Media Mentions

An op-ed by Benjamin Sachs. NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines. The owners did provide the players with an alternative, of sorts: If a player does not wish to stand and salute the flag, he can stay in the locker room and wait for the anthem to end. This new league policy is meant to enforce a particular vision of patriotism, one that involves compliance rather than freedom of expression. The policy is also illegal — for a host of reasons.

As the Federal Energy Regulatory Commission prepares to revive a review of the implementation of the Public Utility Regulatory Policies Act, energy industry experts say that FERC might make some regulatory updates this time around, which could end up making it harder for renewable facilities to sell power to utilities under the law...The most substantive possible PURPA changes, however, would need to come from Congress, which last enacted substantive amendments to the law in the 2005 Energy Policy Act. “The fundamental goal of the law is to encourage the development of these qualifying facilities that Congress outlined, and FERC does not have the authority to rewrite that goal,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, in a phone interview Tuesday. “That goal is embedded in the law.”

Do we really need to litigate every school dress code in federal court? The ACLU and the National Women’s Law Center think so. They argue that rules against inappropriate attire perpetuate “gender stereotypes” in violation of Title IX, the federal law that prohibits sex discrimination in education. Since its passage in 1972, Title IX has unleashed a flood of opportunity for women and girls in the classroom and on the playing field...In short, Title IX has been an incredible success. Unfortunately, however, the law that was intended to break down barriers to opportunity is now being misused to change the way students and teachers think about gender generally...As such, Melnick joins a growing chorus of principled liberal voices, including feminist scholar Laura Kipnis, former federal judge Nancy Gertner, legal affairs reporter Stuart Taylor, and Harvard Law professor Jeannie Suk, who have opposed the use of Title IX to chill speech, deny due process, and prevent educators from resolving controversial issues without litigation.

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants. “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.” The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

While President Trump demands an investigation into the investigators investigating the investigation, the clamor to impeach grows evermore fervent in some quarters. Dahlia Lithwick explores the legal and constitutional questions surrounding impeachment with constitutional scholar and Harvard Law Professor Laurence Tribe, co-author of To End a Presidency: The Power of Impeachment.

An op-ed by Tali Sharot and Cass R. Sunstein. Suppose you need to see a dermatologist. Your friend recommends a doctor, explaining that “she trained at the best hospital in the country and is regarded as one of the top dermatologists in town.” You respond: “How wonderful. How do you know her?”Your friend’s answer: “We met at the Republican convention.” Knowing a person’s political leanings should not affect your assessment of how good a doctor she is — or whether she is likely to be a good accountant or a talented architect. But in practice, does it?

An op-ed by Noah Feldman. The best way to understand why a federal district court was wrong Wednesday, when it held that Twitter users have a constitutional right not to be blocked by President Donald Trump’s personal account, is to consider the lawsuits that will come next. I can point to a variety of reasons the decision was wrong, some of which I’ve already explored in an earlier column. It should be overturned on appeal. But chief among the problems is that the government doesn’t ultimately control what the court called the “interactive space” of replies to the president’s tweets — Twitter Inc. does.

It only took a single tweet—amplified by the #MeToo movement—to force a national debate about how large law firms force associates and other workers address alleged workplace misconduct...“We have a lot of concerns about people not knowing what they’re getting themselves into when they sign these contracts, because they feel like they don’t have any option,” said Molly Coleman, a first-year law student at Harvard Law School who helped organize a campaign scrutinizing their use.

The Justice Department held two unprecedented, highly controversial briefings for two groups of lawmakers concerning an ongoing criminal and counter-intelligence investigation....According to constitutional scholar Laurence Tribe, the sessions “exemplify the slow but steady collapse of the most basic norms of investigatory, prosecutorial and judicial independence and display Trump doing in plain sight what Richard Nixon worked so hard to hide from public view.” He explained, “What disturbs me most is that not even sacrificing our counterintelligence shield against foreign adversaries with no factual basis is beyond this president — and that not even such transparent treachery is likely to be recognized by the public for the betrayal it clearly is once Trump enlists his Fox allies to label responsible investigation as ‘Spygate.’ ”

If you wanted to measure just how different the Supreme Court is with the addition of Neil Gorsuch instead of Merrick Garland — who should be sitting in Justice Gorsuch’s seat but for the outrageous machinations of Senate Republicans — read the court’s Monday ruling in Epic Systems v. Lewis...Justice Gorsuch appears to imagine workers and employers negotiating under Marquess of Queensberry rules, engaged in a fair and equal face-off over working conditions and terms of employment. It’s a neat little story, and, “If you lived on the moon, with no knowledge of the realities of labor relations or the politics of class actions, you’d think it was obviously correct,” as Harvard law professor Noah Feldman wrote.

Thanks to a web of loopholes and limits, the federal government has been green-lighting hourly pay of just $7.25 for some construction workers laboring on taxpayer-funded projects, despite decades-old laws that promise them the “prevailing wage.”...For taxpayer-funded projects in seven states, surveys used to determine the prevailing wage for some jobs haven’t been conducted for three decades or more. In such places, “the Act becomes meaningless,” said Mark Erlich, the former executive secretary-treasurer of the New England Regional Council of Carpenters. With rates so low, compensation standards throughout the industry are dragged down, said Erlich, now a fellow at Harvard Law School. In states such as New Hampshire and Maine, where prevailing wage rates haven’t kept up, unionized firms often don’t bother bidding for government-backed work, he said, because they know they will be underbid.

Three student orators will mark Commencement Day, delivering speeches in both English and Latin during Morning Exercises in Tercentenary Theatre. This year, classics concentrator Phoebe Lakin will deliver the Latin Salutatory, given, not surprisingly, in Latin. Economics concentrator Christopher Egi will deliver the Senior English Address, and Harvard Law School student Pete Davis [`18] will deliver the Graduate English Address...“How [can we] get people excited and empower people?” Davis said. “How can we make being part of a political party not just getting hit up for money and votes every four years, but when you’re sick, fellow Democrats bring you soup? You go to meetings that speak to your spiritual and communal side and not just the angry and political side?”

An op-ed by Noah Feldman. It’s hard to think of a contemporary writer who inspires more intense disagreement than Philip Roth, who died Tuesday at 85. From the surface, the debate seems to be about feminism: Observers have long noted that Roth’s female characters are less than fully realized, while his male characters often express misogynistic attitudes. But the disagreement, I think, goes deeper — to the question of what social function literature should fulfill. To Roth’s admirers, the point of literature is to expose depths of human experience that would otherwise be hidden or repressed. Roth certainly excelled in reporting on the vicissitude of desire, especially the male and the Jewish one. This is, after all, the man who famously described “the perfect couple: she puts the id back in Yid; I put the oy back in goy.”

President Trump's decision to block his Twitter followers for their political views is a violation of the First Amendment, a federal judge ruled Wednesday, saying that Trump's effort to silence his critics is not permissible because the digital space in which he engages with constituents is a public forum...Noah Feldman, a Harvard law professor, said he thinks the case was wrongly decided and expects it to be reversed. For a public forum to exist, the government has to own or control it, he said, but in this case, Twitter also controls Trump's account.

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School. That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes...“Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

In an address to Harvard Law School graduates on Wednesday, Arizona Sen. Jeff Flake sharpened his critique of President Trump and Congress, which he said “is failing its constitutional obligations to counteract the power of the president, and in so doing is dishonoring itself, at a critical moment in the life of our nation.”

...Politico reports that Trump uses two iPhones. One is Twitter-only. The other only allows him to make calls. Both are customized, issued by the White House department responsible for securing administration telecommunications. One problem identified by Politico, though, is that the Twitter-capable phone wasn’t swapped out on a monthly basis, as requested by Trump’s security team....Security expert Bruce Schneier spoke by phone with The Post and explained why, even if he adhered assiduously to those precautions, the likelihood that Trump’s communications have been compromised is high. If Trump’s calls-only device was a standard iPhone, there’s little question about it. The odds of a foreign adversary having gained access to such a device, according to Schneier? “One” — meaning 100 percent, he said. “The question is how many foreign powers.” The president could assume, he said, “that anything said on unsecured phones is known by — name your top six intelligence agencies.”

An op-ed by Noah Feldman. Wondering what will happen if Justice Anthony Kennedy retires and President Donald Trump gets to pick his successor? The U.S. Supreme Court on Monday gave a good preview of that possible conservative future. In an extraordinary decision, the court barred workers from bringing collective legal action against employers if their employment contracts require individual arbitration instead. Seen purely in terms of politics, the 5-4 outcome reflected the struggle between the pro-management conservative majority and the pro-labor liberal minority. Employers don’t want class actions filed against them. By making employees sign agreements that require individual arbitration of disputes, businesses can now be sure that they won’t be taken to court when they’ve shortchanged many employees minimally — even if the collective loss to employees is significant. From the perspective of employers, the decision is a major win.

An op-ed by Cass Sunstein. There has been a great deal of discussion of social division and polarization in recent times, but those terms are inadequate. What besets the United States is much worse. Both the right and the left are increasingly defined by a form of Manichaeism, in which the forces of light are taken to be in a death struggle with the forces of darkness. We are in a Manichaean moment.

Harvard spent $16.4 million on advertising in 2016, tax filings show—enough to book three 30-second primetime spots on Fox’s broadcast of Super Bowl LII. But the chances of Harvard actually purchasing such an advertisement are low. Walking around Harvard Square and the Greater Boston area, prospective students and tourists are hard pressed to find the typical trappings of such a sizeable budget—billboards branded with the University’s crest or posters emblazoned in crimson. In many ways, the Harvard name sells itself, according to Law School Director of Executive Education Scott A. Westfahl. Even the University’s newer revenue-generating programs, including executive education and the summer school, benefit from the brand. “I think the hardest part of my job is knowing that the Harvard brand is incredibly powerful,” Westfahl said. “We have to exceed expectations that are already really, really high.”

...Pete D. Davis ’12 [`18], who will graduate from the Law School this month, authored a report on public interest offerings at the school that has since gained widespread attention. The report, timed to coincide with the Law School’s 200th birthday, argues that while public service opportunities have increased and more graduates are opting for careers in the public sector, the school still has an obligation to further incentivize its graduates to pursue careers in public service...In an email, [John] Manning wrote that the Law School is “deeply committed to public interest” and that they “dedicate vast and growing resources to support that commitment.” Manning also pointed to statistics indicating that students in the JD Class of 2018 spent 637 hours on average performing pro bono work during their time at Harvard—more than 12 times the requirement of 50 hours. In this class alone, students logged 376,532 hours of pro bono service, according to Manning...Kenneth H. Lafler, assistant dean for student financial services at the Law School, wrote that LIPP “is among the most flexible and generous loan repayment assistance programs in existence.” “One of LIPP’s many advantages is that it allows graduates to choose when to enter and leave the program,” he added.