Media Mentions

An op-ed by Noah Feldman. What’s the difference between an opinion and a fact? That sounds like a question of philosophy, or language, or maybe social science -- but it’s also a highly practical question of law, one the U.S. Supreme Court decided Tuesday in a case about registration statements filed by issuing companies under the Securities and Exchange Act. The court tried to frame a compromise between the interests of corporations that issue securities and securities class-action lawyers, whose job it is to keep the corporations honest and get rich in the process. The compromise had two parts.

Internet service providers have filed suit against the FCC over its recent decision to regulate broadband internet as a public utility, alleging the decision hamstrings the ability of private industry to offer customers new and innovative products...Praised by some and reviled by others, the FCC's decision mostly preserved the status quo, says Harvard Law professor Jonathan Zittrain. In a Big Think interview, Zittrain discusses the unusually strong protection the government has given to the internet, which protects users as well as keeps companies from offering a suite of products to its customers.

Harvard's fossil fuel divestment movement recently hit a snag. Last week, a Massachusetts court dismissed a novel lawsuit brought by seven Harvard students seeking to make the university in Cambridge, Mass., divest its $36.4 billion endowment of holdings in major coal, oil and natural gas companies...Alice Cherry, a plaintiff in the case and a second-year law student at Harvard, told InsideClimate News that she and the other students plan to appeal. This is the first time students have attempted to use a lawsuit to force fossil fuel divestment. Cherry said she believes "lawsuits could be an important part of escalating the divestment movement going forward."

It isn’t easy to reform the campaign finance system. Ask Lawrence Lessig, the Harvard law professor who last year raised $11 million to elect candidates who favored restrictions on unlimited contributions and spending only to find he’d become the issue’s latest Don Quixote. But he’s back with a new plan, and other groups are trying new lines of attack, hoping to change the behavior of candidates and lawmakers through rewards and punishments.

An op-ed by Charles Fried and Robert H. Mnookin. Today Harvard faces a serious governance problem that requires institutional change. When we first came here, the university was organized on the constitutional principle: “Each tub on its own bottom.” This meant first of all that each of the component schools (arts and sciences, medical school, law school, and so on) had not only a high degree of budgetary independence but also that its faculty and dean had a large measure of autonomy. And at the level of the schools such administrators as there were worked under the direction of the dean and in close cooperation with faculty committees. Correspondingly, the central administration was very small: There were four vice presidents to oversee administration, alumni affairs and development, finance, and government relations, and a general counsel...The time has come for Harvard to institute, as other universities have done, a representative faculty senate that would include ladder-rank faculty from all schools in the university.

‘Even the East Germans couldn’t follow everybody all the time,” Bruce Schneier writes. “Now it’s easy.” This may sound hyperbolic, but Schneier’s lucid and compelling “Data and Goliath” is free of the hysteria that often accompanies discussions about surveillance. Yes, our current location, purchases, reading history, driving speed and Internet use are being tracked and recorded. But Schneier’s book, which focuses mainly on the United States, is not a rant against the usual bad guys such as the U.S. government or Facebook. Schneier describes how our data is tracked by both corporate and government entities, often working together. And in many cases, the American people allow them to do it...The theme of dangerous little brothers is central to Benjamin Wittes and Gabriella Blum’s “The Future of Violence,” a lively and often terrifying exploration of the dark side of our technological age. Technology is increasingly cheap and widely available, a trend that can help empower the masses and weaken central governments. Sounds great, right? We tend to celebrate this phenomenon when individual dissidents use social media to provoke authoritarian regimes. But what happens when these tools of mass empowerment fall into the wrong hands?

An op-ed by Noah Feldman. Critics of the Supreme Court's conservative wing like to say it’s instinctively pro-business. The justices on Tuesday will test that proposition in a fascinating case about whether bankruptcy law instructs judges to void liens on underwater properties. On one side lie the interests of Bank of America, which is the petitioner and doesn't want the loans to be “stripped off,” that is, voided. On the other side is the plain statutory text, which says they should be. The poetic twist is that, in a very similar 1992 case, the Supreme Court ignored the plain text and held in favor of the banks -- over the forceful dissent of one Justice Antonin Scalia.

An op-ed by Noah Feldman. The personalized license plate is as American as … well, ever seen a plate with a design celebrating your favorite soda in any other country? Today, not for the first time, the U.S. Supreme Court takes up the equally quirky American question of free speech in the license plate context. At issue is a decision by Texas to block an organization from using the Confederate battle flag as a license plate logo. Many free-speech advocates think the state shouldn’t be able to pick and choose what symbols should appear. Texas wants to exclude a flag that has come to symbolize the violent repression of black Americans. Who’s right? There’s a legal answer to this question, but it turns out to be surprisingly complicated.

Advances in cybertechnology, biotechnology, and robotics mean that more people than ever before have access to potentially dangerous technologies. Authors Benjamin Wittes and Gabriella Blum explore what this means for how government should protect our us.

A Massachusetts Superior Court judge dismissed a lawsuit filed by a group of Harvard students against the University late last year, which urged Harvard to divest from fossil fuel companies. “Plaintiffs have brought their advocacy, fervent and articulate and admirable as it is, to a forum that cannot grant the relief they seek,” reads the memo, signed by Superior Court Justice Paul D. Wilson. The 11-page complaint, filed last November by seven Harvard students who call themselves the Harvard Climate Justice Coalition, claimed Harvard’s investment in fossil fuels is “a breach of [Harvard’s] fiduciary and charitable duties as a public charity and nonprofit corporation.” The plaintiffs, all members of the activist group Divest Harvard, also charged that the University is misallocating its funds by investing in “abnormally dangerous activities.” The group plans to appeal the decision, according to Harvard Law School student Joseph “Ted” E. Hamilton, [`16] one of the plaintiffs.

‘As a thought experiment,” write Benjamin Wittes and Gabriella Blum, “imagine a world composed of billions of people walking around with nuclear weapons in their pockets.” If such an exercise doesn’t strike you as bonkers, then I’ve got an enthusiastic book recommendation for you. Sadly for the rest of us, the fear-mongering in “The Future of Violence” is no laughing matter but rather a depressingly accurate summation of how centrist Washington has come to view the democratization of technology: with a distrust bordering on panic. Mr. Wittes and Ms. Blum, from their respective perches at the Brookings Institution and Harvard Law School, are worried chiefly about what they almost pejoratively describe as “technologies of mass empowerment”—the Internet, gene-splicing, nanotechnology, robots, 3-D printing and so forth.

At Harvard Law School, contentious legal debates are commonplace. Whether in a classroom, over lunch, or in the pages of one of the school’s many legal journals, professors and students respond to, critique, and question one another’s views. But notably, over the past week, University professor Laurence H. Tribe ’62 and Law School professors Richard J. Lazarus and Jody Freeman, in what Tribe described as an “uncommon event in Harvard Law School’s history,” took the discussion to the Harvard Law Today website. The exchange began after Tribe testified before the U.S. House of Representatives Subcommittee on Energy and Power on the Environmental Protection Agency’s “Clean Power Plan.”

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters. These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm. “Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.” Professor Coates’s study was only partly concerned with the Supreme Court’s recent decisions amplifying the role of money in politics. “It’s not just Citizens United,” he said in an interview, referring to the 2010 decision that allowed unlimited independent spending by corporations in elections. His study, he said, analyzed First Amendment challenges from businesses to an array of economic regulations...In a recent essay, Laurence H. Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon. “It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote, “in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

An op-ed by Noah Feldman. Who needs law school? For centuries, the answer in the English-speaking world was: no one. You prepared for the bar by serving as an apprentice or an intern alongside practicing lawyers. Sure, you had to read a lot of cases. At first, they probably made no sense. But over time, you learned by watching and doing to connect the decisions in the books with real cases and real clients. Today there’s renewed talk of returning to a world where you could join the bar after extended internships rather than formal legal study. I’m a law professor, so you’d expect me to defend the current system. Before I do, however, let me make a big admission: Law school isn’t really necessary for lawyers or their clients...Yet law school is absolutely essential -- not for lawyers with clients, but for our society as a whole. The reason has everything to do with what makes law distinct as a social phenomenon.

With a bit of technical knowledge and a good imagination, any malevolent person may soon be able to eradicate the human race. This is a mildly exaggerated version of a fundamental claim in The Future of Violence: Robots and Germs, Hackers and Drones—Confronting a New Age of Threat, an alarming and informative new book by Benjamin Wittes and Gabriela Blum.

You need to know this number: $18,433. That's the median amount in a 401(k) savings account, according to a recent report by the Employee Benefit Research Institute. Almost 40 percent of employees have less than $10,000, even as the proportion of companies offering alternatives like defined benefit pensions continues to drop..."Nobody thought they were going to take over the world," said Daniel Halperin, a professor at Harvard Law School. who was a senior official at the Treasury Department when 401(k) accounts came into being..."401(k)'s changed two things: you could choose not to participate, and you chose your own investments, which a lot of people, I think, screw up," Halperin said.

Senate Majority Leader Mitch McConnell is attaching himself to an unlikely bedfellow in his growing efforts to take down President Barack Obama’s climate plan. Liberal legal lion Laurence Tribe, a Harvard law professor who taught constitutional law to President Barack Obama, is the new GOP darling in the fight against the Environmental Protection Agency’s upcoming climate regulations for power plants. Tribe handed Republicans a ready-made talking point during a House hearing this week, when he accused his former student of “burning the Constitution” in the effort to combat global warming. And two days later, McConnell pointed to Tribe in a letter Thursday to the governors of all 50 states, urging them to refuse to comply with EPA’s climate rules.

Imagine a robot drone the size of a spider that can crawl into the shower and inject poison into a political opponent while being operated by an assassin thousands of kilometres away. Imagine an aerial drone flying through a sold-out football stadium, spraying deadly anthrax spores. Imagine some creep getting teen girls to download malicious software that allows him to take sexually explicit photos and videos of them through their webcams and then post them on the Internet. Wait. That last one really happened. The spider assassin and the anthrax drone haven't happened yet -- but they could, warn Benjamin Wittes and Gabriella Blum in The Future of Violence. Wittes is a senior fellow in governance studies at the Brookings Institution. Blum is a professor of human rights and international humanitarian law at Harvard Law School. Together they direct the Harvard Law School-Brookings Project on Law and Security. Both have written previous books in the field. This is their first book together.

Earlier this week, Harvard law professor Laurence Tribe testified before Congress on the legality of the Environmental Protection Agency’s plans to regulate greenhouse gas emissions from coal-fired power plants under Section 111 of the Clean Air Act. Tribe’s testimony garnered attention because he challenged the lawfulness of EPA plans and raised several constitutional concerns...Tribe’s criticisms of the EPA attracted attention not just because he is a prominent liberal law professor, but also because he briefly worked in the Obama Administration (though not on environmental matters) and was one of the president’s professors (and has sometimes been described as a “mentor”). Tribe’s testimony, and his suggestion that the EPA’s climate plans involved “burning the Constitution,” also prompted some pushback. Most notably, two of his colleagues at Harvard Law School — Richard Lazarus and Jody Freeman — penned a response on the HLS Web site, challenging Tribe’s legal and constitutional analysis, with an emphasis on the latter. Tribe, in turn, wrote a lengthy rejoinder, also on the HLS Web site. This back and forth is a preview of the legal battle that awaits the EPA’s Clean Power Plan.

An op-ed by Nancy Gertner. Suffolk County District Attorney Daniel F. Conley referred to himself as the “skunk at the garden party” at the Second Annual Massachusetts Criminal Justice Reform Coalition Summit, when he called for the continuation of mandatory minimum drug sentences. The summit was designed to bring together experts from all quarters, to look critically at incarceration, using advances scientific research to address issues that have too often been shouted in legislative sound bites or strident political debates. In this very thoughtful setting--with all voices decrying mandatory minimum drug sentence--Conley's "skunk" reference doesn't begin to describe his remarks.

An op-ed by Mark Roe. Headlines about banks’ risks to the financial system continue to dominate the financial news. Bank of America performed poorly on the US Federal Reserve’s financial stress tests, and regulators criticized Goldman Sachs’ and JPMorgan Chase’s financing plans, leading both to lower their planned dividends and share buybacks. And Citibank’s hefty buildup of its financial trading business raises doubts about whether it is controlling risk properly. These results suggest that some of the biggest banks remain at risk. And yet bankers are insisting that the post-crisis task of strengthening regulation and building a safer financial system has nearly been completed, with some citing recent studies of bank safety to support this argument. So which is it: Are banks still at risk? Or has post-crisis regulatory reform done its job?