Media Mentions

Richard Lazarus has advised hundreds of clerkship hopefuls during his seven years on the faculty at Harvard Law School, and the 15 years he spent at Georgetown University Law Center before that. Never once has he broached the subject of appearance with a student in regards to landing the job. That’s not entirely true. There was the time many years ago when he asked a female student, after the fact, whether she had removed her facial piercings for an interview with a federal appellate judge. “I recall she looked at me quizzically and exclaimed something like, ‘Of course! I wanted to get the clerkship!’” Lazarus said. “Which she in fact did secure and she has since enjoyed a wonderfully successful career, first at the U.S. Department of Justice and later as a tenured law professor.” Lazarus and others said that urging law students to look a certain way to appeal to a hiring judge—as prominent Yale Law School professor Amy Chua is said to have done with female students seeking clerkships with U.S. Supreme Court nominee Brett Kavanaugh—isn’t standard practice.

Far from the Supreme Court debates raging in Washington, four Harvard Law School students are taking a stand. "There should be a real, full, and fair investigation before Judge Kavanaugh teaches here," Sejal Singh [`20], a Harvard Law Student, said Saturday. According to Harvard's website, Supreme Court nominee Brett Kavanaugh is scheduled to teach a course this winter entitled, " The Supreme Court since 2005." "I think Harvard Law School does a responsibility to investigate given that Judge Kavanaugh is on their payroll," Vail Kohnert-Yount [`20]said Saturday.

Much debate over the effectiveness of the 2017 tax overhaul has centered on corporate buybacks, and as November elections approach, that debate is sure to heat up....But a big chunk of repurchases among the S&P 500 is offset by new equity—$3.3 trillion worth between 2007 and 2016, versus $4.2 trillion in buybacks over the same period, according to a Sept. 4 paper from Harvard Law School professor Jesse M. Fried and Harvard Business School professor Charles C. Y. Wang. The S&P 500 may spend $1 trillion on repurchases in 2018, Fried told Bloomberg Tax, “but they’re probably going to have $500 billion to $600 billion in equity issuances.” The focus on the S&P 500, he said, ignores the many young, growing businesses that employ a much larger slice of the workforce and tend to issue far more shares than they’re paying out.

...This week, the Kavanaugh matter is a stark symbol of a social and cultural issue that roiled the country and created the #MeToo movement long before the nominee’s name was known outside legal circles...‘’Turning the Supreme Court into an instrument of polarized politics,’’ Martha Minow, the former dean of the Harvard Law School and now the occupant of a prestigious endowed chair there, said in an interview, ‘’is bad for the country, bad for the rule of law and bad for everyone.’’...‘’The political and the personal have become entwined precisely at the nexus of the #MeToo movement with issues like sex equality in the workplace and in matters of reproduction and abortion,’’ said Laurence Tribe, a onetime Supreme Court clerk who is a prominent Harvard Law expert in constitutional law. The result, he said, was ‘’the first occasion in our history in which the long-term legal stakes of a particular nominee’s confirmation and the issues of character and attitude presented by an explosive personal accusation profoundly overlap.’’

Undergoing an FBI background check is standard operating procedure for a number of federal positions, including nominees for the Supreme Court. It’s a review that’s meant to probe a nominee’s qualifications as well as possible security risks the person could pose to the United States. ... Harvard Law Professor Laurence Tribe highlighted the possibility of blackmail in Kavanaugh’s case as all the more reason why the FBI should conduct a full review of the sexual assault allegations against him.

Four Harvard Law School students are calling for the school to investigate the sexual assault allegation against Supreme Court nominee Brett Kavanaugh - or cancel the course that he is scheduled to teach as a lecturer at the Ivy League school this winter. The students made their case in the Harvard Law Record, an independent newspaper affiliated with the law school.

An op-ed by Nancy Gertner. Without the context that the findings of an F.B.I. investigation could provide, the Senate hearing planned for Monday pitting Brett Kavanaugh against Christine Blasey Ford, who has accused him of sexual assault, runs the risk of being seen as little more than Kabuki theater, or, more pointedly, a gesture of appeasement to the #MeToo movement. In other words, we gave her a hearing, now we’re ready to vote.

Facebook is doing all of this election work out of a feeling of obligation to its user base. But what if it had a legal obligation to act in the best interests of its users? That’s the argument Jonathan Zittrain makes today in the Harvard Business Review, and it makes for thoughtful companion reading to the day’s war-room analyses. Zittrain’s piece explores the question of whether social networks should become what Yale Law School’s Jack Balkin calls “information fiduciaries.”

An article by Jonathan Zittrain. I used to be largely indifferent to claims about the use of private data for targeted advertising, even as I worried about privacy more generally. How much of an intrusion was it, really, for a merchant to hit me with a banner ad for dog food instead of cat food, since it had reason to believe I owned a dog? And any users who were sensitive about their personal information could just click on a menu and simply opt out of that kind of tracking. But times have changed.

A drama is playing out in Boston federal court before a respected judge that could prove to be a legal “Watergate,” one that could reshape class action practice. Combining elements that are both sordid and comic, this litigation has already shown that the leading experts on legal ethics disagree significantly over what must be disclosed to the court approving a class action settlement...the Labaton firm hired Harvard Law Professor William Rubenstein, a class action expert, who opined that fee allocation agreements do not need to be included in this notice to the class...Relying on the language of Rule 23(h), which cross references Rule 54(d)(2) of the Federal Rules of Civil Procedure, which in turn states in subclause (d)(2)(B)(iv) that a motion for fees must “disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made,” Professor Rubenstein argued that disclosure of fee allocation agreements need not be disclosed—absent a court order. He testified: “I’m saying Rule 23 says that the burden’s on the Court.”

It's not every presidential administration in which news that the former campaign chairman has agreed to cooperate with the special counsel, gets knocked off the front page in a matter of hours. But the Trump team is ever the exception. And today, all anyone can talk about is his Supreme Court nominee, Brett Kavanaugh, and the woman who has publicly accused him of sexual assault. Jim Braude was joined by Nancy Gertner, retired federal judge and senior lecturer at Harvard Law, and Martha Coakley, former state Attorney General, now a partner at Foley Hoag, and Jim Rappaport, former chair of the Mass. GOP.

With Supreme Court nominee Brett Kavanaugh set to face a high-stakes Senate Judiciary Committee hearing Monday, Harvard Law School students are organizing to stand in solidarity with Christine Blasey Ford, the California professor who has accused the judge of sexually assaulting her three decades ago...Sejal Singh, a second-year Law student and member of the Pipeline Parity Project, said in an interview Wednesday that the group decided to stand with Ford — and against Kavanaugh’s confirmation — on Monday because of the nominee's record and the impact he could have on multiple areas of the law, should he be confirmed to the Supreme Court. “We are concerned about the impact Kavanaugh, based on his record and based on these credible allegations from Dr. Ford, would have on the law, around civil rights, sexual harassment, women’s place in public life, and a whole host of other things,” Singh said. Third-year Law student and member of the Pipeline Parity Project Yaacov “Jake” Meiseles urged American citizens not to underestimate the impact of Kavanaugh's successful nomination to the Court.

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.

...“I would be very troubled if someone were about to go to jail for something like this that happened 40 years ago,” said Nancy Gertner, a retired federal judge who has written extensively in defense of women’s rights in sexual harassment and sexual assault. Still, she said, “With respect to the Supreme Court you’re dealing with an elite position which is a privilege to be confirmed for. And arguably the standards are much higher.” Judge Gertner noted that she had raised two teenagers — “teenage boys are nuts,” she said — and she has seen how allegations, even when found to be false, can unfairly tarnish young men. Last year, she and three other Harvard Law School professors urged the Department of Education to reassess Obama-era guidance to colleges on dealing with allegations of sexual assault, arguing they had encouraged colleges to adopt definitions of misconduct that are “seriously overbroad.”

An op-ed by Cass Sunstein. The scheduled testimony by Judge Brett Kavanaugh, responding to Christine Blasey Ford’s accusation of sexual assault in the early 1980s, raises a central question: With respect to that accusation, who has the burden of proof? In the coming weeks, the answer to that question might turn out to be decisive to Kavanaugh’s prospects for confirmation. Invoking the standard used in criminal law, some people have said that Judge Kavanaugh should be presumed innocent. Others say that senators should avoid any presumption and ask instead: Who is more credible? Who is the most likely to be telling the truth? It’s not so simple.

The empire strikes back. At late senator John McCain’s funeral earlier this month, the Clintons, Bushes and Obamas sat side by side in the front pew along with the former vice-presidents Dick Cheney and Al Gore and Cheney’s wife, Lynne. A clip of the former president George W Bush handing a sweet to ex-first lady Michelle Obama went viral...Other observers agree that to hero worship or demonise Bush and the intelligence agencies is a gross and unnecessary over-simplification. Lawrence Lessig, an author and professor at Harvard Law School who in 2015 launched an abortive campaign for president, said in an email: “Of course, the left encourages the reasonable right, to defend against the crazy right. That’s not inconsistency. That’s practical politics. I’m sure none of them would select the people they’re now praising over their equivalent on the left. But the equivalent isn’t an option, so you must work with who you have.

Will the U.S. Supreme Court revive a federal ban on the registration of profane trademarks like "Fuct," less than two years after it categorically struck down a similar rule used against the Washington Redskins? Not f***king likely, experts say...According to Rebecca Tushnet, a professor at Harvard Law School who focuses on the First Amendment and trademark law, the ban on “scandalous” marks raises even more constitutional concerns than the “disparaging” ban, not less. “Unlike ‘disparagement,’ which protected all groups equally from disparagement, ‘scandalousness’ protects the majority against the opinions or moral toleration of the minority,” Tushnet said. “That is definitely viewpoint-based.”

Harvard Law School celebrated its bicentennial last year, but women were not fully included in that history for more than a century. The first class of women graduated from the school in 1953 — and 65 years later, Law School alumnae, students, and professors gathered last Friday and Saturday to celebrate the anniversary...Elizabeth Papp Kamali ’97, an assistant professor at the Law School, wrote in an email that she was “heartened” to see many of her former classmates and commented on the great advances women have made in the past 65 years.“While 1953 seems like shockingly recent history, one recurring theme throughout the celebration was the incredible strides women have made within the law in the last half century,” Kamali wrote...Rebecca F. Prager, a third-year Law student, said she wished that more students had been a part of this “amazing experience.”...Law School Dean of Students Marcia L. Sells wrote in a statement that “students were involved in every step of the process” and “forg[ed] connections” with many of the alumnae....Dean of the Law School John F. Manning ’82 also commented via a spokesperson on Celebration 65, calling it “inspiring.”

A federal judge has ruled that Education Secretary Betsy DeVos’ move to ease protections for former students of for-profit colleges should be reversed, handing a victory to those who said they were defrauded by their schools...Toby Merrill, director of the Project on Predatory Student Lending at Harvard University, which is representing the students, hailed the decision. “Students are continuing to push back and win against the department’s unfair and corrupt policies,” Merrill said. “We are one step closer to these important provisions taking effect.”

...The move is unprecedented. Never have we seen a president declassify documents in contravention of clear warnings from the intelligence community that doing so would harm national security...Others see the abuse of presidential power regarding classification as a parallel, but distinct, issue. Constitutional scholar Laurence H. Tribe argues, “Has this president repeatedly and dangerously abused his powers to classify and declassify information — risking our national security to punish his critics (as with [former CIA director] John Brennan), undermine the work of those investigating him and his family, and reward family members with access to sensitive information they would otherwise be unable to access? The answer appears to be “yes” and, at least, the question warrants systematic investigation by the House Judiciary and Intelligence Committees.”

An op-ed by Cass Sunstein. Suppose that you start college with a keen interest in physics, and you quickly discover that almost all members of the physics department are Democrats. Would you think that something is wrong? Would your answer be different if your favorite subject is music, chemistry, computer science, anthropology or sociology? In recent years, concern has grown over what many people see as a left-of-center political bias at colleges and universities. A few months ago, Mitchell Langbert, an associate professor of business at Brooklyn College, published a study of the political affiliations of faculty members at 51 of the 66 liberal-arts colleges ranked highest by U.S. News in 2017. The findings are eye-popping (even if they do not come as a great surprise to many people in academia).