Jeannie Suk Gersen

An article by Jeannie Suk Gersen: Most crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states. By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place. The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the director of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.” Fauci is not alone in thinking that a national order would be preferable.

A TED Talk by Jeannie Suk Gersen: To understand what makes marriages work, we need to talk about why they sometimes end, says family law professor Jeannie Suk Gersen. Follow along as she lays out three ways that thinking about marital decisions through the lens of divorce can help you better navigate togetherness from the beginning.

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.

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.

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.”

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.

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.”

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.”

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.

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.

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.

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.

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.

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.

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.”

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.

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."

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.