. After terrorists from Pakistan attacked an Indian air base, killing seven Indian security personnel, Modi told Sharif that talks wouldn’t go forward unless Pakistan took action against the terrorists. It seems altogether likely the talks won’t happen at all.

Texas Gov. Greg Abbott on Friday revealed his plans for a "convention of the states," the first in more than 200 years, as part of a larger effort to reshape the U.S. Constitution and expand states' rights...In an email to CNN, Laurence Tribe, a professor of constitutional law at Harvard Law School, expressed doubts over the viability of Abbott's plan. The process and protocol for gathering a "convention of the states" remains a mystery, he said, even to most experts. "Nobody knows exactly how we'd determine when a new convention must be called," or "whether distinct amendment calls could be combined to reach the requisite number of states," Tribe wrote, citing his own research. The role of the courts and Congress is also unclear and, as Tribe explained, despite arguments to the contrary, "there is no agreed-upon process for coming up with definitive answers to any of these unknowns," creating a sort of legal "black hole."

Corruption in politics is as old as government itself. But so has been the challenge of interpreting in law what corruption actually means. On Friday, the U.S. Supreme Court was scheduled to discuss whether to take up a case that could further sharpen the line that a government official must cross to be convicted of bribery. The case that justices are considering — the conviction of former Virginia Gov. Bob McDonnell and his wife, Maureen — is one awash in shades of gray. And if the high court agrees to take it up, the McDonnell case has the potential to further limit the scope of federal bribery laws used to prosecute malfeasance...Former federal judge Nancy Gertner and Harvard law professor Charles J. Ogletree are also critical of the prosecution’s case. In a friend-of-the-court brief, they and other legal scholars argued that the conviction conflicts with the Supreme Court’s Citizens United ruling on campaign finance. “While Citizens United dealt expressly with political activity protected by the First Amendment, its dicta went further— suggesting that money in exchange for ‘ingratiation’ or ‘access’ is part and parcel of American politics,” their brief says.

The legal and constitutional issues around qualification for the presidency on grounds of US citizenship are “murky and unsettled”, according to the scholar cited by Donald Trump in his recent attacks on Ted Cruz. Trump has sought to cast doubt on whether the senator, who was born in Canada to an American mother and a Cuban father, is a “natural-born US citizen”. In doing so he has referred to the work and words of Laurence Tribe, perhaps the most respected liberal law professor in the country. Tribe taught both Cruz and Barack Obama at Harvard Law School. He also advised Al Gore in the 2000 Florida recount and has advised Obama’s campaign organisation. “Despite Sen[ator] Cruz’s repeated statements that the legal/constitutional issues around whether he’s a natural-born citizen are clear and settled,” he told the Guardian by email, “the truth is that they’re murky and unsettled.”

An op-ed by Susan Crawford: Surveying the landscape of internet access, one could be forgiven for a single dank conclusion: Winter is coming. We know that Big Cable’s plan for high-speed internet access is to squeeze us with “usage-based billing” and data caps, so as to milk ever-growing profits from their existing networks rather than invest in future-proof fiber optics. We are also seeing that Big Cable has won the war for high-capacity, 25Mbps-download-or-better wired internet access, leaving AT&T and Verizon to concentrate primarily on mobile wireless. Indeed, Big Cable’s share of new and existing wired-access subscribers has never been greater — cable got both all new net subscribers in the third quarter of 2015 and captured millions of subscribers fleeing DSL — and its control over this market is growing faster than ever.

An op-ed by Cass Sunstein: Why does misinformation spread so quickly on the social media? Why doesn’t it get corrected? When the truth is so easy to find, why do people accept falsehoods? A new study focusing on Facebook users provides strong evidence that the explanation is confirmation bias: people’s tendency to seek out information that confirms their beliefs, and to ignore contrary information. Confirmation bias turns out to play a pivotal role in the creation of online echo chambers. This finding bears on a wide range of issues, including the current presidential campaign, the acceptance of conspiracy theories and competing positions in international disputes.

Donald Trump continues to raise questions about Ted Cruz's Constitutional eligibility to be president and even gave “advice” on how Cruz should address the issue. Lawrence asks Cruz's former Harvard Law Professor Laurence Tribe, if the issue really is "settled law."

Political scientists need a new sub-specialty to describe the end-of-year extravaganzas that influence peddlers and special interests have combined to make a Capital Christmas tradition: the racket of wholesale plundering of the government's treasury. Paraphrasing Willie Sutton, that's where the (tax-farmed and public-debt) money is. ... And then, barely worth remarking in the Bush/Obama permanent state of discretionary imperial war, there is a constitutionally required declaration of warhidden in there somewhere, according to Harvard's expert on such things, Jack Goldsmith. "Congress is not calling its funding an authorization for the use of force against ISIL, much less debating the authorization. But make no mistake: The funding to continue the war against ISIL is an authorization of force against ISIL, albeit a quiet one, designed not to attract attention." "Authorization of force" is bureaucratic euphemism for "declaration of war."

An op-ed by Michael Dorf: This article was first published on the Supreme Court of the United States site. Dissenting in Planned Parenthood v. Casey, Chief Justice William Rehnquist claimed that the controlling joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter rejected two key features of Roe v. Wade: Abortion was no longer a “fundamental right” and abortion restrictions were no longer subject to strict scrutiny, the late chief justice said. ...Nonetheless, Laurence Tribe is almost certainly correct in reading Lawrence as protecting a fundamental right under a slightly different name. As he explained shortly after the decision, the Lawrence Court cited prior fundamental rights rulings and even “invoked the talismanic verbal formula of substantive due process but did so by putting the key words in one unusual sequence or another.”

A U.S. Supreme Court case set for argument Monday challenging powerful public-sector unions echoes a very different dispute: The recent battle over gay marriage. The legal fight pits a small group of teachers and the Christian Educators Association International (CEAI) against the influential California Teachers Association, a union with 325,000 members and a history of backing liberal political causes. ... If the plaintiffs win, Benjamin Sachs, a professor at Harvard Law School, said he would expect to see more workers stop paying for union representation. "That would create a profound free-rider problem for all public unions," he said.

An op-ed by Noah Feldman: Alabama Chief Justice Roy Moore is at it again, grandstanding to block implementation of the U.S. Supreme Court’s gay-marriage decision in his state. This time his legal arguments are much weaker than they were last January and February and March, before the nation’s highest court ruled in June. And this time Moore is flirting with outright defiance and the potential loss of his post. That’s an experience he’s had before: In 2003, he was removed from office after defying a federal court order to uproot a granite statue of the Ten Commandments in front of the Alabama Supreme Court.

An op-ed by Noah Feldman: Rosa Parks now belongs to the ages -- literally. The U.S. Court of Appeals for the 11th Circuit has ruled that the estate of the civil-rights pioneer can’t block the use of her image on a commemorative plaque being sold at a Target near you, because she and her story are matters of public interest. The case raised the crucial question of who owns a person’s story once he or she has been in the news. Construed broadly, the decision could mean the end of life-rights sales to the motion-picture industry.Like most property rights, the privacy right to control your own image and story is a matter of state law. The federal court decided the case under Michigan law, because Michigan is where the foundation that inherited Parks’s estate is located.

Law enforcement officials seem in no hurry to confront a group of armed antigovernment protesters occupying a federally owned wildlife refuge in Oregon this week – a clear shift from tactics used during previous, sometimes deadly encounters. Here are four armed confrontations in recent times, and the ways in which the authorities responded. ... A Harvard professor of law and psychiatry, Dr. Alan A. Stone, took the F.B.I. to task in a report to the Justice Department in November 1993. An apocalyptic sect like the Branch Davidians should not have been handled as if it would “submit to tactical pressure,” Dr. Stone wrote. Government agents sought to prove to Mr. Koresh that they were in control. Instead, Dr. Stone said, they drove him to the “ultimate act of control — destruction of himself and his group.”

Lawyers and students from Harvard Law School will help Albany County make its case in a lawsuit that claims a new federal rules on oil train safety are not strict enough, County Executive Daniel McCoy said Thursday. The school's Emmett Environmental Law and Policy Clinic will help the county draft its argument to the U.S. Circuit Court of Appeals in Washington, D.C., in support of a lawsuit brought against the U.S. Transportation Department this fall by a coalition of environmental groups. ...This the first time the clinic has joined in national litigation over crude oil train issues, said Shaun Goho, a professor who is senior clinical instructor. The number of such trains has risen dramatically since 2013 due to the hydrofracking boom in the Bakken fields of North Dakota. "So far, we are assisting only Albany County so far, but we could become involved later with other local governments," Goho said.

Ted Cruz was born in Canada to an American mother. Does the Constitution bar him from the presidency? Donald Trump has raised the issue in their campaign for the GOP presidential nomination. ...  The U.S. Supreme Court has never ruled on the meaning of the phrase. But Harvard law professor Laurence Tribe is among many scholars who say the better view is that a “natural born citizen” is anyone who was a U.S. citizen at birth and doesn’t need to be naturalized. Former solicitors general Neal Katyal and Paul Clement agreed with Tribe’s view in a March 2015 article for Harvard Law Review Forum.

An op-ed by Noah Feldman. Gun-rights advocates are already suggesting that they’ll go to court to challenge President Barack Obama’s newly announced executive action on background checks. But what exactly, is the challenge going to be? And will it work? The highlight of Obama’s action is to “clarify” the law that says checks are only necessary for sales by people “engaged in the business of selling guns.” As many as 40 percent of gun sales are currently unregulated because they’re in theory not made by dealers engaged in the business. The most likely path for the Second Amendment activists will be to argue that the administration’s clarified definition is too narrow, interfering with nonbusiness sales. Such a claim won’t be simple to get before the courts. And when it does get there, it will be difficult for it to succeed -- but not impossible.