Media Mentions

In the days before Harvard Law School announced embattled Supreme Court nominee Brett M. Kavanaugh will not teach in Cambridge this January, undergraduates eager to block his return to campus struck on a new strategy: file Title IX complaints against the conservative judge...Jeannie Suk Gersen, a professor at the Law School and a Title IX expert who has written extensively about Kavanaugh’s confirmation, said that — while she supports the students’ freedom to protest the nominee’s former teaching role at Harvard — the notion of filing Title IX complaints is “misplaced.” “Such an abuse of process would undermine the legitimacy and credibility of complaints that the Title IX process is intended to deal with, as well as of the Title IX office to focus on its duties,” Suk Gersen wrote in an email. “It might be effective in drawing further attention to some students’ objection to Kavanaugh’s teaching appointment, but I don’t expect him to be found to have violated Harvard University’s Sexual & Gender-Based Harassment Policy based on the currently known public allegations against him.” Janet Halley, another Law School professor with a background in Title IX law, also called the students’ strategy of filing formal complaints unlikely to succeed. “I urge the students to divert their energy from this implausible claim that he’s going to create a sexually hostile environment by teaching at the Law School to the really grand issue of whether he’s fit to be in his current judgeship or promoted to the Supreme Court,” Halley said.

...“From our perspective, it feels like a failure by our administration to respond to our students first and to think about what we need to feel supported here and to feel like women are valued here,” said Molly Coleman, one of four students who wrote an op-ed in the Harvard Law Record calling for the school to investigate Kavanaugh and possibly remove him from the faculty. “We’ve had walkouts. We’ve had letters to the dean. The student body is immensely concerned about this, and to have so little response sends a strong statement that the students aren’t the priority.”...“I think I’d give them a failing grade on their response,” said Katherine Peiffer, a second-year law student who is an organizer with the student-run Pipeline Parity Project. “There’s a huge groundswell of activism that’s going on and we’re very concerned. And the law school has been silent on this. Even if Kavanaugh weren’t a professor here, we would want them to speak out. But especially given the fact that he’s a professor and is slated to teach a class in a couple of months, we feel like this response has been lacking.”

Embattled Supreme Court nominee Brett M. Kavanaugh will not return to teach at Harvard Law School in January, according to an email administrators sent to Law students Monday evening...Alexa R. Richardson [`21], the head organizer of the section that sent these letters, wrote in an email Monday that she and other section members received responses from most of the professors contacted.The professors replied “saying they passed on our concerns to the administration,” Richardson wrote. Some instructors noted that “they were moved/thanked us for our efforts,” she added.

An op-ed by Laurence Tribe. Much might be said about Judge Brett Kavanaugh’s possible confirmation to the Supreme Court: in terms of his still only partly disclosed professional record, the allegations of sexual assault and his candor, or lack of it, in testifying before the Senate Judiciary Committee. But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court. His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament. They disqualify him from participating in a wide range of the cases that may come before the Supreme Court.

An op-ed by Andrew Manuel Crespo. Two years ago, a federal court of appeals held that polygraph tests are “an important law enforcement tool” that can help investigators “test the credibility of witnesses” and “screen applicants” for “critical” government positions. The judge who wrote that opinion: Brett M. Kavanaugh. Last week, the Senate Judiciary Committee asked Kavanaugh whether he would be willing to take a polygraph test regarding the multiple sexual assault allegations he faces as he seeks a seat on the Supreme Court. Considering such a request himself, Kavanaugh departed from his prior judicial opinion and told the Senate that polygraphs are “not reliable.” But still, when pressed by Sen. Kamala D. Harris (D-Calif.) about taking one, Kavanaugh ultimately said, “I’ll do whatever the committee wants.”

Every year, tens of thousands of cases wind up in secret court sessions — formally known as “show cause hearings” — that are presided over by court clerks and usually held for suspects who haven’t been arrested and don’t pose a flight risk or danger to others. People are generally entitled to these hearings for misdemeanors, but police can request them for felonies as well. The quality of justice behind the clerks’ closed doors can depend on where the hearing is held, who you know, or the color of your skin, according to a Spotlight Team investigation...Criminal defense attorney John Salsberg said he has seen countless cases that have been correctly resolved in clerks’ hearings — cases that should never have gone into the regular criminal justice system. Since the 1980s, he has worked as a supervising attorney with the Harvard Defenders, a Harvard Law School organization that represents individuals at these criminal proceedings. “Just because something’s a crime doesn’t mean it needs to be prosecuted,” Salsberg said. “And I think the clerks have enough experience to know which complaints should end up issuing and which shouldn’t.”

President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode. Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond...“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations. “It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”...“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school. “The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.

An op-ed by Nancy Gertner. I was in a taxi enroute to the O’Hare Airport in Chicago Thursday afternoon. I had watched Christine Blasey Ford testimony in the morning. I was extraordinarily moved; I believed her, plain and simple. I thought that at the very least, there would be no rush to judgment on the part of the Senate — no confirmation vote until all of the circumstances of her accusation and others had been investigated. I asked the driver to turn to a station broadcasting the confirmation hearings so that I could hear Judge Brett Kavanaugh’s response. At first, I thought that the driver had turned to the wrong station. The man speaking sounded like a talk radio host, angry, spewing heated rhetoric about the Democrats, even the Clintons, referring to bizarre left wing conspiracy theories. I then realized that this was not a shock jock; this was Judge Kavanaugh. Kavanaugh’s performance at that hearing alone should be disqualifying.

While Republicans work furiously to salvage Judge Brett M. Kavanaugh’s nomination to the Supreme Court, there’s another position he may be struggling to hold on to: lecturer at Harvard Law School...“The Supreme Court confirmation fight has brought into sharp focus questions about sexual assault, fair process, fitness and character for high office, the integrity of the political process, and more,” [John] Manning wrote. “I appreciate the many students who have spoken out and expressed views on these critical issues.”...“This personnel matter is very personal to us,” said Sejal Singh, a second-year student at Harvard Law. “...“Certainly, someone who is not fit to serve on the US Supreme Court is not fit to teach at Harvard Law School,” said Alyx Darensbourg, a second-year student from Bakersfield, Calif.

As the showdown over Supreme Court nominee Brett M. Kavanaugh’s confirmation continues to grip the country, Harvard Law School students are not letting up in their efforts to prevent Kavanaugh — who teaches at the school — from reaching the nation’s highest court. The Pipeline Parity Project — a Law School student advocacy group — and the Law School Democrats have organized phone banks in concert with Planned Parenthood this week to rally voters in key states to call their senators and tell them to vote no on Kavanaugh’s confirmation...Second-year Law student Emma R. Janger, a member of the Pipeline Parity Project and one of the organizers of the phone banks, said the phone banks offers students a way to translate their frustration into action. “People are really, really energized and they really want to push their senators on this and that’s been just honestly, really energizing to hear,” Janger said. “I think sometimes this has kind of felt like a pretty hopeless week but talking to people who are in a position to really affect their senators’ votes and hearing how energized they are is giving me personally a lot of hope.”

...Within the legal profession, [David] Boies was already a legendary figure. But Bush v. Gore gave him a taste of national celebrity. ...“I’m disappointed by how far he seems to have moved toward the dark side,” says Laurence Tribe, the liberal Harvard Law professor who was Boies’s co-counsel on Bush v. Gore. Then again, maybe the great David Boies was comfortable on the dark side all along.

An op-ed by Diane Rosenfeld. Does the law hear women? This week's dramatic -- and traumatic -- Senate hearing on Judge Brett Kavanaugh's nomination to the Supreme Court demonstrated that society and its leaders silence women, either with a hand over their mouth or by simply not listening to them. The details of the hearing illustrate how badly broken the system is in addressing sexual assault claims.

...“As a Supreme Court justice, Kavanaugh would not be bound by the rules applicable to judges on the U.S. Court of Appeals with respect to recusal,” says Harvard law professor Laurence H. Tribe. For lower-court judges operating under those guidelines, Tribe argues “there is a very strong argument that Kavanaugh’s intemperate screed attacking liberal groups and spinning conspiracy theories when he testified on Thursday afternoon now requires him to recuse in any case where such groups appear before the Court of Appeals on which he sits.” Tribe continues, “For him to remain on a three-judge panel that sits in judgment on any legal claim affecting such a group would obviously create at least the appearance of a conflict of interest and probably an actual conflict.”

Harvard Law School’s Cyberlaw Clinic has urged the Ninth Circuit not to touch a lower court decision ending a corporate landlord's lawsuit accusing Airbnb of helping tenants break building rules and host rowdy guests, saying that a revival of the suit could undermine Communications Decency Act protections of internet startups. The law clinic’s friend of the court brief, filed Thursday and written on behalf of nonprofit technology policy group Engine Advocacy and Santa Clara University School of Law professor Eric Goldman, opposes a bid by Apartment Investment and Management Co. to revive the suit based on Aimco’s argument that the Central District of California was wrong to conclude that Airbnb Inc.’s home-sharing website was immune from the suit under Section 230 of the Communications Decency Act of 1996.

An op-ed by Cass Sunstein. These are not the best of times for the U.S. Supreme Court. But whether or not Judge Brett Kavanaugh is ultimately confirmed, and despite the intense heat of the moment, the court’s fundamental legitimacy need not be, and should not be, put in question. For well over two hundred years, the Supreme Court has helped commit the nation to the supremacy of law. That commitment is a precious achievement. It safeguards liberty, and it holds off authoritarianism.

Frontline: Trump’s Showdown (Tuesday, PBS, 10 p.m.) is your life jacket. A two-hour special report, it brings coherence to an incoherent narrative. It steps away from the panels of pundits on CNN or Fox News who simply want to pummel other opinions. It does, mind you, have some familiar faces from those panels. But, it being PBS, this is a lengthy commercial-free analysis. Its agenda is to straighten out the tangled tale and prep viewers for what will probably happen next. That is, the showdown...While few talk openly about a looming constitutional crisis, that idea is advanced. "One thing we know about this president, he doesn’t care about collateral damage. And he doesn’t care about collateral damage on associates. And he doesn’t care about collateral damage on American institutions. And so the stakes could not be higher,” says Jack Goldsmith, assistant attorney-general during the George W. Bush administration.

However, there are many factors that influence how successful makers are at moving through that timeline, and a new report from Harvard Law School’s Food Law and Policy Clinic digs into one that doesn’t get a lot of attention: state laws that regulate the sale of small-batch foods made outside commercial kitchens. “Cottage Food Laws in the United States” provides a comprehensive overview of how states create legislation and regulations related to cottage foods, common elements from state to state (like which foods are allowed and sales limits) and recommendations to strengthen laws...Emily Broad Leib, director of the Food Law and Policy Clinic and one of the authors of the report, said that New York’s law is generally supportive of cottage food producers and has eliminated most big barriers. “For example, New York is one of only a dozen states that allows for some wholesale sales of cottage food products, and one of 17 states that explicitly allow for online sales, which 13 states explicitly prohibit. It is also more permissive than many states by not setting an annual gross sales limit,” she said.

In 2007, a year before Cass Sunstein published Nudge with Richard Thaler, two law professors from Vanderbilt coined a term meant to bring attention to Sunstein’s astonishingly prolific nature: the Sunstein number. Modeled after the Erdos number, which gave anyone who collaborated directly with the famously productive mathematician Paul Erdos an Erdos number of 1 and anyone who wrote with one of his co-authors a number of 2, the Vanderbilt authors found 57 scholars with a Sunstein number of 1, and 768 with a 2. Though we at the Behavioral Scientist haven’t counted again ourselves, we bet those numbers have since skyrocketed—especially since Sunstein has written 22 (!) books since Nudge. Sunstein is a potent blend of scholar and scientist—an intellectual who is perpetually testing and sharpening his own theories through the collaborative process. And that includes his theories around nudging and behavioral science in policy. This fact made him the ideal person to talk to about nudging then, now, and in the future. Plus, he just wrote another book, called The Cost-Benefit Revolution. Below is our edited email exchange.

An op-ed by Noah Feldman. As of the lunch break in Thursday’s Senate hearing on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, it seems as though Republicans’ worst fears are being realized: Christine Blasey Ford is highly credible in describing her alleged sexual assault by the teenage Kavanaugh. Nothing in the ineffectual questioning by sex crimes prosecutor Rachel Mitchell did anything to shake her story...you might think it’s obvious that President Donald Trump should withdraw Kavanaugh’s nomination and substitute another nominee, such as Judge Amy Coney Barrett, who was on his short list. But because this is Trump, the usual political rules don’t apply.

Donning pink pins and hoisting handmade signs, Harvard students huddled at viewing parties across the University Thursday to watch an extraordinary Senate hearing which saw Supreme Court nominee Brett M. Kavanaugh and Christine Blasey Ford, the Palo Alto psychology professor who has accused him of sexual assault, offer dueling — and compelling — versions of the truth...The day of the hearing, the Harvard Law Student Alliance for Reproductive Justice held a screening in a classroom closed to the press. Haley R. Adams, a second-year Law School student who attended the screening, said in an interview during a break in the proceedings that she sympathizes with Ford. “I don’t want to speak for all women but I think that most of us can probably see ourselves in that experience,” Adams said. “Maybe not in quite as formal as a setting, but in a situation in which we are trying our best to convey an experience and being doubted and questioned, and it’s really horrifying to watch and it’s exhausting.”...Second-year Law student Sejal Singh — one of the four authors of a Harvard Law Record article that called on the University to ban Kavanaugh from teaching — said she was disappointed that Harvard professors have not sent a similar letter to the Senate.

An essay by Jeannie Suk Gersen. Christine Blasey Ford has credibly testified that Brett Kavanaugh attempted to rape her in high school. But many who believe that she is telling the truth are still wondering whether senators should decide how to vote on Kavanaugh’s Supreme Court nomination based on her testimony, in the absence of any “corroborating evidence.” Let’s put aside for a moment the possibility that additional evidence could emerge that supports or undermines Ford’s testimony. In a court of law, a judge or jury who believes that a witness is telling the truth can convict someone of a crime even without corroborating evidence. This happens all the time.