Media Mentions

A shift to to the right is a near certainty for the U.S. Supreme Court. How quickly it will happen is up to Chief Justice John Roberts. With Justice Brett Kavanaugh’s confirmation, Roberts is now in firm control of the court’s throttle, positioned to decide whether and when to overturn liberal precedents..."His record shows a consistently conservative view of the law," said Allison Orr Larsen, a constitutional law professor teaching at Harvard Law School this semester. At the same time, he "seems to care very much about the court as an institution, and he is particularly aware of the fragility of the court when all eyes are watching and people view the justices as just politicians in robes."

An op-ed by Cass Sunstein. Is President Donald Trump responsible, in some sense, for the mailing of bombs to Hillary Clinton and other Democratic leaders? Is he responsible, in some sense, for the slaughter at the Pittsburgh synagogue? If we are speaking in terms of causation, the most reasonable answer to both questions, and the safest, is: We don’t really know. More specifically, we don’t know whether these particular crimes would have occurred in the absence of Trump’s hateful and vicious rhetoric (including his enthusiasm for the despicable cry, “Lock her up!”). But it’s also safe, and plenty reasonable, to insist that across the American population, hateful and vicious rhetoric from the president of the United States is bound to increase risks of violence.

The 2018 midterm elections are on November 6 and will give voters the opportunity to weigh in on what’s going on in Washington...According to [Professor Michael Klarman, a professor of constitutional law at Harvard Law School, Democrats swept the 1874 midterms, essentially ending Reconstruction. The period following was sometimes referred to as “deconstruction,” which Klarman tells Teen Vogue “virtually ensured the demise of Reconstruction” and meant “no new civil rights legislation.”

An op-ed by Stephen B. Burbank, Richard D. Parker and Lucas A. Powe Jr. The rule of law requires friends who are willing to ignore the partisan din that afflicts our institutions. In that spirit, 20 years ago, we participated in a friend-of-the-court brief urging the Supreme Court of the United States to reject a claim of privilege by President Bill Clinton, who was seeking to avoid civil litigation alleging sexual misconduct while he was governor of Arkansas. The Supreme Court did reject Clinton’s claim of immunity, vindicating the principle that no person is above the law. Now, President Donald Trump is appealing from an order denying his motion to dismiss a civil case brought against him. The plaintiff, Sumner Zervos, alleges that, while a private citizen, Trump defamed her when he called her a liar for accusing him of sexual misconduct. The president asserts that he has a constitutional privilege that protects him against civil litigation in state court, whether or not the claims relate to his official conduct.

A new ruling from the Librarian of Congress is good news for video game preservation. In an 85-page ruling that covered everything from electronic aircraft controls to farm equipment diagnostic software, the Librarian of Congress carved out fair use exemptions to the Digital Millennium Copyright Act (DMCA) for video games and software in general..."These rules are a big win," Kendra Albert, a Clinical Instructional Fellow at the Cyberlaw Clinic at Harvard Law School, told Motherboard. Albert represented the Software Preservation Network, which was one of the parties arguing for the change at the Copyright Office. "The 2015 rules cracked the door open for many things, but the exemptions that were granted here are potentially much, much broader."

Former U.S. presidential candidate and attorney Ralph Nader spoke at the Harvard Law Forum Thursday to discuss the need for more public interest lawyers and his belief in Harvard Law School’s obligation to support public interest careers among its graduates...Katherine J. Thoreson, a third-year law student and editor-in-chief of the Harvard Law Record, said she has worked with Nader before. In addition to being a former editor-in-chief of the publication, he still publishes contributing opinion articles. “He’s just been a very supportive voice in the work that The Record does,” Thoreson said. “I think that he made a lot of salient points about the failures of this institution as well as the power that this institution has to change some of the problems in the legal landscape.” Laurel A. Petrulionis [`21] said she was "inspired" by the end. “I came to law school to make a difference in the world, and through orientation the student government really pushed this notion of challenging the corporate pull,” Laurel A. Petrulionis said.

A course offered by Harvard University Law School for the spring 2019 semester will focus on ways to “push back against” strategies employed by President Donald Trump and Justice Brett Kavanaugh. Harvard professor Laurence Tribe will be teaching the course, titled "Constitutional Strategies For the McConnell/Trump/Kavanaugh Era.”..."Law students who are interested — from whatever ideological perspective — in what the current political and legal landscape might mean for the litigation and/or legislation they may consider becoming involved in (whether defensively or offensively) after they graduate deserve well-informed guidance as they navigate this complex new terrain. My new seminar is designed to offer that guidance," Tribe told Campus Reform in an email.

An op-ed by Susan Crawford. By temperament and by training, I am optimistic most of the time. In that room, though, I sensed the assumptions of our age operating in high, silent gear: Business is the most important agent of change in society; government exists to "cooperate" and is mostly incapable and toothless (while simultaneously, if ineptly, threatening); nothing is going to be done about the harrowing, multiple, structural unfairnesses of our time; women who want to survive and be invited to future panel discussions need to be appropriately deferential; and our destiny as a society is being charted by people who never use public transportation. Or fly commercial. I did speak up, politely, that afternoon. I said many things are profoundly wrong with the way we live in America, and that what we really need to do is make sure government has the capacity and resources to ensure—using technology as a tool, but mostly through sound policy—that everyone with a belly button can lead a thriving life.

An op-ed by Cass Sunstein. With respect to politics, ours is an age of Manichaeism. Many people think and act as if the forces of light are assembled against the forces of darkness, and the only serious question is this: What side are you on? “Hidden Tribes: A Study of America’s Polarized Landscape” offers an optimistic perspective on how the U.S. might get past that question. Produced by More in Common, an international initiative seeking to reduce social divisions, the report describes seven American “tribes.”

An op-ed by Noah Feldman. Justice Ruth Bader Ginsburg, rebranded late in her career as the Notorious RBG, has recently been getting all the love due to a pioneering woman Supreme Court justice. But her colleague Justice Sandra Day O’Connor, who announced Tuesday that she is stepping out of public life at age 88 because of creeping dementia, is just as important in the history of the Constitution. Indeed, measured in terms of impact on the court, O’Connor had a much greater historical effect than Ginsburg, much of whose importance so far comes from her pioneering women’s rights work as a litigator.

An op-ed by Yochai Benkler...But research I helped conduct has found that the fundamental driver of disinformation in American politics of the past three years has not been Russia, but Fox News and the insular right-wing media ecosystem it anchors. All the Russians did was jump on the right-wing propaganda bandwagon: Their efforts were small in scope, relative to homegrown media efforts. And what propaganda victories the Russians achieved occurred only when the right-wing media machine picked up stories and, often, embellished them.

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.

...In a recent draft paper from which I have taken these numbers, John C Coates of Harvard Law School points out that the big three’s share of any contested vote now tends to be pivotal and that on current trends, even if growth starts to taper off, a majority of the 1,000 largest US companies will be controlled, in effect, by a dozen or fewer people over the next 10 to 20 years. This leads to what he calls the Problem of Twelve, his paper’s title, whereby ownership rights, including the critical right to elect directors, will be in the hands of this tiny group. Even if the growth in passive investing fails to follow the trajectory outlined by Mr Coates, it is clear that there is already a striking concentration of power.

An op-ed by Noah Feldman. A South Carolina foster-care agency has asked the Trump administration to rule that it has a constitutional right to discriminate against non-Protestant and gay parents under the religious-freedom guarantee of the First Amendment. Some evangelical Christians will be upset if the agency doesn’t get an exemption from anti-discrimination rules so that it can receive federal money. But other religious groups, not to mention the American Civil Liberties Union and gay-rights organizations, will probably sue if it does. The legal issues are complicated, and it isn’t clear who would win.

...This year’s Harvard Law curriculum includes a class covering entertainment and media law, a course on music and digital media, and an entertainment law clinic to complement its many intellectual-property and contracts-focused classes. Students can also moonlight at the legal services clinic, Recording Artists Project, where they gain hands-on experience working with local musicians. The clinic celebrates its 20th year in October with a gala keynoted by entertainment lawyer and alumnus Donald Passman.

The Financial Times and McKinsey have unveiled the shortlist for the 2018 Bracken Bower Prize, awarded to the best business book proposal by an author aged under 35. The prize, first awarded in 2014, has helped a number of young business writers to bring their ideas from proposal to publication...The shortlisted authors for the 2018 Bracken Bower Prize are:...Andrew Leon Hanna [`19]

U.S. President Donald Trump wants to rip up the rulebook for global trade. China is by many accounts abusing it...“What has changed is not the substance but rather the style of U.S. engagement,” said Harvard Law school professor Mark Wu. “The U.S. has made clear that it will continue to block new appointments to the Appellate Body until its long-standing concerns are addressed satisfactorily. I expect the U.S. to stand firm on this pledge, even if it means paralyzing the Appellate Body,” he said.

Lawrence Lessig was once best-known as the special master in the Microsoft Antitrust Case, then he was best known as the co-founder of Creative Commons, then as a fire-breathing corruption fighter: in America, Compromised, a long essay (or short nonfiction book), Lessig proposes as lucid and devastating a theory of corruption as you'll ever find, a theory whose explanatory power makes today's terrifying news cycle make sense -- and a theory that demands action.

An op-ed by Cass Sunstein. The U.S. has experienced a quiet revolution in the past 40 years. It began under Ronald Reagan but has been embraced by all of his successors, most notably Barack Obama, who doubled down on the basic idea: Before imposing new regulations, federal agencies must perform a cost-benefit analysis and demonstrate that the benefits justify the costs. In areas from highway safety to occupational health and from energy to homeland security, agencies are now required to develop a detailed, quantitative account of the likely effects of their proposals—and to offer that account to the American public.

An op-ed by Noah Feldman. With the confirmation of Justice Brett Kavanaugh, a majority of U.S. Supreme Court justices have previously served as law clerks to other justices before them — an unprecedented situation on the court. The remarkable and perhaps unjustified rise of this elite-within-an-elite is worthy of discussion in its own right. But it also gives some context to last week’s revelation that the Heritage Foundation had planned a secretive boot camp for conservative law clerks about to start their jobs in the federal courts. It’s not just that the conservative think tank wanted to provide some counterweight to the comparatively liberal law school curriculum. Heritage was aiming to get a head start in its efforts to influence future judges.

Harvard law professor Cass Sunstein writes a lot of books, but he says his latest, The Cost-Benefit Revolution, is special. It’s the culmination of decades of writing and research Sunstein has done in administrative law, with particular attention to the way that agencies like the Environmental Protection Agency or the Food and Drug Administration translate laws into rules and regulation. Sunstein has been a vocal advocate of having agencies quantitatively compare the benefits of those rules and regulations to their costs, junking rules that don’t pass the bar and speeding through ones that do.