Media Mentions

...This book presents a balanced defense of what the writer, the Harvard law professor Randall Kennedy, refers to as “positive discrimination.” Kennedy explores the history of race-related laws and asks why, despite preferential treatment in college admissions for people based on special categories like geography or legacy status, consideration on the basis of race has always been contentious. His focus is on higher education, where these discussions have historically taken place because of the scarcity of available seats and top universities’ role as “gateways to opportunity, socialization and certification” and “ training grounds for the power elite.”

Each January, as the Bureau of Labor Statistics (BLS) releases its annual data on union membership rates, labor braces itself to see how steeply the chart dips. This past year, the share of unionized workers declined 0.4 percent, to just 10.7 percent of wage and salary workers overall and a bare 6.4 percent of private-sector workers. As has been the case for many years now, the annual release represents the lowest year on record for unions....And yet, as Harvard Law Professor Ben Sachs has pointed out, the Supreme Court has not employed the typical typologies of preemption at all when dealing with labor law. Rather, it has created a “preemption doctrine [that] is among the broadest and most robust in federal law.”

Four Harvard Law School faculty members are pushing for the Department of Education to revise Obama-era Title IX standards governing how universities respond to sexual harassment and assault on campus. In a memo submitted to the Department of Education last week, Law School professors Janet E. Halley, Elizabeth D. Bartholet ’62, and Jeannie Suk Gersen and lecturer Nancy Gertner called on the Education Department’s Office of Civil Rights to reevaluate the standards put forth in the 2011 Dear Colleague Letter.

President Trump’s controversial pardon of Sheriff Joe Arpaio last week raised red flags for critics who worried that Trump might pardon himself, if the investigation by special counsel Robert Mueller leads to him, or that he might be signaling that he would pardon associates under legal pressure to give Mueller information about him...Federal pardons could open the door to criminal investigations in several states, NBC News also reported Wednesday. Trump’s pardon power would not apply to state crimes, said Harvard Law School Professor Alex Whiting, a former federal prosecutor whose career has also included leading prosecutions at the International Criminal Court in The Hague. “Pardon would not resolve all legal liability for the Trump people. They could face charges,” he said.

A few weeks ago, the Bridgehampton Chamber Music Festival held one of its occasional outdoor concerts at a nearby Long Island winery...Afterward, when someone inquired about the presence of these heavily armed police, he was told that the Southampton police department required the extra protection...The militarization of local police forces, of course, is a trend that began after the Sept. 11 attacks, when many departments added “fighting terror” to their mission statements, and when the federal government began to make money available to local police to buy military-style equipment, including automatic weapons, night vision goggles and other paraphernalia. As the security expert Bruce Schneier points out, “when they get this stuff, they want to trot it out. So now it is being used.”

Harvard undergraduates bid their final farewell to summer Wednesday as they crowded classrooms and lecture halls on the College’s first day of classes. Though some classes consistently popular with students, like Economics 10a: “Principles of Economics” and Statistics 104: “Introduction to Quantitative Methods for Economics,” received expectedly high turnouts, others not as well known also drew large numbers...Richard H. Fallon, a Law School professor who teaches Government 1510, said the large turnout in his course may be due to increased interest in the U.S. Constitution. “If you want to speculate, we seem to be in a political climate in which we lurch from one looming constitutional crisis to the next,” Fallon said.

Last Thursday, just hours before Rohingya militants attacked more than two dozen police and border outposts in western Myanmar, the former head of the United Nations presaged the coming violence in an urgent warning...The news conference was held to promote the release of a new report on how to improve the lives of Buddhists and Muslims living in Rakhine state, one of the country’s most impoverished and conflict-torn regions, from which tens of thousands of Muslim Rohingya have fled violence in recent years...Yee Htun, a human rights advocate from Myanmar and instructor at Harvard Law School in Cambridge, Mass., says the reforms outlined in the new report can’t come soon enough for Rakhine. “At the heart of this crisis are policies and practices that have a real dehumanizing effect,” she says.

NPR's Scott Simon talks to Bonnie Docherty, senior arms researcher at Human Rights Watch, about the group's call for a pre-emptive ban on fully autonomous weapons.

An op-ed by Sabrineh Ardalan. In the next few months, Congress will consider a bill that would cut the number of refugees allowed into the country by more than half. Supporters say this bill would help create job opportunities for U.S. workers and spur economic growth. Yet, arguments that refugees do more damage than good simply don’t hold water. A recent report from the Harvard Immigration and Refugee Clinical Program, where I work, outlines refugees’ significant contributions to the U.S., in both economic and human terms. These range from starting small businesses to generating tax revenues and creating new jobs.

An op-ed by Cass Sunstein...Tali Sharot of the University College London has shown that for such questions, and many others, good news is more likely to alter people’s views than bad news. What does that have to do with contemporary political issues? Along with Sharot and other collaborators, I have been exploring exactly that question.

The tax overhaul promised by President Trump and Republican congressional leaders is lugging a remarkably heavy load. The goal is not only to reduce the tax bills of corporations and small businesses, but also to stimulate investment, create jobs, increase global competitiveness and promote economic growth...Mr. Trump and the Republican leadership have pushed to slash the corporate tax rate and switch to what is known as a territorial system that would tax only profits earned in the United States and not those earned in other countries. Mihir Desai, an economist at Harvard Business School, likes that approach. “We currently have the worst of all worlds,” he wrote in an email. “We have a high marginal rate,” which encourages companies to avoid taxes and puts the United States at a global disadvantage.

When President Trump defended his pardon of former Maricopa County Sheriff Joe Arpaio on Monday, he was quick to put his use of this unique presidential power into historical context...“The president has been trying since the beginning of his administration to delegitimize the judiciary,” says Chiraag Bains, senior fellow at the Criminal Justice Policy Program at Harvard Law School in Cambridge, Mass., and a former federal prosecutor in the Justice Department's Civil Rights Division.

An interview with Jeannie Suk Gersen. When Candice Jackson, acting head of the Education Department's Office of Civil Rights recently said that “90 percent” of campus sexual assaults “fall into the category of ‘We were both drunk, we broke up, and six months later I found myself under a Title IX investigation,” it caused an uproar. She quickly apologized, saying, “all sexual harassment and sexual assault must be taken seriously.” But, the exchange only brought more attention to the way the federal government is handling sexual assault cases on university campuses.

President Donald Trump’s unusual pardon of former Arizona Sheriff Joe Arpaio, issued before his federal case was even finished, has sparked a debate over whether the president could end Special Counsel Robert Mueller's Russia probe with a spate of pre-emptive pardons. But even mass pardons of all suspects in the Russia case would not close the door to potential prosecutions...Prosecuting agents of a foreign power, however, is different than making a potential case against agents of the United States. "It could happen," [James] Tierney says. "If the [district attorney] of Baltimore wants to go after the president, is that destabilizing? Yes it is." Tierney, who now teaches about the role of state attorneys general at Harvard Law School, adds, "The actual legal and practical obstacles to bringing this kind of case are very high."

The Department of Energy's grid reliability study has been described in many ways since it dropped last week, including schizophrenic, and an effort "to bail out aging coal and nuclear plants." But overall, the reaction has been more moderate and cautiously complimentary...Instead, the consensus seems to be that the study fairly accurately identifies how the nation's bulk power system reached this point: struggling with a changing generation mix and market structure that does not always align with policy goals. Environmental groups have been harsh judges of the document, but others say it is, all in all, fairly unremarkable in political terms. "It's a good compendium of information, but it's nothing new," said Ari Peskoe, senior fellow in electricity law at Harvard Law School.

Title IX is a Nixon-era federal law barring sex discrimination in schools. Under the Obama administration, it became a mandate for colleges to adjudicate claims of sexual misconduct with an imbalanced extrajudicial standard...Education Secretary Betsy DeVos is rightly considering rescinding the preponderance standard and replacing it with a stricter standard of proof...Fans of due process and the rule of law have discerned the problem. Harvard law professor Janet Halley, who investigated sexual misconduct claims as an administrator at Stanford, believes impartial truth-seeking is nearly impossible under the new rules. “We are overcorrecting,” she says. “The procedures that are being adopted are taking us back to pre-Magna Carta, pre-due process procedures.”

An op-ed by Noah Feldman. When black-clad anti-fascist protesters broke through police barricades Sunday afternoon and swarmed a peaceful rally in Berkeley, California, law enforcement stood aside and let them. City police Chief Andrew Greenwood explained the decision with a rhetorical question: “Does it make sense,” he asked, “to get into a major use of force over a grassy area?” With all due deference to police expertise, things are not that simple. Violent protesters who cross barriers and disrupt peaceful protest are deeply threatening to freedom of speech.

An op-ed by Nancy Gertner. However distasteful, the fact is that President Trump has the legal authority to pardon Sheriff Joe Arpaio of Arizona for his criminal contempt conviction, in accordance with the US Supreme Court’s 1925 ruling in Ex Parte Grossman. Grossman was ordered to stop selling liquor during Prohibition. He ignored the order and was jailed until a presidential pardon led to his release. The district court that had issued the original contempt order persisted and rearrested Grossman, finding that contempt is an offense to the “dignity and authority” of the federal courts. To allow the executive to intervene in the contempt process, the court held, would undermine judicial independence.

President Donald Trump hinted during a speech in Arizona on Tuesday that he plans to pardon former Sheriff Joe Arpaio over his federal contempt-of-court conviction, but the president said he wouldn't take such an action immediately in order to avoid "controversy." Trump, speaking at a rally in Phoenix, suggested that relief was on the way for the 85-year-old ex-lawman known for his tough treatment of illegal immigrants...“It’s ‘in-your-face, court,’” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “This is the kind of charge that goes to the integrity of the process…. Part of the symbol here is of basically not paying respect to an order of a federal judge.” “It’s not unlawful, but it says something about his own contempt for the system,” she added.

Tensions ran high at the Texas Legislature during this most recent Special Session. Legislators cut summer plans short to spend the majority of their vacation time in Austin to fight over matters like bathrooms, property taxes, and school finance—with no resolve. The contentious nature of the Legislature resulted in very little items moving through the Texas House without objection. Well, that was until a resolution to make October “Texas Pecan Month” appeared in the Texas House...That story starts with two brothers from the Rio Grande Valley—Ricco and Sam Garcia [`19]. Earlier this year Sam Garcia, a Harvard Law Student, was sifting through statistical data from Google Trends and came across an interesting trend. Sam and his older brother, Ricco Garcia, were in the middle of researching for a book they are writing over potential state and federal policy suggestions to aid Texas agricultural growth when Sam discovered a peculiar annual phenomenon concerning the term “Pecan.”

With white supremacists emboldened and a national spotlight shining on bigotry and hate, 67 former state attorneys general are calling on Americans and their leaders to condemn hatred unequivocally. Follow the example, they suggest, that an Alabama attorney general set four decades ago...The statement — which was released Monday and is conspicuously addressed not to President Trump or any other official, but rather to the broad, unnamed public — begins, “There are times in the life of a nation, or a president, or a state attorney general, when one is called upon to respond directly to the voice of hate.” Mr. Baxley’s example, it continues, without directly quoting it, should serve as inspiration for “all who seek to equivocate in times of moral crisis.” Mr. Baxley “obviously spoke with real clarity — he just made it as clear as a human being can make it,” said James E. Tierney, a former Maine attorney general who helped pull the joint statement together.