Media Mentions

According to the civil-law code of the state of New York, a writ of habeas corpus may be obtained by any “person” who has been illegally detained. In Bronx County, most such claims arrive on behalf of prisoners on Rikers Island. Habeas petitions are not often heard in court, which was only one reason that the case before New York Supreme Court Justice Alison Y. Tuitt—Nonhuman Rights Project v. James Breheny, et al.—was extraordinary. The subject of the petition was Happy, an Asian elephant in the Bronx Zoo. American law treats all animals as “things”—the same category as rocks or roller skates. However, if the Justice granted the habeas petition to move Happy from the zoo to a sanctuary, in the eyes of the law she would be a person. She would have rights. … Having lost the chimpanzee cases in New York, Wise and his team armed themselves with dozens of friend-of-the-court briefs in support of personhood for Happy. One of them came from Laurence Tribe, the Harvard legal scholar. “It cannot pass notice that African Americans who had been enslaved famously used the common law writ of habeas corpus in New York to challenge their bondage and to proclaim their humanity, even when the law otherwise treated them as mere things,” Tribe wrote.

An op-ed by Noah Feldman: On a day when the world's eyes are rightly focused on a brazen challenge to the post-Cold War international order, Americans can rightly celebrate a domestic change that should make us proud: the nomination of Judge Ketanji Brown Jackson as the first Black female justice of the Supreme Court.

Ketanji Brown Jackson's nomination to the U.S. Supreme Court fulfills a promise President Biden made while running for office: to nominate the first Black woman for the highest court. Critics said he was prioritizing identity over qualifications, but many have praised Jackson for being well equipped for what could be a historic appointment. Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, wrote a book about the first Black woman to ever become a federal judge, Constance Baker Motley. She explains how that, and much more, paved the way for this nomination.

Today the long-awaited federal trial over Oklahoma’s execution protocols and drug cocktail will begin. Following the United States Supreme Court’s twisted rulings in Baze v. Rees in 2008 and Glossip v. Gross (2015), a crucial issue in the Oklahoma case will be whether death row inmates and their lawyers can identify a readily available method of execution that would be preferable to the state’s current method. According to Harvard Law Professor Carol Steiker the essential meaning of Baze and Glossip is best summarized as follows: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.”

As President Biden considered a handful of Black women for the Supreme Court, two things drew him to U.S. Circuit Court Judge Ketanji Brown Jackson, according to those familiar with his decision making process. Jackson was molded by her predecessor, the retiring Justice Stephen Breyer; and, like Biden, she came with a rounded resume bolstered by her work as a public defender. ... “It spoke to him in an important way,” retired Harvard University law professor Laurence Tribe said of Jackson’s public defender years. “He understood in a way that a president who had not himself been a public defender might not have been able to understand just what that meant and why it gave her a distinctive perspective.”

President Biden on Friday nominated federal Judge Ketanji Brown Jackson to the U.S. Supreme Court to fill Justice Stephen Breyer’s pending vacancy. If confirmed, she would be the first Black woman to serve as a Supreme Court justice. We speak with Harvard constitutional law professor Tomiko Brown-Nagin about the nomination of the 51-year-old federal judge and the parallels between her and the first Black woman federal judge and civil rights legal icon Constance Baker Motley, who was at one point eyed for a Supreme Court nomination.

At an event sponsored by the Petrie-Flom Center at Harvard Law School, officials, health policy experts, and legal scholars discussed the landmark suit targeting American gun manufacturers.

The nation's premier tool to protect voting rights is in mortal danger, threatened on multiple fronts by the Supreme Court and lower-ranking federal judges, scholars and civil rights advocates say. The latest blow to the landmark Voting Rights Act of 1965 came this week in Arkansas, where a federal judge appointed by former President Donald Trump dismissed a case over new statehouse maps. The NAACP and the American Civil Liberties Union argued that the maps diluted the power of Black voters. But the judge said he found no way for the outside advocates to proceed. ... "They are teeing up statutory and constitutional questions for the Court with the justifiable belief that the Court will welcome the narrow interpretation and the opportunity to further narrow the statute," said Guy-Uriel Charles, an election law professor at Harvard Law School.

In a unanimous vote, the Federal Communications Commission decided last week to open apartment and condominium buildings to more broadband competition. A 2008 rule already on the books limited landlords’ ability to enter into exclusive deals with cable and internet service providers, but there were loopholes that effectively allowed providers and landlords to keep renters stuck with one ISP — at whatever price it wanted to charge. The new rule would force landlords to disclose those arrangements and give renters more options. Susan Crawford teaches law at Harvard. She said this move by the FCC is pro-consumer but doesn’t fully address the major issues around competition.

Harvard Law School Professor Lucian Bebchuk is an interesting and impressive individual. He grew up in Israel and there simultaneously obtained a degree in mathematics and economics from Haifa University and another one in law from the Tel-Aviv School of Law. He came to Harvard in the late 1970s and has stayed there ever since, first getting a master’s and then a doctorate in law from Harvard Law School. He joined its faculty in 1986 and obtained tenure just two years after that. Perhaps most impressively, and somewhat counterintuitively, he got a Ph. D. in economics from Harvard in 1993. While a full time law school professor. He is now the James Barr Ames Professor of Law, Economics, and Finance, and Director of the Program on Corporate Governance. Bebchuk is clearly a very smart guy!

I cannot tell you how many ads I’ve been served by various interested firms since sports betting became legal in New York State this year. Caesar’s Sportsbook has J.B. Smoove and Halle Berry encouraging me to gamble. FanDuel and DraftKings, pioneers of mobile-app sports betting, have constant promotional campaigns offering free money for my first bet. All of these massive marketing budgets have, as their north star and balance-sheet justification, one principle: it’s worth spending a big chunk of change to get a big chunk of people addicted to gambling on your platform. The House might not be a physical building on the Vegas strip, but it still always wins. ... Why is Joe Camel out of bounds, then, but ads for booze and gambling are above-board? I asked Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School—who specializes in, among other things, advertising law—what the deal is here. As it turns out, it’s a particularly American cocktail of strident free-speech principles, waxing and waning puritanical attitudes, and corporate power. Our conversation has been edited for length and clarity.

From 1946 to the 1960s, Constance Baker Motley was the sole woman on the small team of lawyers waging an insurgent challenge to the South’s racial caste system and laying the foundation for the civil rights revolution that transformed American life. The first Black woman appointed to a federal judgeship, in 1966, Motley’s rulings advanced the rights of women, gays and lesbians, prisoners, and the homeless. In “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality,” Tomiko Brown-Nagin recovers the story of this pioneering lawyer and jurist and invites a fresh consideration of the civil rights movement and the nature of its achievements.

In the course of less than a month, leaders of three of the Big Four’s legal arms have told Law.com International, in separate interviews, that they don’t view themselves as being in competition with traditional law firms. The degree of sincerity contained in those statements is debatable. But even if you take the comments at face value, firms should remain wary. ... As Pritchard reported, Robert Couture, a senior research fellow at Harvard Law School’s Center on the Legal Profession, interviewed 20 senior leaders at the Global 100 firms about what they knew about and how they were responding to the Big Four. Couture found that a “significant number of firms have given little or no thought” to the competitive threat the Big Four pose, with a quarter having “virtually no knowledge” of what the Big Four were doing. While half only had “casual awareness” of their activities.

Organizers of an effort to unionize an Amazon warehouse in Bessemer, Alabama, filed a complaint with the National Labor Relations Board this week, challenging the company’s right to require employees to attend anti-union presentations at work, a common tactic that is currently considered legal. These so-called “captive audience” meetings are usually held at workplaces during work hours, where employers make their case. ... Labor advocates have long argued unions should be offered equal time in workplaces to present their own information said Benjamin Sachs, co-director of the Labor and Worklife Program at Harvard Law School. “It would also be a big deal symbolically, because it would symbolize that the union was not so much an outsider,” he said.

An article co-written by Lucian Bebchuk: Prior to the outbreak of Covid-19, corporate leaders pledged to look after all stakeholders, not just deliver value to shareholders. Did they live up to these promises? A new empirical study examines more than 100 major public company acquisitions that were announced during the pandemic and shows that corporate leaders failed to look after stakeholder interests.

Andy Parker, the father of Alison Parker, the television reporter who was shot and killed in 2015 by a former colleague, created an NFT of the video of the fatal shooting in hopes it will give him power to remove clips from social media, The Washington Post reported. ... Dr. Rebecca Tushnet, a professor of law at Harvard Law School whose work focuses on copyright, trademark and false advertising law, told Insider she believed "there's a 0% chance that this will work." "I see no path forward through NFTs for this person who suffered an unspeakable tragedy," Tushnet said. "I don't know who encouraged this, but it is not going to give him what he wants."

In an old joke, a secular Jew sits down on a park bench next to a man with a large black hat and a long black coat. The secular Jew turns to the darkly garbed man and says, “What’s the matter with you Hasids? This isn’t the Old Country—it’s the modern world. You people are an embarrassment to the rest of us.” The man turns around and says, “Hasid? I’m Amish.” The secular Jew immediately replies, “It’s so wonderful the way you’ve held on to your traditions!” ... They will be regarded as ‘options’ within the liberal frame, and while suspect in the broader culture, largely permitted to exist so long as they are nonthreatening to the liberal order’s main business.” [Adrian] Vermeule, a conservative scholar at Harvard Law School, agrees with Deneen’s assessment but considers his prescription altogether too quietist, proposing instead the cultivation of clandestine agents who might “come to occupy the commanding heights of the administrative state,” where they “may have a great deal of discretion to further human dignity and the common good, defined entirely in substantive rather than procedural-technical terms.” (One can’t help but think of jurists like Amy Coney Barrett.) Brooks, a commentator, has fewer qualms about liberalism per se, and thinks the focus ought to be on the renewal of a culture of civic righteousness.

An article co-written by Laurence Tribe: Barbara McQuade, the former United States Attorney for the Eastern District of Michigan just raised the bar for ingenious ways for speaking truth to power . . . in this case, the power of the Attorney General of the United States. On February 22 in Just Security, McQuade published an exhaustively detailed model prosecution memo for indicting former President Donald Trump for his unrelenting criminal actions in pressuring Vice President Mike Pence to take lawless steps to delay the electoral count on Jan. 6.

This is the rundown for Radio Boston for February 23. Tiziana Dearing is our host. Curry College in Milton, MA is going remote for the rest of the week after swastikas and threatening messages targeting Black students were found on campus. This has become a fairly common occurrence at schools and universities. We speak with State Senator Barry Finegold and Sarah Granoff, VP of Simmons University Hillel, about how to talk about anti-Semitism with young people. Harvard Law Professor and author Randall Kennedy joins us to talk about the twentieth anniversary re-release of his book, which examines our nation's most abhorred racial slur, chronicling the word's history, the law and litigation around it and its cultural relevance.

It is deeply illiberal to accuse those who criticize the president of treason. It’s un-American. It is, in fact, the kind of rhetoric that exists in tyrannies. Yet numerous liberals have accused those critical of Joe Biden’s impotent handling of the Ukrainian crisis of sedition. Harvard prof Laurence Tribe, a favorite of the “resistance” — back when dissent was still patriotic — recently argued that Fox News host Tucker Carlson and other Republicans he claims are praising Russian President Vladimir Putin have provided “aid and comfort” to an “enemy” and thus would meet the definition of “treason” under Article III, Section 3 of the US Constitution.

An article by co-written by Ben Waldman (JD '23): ​​This past fall, a series of reports, principally from the New York Times, revealed that the United States’ air war against the Islamic State may have been more indiscriminate than U.S. officials have previously acknowledged. The Times reported in November 2021 that a March 18, 2018, single strike indiscriminately killed dozens of civilians during the Islamic State’s last stand in Baghuz, Syria. And in late January, the Times reported that another strike in 2017 on the Tabqa Dam—a massive structure on the Euphrates River in Eastern Syria—caused the dam to fail so catastrophically that it provoked a momentary truce among the Syrian government, the Islamic State, and U.S.-backed forces so that engineers could prevent the loss of tens of thousands of civilian lives due to flooding.