Media Mentions

A case before the U.S. Supreme Court challenging application of the cy pres doctrine in class action settlements has attracted a flurry of amicus briefs on both sides—and the arguments are all over the map...Several other groups filed amicus briefs on Wednesday supporting the Google settlement. Those included Public Citizen, the National Consumer Law Center and 20 law professors, including Harvard Law School’s William Rubenstein, who insisted that cy pres-only settlements are rare.

On April 13, the Cambridge Police Department arrested a Harvard College student, a development that sparked concerns on campus and in the larger community. In the days that followed, then-President Drew Faust sent a message to the community expressing her concern, noting that the student was in obvious distress. She called for a better understanding of how that had happened and whether authorities could have interceded earlier and more effectively. To help ensure that the facts surrounding the arrest are clear and that recommendations are made for the future, a review committee was established, chaired by Annette Gordon-Reed, Charles Warren Professor of American Legal History at Harvard Law School and professor of history in the Faculty of Arts and Sciences. The committee worked through the summer and plans to issue a final report and recommendations this fall. The Gazette spoke with Gordon-Reed about the committee’s activities so far, and its next steps.

It was a chilly afternoon outside the Allan B. Polunsky Unit, a maximum-security prison for death-row inmates in Livingston, Texas. Inside, the mood was somber. An execution was scheduled for later that day, and a sense of foreboding filled the air. Law School student Jake Meiseles, J.D. ’19, was talking to his client by phone through a thick glass window when he saw the condemned man walking behind the cubicle, followed by corrections officers. The man smiled and nodded at Meiseles, who did the same. The brief human exchange left Meiseles distraught. “It was sad and upsetting,” said Meiseles, who was there as an intern with the Office of Capital and Forensic Writs in Austin, Texas. “But it kind of put into perspective the work we’re doing...Led by Carol Steiker, the Henry J. Friendly Professor of Law and faculty co-director of the Criminal Justice Policy Program, the clinic tests the complex body of constitutional law that regulates the death penalty and its troubled history...“The death penalty is a window into American history and the criminal justice system,” said Steiker, who was drawn to capital cases when clerked for U.S. Supreme Court Justice Thurgood Marshall...For Milo Inglehart, J.D. ’19, an internship with the Federal Community Defender Office in Philadelphia left him righteously indignant at how the death penalty is applied, comparing it to a legacy of lynching.

Is the Electoral College broken? So argues Harvard Law Professor Lawrence Lessig, a former presidential candidate and the founder of the non-profit group Equal Citizens. Lessig, along with people like former Mass. Governor Bill Weld, is leading a series of lawsuits to change it...Lessig joined Jim Braude to discuss his campaign.

An op-ed by Noah Feldman. The confirmation hearings for Judge Brett Kavanaugh, which began Tuesday morning, mark the culmination of a process that goes back at least 35 years, to the founding of the Federalist Society. Its purpose was to create a conservative majority on the U.S. Supreme Court. Spurred by their disagreement with the abortion-rights decision Roe v. Wade, legal conservatives made judicial selection into the touchstone of their agenda, and gradually convinced the rest of the conservative movement to do the same. When Kavanaugh is confirmed — and I do mean when — their success will be complete, and the court will likely have a stable conservative majority until 70-year-old Clarence Thomas retires.

With chants and testimonies, around 30 students gathered outside of the Law School’s Caspersen Student Center Tuesday evening to “stand in solidarity” with the Nationwide Prison Strike, a national protest calling for prison reform...Lauren Williams [`19], president of BLSA, attended the event and shared a story of how her grandmother was a sharecropper and how it connects to the ongoing prison strike. “She was a sharecropper and picked cotton and to see images and see that imagery and to understand the parallels that are existing today when we were told that we got rid of that, we were done, and to still see that connection—to me, there are really strong parallels,” Williams said. “It almost feels like a new iteration of slavery in some ways.” Emanuel Powell [`19], one of the chairs of the PULSE committee, said he helped organize the event to help bring attention to the issue to those at Harvard.

An op-ed by Laurence H. Tribe, Timothy K. Lewis and Norman Eisen. Contemporary Supreme Court nomination hearings are always spectacles, but the one that began this week is exceptional. We face a confluence of events unique in our 229-year history: A president who is a named subject of a criminal investigation—and on whom the law may be closing in. And a nominee whose previous writings and commentary suggest he believes a sitting president is not subject to investigation or prosecution—views that in effect place the president above the law, although the nominee insists he doesn’t think anyone is beyond its reach.

...Several worker advocacy groups have seized the moment to propose major overhauls to labor law, including the Labor and Worklife Program at Harvard Law School, which is exploring policy proposals to reimagine collective bargaining by sector instead of by employer, and to give workers seats on corporate boards, among other recommendations. It’s not just a reaction to Trump, said Sharon Block, who runs the center with labor professor Benjamin Sachs, though she added he’s certainly making matters worse. “The little power that workers have, this administration seems to be bound and determined to diminish even more,” said Block, who served on the NLRB board and was a labor adviser to President Obama. “The time for tinkering around the edges has past. What we really need is fundamental change.”

An op-ed by Cass Sunstein. Is President Donald Trump dismantling the regulatory state? Not close.

An op-ed by Noah Feldman. Did the National Enquirer have a right to buy stories about Donald Trump in order not to publish them? And if so, what was the crime in buying Karen McDougal’s report of an affair with now-President Trump — a crime to which Michael Cohen pleaded guilty? These questions have become all the more pressing as it has emerged that the Enquirer has been buying and hiding Trump’s stories for decades. In fact Cohen, Trump’s former lawyer, had wanted to buy the whole archive for Trump to make sure that the stories stayed dead.

The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice...“For large portions of American life people of color have been treated unjustly, and for most of that period the Supreme Court has found ways to rationalize that, and make us think that is consistent with promises of liberty and equality,” says the Harvard Law professor and legal scholar Randall Kennedy. “That’s what it’s typically done. Is it doing that today? Yup.”

An op-ed by Alex Whiting and Ryan Goodman. Since Paul Manafort was convicted last week, the president and his associates have encouraged speculation about it. Rudy Giuliani, President Trump’s personal lawyer, claims that he has agreed not to pardon anyone related to the investigation by Robert Mueller, the special counsel, until it is completed. Mr. Giuliani explained that he and the president were concerned that a pardon at this stage could be viewed as obstruction of justice. Yet other reporting suggests that Mr. Trump remains eager to move forward on a pardon and is even considering cutting the White House counsel, Don McGahn (who is opposed to it), out of the process. Whether and when he acts, it appears that Mr. Trump has already embarked on a strategy of using his pardon power to silence witnesses in the Mueller investigation.

A Harvard Law School lecturer is suing the Louisiana State Police to release a purported list of members of antifa that originated on white supremacist and Neo-Nazi websites. The roster itself appears to be a hoax that originated a year ago on Neo-Nazi websites like Stormfront and the far-right conspiracy theory website 8Chan, according to the lawsuit filed by Harvard Law School Lecturer Thomas Frampton in Baton Rouge state court on behalf of New Orleans civil rights attorney William Most.

The 60-plus Harvard Law School professors who filed into an auditorium-style room on the first floor of Pound Hall on that February 1993 afternoon had a significant question to answer: Should they offer a job to Elizabeth Warren?...The Globe examined hundreds of documents, many of them never before available, and reached out to all 52 of the law professors who are still living and were eligible to be in that Pound Hall room at Harvard Law School...“By the unwritten rules that most schools played by at the time, none of this should have happened,” explained Bruce Mann, Warren’s husband of 38 years, who joined her for the interview with the Globe. “Law faculties hired in their own image. . . except for those rare occasions when someone came along that was just so stunningly good that they couldn’t ignore her.”...She dazzled Andrew Kaufman, a Harvard Law School professor who recalled meeting her at a conference she organized at the University of Wisconsin Law School in the mid-1980s. “I was blown away,” Kaufman said, recalling his first interaction with Warren. “I thought she was a real whiz.”...“The views had a lot to do with the methodology she was using,” recalled David Wilkins, a Harvard Law professor who voted to offer Warren a job. “Was it the right methodology?” ...“She was not on the radar screen at all in terms of a racial minority hire,” [Randall] Kennedy told the Globe. “It was just not an issue. I can’t remember anybody ever mentioning her in this context.”...“It had nothing to do with our consideration and deliberation,” said Charles Fried, the former solicitor general to president Ronald Reagan and a member of the Harvard Law School appointments committee at the time. “How many times do you have to have the same thing explained to you?”

An op-ed by Robert C. Pozen and Mark Roe. On August 17, President Trump waded into another complex area by a short tweet. He had apparently asked several top business leaders how to “make business (jobs) even better in the United States.” He then directed the Securities and Exchange Commission to study one business leader’s reply: “Stop quarterly reporting and go to a six-month system.” Trump’s tweet reflects the belief of many corporate executives and commentators that quarterly reporting pushes public companies away from attractive long-term investments. However, the long-term benefits of semi-annual reporting are doubtful, while its costs are significant.

An op-ed by Susan Crawford. It's common knowledge that city curbs are fiercely contested places, what with Ubers and Lyfts hovering inconveniently and blocking traffic; piles of shared bikes and scooters being dropped off and picked up; rapidly climbing numbers of deliveries being made by double-parked trucks; and buses and taxis pulling up—not to mention all the private-car parking going on. These daily dramas will only get more boisterous and difficult in the years to come, when fleets of city-licensed driverless cars join the fray.

The Washington conventional wisdom presupposes a kind of symmetry between our polarized political parties. Liberals and conservatives, it is said, live in separate bubbles, where they watch different television networks, frequent different Web sites, and absorb different realities. The implication of this view is that both sides resemble each other in their twisted views of reality. Rachel Maddow and Sean Hannity, in other words, represent two sides of the same coin. This view is precisely wrong, according to a provocative new book by Yochai Benkler, Robert Faris, and Hal Roberts that will be published next month by Oxford University Press. The book’s title, “Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics,” is a mouthful, but the book’s message is almost simple. The two sides are not, in fact, equal when it comes to evaluating “news” stories, or even in how they view reality.

How much economic damage will global warming cause? That’s one of the key questions embedded in the Trump administration’s recent proposals to weaken Obama-era regulations on greenhouse gas emissions from both vehicles and power plants...“Typically, an agency gets some latitude to set standards a bit more or less stringently,” said Jody Freeman, director of the environmental law program at Harvard Law School. “But if you can show the agency to be glaringly wrong in its analysis — they ignore obvious counterarguments, they cherry-pick the data to support their outcome, they make numbers up — you can get a court to strike the standards down.”

An op-ed by Susan Crawford. Policymakers at all levels of government are struggling to thoughtfully harness data in the service of public values. Many public servants grew up in an era of firmly separate disciplines: You were either an engineer or an economist, either a programmer or a social worker, but never both. In an era in which data is everything, the risks to core democratic principles—equity, fairness, support for the most vulnerable, delivery of effective government services—caused by technological illiteracy in policymakers, and policy illiteracy in computer scientists, are staggering. This has happened because traditional academic disciplines, as they currently operate, often aren't designed to help students study and apply technical expertise to advance the public interest

...It’s true that “identity politics” are to some degree inherent to all politics. Adrian Vermeule, a constitutional-law professor at Harvard, recently said, There is nothing that isn’t “identity politics” of one sort or another, including the identity of “one who stands above tribalism.” The legitimate objection isn’t that “identity politics” is bad, but that it is an inescapable and therefore vacuous description. Vermeule is correct — even a belief in God or in the rule of law is an aspect of one’s personal makeup and identity, and allows oneself to be classified in a particular political or social category.

An op-ed by Jack Goldsmith. It’s much clearer now why Donald Trump has been furious with Attorney General Jeff Sessions ever since he recused himself from the Russia investigation in March 2017. That recusal set in motion events that eventually resulted in deputy attorney general Rod Rosenstein’s appointment of special counsel Robert Mueller to investigate Russian election meddling and “ any matters that arose or may arise directly from the investigation.” Once the straight-arrow Mueller started sniffing around Trump’s campaign, he discovered lots of criminal behavior that had nothing to do with Russian influence operations. This week yielded the most dramatic fruits yet: The conviction of Trump’s campaign manager, Paul Manafort, for bank and tax fraud, and a guilty plea by Trump’s personal lawyer, Michael Cohen, for fraud and campaign violations, including some that directly implicate the president.