Media Mentions

Public high schools are sending conflicting messages to their football players and cheerleaders about possible punishment for refusing to stand during the pre-game national anthem. One Louisiana school district threatened to suspend protesting players from the team, while a New Jersey high school said the students have the First Amendment right to protest. Which is correct?...A public school that punishes a student for a silent protest could face a lawsuit for violating the student’s First Amendment rights, Harvard constitutional law professor Laurence Tribe told TheWrap. “Any student punished by a public school or other governmental entity for taking a knee could challenge the punishment successfully in court, probably with the assistance, pro bono, of the local chapter of the ACLU,” Tribe said.

...On Monday, the Supreme Court opened its fall term with National Labor Relations Board v. Murphy Oil USA, and two similar cases, that will determine whether companies can force workers like Hobson to sign away their right to file collective suits. The decision in the cases, which were heard jointly, has the potential to push millions more workers into individual arbitration hearings that lack many of the protections of the US legal system...Sharon Block, the director of Harvard’s Labor and Worklife Program and a former NLRB board member, is concerned that Murphy Oil could be used to stamp out other workplace rights. Block and Benjamin Sachs, a Harvard law professor, recently highlighted how the Trump administration’s brief casts doubt on the legal protections for collective actions outside of a traditional union context. That interpretation, Block says, could prevent workers from jointly asking for wage increases or joining worker centers that advocate for higher wages. Those rights are particularly important as union membership declines.

An op-ed by Noah Feldman. President Donald Trump managed to head off the drama of a Supreme Court confrontation, for now, by issuing a new travel ban last week. But the justices begin a new term Monday with other exciting, high-profile cases planned, tackling issues such as religious liberty and equality, privacy, unions and employees’ rights, and international human rights. One of the cases, a challenge to partisan gerrymandering, could turn out to be the most game-changing decision by the court in the realm of politics since one person, one vote.

An op-ed by Noah Feldman. There’s something profoundly morbid about watching the U.S. Supreme Court and worrying about the health of your favorite aging justices. (They’re 84, 81 and 79, by the way.) A mandatory retirement age would take away the uncertainty. Such a rule was part of an elaborate court-packing plan proposed Monday by the president of Poland -- before he withdrew it under intense international pressure. In principle, age limits for life-tenured judicial appointees make a lot of sense.

An op-ed by Cass Sunstein. As Justice Neil Gorsuch starts his first full term on the Supreme Court, many people are cheering what they see as his conservatism, and many others are mourning it. But an investigation of his opinions as an appeals court judge offers a more complicated picture about his beliefs and his approach to the law. First, Gorsuch is fiercely protective of the independence of the judiciary -- and, in important respects, he is skeptical about executive power. Second, he is a bold thinker, willing to go in novel directions. Third, he is a fine writer.

Donald Trump has maintained for seven months that he cannot release his tax returns because he is being audited by the Internal Revenue Service, making him the first major-party nominee for president since Gerald Ford to withhold such records from the public...“The courts could say, if the public thinks the tax returns are so important, let it demand that the candidate authorize the IRS to release them on pain of losing votes,” said Jonathan Zittrain, a privacy expert and professor at Harvard Law School.

An interview with fellow Thomas Abt. This week, the FBI released new crime statistics showing 17,250 homicides in the US last year, an increase of over 8.5% from the year prior. The right-wing media quickly sprang into action: Breitbart’s headline read: “FBI Data: Post-Ferguson Murder Spike Reaches 3761 Dead,” while the Daily Caller declared, “The FBI Just Confirmed What Sessions Has Been Saying About Violent Crime.” (For his part, Jeff Sessions responded with a predictable message of doom about "surrender[ing] our communities to lawlessness and violence.”) The left-wing response, meanwhile, came with its own politicized interpretation, downplaying the spike and shifting the focus to the apparent root causes of crime.

Harvard Law School constitutional law professor Laurence Tribe joins Joy Reid to explain why in his view Donald Trump may be unconstitutionally using the power of the government to pressure NFL players through the NFL.

Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

Today is the opening day of the Supreme Court's fall term. Harvard law and history professor Annette Gordon-Reed is a Pulitzer Prize-winning author and this hour in a Chautauqua Lecture she explores the origins, and the evolution, of the nation's highest court. Alexander Hamilton called it "the least dangerous" branch of government. She titled her lecture, "The Supreme Court: Hamilton's vision vs. reality."

It's a good time to re-examine our relationship with Facebook Inc. In the past month, it has been revealed that Facebook hosted a Russian influence operation which may have reached between 3 million and 20 million people on the social network, and that Facebook could be used to micro-target users with hate speech. It took the company more than two weeks to agree to share what it knows with Congress...Will Facebook solve this problem on its own? The company has no immediate economic incentive to do so, says Yochai Benkler, a professor at Harvard Law School and co-director of the Berkman Klein Center for Internet and Society. "Facebook has become so central to how people communicate, and it has so much market power, that it's essentially immune to market signals," Dr. Benkler says.

AIG is poised to save as much as $150m in annual compliance costs after US officials released it from “too big to fail” supervision, a decision that could also help the insurance company expand again after years of post-crisis shrinkage. A team of federal officials who have been stationed within the group to monitor its activities will be heading for the exit after a council led by Treasury secretary Steven Mnuchin ruled AIG’s collapse would no longer pose a threat to the financial system...Hal Scott, professor at Harvard Law School, said he expected regulators to take up Prudential’s case soon. “I’d be shocked if it wasn’t next on the list,” he said.

A legal battle over the future of the US electricity system is looming after the Trump administration shocked the industry with proposals for new subsidies for coal-fired and nuclear power plants. If implemented, the plan could mean the most radical shake-up of the market in decades. Rick Perry, the energy secretary, on Friday sent a proposal to the Federal Energy Regulatory Commission calling for payments for power plants that provide “essential energy and ancillary reliability services” — and defined these in a way that means only coal and nuclear generators are likely to qualify...Ari Peskoe of Harvard Law School said Mr Perry’s plan did not meet the legal requirements for proposed rules under US administrative procedures, and recommended that FERC treat it as a “comment” on its existing work on supporting grid reliability.

Released at the end of August, the Department of Energy's grid study concluded that the reliability of the bulk power system is strong today, but changes in the resource mix could present challenges in the future. The report urged federal regulators to begin examining how to better compensate generators for the services they provide for reliability and resilience if it finds reliability is threatened..."I would say this is not a proposed rule that could form the basis of a final rule," said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative​. "Usually proposed rules have far more detail that would provide a basis for comments on specific aspects of the proposal and that's not really here."

A corrosive custom forced on investors is finally getting the ax under new regulations in Europe. Too bad some on Wall Street are working overtime to ensure that United States investors don’t get the same deal. The rule change governs how investors pay for brokerage-firm research...Howell E. Jackson, a professor at Harvard Law School and an expert in financial regulation, thinks the unbundling of trading and research costs would be a boon to investors because of the sunlight it would bring to the financial markets. Under the European rule, Mr. Jackson said in an interview, “consumers can see how much of their commissions are going to research.”

In a rare move that could spark sweeping changes in energy regulation, Energy Secretary Rick Perry today called on the Federal Energy Regulatory Commission to take action that could prop up struggling coal and nuclear plants. The Department of Energy wrote in a notice of proposed rulemaking that FERC has an "immediate responsibility to take action to ensure that the reliability and resiliency attributes of generation with on-site fuel supplies are fully valued."...DOE's proposed rule orders FERC to finalize the regulation within 60 days of its publication in the Federal Register, but that timeline might not meet legal requirements, said Ari Peskoe, a senior fellow at the Harvard Law School Environmental Policy Initiative. "FERC rules usually have much more technical detail," said Peskoe. "This reads more like a directive to FERC to figure this out."

Several Constitutional law professors have weighed in on the endless debates surrounding the propriety of protesting during the national anthem, most of whom called it a “complicated” issue...While most professors surveyed by Campus Reform agreed that both Collett and Brady made legitimate claims, only one—esteemed Harvard University Law School Professor Laurence Tribe—came down strongly on the side of Brady. “In recent days, I have been explaining on Twitter and elsewhere why I believe players have a strong First Amendment claim under the landmark Supreme Court precedent of West Virginia Bd of Education v Barnette (1943), which held that no government official—a category that certainly includes the president—may pressure people to salute the American flag or follow any government-specified way of expressing their views about the pledge of allegiance or the national anthem,” Tribe told Campus Reform, arguing that “football players cannot be required to leave their free speech rights in the locker room.

An op-ed by Martha Minow. What does it take to remove evil and stop hatred? This question has plagued humans throughout centuries, and although there is no simple answer, Germany changed from a pariah state to exemplar of constitutional democracy through the combination of post-World War II criminal trials, reforms of law and media, and investment by new generations who asked their parents persistently, “Where were you during the war?” A crucial element came with the criminal trials, initially through the international military tribunal and then subsequent state-based prosecutions.

When attorneys at Harvard Law School’s Project on Predatory Student Lending learned Education Secretary Betsy DeVos was speaking at the Ivy League university Thursday evening, they saw an opportunity to connect her with the for-profit college students they serve... The attorneys extended the secretary an invitation last week to meet these former students, but she declined. “The people who have been affected by the secretary’s policies deserve to have their voices heard,” said Toby Merrill, director of the Project on Predatory Student Lending. “I’m disappointed that she refused to meet with our clients, but not completely surprised given how frequently the department has sided with industry over students.”

NPR's Robert Siegel speaks with Thomas Abt, a senior research fellow at the Harvard Kennedy School and the Harvard Law School, about the latest statistics showing a national increase in homicide.

An op-ed by Noah Feldman. Roy Moore is more extreme than you think -- and his candidacy for a U.S. Senate seat is not a joke, but a serious threat to the Constitution and the rule of law. The shenanigans that got Moore thrown out of office as the chief justice of the Alabama Supreme Court -- twice! -- were more than just acts of civil disobedience on behalf of evangelical religion. Both times, Moore intentionally defied and denied the authority of the U.S. courts to have the final say on the Constitution. That’s the core principle on which our legal system rests.