Justice Breyer says expanding the Supreme Court could erode trust

April 7, 2021

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court’s influence with the public. Breyer, one of the court’s three liberals, defended the court’s independence by pointing to its decision to resist President Donald Trump’s attempts to draw the court into lawsuits that sought to overturn Trump’s defeat in November. In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.” He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” Some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.

What Critics Don’t Understand About NFTs

April 7, 2021

An op-ed by Jonathan Zittrain and Will Marks: Long before cryptocurrency speculators got involved, art prices were capricious—as the British artist Banksy no doubt understands. Recently, the work “Game Changer,” which he delivered unsolicited to an English hospital last year, earned it $23.2 million at auction—about $20 million more than experts had predicted…Last month a company called Injective Protocol took the spirit of “Morons” to a new extreme: After purchasing one of 500 prints of that work for just under $100,000, the company scanned the print and then destroyed it. A copy of the resulting digital file was then placed on IPFS—a distributed data-storage network whose initials stand for interplanetary file system—for anyone to see. A “non-fungible token,” or NFT, that points to the work was exchanged for almost 230 units of a cryptocurrency called Ether, about $400,000. All things considered, the purchaser of that token might have been in on the joke rather than the butt of it: Some NFTs are selling for tens of millions of dollars. These high prices suggest that regulators may not be moving quickly enough to protect unsuspecting investors. Impulsively buying GameStop shares on Robinhood is risky enough—the equivalent of placing a long-shot Kentucky Derby bet because the horse had a cool name. Worse still is losing your money because you didn’t understand what a horse race was and thought your wager was actually buying a horse.

Can the Government Force You to Get COVID-19 Vaccine? Questions Surround Vaccine Passports

April 7, 2021

The government can’t force a person to be vaccinated, but it’s likely within its power to require proof of a COVID-19 vaccine to engage in certain activities, including attending events. “Vaccine passports,” a means of proving a person’s vaccination status, have been floated as a way of increasing capacity at certain events as America crawls toward normalcy…Congress could potentially have the power to mandate vaccines under the commerce clause, experts told Newsweek and states could institute mandates under the 10th Amendment. However, a mandate can’t force someone to be vaccinated against their will, it can only impose restrictions on a non-vaccinated person. Those who aren’t vaccinated could be prevented from engaging in interstate travel, Laurence Tribe, a Carl M. Loeb University professor at Harvard Law School, told Newsweek, and entering places where social distancing and mask-wearing wouldn’t be sufficient in preventing virus transmission. “Private businesses could require proof of vaccination by those seeking entry unless prohibited from doing so by state or local law,” Tribe said.

Google Won. So Did Tech.

April 7, 2021

On Monday, the Supreme Court said it was kosher to copy someone else’s computer code in some cases. That handed Google a win in a decade-long court battle with Oracle over the guts of the Android smartphone system…In the Google v. Oracle America case, Google said it was standard practice to copy what are called application programming interfaces, or APIs, a set of instructions to make sure that technologies from different companies can work together. Oracle said that Google stole its software and demanded billions of dollars. Each company said it was trying to save the tech industry from ruin…Kendra Albert, a clinical instructor at the Harvard Law School Cyberlaw Clinic, told me that the decision could lead to more legal protections for artists, people who create fan fiction and a group that Albert represents that archives old software such as past editions of Microsoft Excel.

Google’s Supreme Court Win Sends Pro-Consumer Message

April 7, 2021

An op-ed by Noah Feldman: The Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers. Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

The Future of the NCAA

April 7, 2021

A podcast by Noah Feldman: A case currently before The Supreme Court presents the single largest legal battle the NCAA has ever faced. The case, which comes after years of player activism, argues that the current limits on athlete compensation constitute a violation of antitrust law. It’s a case that could challenge the entire college sports system. Dr. Eddie Comeaux, professor at UC Riverside who studies the student athlete experience discusses the history, current structure and power imbalances within the NCAA. Dr. Comeaux also offers radical re-imaginings for a more equitable, student-centered college athletics system.

Don’t eliminate the filibuster. Democratize it.

April 7, 2021

An op-ed by Jonathan Gould, Kenneth Shepsle and Matthew Stephenson: Democrats are frustrated with the Senate filibuster blocking their legislative agenda. But the main problem with the filibuster isn’t that it’s bad for Democrats — it’s that it’s bad for democracy. Not only does the filibuster paralyze the Senate, but the 41-senator minority that can block popular legislation often represents an even smaller minority of Americans. That’s not how representative government is supposed to work. Yet eliminating the filibuster, as many are now urging, also poses a danger to democracy. Given the Senate’s extreme malapportionment — with two senators per state regardless of population — Senate majorities often represent fewer than half of the country’s citizens. For example, the 2017 tax cut passed with the support of 51 senators who represented only 43 percent of the population. Getting rid of the filibuster would alleviate minority obstruction today, but it would also increase the risk of minority rule in the future. There is a way out of this dilemma: Democratize the filibuster.

Why the Supreme Court’s ruling for Google over Oracle is a win for innovation

April 6, 2021

After a 10-year legal battle, the Supreme Court ruled on Monday that Googledid not violate Oracle’s copyrights related to the Java programming language. But the momentous case that attracted briefs from many major tech companies and computer scientists may end up as a mere footnote in the history of software. That’s because the court’s opinion in favor of Google leaves intact how software developers have largely worked for decades, copying parts of existing applications that trigger functions and features and adding them to new ones…Companies including Microsoft, IBM’s Red Hat, and Mozilla filed briefs in favor of Google’s position, warning that upholding Oracle’s demands would make it much harder for new software development. “It’s a good decision for interoperability of software,” says Harvard University law professor Rebecca Tushnet, who wrote a friend of the court brief urging just such a ruling. Allowing the sharing of APIs without too much copyright protection should result in “increasing the creation and dissemination of new works.”

The Last Word with Lawrence O’Donnell, 4/5/21

April 6, 2021

Today, the most important piece of testimony Chief Arradondo delivered was that Derek Chauvin should have taken his knee off of George Floyd’s neck after the first few seconds. The Senate parliamentarian, Elizabeth MacDonough, has ruled that Senate Democrats can pass two more bills this year with a simple majority vote, paving the way for President Joe Biden’s infrastructure plan to pass with 51 votes, bypassing the 60- vote procedural threshold for most legislation in the Senate now. Democratic Congressman Tim Ryan of Ohio is interviewed. In an op-ed for the right wing newspaper “The Washington Examiner”, Congressman Matt Gaetz said quote, “I am absolutely not resigning”. Donald Trump lied about campaign fundraising from the beginning to the end of his political career. Guests: Kirk Burkhalter, Marq Claxton, Tim Ryan, Laurence Tribe, Tim O’Brien.

President Biden is not living up to his promise to treat all Puerto Ricans equally

April 6, 2021

An op-ed by Sebastian Negrón-Reichard ‘24: March marked the 104th anniversary of granting U.S. citizenship to residents of Puerto Rico. This citizenship, however, is not truly equal. Unless the Biden-Harris administration is ready to support statehood as the solution to this problem, the administration has an opportunity to fulfill an important campaign promise and make things right for Puerto Rico. Recently, the U.S. Supreme Court granted certiorari to review the case of United States v. Vaello-Madero. This means the court will review the First Circuit’s determination that the exclusion of residents of Puerto Rico from Supplemental Security Income (SSI) violates the due-process clause of the Fifth Amendment. The case originated when New York resident José Luis Vaello-Madero moved to Puerto Rico and was stripped of his SSI benefits. The program, which provides cash assistance to low-income people over 65 or with disabilities, no longer was available to him because he now lived in Puerto Rico. Instead, he was entitled to a separate, Puerto Rico-specific, program with far fewer benefits. Before the First Circuit held Puerto Rico residents were eligible to SSI, Puerto Rico, Guam and the U.S. Virgin Islands were excluded from SSI payments, while the residents of the 50 states, the District of Columbia, and the Commonwealth of the Northern Mariana Islands were eligible.