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Jeannie Suk Gersen

  • Rappaport Forum panelists

    How tightly should hateful speech be regulated on campus?

    February 26, 2020

    Two professors squared off Friday during the inaugural Harvard Law School Rappaport Forum in a session titled “When Is Speech Violence? And Other Questions About Campus Speech.”

  • What Would a Fair Impeachment Trial Look Like

    January 30, 2020

    An article by Jeannie Suk Gersen: Prosecuting a case in front of a trial jury comes naturally to Representative Adam Schiff, a former federal prosecutor and the lead House manager in the impeachment trial of Donald Trump. Schiff has urged senators to think of themselves as “impartial jurors” with a constitutional responsibility “to hold a fair and thorough trial.” But, more than a week into the trial, the question of the President’s guilt of the charges of abuse of power and obstruction of Congress has been upstaged by suspense over whether the Senate will vote to allow the process for examining evidence that we ordinarily associate with a “trial”—particularly, hearing witness testimony. Once the allotted time for speeches by both sides has run, and after senators have a chance to put questions to each side, Democrats want the Senate to issue subpoenas for evidence, while Republicans aim to move immediately to a vote to acquit.

  • Boston U.S. Appeals Court Hears Arguments On Due Process For Students Accused Of Sexual Assault

    November 6, 2019

    A three-judge panel of the U.S. Court of Appeals for the First Circuit in Boston heard oral arguments Tuesday on what rights a private college must give to a student accused of sexual assault. The case, John Doe v. Boston College, involves a current male BC student accused of sexually assaulting a female BC student in November of 2018. Doe, the anonymous plaintiff, was suspended for one academic year by BC after officials at the private college conducted an internal investigation into the accuser's Title IX complaint filed earlier this year and allegations against him...Harvard law professor Jeannie Suk Gersen, who represents Doe, explained after the hearing that the plaintiff contends that both sides in a college sexual assault case should have the right to ask each other questions. Last year, the First Circuit ruled in a separate, narrower case against Boston College that Massachusetts law requires colleges to treat students with "basic fairness" when they face disciplinary charges. In this case, Boston College has argued the U.S. Constitution's due process clause does not apply to private colleges.

  • How “Me Too” Evidence Can Empower Survivors of Sexual Assault in Court

    October 29, 2019

    The impact of the #MeToo movement in American culture is undeniable, and the high-profile prosecutions of Harvey Weinstein, Bill Cosby, and other powerful men suggest it’s a legal success, as well. But the broader impact of the movement will depend upon lawmakers and judges’ willingness to incorporate its principles into the American legal system. Some activists have argued that prosecutors should be able to use “Me Too” evidence—allegations that a defendant committed a similar offense against individuals other than the victim in the case at hand. This evidence isn’t easily admissible. But prosecutors may be able to persuade courts that the voices of other victims can help a judge or jury determine the truth of an accusation...As Harvard Law School professor Jeannie Suk Gersen has written, the strength of “Me Too” evidence lies in “the power of numbers across time.” While a victim’s lone account of the offense might not be believed, “the choruses of ‘me too’ ” make each account much more believable. “Me Too” witnesses together convey a potent message that “what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.”

  • The many sins of college admissions

    October 7, 2019

    An article by Jeannie Suk Gersen: Legal opinions do not often invoke Toni Morrison. But, last week, a federal judge relied on Morrison’s words in a rousing conclusion to the case on Harvard University’s use of race in admissions. “Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing,” Morrison told Time, in 1998. The judge, Allison Burroughs, said that when this wisdom is accepted it will “ultimately make race conscious admissions obsolete.” But that hasn’t happened yet. The clearest message to emerge from the evidence in the Harvard case is that élite universities are very far from being able to achieve racially diverse student bodies using only race-neutral methods.

  • America’s New Sex Bureaucracy

    September 24, 2019

    Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.” That document followed up on a previous open letter signed by 28 members of the Harvard Law School faculty in 2014 arguing that the updated sexual assault policy recently installed at Harvard was “inconsistent with some of the most basic principles we teach” and “would do more harm than good.”

  • The New Norms of Affirmative Consent

    September 3, 2019

    Podcast: Mischele Lewis learned that her fiancé was a con man and a convicted pedophile. By lying about who he was, did he violate her consent, and commit assault? Lewis’s story raises a larger question: What is consent, and how do we give it? ... Alondra Nelson, a professor of sociology and the president of the Social Science Research Council, explores this shifting of sexual norms with The New Yorker’s Joshua Rothman. They spoke with the legal scholars Jeannie Suk Gersen and Jacob Gersen, and with the facilitator of cuddle parties, who compares her nonsexual events to “going to the gym for consent.”

  • Andy Boes sitting in Harkness

    Common Knowledge

    August 28, 2019

    Harvard Law School’s new online course Zero-L helps prime incoming students for success

  • The Revolt of the Feminist Law Profs

    August 9, 2019

    On a crisp and gray September morning, Jeannie Suk Gersen stepped into a lecture hall at Tufts University...Gersen is a feminist legal scholar and a writer of wry, slightly elliptical commentary on legal matters at The New Yorker. She is our foremost guide to the challenges that the #MeToo movement poses to the legal system. She has staked out a position at once conventional and embattled. She shares #MeToo’s goal of ending the impunity surrounding sexual assault. But she remains committed to the principles of due process, presumption of innocence, and the right to a fair hearing. This commitment places her in tension with some of the most impassioned actors in American public life, some of whom have come to regard due process as a fatal obstacle to deterring and punishing sexual misconduct...Gersen, [Janet] Halley, [Elizabeth] Bartholet, and [Nancy] Gertner designed an alternative set of Title IX procedures — applicable only to Harvard Law students — that the Office for Civil Rights eventually certified as meeting the requirements laid out in the Dear Colleague letter, while also satisfying the principles of fair process as Gersen and her colleagues understood them.

  • The End of the Gay-Panic Defense

    July 8, 2019

    An article by Jeannie Suk-Gersen: In 1944, in New York, a decade before Allen Ginsberg, Jack Kerouac, and William S. Burroughs would publish their countercultural works, there was a killer in their midst. Lucien Carr was a brilliant Columbia University student from a prominent Midwestern family. He had introduced the three men to one another and was at the center of the circle of friends that defined what was later known as the Beat Generation. The nineteen-year-old Carr stabbed another member of the group, David Kammerer, in Riverside Park, with a Boy Scout knife, and dumped his body in the Hudson River. Carr claimed that Kammerer, his former scoutmaster, who was thirty-three, had followed him for years, from city to city, and made “indecent” advances. The New York press, defending Carr, portrayed the killing as an “honor slaying.” Although he was charged with murder, prosecutors allowed Carr to plead guilty to the lesser crime of manslaughter. He served two years in a reformatory and then lived out his life as a respected news-agency editor. The case was one of the first high-profile instances of a “gay panic” defense, in which a person claims that his violent act was a sudden emotional response to an unwanted advance from a person of the same sex.

  • The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed

    July 3, 2019

    An article by Jeannie Suk Gersen: Had Brett Kavanaugh not been accused of sexual assault, one of the first cases he would have heard as a Supreme Court Justice would have been that of Herman Gundy, a convicted sex offender. When nominated, last July, Kavanaugh was expected to be confirmed in time for the term that started last October. But the emergence of sexual assault allegations against him delayed his confirmation vote until October 6th, just after the Court’s first set of oral arguments—which included Gundy’s request to invalidate his federal conviction for failure to register as a sex offender. In June, the Court denied Gundy’s petition. As it turns out, Kavanaugh’s absence from the case likely changed its outcome.

  • Every Invention You Use Has One Thing In Common

    June 25, 2019

    You probably don’t think about intellectual property laws when you go shopping or watch the World Cup or surf the web, if ever. Yet the stuff we covet is governed by rules that have developed over hundreds of years around the world, which dictate what is made and sold, how, and for how much money. The new book, A History of Intellectual Property in 50 Objects, examines these dictates through the lens of iconic items that have influenced global culture. Released in June by Cambridge University Press, this collection of 50 essays on everything from ancient Korean clay-glazing techniques to Coca Cola bottles, Post-It notes, and internet protocols takes an unusual and accessible approach to its opaque topic...Designer Coco Chanel wasn’t much of a stickler for intellectual property law herself...Chanel died in 1971. By the 1980s, imitations of her small, rectangular quilted purse with its long chain-link shoulder strap were everywhere, as the book’s essay about the bag by Harvard Law School professor Jeanie Suk Gersen explains.

  • How Fetal Personhood Emerged as the Next Stage of the Abortion Wars

    June 5, 2019

    An article by Jeannie Suk Gersen: ... But it is important to understand that the alarm over abortion as eugenics is a decoy of sorts. A deeper, more troubling argument that is now gathering force is tucked more quietly into Thomas’s invocation of legal anti-discrimination norms. If the right to be free of discrimination on the basis of race, sex, or disability can be made relevant to a fetus, then fetuses are figured as entities with anti-discrimination rights—like people. This move imbues the fetus with rights that the pregnant person—and, by extension, the abortion provider—might violate. What is really at stake is an idea of fetal personhood. ... Writing in 1990, the constitutional scholar Laurence Tribe called abortion “the clash of absolutes,” referring to the clash between the fetus’s development and the pregnant person’s liberty. On one side, the belief that a fetus is a human being would mean that abortion is a form of murder, which makes the idea that it is a woman’s “choice” callous or nonsensical. On the other side, the belief that the abortion decision belongs in the domain of individual autonomy rests on the assumption that, whatever it is, abortion is not the killing of a human being.

  • Robert Mueller’s and William Barr’s “Baby” and the History of Presidential Obstruction

    May 5, 2019

    An article by Jeannie Suk: During Attorney General William Barr’s Senate hearing on Wednesday, he insisted that Special Counsel Robert Mueller’s “work concluded when he sent his report to the Attorney General. At that point, it was my baby.” It sounded as if Mueller had birthed a baby and given up the child to Barr for adoption. (The President had urged abortion, so to speak.) Then, we learned this week, Mueller, as a concerned birth parent, wrote what Barr described as a “snitty” letter with pointed instructions on how better to raise said baby. I happen to be a teacher of constitutional law, criminal law, and family law, but never did I imagine this particular intersection of all three areas.

  • Black Lives Matter on Campus Also

    April 30, 2019

    Last Thursday, the NAACP suspended its Saint Louis County chapter president, a man by the name of John Gaskin. He was accused of two offenses. The second was a conflict-of-interest allegation that doesn’t concern us, but the first offense should. The NAACP actually suspended a chapter president in part for supporting greater due process for black men accused of sexual misconduct on campus. They suspended him for supporting civil liberties. ...Harvard Law professor Jeannie Suk Gerson, one of the nation’s foremost experts on Title IX adjudications, has reported that the administrators and faculty members who work on campus sexual-assault cases say that “most of the complaints are against minorities.” Moreover, the modern attack on campus due process means that black men are facing an old problem. Yoffe quotes another Harvard professor, Janet Halley, who accurately notes that “American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women,” followed eventually by the revelation “that the accused men were not wrongdoers at all.”

  • Donald Trump, the ACLU, and the Ongoing Battle Over the Legitimacy of Free Speech

    April 23, 2019

    An article by Jeannie Suk Gersen: In September, 2017, a month after the deadly Unite the Right rally in Charlottesville, Virginia, student protesters at the College of William and Mary, in Williamsburg, shut down a speaker—Claire Guthrie Gastañaga, the executive director of the A.C.L.U. of Virginia. A student group had invited Gastañaga to campus to give a talk on the importance of free speech, but, because of the students’ persistent disruptions, she could not proceed. “Blood on your hands,” the protesters shouted, and “Shame! Shame! Shame!” and “You protect Hitler.” ... The more that free speech is denounced by the left, the more it is embraced by the right. Two years ago, the University of California, Berkeley, cancelled a lecture by the far-right provocateur Milo Yiannopoulos, after protests of the event turned violent; President Trump then threatened, in a tweet, to withdraw federal funds from the school. At the time, the President’s suggestion appeared to lack a legal basis. Now he has created one, in the form of an executive order issued last month, in defense of free speech.

  • Lawmakers Examine Higher Ed’s Response to Sexual Assault

    April 3, 2019

    Congressional efforts to reauthorize the Higher Education Act could derail Secretary of Education Betsy DeVos' attempts to finalize rules regarding Title IX and campus sexual assault. If Tuesday's Senate hearing is a barometer for how members of Congress might legislate on the issue as part of the larger higher education overhaul, the language is likely to be more measured than DeVos' proposed rules, which largely aim to bolster the rights of those accused. ...Most of the witnesses agreed that requiring a cross examination isn't necessary. "What is required is the opportunity to ask questions and I do not think it's essential to do it in a direct fashion," Jeannie Suk Gersen, professor of law at Harvard Law School, said, regarding due process. "I think that as long as there is an opportunity to put questions to the other side through a neutral party, that's enough."

  • Congress Wants a Say in the Title IX Debate. What Might That Look Like?

    April 3, 2019

    Campus sexual assault should be addressed in the reauthorization of the Higher Education Act, U.S. senators emphasized during an education-committee hearing on Tuesday. The question is how legislation might complement the Title IX regulations that Betsy DeVos, the secretary of education, has proposed — and, given how controversial the draft rules are, whether lawmakers can agree on what that legislation should look like. ...Jeannie Suk Gersen, a law professor at Harvard University, said the federal government should provide a basic definition of sexual harassment. But she called attention to the difference between "severe and pervasive," which is what the proposed regulations say, and her preferred definition, "severe or pervasive." That's a subtle but significant distinction, she said, that would ensure that colleges are still held responsible for investigating the kinds of sexual misconduct that can derail students' education.

  • Unpopular Speech in a Cold Climate

    March 15, 2019

    An article by Jeannie Suk Gersen: “The first thing we do, let’s kill all the lawyers.” This exhortation by an anti-royalist revolutionary, in “Henry VI, Part II,” remains one of Shakespeare’s most dependable laugh lines. Lawyers are a pain. At some point or another, everyone wants to get rid of them, especially when legalities seem to stand in the way of sweeping social change. Therein lies the bite of the joke. As the Supreme Court Justice John Paul Stevens once wrote, in a footnote to a dissenting opinion, Shakespeare “realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” It was decidedly unfunny, last month, to see the words “Down w Sullivan!” spray-painted on the doors of Winthrop House, the residence of Ronald S. Sullivan, Jr., the first African-American faculty dean of an undergraduate house at Harvard. (Sullivan is also a colleague of mine at Harvard Law School and a renowned defense attorney.)

  • The Challenge of Preserving the Historical Record of #MeToo

    March 12, 2019

    Around the height of the #MeToo revelations, in the fall of 2017, I interviewed an archivist at a prominent research library for a piece about social-media preservation. It quickly became apparent that he knew less about the subject than I did; he saved Facebook posts by painstakingly copying and pasting them into Word, comment by comment, and manually pressing print. ... The notion that the memory of #MeToo needs preserving—both because it matters and because it could disappear—is also the premise of a much larger archival effort. In June, the Schlesinger Library at Harvard University’s Radcliffe Institute, arguably the paramount repository of works on American feminism, announced its intention to collect the millions of tweets and hundreds of thousands of Web pages—news articles, legislation, changing H.R. policies, public apologies—that composed #MeToo and remain as its evidence. (Harvard faculty members of the steering committee for the #MeToo project include Jill Lepore, a staff writer for this magazine, and Jeannie Suk Gersen, a contributing writer.)

  • Why I Changed My Mind 4

    Why I Changed My Mind

    March 8, 2019

    A panel discussion at HLS brought together four faculty members to share their moments of reckoning, when they had to re-examine some of their most closely held ideas.

  • In Defense of Harvey Weinstein’s Harvard Lawyer

    March 4, 2019

    The law professor Ronald S. Sullivan Jr. is among the most accomplished people at Harvard. He has helped to overturn scores of wrongful convictions and to free thousands from wrongful incarceration. ... Sullivan faces this “clamor of popular suspicions and prejudices” because he agreed to act as a criminal-defense attorney for an object of scorn and hatred: Harvey Weinstein. ... Catharine MacKinnon, Harvard’s James Barr Ames Visiting Professor of Law, emailed: The issue is not whether Ron can represent reviled clients accused of crimes and still be the faculty dean of a college. Of course he can. The issue is substantive. ...The Harvard law professor Lawrence Lessig echoes the argument that it’s possible to be a survivor of sexual assault and feel comfortable with Sullivan’s choice. ...“The skills, capacities, and dispositions that would help to make a person a valued defense counsel are also the skills, capacities, and dispositions that would help to make a person a valued Faculty Dean,” [Randall Kennedy] argued.  ... The Harvard professor Jeannie Suk Gersen emailed me her concerns with such “processes”: "Professor Sullivan has chosen to represent and defend persons whom many people would not defend. Strong disagreement with those choices is of course part of the exploration of differences of principle and opinion that we’d hope for in a university." ... “Little more than half a century ago, mainstream lawyers were frightened away from defending alleged Communists who faced congressional witch hunts, blacklisting, criminal trials, and even execution,” Harvard Law’s Alan Dershowitz wrote. ... The Harvard professor Janet Halley calls Harvard’s actions “deeply disturbing.” She explained in an email: The right to counsel even for the most despised defendants, the basic role of counsel in our legal order, the presumption of innocence, academic freedom, and the right of University employees to assist persons accused in the University’s Title IX proceedings—are all implicated here. ... The Harvard law professor Scott Westfahl, however, defended the idea of a climate review, also by email. ... “We are all better off as a result,” and he noted, “I completely support the right of Professor Sullivan, an extremely talented defense lawyer, to take on a very difficult case. Should Mr. Weinstein be convicted, there will be absolutely no doubt that he received a fair hearing with the best possible defense counsel.”

  • Assessing Betsy Devos’s Proposed Rules on Title XI and Sexual Assault

    February 1, 2019

    An article by Jeannie Suk Gersen: ... From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.

  • Wasserstein Hall at Harvard Law School

    Three faculty evaluate Department of Education proposed rule for Title IX enforcement

    January 30, 2019

    Harvard Law School Professors Jeannie Suk Gersen ’02 and Janet Halley, and Senior Lecturer on Law Nancy Gertner have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement.

  • Must Writers Be Moral? Their Contracts May Require It

    January 7, 2019

    When you see publishers and authors chatting chummily at book parties, you’re likely to think that they’re on the same side — the side of great literature and the free flow of ideas. In reality, their interests are at odds. ... Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”

  • Title IX Faces Down the Culture Wars

    November 2, 2018

    ...But somewhere along the way, Title IX became about much more than just ensuring access to higher education and sports for women. Indeed, more than four decades later, the 37 words that comprise the statute are now used to regulate everything from campus sexual assault and harassment to bathroom rights of transgender students...."Most laws have openness to them and words that are not clearly defined, and it is understood that agencies under the president or under a particular administration will interpret those congressional laws, and that policymaking is what happens when those laws are interpreted," says Jeannie Suk Gersen, professor of law at Harvard Law School. "But you don't want those agencies to go crazy and do something that's totally outside of what Congress could have intended," she says. "But you also want there to be some leeway for the agencies to make policy within the limits of what Congress has provided."

  • At Trial, Harvard’s Asian Problem and a Preference for White Students from “Sparse Country”

    October 23, 2018

    An essay by Jeannie Suk Gersen. Nearly a century ago, Harvard College moved away from admitting students based solely on measures of academic performance. In the nineteen-twenties, the concept of diversity in admissions arose in response to the fear of being overrun by Jewish students, who were considered strong on academic metrics but lacking in qualities of character and personality. As the proportion of Jews threatened to exceed a quarter of each class, Harvard’s president, Abbott Lawrence Lowell, proposed limiting Jews to fifteen per cent of the student body. Other Harvard officials balked at such overt discrimination, believing it to be inconsistent with Harvard’s liberal tradition, and, instead, formulated a new, inclusive “policy of equal opportunity” that would lead to the same outcome as Lowell’s proposal. It introduced the consideration of qualitative factors such as personality and background, including “geographical diversity,” as part of the admissions process. Representing the diversity of the country meant recruiting and admitting more Midwestern and Southern students, who counterbalanced the droves of Jewish applicants from the Northeast. By the class of 1930, as a result of the new plan, Jewish students made up only ten per cent of Harvard’s undergraduates.

  • The lawsuit against Harvard that could change affirmative action in college admissions, explained

    October 19, 2018

    ...Some observers, like Harvard Law’s Jeannie Suk Gersen, argue that Burroughs’s determination on that matter doesn’t necessarily need to include a broader ruling on affirmative action. But because the case is likely to be appealed, the case could have a drastic effect on how elite schools use race in admissions.

  • Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case

    October 11, 2018

    An essay by Jeannie Suk Gersen...The lawsuit, which will go to trial next week in federal district court in Boston, has been called “the Harvard affirmative-action case,” and it has been spoken of as if it could end affirmative action at Harvard and elsewhere. Both the plaintiff, a national group called Students for Fair Admissions, and Harvard benefit from describing it that way, but, in fact, the stakes are somewhat different. Students for Fair Admissions was founded by Edward Blum, a conservative activist who has orchestrated several lawsuits challenging affirmative action, and the initial complaint included a demand that the court declare it illegal to use race as a factor in college admissions. But, in keeping with Supreme Court precedents, the judge in the case, Allison D. Burroughs, has granted judgment in favor of Harvard on that point. The question that remains for trial is whether Harvard has gone beyond what the Supreme Court has said are permissible ways to consider race in admissions—and, specifically, whether it has shown a special bias against Asian-American applicants.

  • Students Filed Title IX Complaints Against Kavanaugh to Prevent Him From Teaching at Harvard Law

    October 2, 2018

    In the days before Harvard Law School announced embattled Supreme Court nominee Brett M. Kavanaugh will not teach in Cambridge this January, undergraduates eager to block his return to campus struck on a new strategy: file Title IX complaints against the conservative judge...Jeannie Suk Gersen, a professor at the Law School and a Title IX expert who has written extensively about Kavanaugh’s confirmation, said that — while she supports the students’ freedom to protest the nominee’s former teaching role at Harvard — the notion of filing Title IX complaints is “misplaced.” “Such an abuse of process would undermine the legitimacy and credibility of complaints that the Title IX process is intended to deal with, as well as of the Title IX office to focus on its duties,” Suk Gersen wrote in an email. “It might be effective in drawing further attention to some students’ objection to Kavanaugh’s teaching appointment, but I don’t expect him to be found to have violated Harvard University’s Sexual & Gender-Based Harassment Policy based on the currently known public allegations against him.” Janet Halley, another Law School professor with a background in Title IX law, also called the students’ strategy of filing formal complaints unlikely to succeed. “I urge the students to divert their energy from this implausible claim that he’s going to create a sexually hostile environment by teaching at the Law School to the really grand issue of whether he’s fit to be in his current judgeship or promoted to the Supreme Court,” Halley said.

  • Brett Kavanaugh’s defiance brings echoes of Trump-style combat

    October 1, 2018

    President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode. Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond...“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations. “It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”...“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school. “The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.

  • Does Christine Blasey Ford’s Testimony Require Corroboration?

    September 28, 2018

    An essay by Jeannie Suk Gersen. Christine Blasey Ford has credibly testified that Brett Kavanaugh attempted to rape her in high school. But many who believe that she is telling the truth are still wondering whether senators should decide how to vote on Kavanaugh’s Supreme Court nomination based on her testimony, in the absence of any “corroborating evidence.” Let’s put aside for a moment the possibility that additional evidence could emerge that supports or undermines Ford’s testimony. In a court of law, a judge or jury who believes that a witness is telling the truth can convict someone of a crime even without corroborating evidence. This happens all the time.

  • Brett Kavanaugh’s Damaging, Revealing Partisan Bitterness

    September 28, 2018

    An essay by Jeannie Suk Gersen. A Senate confirmation hearing for a Supreme Court nominee is a political affair, not a court proceeding. But when the topic is alleged criminal wrongdoing by the nominee, the distinction can start to blur. We, the public, may feel more like a jury considering evidence than a boss considering an applicant for an important job. Thursday’s hearing, with testimony by Brett Kavanaugh and Christine Blasey Ford, was supposedly intended to reveal whether there was truth to Ford’s allegation that Kavanaugh attempted to rape her, by providing testimony from each of them under oath. But the Senate Judiciary Committee’s focus on whether Kavanaugh did what he was accused of gave way to partisan recriminations about whether the process for considering that question was fair. The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether or not Kavanaugh is confirmed.

  • Deborah Ramirez’s Allegation Against Brett Kavanaugh Raises Classic Questions of Campus Assault Cases

    September 26, 2018

    An essay by Jeannie Suk Gersen. For much of the past decade, at Harvard Law School, I have welcomed a crop of new law students to campus each fall with an orientation speech warning them that the time for youthful indiscretions is over; it is now the first day of their professional lives. I admonish them not to engage in any conduct that they might later be tempted to lie about to get a job, and note that F.B.I. background checks are routine for lawyers seeking positions of trust. Though I’ve wondered about instilling this level of anxiety in students, many of them will later face scrutiny as public officials. Perhaps Brett Kavanaugh internalized such a stern professional message, in law school and later, as a religious and conservative lawyer. The current scandal surrounding the Supreme Court nominee involves events that allegedly took place while he was in high school, at Georgetown Prep, and in college, at Yale.

  • What Would a Serious Investigation of Brett Kavanaugh Look Like?

    September 20, 2018

    An essay by Jeannie Suk Gersen. During hearings earlier this month on Brett Kavanaugh’s nomination to the Supreme Court, Senator Mazie Hirono, a Democrat from Hawaii, asked him, “Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assaults of a sexual nature?” Kavanaugh answered no. Days later, Christine Blasey Ford, a psychology professor at Palo Alto University, told the Washington Post that Kavanaugh had drunkenly attempted to rape her more than thirty-five years ago, at a party in a Maryland home, when she was fifteen and he was seventeen. She recalls that he pinned her to a bed, groped and attacked her, tried to remove her clothes, and put his hand over her mouth as she tried to scream. Ford has passed a lie-detector test, and her therapist has records of her describing the event in 2012. The Senate Judiciary Committee has delayed this week’s planned confirmation vote for Kavanaugh and scheduled a hearing for next Monday to consider the allegations.

  • Understanding the Partisanship of Brett Kavanaugh’s Confirmation Hearings

    September 13, 2018

    An essay by Jeannie Suk Gersen. When Brett Kavanaugh’s nomination to the Supreme Court was announced, on July 9th, his alma mater, Yale Law School, released a statement quoting several liberal faculty members’ praise of his intellect, accomplishments, and character. This move was excoriated in an open letter, signed by hundreds of the school’s students, alumni, and teachers, which asked, “Is there nothing more important to Yale Law School than its proximity to power and prestige?” The letter called Kavanaugh’s nomination “an emergency—for democratic life, for our safety and freedom, for the future of our country” and exhorted the school to have “moral courage” and withhold its support. “Perhaps Judge Kavanaugh will be less likely to hire your favorite students,” the letter said. “But people will die if he is confirmed.”...But the conflict over Kavanaugh is not just between liberals and conservatives but also between those emphasizing norms of professional excellence and nonpartisanship and those stressing policy outcomes.

  • What Michael Cohen’s Guilty Plea Doesn’t Tell Us About Trump

    August 27, 2018

    An essay by Jeannie Suk Gersen. Last Tuesday, Michael Cohen, Donald Trump’s former lawyer, pleaded guilty to breaking campaign-finance laws by helping to pay two women, in the fall of 2016, not to disclose affairs that they’d had with President Trump. He claimed that he had made these payments at Trump’s behest, and that he had done so primarily to influence the Presidential election, which made his violation a criminal offense. Cohen’s plea has been hailed as the strongest reason yet to remove Trump from office, mostly because, unlike the other crimes of which several people in Trump’s circle have been convicted or accused, these particular acts were done in concert with the President. But the truth is that Cohen’s confession of a criminal motive does not necessarily establish Trump’s. In fact, a lifetime habit of behaving sleazily may very well help the President.

  • Drop the euphemisms around affirmative action

    July 17, 2018

    Brett M. Kavanaugh’s nomination to the Supreme Court has stirred plenty of debate about the fate of Roe v. Wade . But there is another landmark case that is apt to trouble the court in coming years: Regents of the University of California v. Bakke...But it’s left us with what Harvard Law professor Jeannie Suk Gersen calls an “analytic confusion.” Affirmative action, she says, “has to do with groups that have been wronged and held back, and that we’re going to try to fight against it by doing affirmative action. You can have that conversation without any recourse to diversity.”

  • Some Advice for Brett Kavanaugh, President Trumps Second Nominee to the Supreme Court

    July 10, 2018

    An essay by Jeannie Suk Gersen…In the coming months you’ll have to run the gantlet toward Senate confirmation. While Democrats will sound every alarm about your qualifications and temperament, which by all indications are excellent, we all know there’s little chance of your not being confirmed, given the composition of the Senate. Your nomination represents, for many, the fruition of a conservative dream to install a Justice who will overturn Roe v. Wade and wrest the Court back from where Justice Kennedy surprisingly enabled it to go. But you are a judge. You’ll tell the senators that you don’t have predetermined votes on the matters you may hear.

  • Harvard Needs Some “Soul Searching” on Admissions Process (video)

    July 2, 2018

    Harvard University is under fire for allegedly holding Asian applicants to higher standards than students of other races, according to a discrimination lawsuit filed by the Students for Fair Admissions...Harvard Law alumna and professor Jeannie Suk Gersen says it doesn’t have to be a question of either or. Gersen breaks down the case and explains why she hopes the lawsuit will begin a conversation about the consequences of affirmative action.

  • Harvard Is Wrong That Asians Have Terrible Personalities

    June 26, 2018

    There’s a moving passage contained in a deposition taken in the major class-action lawsuit accusing Harvard University of racial bias against Asian-Americans...As the Harvard law professor Jeannie Suk Gersen pointed out in The New Yorker, the tortuous and evasive quality of the discussion of the treatment of Asian-Americans in elite colleges stems from the way our legal doctrine on affirmative action has evolved. The Supreme Court ruled that it was legal to use race as a criterion in admissions in order to pursue the educational benefits of “diversity” in the landmark 1978 case Regents of the University of California v. Bakke, but it forbade the imposition of racial quotas and, by extension, the maintenance of a policy that consciously aims at “racial balancing.” This imposes a legal condition on Harvard. Rather than make the honest claim that it actively pursues racial balance and that there are good reasons to do so, the school must engage in a charade that nearly everyone working in the proximity of a highly competitive college knows to be false.

  • How Title IX became an ideological battering ram

    May 29, 2018

    Do we really need to litigate every school dress code in federal court? The ACLU and the National Women’s Law Center think so. They argue that rules against inappropriate attire perpetuate “gender stereotypes” in violation of Title IX, the federal law that prohibits sex discrimination in education. Since its passage in 1972, Title IX has unleashed a flood of opportunity for women and girls in the classroom and on the playing field...In short, Title IX has been an incredible success. Unfortunately, however, the law that was intended to break down barriers to opportunity is now being misused to change the way students and teachers think about gender generally...As such, Melnick joins a growing chorus of principled liberal voices, including feminist scholar Laura Kipnis, former federal judge Nancy Gertner, legal affairs reporter Stuart Taylor, and Harvard Law professor Jeannie Suk, who have opposed the use of Title IX to chill speech, deny due process, and prevent educators from resolving controversial issues without litigation.

  • Ashley Judd Sues Harvey Weinstein, Saying He Harmed Her Career

    May 1, 2018

    Ashley Judd sued Harvey Weinstein on Monday, opening a new legal battlefront for the disgraced film producer by claiming that her career withered because he spread lies about her in Hollywood after she rejected his sexual requests. It is rare for people to recover damages for smear campaigns — for instance, quietly labeling actresses as “difficult” when they don’t acquiesce to powerful men — because of how complicated it can be to prove the action took place, let alone directly harmed someone’s career. But Ms. Judd has an A-list director on her side: Peter Jackson, who came forward in December to say that he removed her from a casting list “as a direct result” of what he now thought was “false information” provided by Mr. Weinstein...Jeannie Suk Gersen, a professor at Harvard Law School who specializes in gender and sexual harassment issues, said Ms. Judd’s complaint is notable because it “speaks to the fact that this is not just a sexual issue — that, beyond physical and emotional harm, it also involves economic harm.” She added, “If successful, the legal arguments that are being marshaled here are a big deal for lots of people, not just in show business but in all sorts of hiring contexts.”

  • Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System

    April 27, 2018

    An essay by Jeannie Suk Gersen....The Cosby case is, in the end, an emblem of #MeToo, not just because it ended in a guilty verdict but because of the exceptional if controversial evidentiary procedure that enabled a chorus of witnesses—witnesses who would generally be excluded—to back up the main complaining witness and could well have made the difference between a juror having a reasonable doubt and not having it. It remains to be seen how broadly the legal workarounds for uncharged prior misconduct will be construed by trial courts in future sexual-assault cases, ones in which defendants are not alleged to have such a distinctive signature in the commission of their crimes—or so many victims.

  • Trump’s Affairs and the Future of the Nondisclosure

    April 2, 2018

    An essay by Jeannie Suk Gersen. In recent weeks, the former Playboy model Karen McDougal and the adult-film actress and director Stephanie Clifford, also known as Stormy Daniels, have forged ahead unbound. Both women sold their silence concerning their sexual encounters with Donald Trump, and now both are asking a court to declare those contracts void. All the while, they’ve been giving extensive media interviews on matters ostensibly covered by the agreements—most notably Clifford, in a much-hyped “60 Minutes” interview. A legal arrangement in which someone is paid not to talk (in Clifford’s case), or in which one sells one’s story in order to quash it (in the case of McDougal), is not unusual.

  • Probing the past and future of #MeToo

    March 2, 2018

    ...The movement’s roots and its present and future impact were the focus of a discussion with Harvard scholars on Monday night at the Radcliffe Institute for Advanced Study, organized by the Schlesinger Library on the History of Women in America and moderated by Ann Marie Lipinski, curator of Harvard’s Nieman Foundation for Journalism...For Harvard Law School’s Jeannie Suk Gersen, recent statements from U.S. Supreme Court Associate Justice Ruth Bader Ginsburg point to another divisive debate. Asked about the #MeToo movement in a recent interview, Ginsburg said due process must not be ignored. Gersen, the John H. Watson Jr. Professor of Law, agreed. “One of the salient, and in my mind, very unfortunate aspects of the current moment is how a commitment to due process or fairness has become associated with one side, with men’s rights, with Betsy DeVos and her decision to rescind the Obama administration’s policies on Title IX,” which protects people from sex discrimination in education or other programs receiving federal aid, said Gersen.

  • Probing the past and future of #MeToo

    Probing the past and future of #MeToo

    March 2, 2018

    The #MeToo movement’s roots and its present and future impact were the focus of a discussion with Harvard scholars on Feb. 26 at the Radcliffe Institute for Advanced Study, featuring HLS Prof. Jeannie Suk Gersen, Harvard Profs. Jill Lepore and Evelynn Hammonds, and Ann Marie Lipinski, curator of Harvard’s Nieman Foundation for Journalism, as moderator.

  • Schlesinger Hosts Panel about #MeToo Movement

    February 27, 2018

    A group of Harvard professors from across disciplines discussed the challenges, impacts, and implications of the #MeToo movement at a panel Monday at the Radcliffe Institute for Advanced Study’s Schlesinger Library...[Jeannie Suk] Gersen, a law professor, spoke about the role of due process in adjudicating sexual assault cases, pointing to the need for clarity in definition and accountability for sexual assault charges. “Due process is for innocent and guilty alike,” she said. “I am so heartened that the conversation has included actual real discussion about what we mean when we say sexual harassment, and what that behavior entails.”

  • A bit of advice for Harvard’s new president

    February 20, 2018

    What happens when you become president of the world’s most prestigious university? Suddenly everyone has advice for you. Lawrence S. Bacow, the former president of Tufts University, was named Harvard University’s next leader last week, and already the lobbying has begun. Here’s a taste of what students, alumni, professors, and others say they want him to focus on, when he takes over from president Drew Faust after her retirement in June...Jeannie Suk Gersen: “I hope President Bacow will focus on strengthening traditions of free speech, academic freedom, and respect for intellectual diversity that make possible the uncomfortable exploration of ideas that push us to discovery.”

  • ‘Swimming with Sharks’

    February 5, 2018

    ...The #MeToo movement fits naturally into the narrative we’ve constructed about the dramatic lives of our favorite stars. We are captivated by these women: their monochromatic dresses, majestic pins, sad eyes; their sober interviews and rousing speeches. It is a movement that feels cinematic in the scope of the depravity it unearths and the progress it promises. It is grittily dynamic, vehemently forward-moving. But Harvard is not Hollywood. Proclaiming “Me, too” means something different on a campus than it does on a screen...Sejal Singh [`20], a Harvard Law student and Policy Coordinator at Know Your IX, a national campaign against sexual harassment and violence in schools, says she thinks “we have yet to even scratch the surface” on the problem of sexual misconduct in academia. “It’s sort of odd to me that we were supposedly having this national moment where we start to reckon with not just these individual harassers, but I think much more importantly, the way that these intuitions have enabled them,” Singh says...Jeannie Suk Gersen, a professor at the Law School who has campaigned against Obama-era Title IX changes, says she thinks this protracted focus on the issue means that higher education is in a position to “appreciate the complexity of the problem.” “All of those issues that we dealt with and are continuing to deal with on campuses are now on a broader scale at workplaces and other kinds of institutions,” Suk Gersen says...But others worry that academia’s focus on Title IX shifts the focus to semantics, stymying the potential for more nuanced discussions about broader cultures of harassment. “We’re still fighting about the legal definition,” says Paavani Garg [`18], a Harvard Law student and president of the Women’s Law Association. “We’ve been talking about Title IX for so long... It seems to be something that isn’t always the most effective way of dealing with victims of sexual assault and their needs.”