Media Mentions

An op-ed by Noah Feldman: So far, most of the Supreme Court’s opinions this term have featured a high degree of consensus. The conservative majority has mostly avoided making new law that would be partially rejected by the three liberal justices. The exception that proves the rule is a striking decision issued on Thursday involving a California law that gives union organizers physical access to farms in order to try to unionize workers. In the 6-3 decision, with the court divided along ideological lines, the conservatives held that the law amounted to a taking of private property that requires compensation under the Fifth Amendment to the Constitution. Although the court did not go so far as to say so, the strong implication is that the law will now no longer be operative.

An op-ed by Noah Feldman: In a 5-4 decision with important implications for class actions and for Congress’s ability to authorize lawsuits of all kinds, the Supreme Court has rejected the idea that violation of a statute can ever be enough grounds for a lawsuit unless it comes with a more concrete “injury in fact” to potential plaintiffs. Corporate defendants and the corporate bar will rejoice over the outcome, even as the plaintiffs’ bar and progressives will decry it. Somewhat remarkably, Justice Clarence Thomas joined the court’s three liberals in dissent.

An op-ed by Noah Feldman: In a landmark First Amendment opinion, the Supreme Court has limited schools’ ability to punish students for off-campus speech. In a case involving a cheerleader who was suspended from her team after criticizing her coaches and the cheer program in a profane Snapchat post, the court held that the school had gone too far. While the court said that some off-campus speech — like bullying and harassment — could still be regulated by schools, it laid out general guidelines that were intended to protect students from having their online speech monitored and regulated 24-7 by the schools they attend.

An op-ed by Noah Feldman: The Supreme Court almost put an end to the extended litigation about the takeover of Fannie Mae and Freddie Mac by a conservator — but it didn’t destroy shareholders’ hopes altogether. In an opinion that was nearly unanimous, the justices definitively rejected the companies’ shareholders’ claim that the Federal Housing Finance Agency had gone beyond its powers as conservator when it agreed to a Treasury Department takeover of the federally backed home mortgage companies and conducted the “net worth sweep” that transferred the companies’ assets to Treasury in 2012.

An op-ed by Noah Feldman: In an important 9-0 opinion, the Supreme Court upheld a lower court decision saying that the NCAA is violating the antitrust laws by denying educational benefits to student athletes. The court didn’t say it’s unlawful for the NCAA to stop member schools from paying athletes outright — but only because that issue wasn’t before the court. The opinion hints that, in a future decision, the justices could hold that antitrust law requires the NCAA to let colleges pay salaries to athletes. And in a separate concurrence, Justice Brett Kavanaugh said exactly that.

An op-ed by Noah Feldman: The Supreme Court’s decision in the shareholders’ suit against Goldman Sachs over the bank’s transparency was extremely subtle, leaving enough room for both sides to say that they were happy with it. And it did very little, if anything, to make new law. So what were the justices doing, exactly? The answer is that, in a high-profile case, they were assuring themselves that they had a say in pushing the lower courts toward what they consider common sense.

In a 6-3 ruling along ideological lines, the Supreme Court struck down a California law that gave union organizers access to farm sites. The decision means people seeking out farm workers for unionization purposes going forward will be violating the property rights of agricultural landowners and food processors, who can now legally keep them off their land. Critics lamented the result. Niko Bowie, a professor at Harvard Law, wrote that the regulation "was the product of a years-long campaign by César Chávez" and the United Farm Workers "to force agribusiness to respect the dignity and workplace rights of agricultural workers."

In the 1960s, the United Farm Workers began demanding better pay and working conditions for California’s agricultural workers, who were subject to egregious exploitation and abuse. Led by César Chávez and Dolores Huerta, the union’s campaign culminated in the passage of the California Agricultural Labor Relations Act. …To avoid answering this question, Roberts invented exceptions to Cedar Point’s new rule, including “a business generally open to the public.” As Harvard Law professor Niko Bowie wrote on Wednesday, however, the chief justice’s improvised exceptions won’t actually prevent businesses from refashioning typical regulations as a “taking.” Nondiscrimination laws “take” a club’s right to exclude women, religious minorities, and other disfavored groups.

Legal experts clashed on Wednesday over the wisdom of proposals to reduce the Supreme Court’s power to strike down democratically enacted laws, as President Biden’s commission on judicial branch overhauls held its first public hearing with witnesses. … Nikolas Bowie, a Harvard Law School professor, denounced the power of the Supreme Court to strike down laws enacted by Congress as an “antidemocratic superweapon” and said, “I encourage you to advocate for reforms that will abolish the practice.” … But Noah Feldman, another Harvard Law professor, warned against reducing the Supreme Court’s power of judicial review. While he agreed that the court had sometimes issued bad decisions, he argued that reducing judicial checks on the legislative and executive branches would pose greater risks.

Former U.S. President Donald Trump may have an unlikely ally to defend him against lawsuits alleging he incited the U.S. Capitol insurrection: President Joe Biden’s Justice Department. ... One prominent constitutional scholar characterized the department’s position in the Carroll case as a blunder that will be difficult to undo. “It would be very difficult for the Justice Department to change course now,” said Laurence Tribe, a Harvard University constitutional law professor and a frequent critic of Trump. “The Titanic is aimed at the iceberg.” Tribe and other critics of the department’s position say it fails to draw obvious distinctions between a president's official conduct and matters that clearly fall outside the duties of the office. When a president says or does something illegal, they say, it does not warrant a taxpayer-financed defense by government lawyers.

Harvard students are contributing time, effort, and expertise to solving local challenges and helping residents.

HLS Professor Adriaan Lanni is advocating for the ‘thoughtful and gradual’ adoption of the concept of restorative justice — not only as a way to help reduce incarceration, but also as a more effective and humane method for dealing with crime.

The pressure campaign started months ago. Outside the US Supreme Court in April, a billboard truck with a black-and-white image of 82-year-old Justice Stephen G. Breyer circled the grounds, neon green letters blaring, “Breyer, retire.” ...“His code words are common sense, decency, democracy,” said Charles Fried, a professor of law at Harvard who served as US solicitor general under Ronald Reagan and has known Breyer since he was a law student. “He is a very practical person. If you look at some of his writings, he is very interested in what the practical effect of what his decisions will be.” ... “He has never been the leader of what people would regard as the liberal flank,” said Laurence Tribe, a longtime Harvard law professor and close friend. Still, “he has been a consistent and rather predicable liberal on matters of racial equality.”

Yochai Benkler and Joan Donovan offer perspectives on the pervasive threat of disinformation.

A federal judge whose ruling last week to strike down California's three-decade-old assault weapons ban garnered swift backlash is drawing more criticism over his claims about Covid-19 vaccines, firearm injuries and other subjects....Constitutional law scholar Laurence Tribe, a professor emeritus at Harvard Law School, said Benitez's assertions are "utterly without factual foundation.""They are irresponsible in the extreme, whether described as purported 'facts' or repackaged as opinions," Tribe said in an email. "His entire theory about which firearms are protected by the Second Amendment has no basis in the text, history, or judicial interpretation of the Amendment and swallows its own tail by making the circular assertion that the weapons in common use at any given time are those protected by the Amendment."

An op-ed by Noah Feldman: American Indian tribes have won a small victory at the Supreme Court. In the case, U.S. v. Cooley,  justices held that tribal police on a reservation can arrest and search people who are not Native American when there is probable cause to suspect them of a federal or state crime. The decision was unanimous, almost certainly for a quirky reason: The court’s liberals favor tribal sovereignty on reservations and the court’s conservatives favor expansive police power to stop and search. Conservatives also hate throwing out convictions on procedural grounds.

Premal Dharia, inaugural director of Harvard Law School’s Institute to End Mass Incarceration, recently moderated a discussion on felons and jury service.

An appellate court in Wisconsin has ruled that Chrystul Kizer, a child sex-trafficking victim charged with killing her alleged abuser, may be able to use a state law intended to help trafficking victims accused of crimes. The law, known as the affirmative defense, will give Kizer, now 20, a chance to present evidence to a Kenosha judge, and possibly a jury, that her actions were a “direct result” of the trafficking she experienced. If successful, she could be acquitted of some or all of the charges against her, rather than face a mandatory life sentence — and could break legal ground for trafficking victims accused of crimes. ... “We could not have gotten a better decision‚” said Diane Rosenfeld, director of Harvard Law School’s gender violence program, which was involved in writing a brief in the case. “If the state had taken more seriously what Volar was doing, not only to Chrystul but to all these other girls, arguably Chrystul wouldn’t have been in this position."

COVID-related costs along with the Biden Administration’s plans to invest heavily in slowing Climate Change and in building infrastructure leave little money for other mega-budget initiatives. But four long-time partners who are fighting for food waste and loss prevention policy believe this is actually an opportune time to call on the federal government to support their agenda. The partners are the World Wildlife Fund (WWF), Harvard Law School Food Law and Policy Clinic, ReFED, and the National Resource Defense Council. They recently finished their U.S. Food Loss & Waste Policy Action Plan that asks Congress and President Biden to take action to halve food waste by 2030, in line with the target set by the U.S. Environmental Protection Agency (U.S. EPA) and the U.S. Department of Agriculture (USDA). ... Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, illustrates by expounding on two Action Plan areas: food donation and date labeling. Her office has tried to advance policy around both for years.

An op-ed by Dana Montalto, clinical instructor at Harvard Law School’s Veterans Legal Clinic: A veteran with a fever and hacking cough that suggest a possible coronavirus infection tries to make a doctor’s appointment, only to be turned away by a receptionist who personally decides the would-be patient can’t see a physician. A former service member and sexual assault survivor at risk of suicide is denied access to mental health services by a bureaucratic gatekeeper stationed at the therapist’s front desk. These are two of thousands of examples of veterans seeking the Veterans Affairs healthcare they’re legally entitled to — and being wrongly refused it. This is due to a pervasive misunderstanding, and misapplication, of the rules regarding other-than-honorable discharges.

Dentons Chair Joseph Andrew says there’s a “fear factor” in competitors’ reaction to news that his law firm is launching a private equity-backed global consulting business. Competitors view Dentons Global Advisors as a sign of what may be to come if U.S. law firms are able to receive outside investment, Andrew said in an interview. The firm’s ability to tap private equity capital will serve as “jet fuel” for the firm’s continued acquisitions, he said. ... “What law firms have been worried about for 30 years is accounting firms doing legal work, but they now realize that turnaround is fair play,” said Robert Couture, a senior research fellow at Harvard Law School’s Center on the Legal Profession and a former executive director of McGuireWoods. “The law firms can bring on billable professionals and a heck of a lot of expertise that doesn’t necessarily require a JD.”