Media Mentions

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?”

At least three general counsel—Mark Roellig of Massachusetts Mutual Life Insurance Co., Mark Holden of Koch Industries Inc. and Brad Smith of Microsoft Corp.—are making news for their efforts to improve racial diversity in the business world...The panel will examine the rapid change that has hit all aspects of legal services, driven by technology and globalization, according to LCLC, and relate it to plans for improved diversity. “We're living through one of the greatest disruptions in history," said professor David Wilkins of Harvard Law School, the group's president. “The legal profession is never going to be the same.”

The issue of climate change played almost no role in the 2012 presidential campaign. President Obama barely mentioned the topic, nor did the Republican nominee, Mitt Romney. It was not raised in a single presidential debate. But as Mr. Obama prepares to leave office, his own aggressive actions on climate change have thrust the issue into the 2016 campaign...However, experts said, a new Republican president could simply stop implementing the regulations. “We’ve had lots of administrations that just stopped rules from previous presidents dead in their tracks — the Reagan administration did that with rules from the Carter administration,” said Jody Freeman, director of Harvard University’s environmental law program and a former counselor to Mr. Obama. “They could delay the rule, or withdraw it indefinitely,” she said. “They’d get sued, but they could drive a delay through a whole first term. It’s a rope-a-dope strategy.”

An op-ed by Noah Feldman. U.S. Secretary of State John Kerry travels to Egypt on Sunday to renew the “strategic dialogue” between the countries that was cut off in 2009. From the standpoint of long-term U.S. national security interests, the renewal is a mistake. Leave aside Egyptian President Abdel-Fattah El-Sisi’s bad and worsening record on human rights and the trumped up convictions of Muslim Brotherhood leaders and rank-and-file. Forget the tragic message that the short-lived American support for Egyptian democracy is now thoroughly dead. What’s really troubling about the U.S.’s cozying up to Sisi is that it robs the American side of any leverage it might have with Egypt to pursue regional security goals, such as the creation of a stable Sunni coalition to defeat Islamic State.

An op-ed by Noah Feldman. The Taliban's smooth and rapid transition after their acknowledgment of Mullah Omar's death sends a strong message: They are afraid of the potential rise of Islamic State in Afghanistan if they fail to project unity. That reality should be useful to the U.S. government as it tries to negotiate a transition deal with the Afghan government and the Taliban. It's still true that the Taliban can demand something close to de facto control as part of the deal. But now, the Taliban have an incentive to talk that didn't exist before the rise of Islamic State. They have something to lose if the country devolves into congeries of competing warlord-controlled territories.

International boundaries in oceanic areas are often ambiguous and disputed, particularly in locations that are loaded with oil and gas reserves. This problem is beginning to hit close to home for the Texas energy sector as oil and gas exploration and production continue to advance into deeper waters in the Gulf of Mexico. Currently, both the United States and Mexico are trying to work out how to effectively find and exploit the prolific oil and gas reserves that sprawl beneath the complex international border located on the ocean floor, while honoring the other country's ownership interests. Dr. Richard McLaughlin, Endowed Chair for Marine Policy and Law at the Harte Research Institute for Gulf of Mexico Studies at Texas A&M University-Corpus Christi, has collaborated with the Center for U.S. and Mexican Law at the University Law Center focusing on this issue. Guillermo J. Garcia Sánchez, a doctorate candidate at Harvard Law School, worked with McLaughlin researching this complex topic. The two authors recently released the first binational study examining the legal issues involved with exploring and exploiting transboundary offshore oil and gas deposits in the Gulf of Mexico.

David Grossman’s trifecta of Harvard diplomas — undergraduate, divinity school, law school — never saw the light of day. They might be lost somewhere in his sister’s basement, which was fine with Mr. Grossman, who had no taste for flaunting anything. “I once asked him if we could find his diplomas and hang them up and he said absolutely not,” recalled his wife, Stacy. “He was against self-praise of any kind. Whenever someone was bragging about themselves he would say to me or the kids ‘SPS,’ which means: ‘Self-Praise Stinks.’ ” Though he made his living through his Harvard Law School education, Mr. Grossman was guided on a social justice path by his faith and the Hebrew phrase tikkun olam — the shared responsibility to repair the world.

...Held on July 21st, Media Day at HarvardX brought together local reporters, internal media, colleagues from edX and MITx, and others interested in, well, what was new...The assembled cast of presenters, in addition to the edX CEO, included Charles Fried, a professor at Harvard Law School...Fried, who wrapped v1 of his ContractsX course about six months ago, said he was “utterly mystified” by their high-level of engagement. His HarvardX course, featuring animated case studies on contact law, was designed for “anyone interested in one of the most fundamental human relationships, the contract, and definitely not for lawyers and especially not for law students.” Fried has taught at Harvard since the 1960s and has never experienced anything quite like teaching through edX, calling the entire process “utterly marvelous.” He hinted that he almost doesn’t want to know why 20,000 students signed up and about 20% of them completed his course (“one of the highest completion rates I have been told of any MOOC”). I suspect those of who know Fried from his MOOC and for those in the room listening to him revel in a few example cases, would agree that his dynamic presence and passion might be the draw that not only gets learners inside the tent but keeps them enraptured.

An op-ed by Noah Feldman. The upcoming decision by the Church of Jesus Christ of Latter-day Saints on whether to break ties with the Boy Scouts of America over the admission of gay scoutmasters matters to the Scouts because, as of 2013, LDS-affiliates make up 17 percent of its membership. But the decision matters much more for the Mormon church itself. Throughout its history, the church has striven to integrate into American society while simultaneously preserving its distinctness. Scouting has been an important vector for LDS integration into mainstream American life. Replacing it with a church-run global substitute would mark a watershed turn away from integration and toward separation.

An op-ed by Noah Feldman. I’m relieved that the nightmare of Jonathan Pollard’s imprisonment is about to be over. Not because I feel any sympathy whatsoever for the convicted spy who will be paroled in November after spending 30 years in prison. No, what relieves me is that, once he’s freed, we’ll be spared the spectacle of respectable American Jewish leaders calling for his early release. Those requests have been harmful to the principle that American Jews can be totally loyal Americans and also care about Israel. The end of this whole shameful episode is therefore cause not for celebration, but for relief.

An op-ed by Noah Feldman. Boston’s world-class universities and hospitals make it a globally significant metropolis. But its residents have rejected the cosmopolitan dream of hosting the 2024 Summer Olympics, causing the U.S. Olympic Committee to cut ties with the city Monday. The public intransigence wasn’t just an expression of fiscal caution. It was something deeper, a self-conscious embrace of provincialism as a value. And that raises a fascinating question: In a globalizing world, is there a place to be proudly provincial?