Media Mentions

An op-ed by Maryanne Tomazic and Abbe Muller. Rhode Island blocks life-saving treatment for people living with Hepatitis C. The state Department of Human Services applies unnecessary restrictions on Medicaid patients suffering from this disease. These restrictions not only contradict medical and legal advice, but they impair Rhode Island’s ability to address a public health crisis.

New York is one of 29 states (plus the District of Columbia) that have legalized medical marijuana––a trend that 94 percent of Americans support, according to an August Quinnipiac poll. But on December 8, all of that could begin to change. Congress has until that day to decide whether to include the Rohrabacher-Farr Act (also known as Rohrabacher-Blumenauer) in a bill that will fund the government through the next fiscal year...In May, Attorney General Jeff Sessions pushed back against the bill when he sent a strongly worded letter to Democratic and Republican leaders in Congress, asking them to oppose protections for legal weed and allow him to prosecute medical marijuana..."He’s old fashioned and very conservative," said Philip Heymann, a Harvard Law School professor and former Justice Department official for the Kennedy, Johnson, Carter and Clinton administrations. "Literally seven years ago, maybe eight years ago, marijuana was thought to be a very dangerous drug. Why would he focus on this issue? Because he’s seven years out of date."

More than 2,000 conservatives in tuxedos and gowns recently filled Union Station’s main hall for a steak dinner and the chance to cheer the man who saved the Supreme Court from liberal control. Justice Neil Gorsuch didn’t disappoint them, just as he hasn’t in his first seven months on the Supreme Court. “Tonight I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” Gorsuch said to sustained applause from members of the Federalist Society, using terms by which conservatives often seek to distinguish themselves from more liberal judges... [Ian] Samuel, a professor at Harvard Law School and former Scalia law clerk, said Gorsuch has an obvious interest in questions about accountability in the American system of government and control over the court system. “It’s better that he puts it out there and says this is who I am. I don’t think he cares whether some people think it’s shocking,” Samuel said.

A battle over who should run the U.S. Consumer Financial Protection Bureau (CFPB) in the coming months was set for court as Obama-era holdovers sought to maintain their control over a powerful watchdog which President Donald Trump is seeking to curb...While the legal battle rages, the CFPB’s enforcement work will be put in limbo. “Anything that the agency does or fails to do could be subject to challenge until this cloud is removed,” said Harvard Law School professor Laurence Tribe.

From the Israeli perspective, there is both some bad news and some good news with regards to the legal bombshell that the International Criminal Court prosecutor dropped on the US on Monday. The ICC prosecutor filed a formal submission to move the US’s conduct in the Afghanistan War and its interrogation of its prisoners to a full criminal war crimes investigation...Top ICC expert Alex Whiting told The Jerusalem Post that the ICC decision regarding US targeting probably came about because “there just isn’t enough evidence of intent or that there was a policy to target civilians. They fall too much on the side of error rather than [of war crimes].”

Over just two days this week, the Trump administration has both sued AT&T Inc. to block its planned takeover of Time Warner Inc. and proposed allowing internet-service providers—like AT&T—to form closer alliances with content companies, like Time Warner. ...Because the FTC doesn’t have the authority to create and enforce broad rules, it isn’t in a position to police fast and slow lanes that may harm competition, said Jonathan Zittrain, professor of law and computer science at Harvard University and a former chairman of the FCC’s Open Internet Advisory Committee.

...An investigation by the Milwaukee Journal Sentinel — published Nov. 1 — revealed that TripAdvisor had deleted reports of rapes, blackouts and other injuries and deaths among travelers vacationing in Mexico...Vivek Krishnamurthy, an instructor at Harvard Law School’s Cyberlaw Clinic, said most user review type sites have issues with how they are moderated. From inadequate staffing, to training and culture, problems persist...“Once you start playing with the content, it becomes trickier,” said Krishnamurthy of the Berkman Klein Center for Internet & Society at Harvard University. “The more you go down the road of becoming an e-commerce site with reviews, the protections start to look shakier.

James Madison, who wrote the first drafts of the U.S. Constitution, sponsored the Bill of Rights, and served as the fifth Secretary of State and the fourth President, was America’s least fun Founding Father...That’s the kind of book one expects upon a first glance at “The Three Lives of James Madison: Genius, Partisan, President,” by Noah Feldman. But Feldman, the Felix Frankfurter Professor of Law, at Harvard Law School, has written something else: a palliative for the age of Trump that never names the current President, as told through the political evolution of an important weirdo whose constant recalibrations enabled him, with increasing success, to fight epic battles with his own, founding-era “haters and losers.” Feldman is at once subtle and candid about the aptness of his narrative.

The panelists at a recent Harvard Law School discussion about the power of special prosecutors agreed on this: There’s no flawless system that uses the executive branch to investigate the executive branch...Panelists at the Harvard event, part of the law school’s bicentennial program, offered varying perspectives of what works, what doesn’t and what might be done about it. These were lawyers and Harvard law alums—now working at private firms, or at law schools—who brought unique insight to the challenges facing Robert Mueller III, the special counsel leading the investigation of any collaboration between Donald Trump’s presidential campaign and Russia’s interference last year in the election.

The Department of Justice has opened a probe into the role of race in Harvard University's admissions policies and is threatening to sue unless Harvard turns over documents by a Dec. 1 deadline, according to correspondence obtained by NPR....In August when the probe was confirmed, legal experts told Carapezza that they were skeptical about the allegations of race-based discrimination: " 'It seems entirely consistent with President Trump's campaign rhetoric,' says Tomiko Brown-Nagin, a constitutional law professor at Harvard. Brown-Nagin points out that the Trump administration's decision to target affirmative action policies comes as racial tensions are rising on many campuses.

In a matter of hours this week, the Trump administration twice weighed in on one of the central issues shaping business and society today — just how much market power big companies should be allowed to amass. Yet in back-to-back developments, two federal agencies arrived at starkly different conclusions, and one company, AT&T, found itself on opposite sides of the debate...“The F.C.C. is saying that they’re going to give up any legal authority over regulating high-speed internet,” said Susan Crawford, a professor at Harvard Law School. “They’re handing the power to choose winners and losers online to about five companies.”

An op-ed by Noah Feldman. When you get rid of your dictator, is it important to follow the rules? That delicate question is dominating the transition-in-progress in Zimbabwe, where longtime president Robert Mugabe has refused to step down despite the demands of the public, the army and his own political party. The counterintuitive answer is that it actually is worthwhile to show obedience to the rule of law, even when the person being overthrown hasn’t and doesn’t.

The International Criminal Court’s chief prosecutor took an important step on Monday in pursuing a war-crimes case related to Afghanistan, requesting permission to investigate torture, rape and other atrocities — including those possibly committed by Americans....Alex Whiting, a former prosecutor at the court who now teaches at Harvard Law School, said he believed that Ms. Bensouda probably would focus first on suspected Taliban abuses because they constitute the majority of crimes. But unwillingness by others to cooperate with her inquiry, Mr. Whiting said, would “make it very difficult for her to progress from the stage she is at now — sufficient evidence to justify opening an investigation — to actually being able to charge anyone with crimes.”

An op-ed by Cass Sunstein. Imagine that at Thanksgiving dinner, you find yourself seated next to a cousin you like a lot but rarely see -- or better still, a devastatingly attractive friend of the family, someone you think you'd like to know better. Here’s a quiz: What’s the best way to make a good impression?

Two universities recently convened a symposium to honor the work and influence of the late civil rights lawyer Charles Hamilton Houston. Harvard University’s Charles Hamilton Houston Institute for Race and Justice (CHHRIJ) and Clemson University’s Charles H. Houston Center for the Study of the Black Experience in Education hosted “The Enduring Legacy of Charles Hamilton Houston: 3rd Biennial Symposium” at Harvard Law School last week...“The theme of building bridges to the future follows directly from the work of Charles Hamilton Houston, whose work was always built on establishing a foundation from which one could go further,” said Dr. David Harris, managing director of CHHRIJ. “He did not see school desegregation as an end but a beginning of a pathway forward. Although he would surely be disappointed in the delays we have experienced as a nation in closing the gaps between students of color and White students, he would applaud the efforts of all our panelists to eliminate obstacles and create opportunities.”...“We believe that there is so much unfinished business with regard to educational access,” [Tomiko Brown-Nagin] added. “Students of color still suffer disadvantages: disproportionate punishment, fewer resources, less experienced teachers. By working in the educational space around issues of access and quality, the Houston Institute continues the legacy of its namesake,” she added.

A book review by Annette Gordon-Reed. It is no surprise that the election of the first black president of the United States would occasion much thinking, writing and talking about the subject of race in America...At the same time, how galling it was for the not insignificant number of white Americans who fervently believed that the US began as a country for white people, and should forever remain so. The president of the United States serves as a symbol of the nation; America’s face and voice to the world. All the reasons why many saw Obama’s election as evidence of the country’s endless capacity for adjustment and renewal, an occasion for pride, were for others evidence of America’s degradation, a source of intolerable shame and anger. Something had to be done. What was done, Ta-Nehisi Coates says in We Were Eight Years in Power, the book of essays that follows his bestselling and influential Between the World and Me, was to seek to erase with extreme prejudice the effects of the country having lived under a black president by electing the man Coates dubs in the book’s final essay “The First White President” (Trump’s “ideology is white supremacy, in all its truculent and sanctimonious power”).

An op-ed by Noah Feldman. The claim that President Donald Trump is mentally unwell has a particular valence in today’s charged political environment. It isn’t supposed to sound like a partisan criticism. It’s supposed to sound like an objective statement of medical fact.

Countries should respond to reports of new use of incendiary weapons in Syria by working to strengthen the international law governing these exceptionally cruel weapons, Human Rights Watch said in a report released today...It urges countries at a UN disarmament meeting, held in Geneva from November 22 to 24, 2017, to initiate a review of Protocol III of the Convention on Conventional Weapons (CCW). This protocol, which regulates incendiary weapons, has failed to prevent their ongoing use, endangering civilians. “Countries should react to the threat posed by incendiary weapons by closing the loopholes in outdated international law,” said Bonnie Docherty, senior arms researcher at Human Rights Watch. “Stronger law would mean stronger protections for civilians.”...“Existing law on incendiary weapons is a legacy of the US war in Vietnam and a Cold War compromise,” said Docherty, who is also the associate director of armed conflict and civilian protection at Harvard Law School’s International Human Rights Clinic, which co-published the report. “But the political and military landscape has changed, and it is time for the law to reflect current problems.”

The speculation spreads every time an older politician of either party blunders verbally or seems to lose the thread: Is it Alzheimer's? Early dementia? Impaired judgment? Professor Francis Shen of the Center for Law, Brain and Behavior shared a crop of typical headlines at a Harvard Law School Petrie-Flom Center forum called "Dementia and Democracy" this week. They included politicians of various stripes targeted by weaselly phrases like "may have Alzheimer's" and "may have early-onset dementia."...Shen's central point: Politicians, who have huge advantages as incumbents, and federal judges, who serve for life, tend to stay on the job well past typical retirement ages. Yet we know that some cognitive decline with age is normal, and that the risk of dementia skyrockets as we get older.

When a panel of U.N. judges hands down a verdict next week in the trial of former Bosnian Serb military chief Gen. Ratko Mladic, it will mark the end of a ground-breaking era in international law. Yet a new age of international justice is already underway, with other temporary courts and tribunals springing up around the world to prosecute atrocities. Mladic's trial is the last at the International Criminal Tribunal for the former Yugoslavia, which was set up in 1993 to prosecute crimes committed in the Balkan wars of the early 1990s..."I think people now see that the ICC cannot be the answer for everything," said Alex Whiting, a professor at Harvard Law School. "Both because of capacity and resources but also because of institutional fit. I think there will be ad hoc tribunals again. They may be designed differently, a stronger tilt toward hybrid tribunals."

...To recap, we have three Americans–UCLA basketball players LiAngelo Ball, Jalen Hill and Cody Riley–arrested by Chinese authorities for alleged shoplifting. Trump took credit for their return to the states, saying he asked the country’s president Xi Jinping for help. Now we have that same president saying he should’ve done nothing. What does it mean if provable spite motivated a president’s decision to refrain from helping an American held in custody on foreign soil? Law&Crime reached out to Harvard Law Professor Noah Feldman for his take on the matter, and asked if such behavior, or something like it, could be impeachable. “Not impeachable,” Feldman wrote in an email. “He was under no duty to help and no duty to be nice about it after the fact.”