Jeannie Suk Gersen

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.

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.)

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.)

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.”

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.

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.

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.”

...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."

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.