An op-ed by Daniel Ectovitch `18. With the Pokémon Go craze sweeping the nation (including me), T-Mobile figured they could win a public relations coup and potentially a few customers with a brilliant gift: unlimited data when using the Pokémon Go app. There may be a potential darker side to that decision though. By effectively zero-rating Pokémon Go, meaning they are charging zero for using data with it, they may be continuing their quest to try to set a precedent that could undercut net neutrality.
An op-ed by Nancy Gertner. A number of Republicans, including Michael Mukasey, former judge, and Attorney General, have advocated for mens rea reform. (Mens rea is the state of mind required of a defendant guilty of a crime.) So important was the proposed mens rea statute that this group helped derail bipartisan criminal justice reform that did not include it, legislation that would have ameliorated mass incarceration. Their ardor for mens rea reform makes all the more curious their beating the drum for the prosecution of Secretary Hillary Clinton for using a private email server to communicate with state department employees. Republican support for mens rea reform should lead in the opposite direction – backing FBI Director James Comey’s decision to decline prosecution.
An op-ed by Noah Feldman. Not all gifts to politicians are illegal. But it can be difficult to draw the line between what the Supreme Court has called “access and ingratiation,” which is protected by the First Amendment, and quid-pro-quo corruption, which isn’t. The $160,000 in gifts accepted by Democratic vice-presidential nominee Tim Kaine when he was Virginia governor were completely legal. All the same, they shed a distinct light on the Supreme Court’s decision last month to absolve his successor, Bob McDonnell, of corruption charges. Comparing Kaine’s gifts to McDonnell’s suggest that there was an ethical difference — and also that the court may have been right to find that the difference would be hard to measure legally.
…To discuss the DNC hack, I corresponded over email with Jack Goldsmith, a Harvard Law School professor and fellow at Stanford University’s Hoover Institution…But the truth is that there is no public evidence whatsoever tying Russia to the hack. Attribution for cyberoperations of this sort is very tricky and tends to take some time. Even if the hack can be linked to computers in Russia, that does not show that the hack originated there (as opposed to being routed through there). And even if it originated in Russia it does not show who was responsible. That said, it would not be surprising if the Russians were behind this.
The F.B.I. investigation into the suspected state-sponsored Russian theft of emails and documents from the Democratic National Committee’s computer networks has expanded to determine if aides and organizations considered close to Hillary Clinton were also attacked, according to federal officials involved in the investigation…“There is nothing new in one nation’s intelligence services using stealthy techniques to influence an election in another,” Jack Goldsmith, a professor at Harvard Law School, wrote on the Lawfare blog on Monday. He noted that the United States had engaged in covert actions to influence elections in Indonesia, Italy, Chile and Poland during the Cold War. But he added that “doing so by hacking into a political party’s computers and releasing their emails does seem somewhat new.” It could foretell an era of data manipulation, in which outsiders could tinker with votes, or voter data, or “lose” electronic ballots.
An op-ed by Cass Sunstein. Donald Trump last night offered a funhouse mirror version of one of the greatest speeches in American history: Franklin Delano Roosevelt’s first inaugural address, in 1933. In the midst of a genuine crisis, the Great Depression, FDR began by emphasizing his “firm belief that the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror.” Trump sought to foster exactly that. For Trump, “America is a more dangerous environment for everyone than frankly I have ever seen and anybody in this room has ever watched or seen.” Quietly and wryly, Roosevelt observed, “We are stricken by no plague of locusts.” He added: “Compared with the perils which our forefathers conquered because they believed and were not afraid, we have still much to be thankful for.”
An op-ed by Ronald Sullivan. Baltimore City State’s Attorney Marilyn Mosby is the subject of intense yet wholly unfounded criticism for her office’s decision to prosecute six police officers for the death of Freddie Gray. Significantly, a George Washington University law professor, John Banzhaf, has gone so far as to file an ethics complaint against Ms. Mosby. These critiques of Ms. Mosby bespeak a troubling double standard. It appears that some would rather treat police officers with a special legal status, while treating average citizens with the rules reflected in our Constitution. Significantly, enshrined on the main portico of the Supreme Court building is the phrase “equal justice under law.” It is a symbolic representation of a core constitutional principle that no person is above the law. Ms. Mosby has exercised her prosecutorial discretion equally with respect to all citizens. Yet many condemn her nonetheless.
A Supreme Court ruling that has made it more difficult to prosecute public officials for corruption could affect a wide range of cases in Massachusetts, including the ongoing investigation into state senator Brian A. Joyce, the indictment of Boston City Hall officials, and the convictions of state probation department officials…“One takeaway from the McDonnell decision is the notion it’s OK to advocate on behalf of constituents,” said Nancy Gertner, a retired federal judge and Harvard Law School professor. “The question is what is legitimate constituent advocacy and what is not.”
The board of the charitable trust that controls Hershey Co said on Friday it had reached an in-principle agreement with the Pennsylvania Attorney General’s office that would avoid a legal row in exchange for reforms in how it is run. The settlement could provide stability to the trust following months of infighting and confrontation with the attorney general’s office. It could also offer the clarity needed for Mondelez International Inc to make a new approach to acquire Hershey…In 2002, the trust cited the need for diversification as a reason of putting Hershey up for sale. Hershey then attracted a $12.5 billion offer by chewing gum maker Wm. Wrigley Jr. Co. However, the deal was abandoned after Pennsylvania’s Attorney General successfully petitioned a court to block the offer amid opposition from the local community. “This portfolio that is meant to rescue needy children is being exposed to needless risk that could be diversified away without compromising expected return.” said Robert Sitkoff, a Harvard Law School professor specializing in wills, trusts, estates, and fiduciary administration.
Should scientists be allowed to study your biological specimens — such as blood, urine or tissue samples — if you haven’t expressly given them permission?…“What’s being proposed to be changed now is saying, ‘It doesn’t matter if those specimens have been de-identified. We’re still going to require researchers to get your consent before using them,’” says Holly Fernandez Lynch, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School…“The good … in proposing this rule change is people don’t know how their specimens are being used and if we fail to tell them, we’re going to lose trust in the research enterprise,” Lynch says. “We really ought to be telling people what we’re doing with their specimen — so that’s sort of the justification that’s been put forth.”