Media Mentions

An op-ed by Carol Steiker and Jordan Steiker. Two terms ago in Glossip v. Gross, Justice Stephen Breyer, dissenting from the Supreme Court’s rejection of a lethal-injection challenge, set forth a comprehensive case against the American death penalty, calling for the court to revisit the question of its basic constitutionality. Over the past 40 years, several justices have questioned the constitutional viability of the death penalty, but Breyer’s dissent seemed more significant because it came at a time when the death penalty appeared newly vulnerable.

An interview with Nancy Gertner. The U.S. Supreme Court said most of President Trump's controversial travel ban could go into effect until the high court takes up the case in the fall. So it's at least a partial and temporary victory for the president to finally make good on a major campaign promise.

...If the Supreme Court’s compromise decision Monday on the travel ban grabbed the headlines on the court’s final day, those who study the court were at least as focused on what they could learn about the 49-year-old Coloradan chosen by Trump to fill the seat of the late Antonin Scalia. The bottom line, according to most accounts, is that Gorsuch is a Scalia 2.0, perhaps further to the right...“He’s asserted himself in a way that is really without precedent for a justice in the modern court,” said Ian Samuel, a former Scalia clerk who teaches at Harvard Law School.

This month the Dutch government debated a proposal to suspend all shareholder rights for a year in the event of an unsolicited takeover bid. This move, which we view as a “backwards step”, is the latest in a salvo of proposals to curb engaged investors. But it is also part of a broader debate about the perceived short-termism in markets, the weaknesses in corporate governance and the role of activists which policymakers, boardrooms and investors wrestle with...So who is going to solve this? Rather than passing new laws, we should welcome activist and engaged investors which can be an important catalyst for change. The best academic study on activism suggests activists are not myopic. Harvard’s Lucian Bebchuk and colleagues looked at 2000 interventions by activists which showed that five years after activist intervention, their operating performance was materially improved.

An op-ed by Cass Sunstein. The executive branch under President Donald Trump is not issuing a lot of new regulations, but congressional Republicans, joined by some Democrats, have been thinking seriously about regulatory reform. They've produced an intelligent, constructive, complex, imperfect bill – the Regulatory Accountability Act of 2017 – that deserves careful attention.

A Fox News panelist made the case Sunday that the Trump campaign did not commit a crime if it colluded with Russia in the country's alleged interference in the U.S. election that went in favor of President Donald Trump...The current investigation under Mueller, and ongoing probes at the FBI and in Congress, are looking at the finances of Trump’s campaign members and associates. Election-law specialist John Coates, of Harvard University Law School, told Politifact that under the law against fraud, “it is a federal crime to conspire with anyone, including a foreign government, to ‘deprive another of the intangible right of honest services.’” Coates added that discussions between a campaign and a foreigner to achieve such a thing would violate the law. "That would include fixing a fraudulent election, in my view, within the plain meaning of the statute," he said.

SHOULD state-funded adoption agencies be able, for religious reasons, to turn down prospective parents? An increasing number of states say they should, or are beginning to consider it...Meanwhile, adopting from abroad has also become harder. According to the State Department, almost 23,000 children were adopted from abroad in 2004; last year, only 5,400 were...The federal government has also become more hostile. The result, says Elizabeth Bartholet of the child-advocacy programme at Harvard University, is that thousands of children linger in grim institutions.

As the U.S. Department of Education readies for an arduous bureaucratic process to overhaul the rule allowing defrauded students to discharge their debt, advocates are wondering when thousands of borrowers who are seeking relief will get a resolution...In its most recent update, the department said in January that it had approved borrower-defense claims for more than 28,000 Corinthian students. But few details have been forthcoming since. Toby Merrill, director of the Project on Predatory Student Lending at Harvard University's law school, said the department still has the tools it needs to process those claims even after delaying the new rule. “The department’s processing of all borrower defenses has essentially stopped,” she said. “While that’s not an acceptable state of affairs, that’s the state of affairs they’re facing.”

In a major property rights decision, the U.S. Supreme Court has delivered a decisive victory to state and local governments and environmental groups. By a 5-to-3 vote, the justices made it much harder for property owners to get compensation from the government when zoning regulations restrict the use of just part of landowners' property...Harvard Law Professor Richard Lazarus called the decision a "clean, big win for both government regulators and environmental protection." "There is no nuance to the ruling," he said. It is a "soup to nuts" win for the government, and environmentalists.

The Supreme Court on Friday fortified environmental land-use regulations against legal challenges, frustrating property-rights activists who hoped their test case would open a host of development restrictions to constitutional attack...For Richard Lazarus, a Harvard law professor who represented St. Croix County, the ruling marked a long-awaited turnabout. In 1992, he was on the losing side of Lucas v. South Carolina Coastal Council, when the late Justice Antonin Scalia expanded the concept of regulatory takings to rein in environmental laws. Friday’s ruling was “a clean, big win for government regulators and environmental protection. There’s no nuance there,” Mr. Lazarus said.

Harvard law professor and ardent Donald Trump critic Laurence Tribe says the president may have violated federal law by tweeting a warning about secret tapes of fired FBI director James Comey. “It could readily be viewed, as Trump himself has conceded, as an effort to influence the ‘due administration of justice,’ defined under 18 USC sec. 1503 as criminal obstruction of justice,” Tribe told TheWrap in an email. 18 USC 1503 is a federal criminal law that makes it a crime to try to interfere with an official government investigation.

It’s not clear whether President Trump, on the day the Senate health-care bill was released, fessed up that he has no tapes of conversations of then-FBI Director James B. Comey (“I did not make, and do not have, any such recordings”) because he wanted to avoid intense media coverage of his embarrassing bluff or because the health-care bill is so bad that any distraction is welcome. Either way, no communications strategy can hide a bad health-care bill and another legal misstep that special prosecutor Robert S. Mueller III can use to ensnare him...Constitutional lawyer Larry Tribe also points me to the federal statute that prohibits sending a “threatening letter or communication” that “endeavors to influence … the due administration of justice.”

An op-ed by Jeannie Suk Gersen. ...On Monday, the Supreme Court unanimously ruled the disparaging-trademarks provision unconstitutional, as a violation of free speech protected by the First Amendment. (The court’s newest Justice, Neil Gorsuch, did not participate because the case was heard before he was confirmed.) Going forward, the government will not be able to deny registration of any trademark simply because it is considered offensive. The ruling makes all manner of racist, sexist, or otherwise insulting terms eligible for federal registration by someone who wishes to use them to identify the goods or services they are selling. Lots of money can be at stake.

An op-ed by Chiraag Bains. A jury recently acquitted Minnesota police officer Jeronimo Yanez in the 2016 killing of Philando Castile, a beloved school cafeteria worker. On Tuesday, the prosecutor’s office released key evidence, including video from Yanez’s squad car and his interview with investigators. Two things are evident from the new material: Castile’s every move was calculated to maintain safety and survive the encounter, and Yanez was responsible for turning the situation deadly.

...But as Uber CEO Travis Kalanick learned this week, founder control is something of an illusion when a company needs constant infusions of investor cash in order to survive...But notably, Kalanick remains on Uber’s board of directors—an indicator that he and his shareholders are making an economic decision, and not a purely ethical one. “You can have the legal power to keep yourself king, but still voluntarily abdicate if that’s what it takes to obtain much-needed capital,” says Jesse Fried, a Harvard Law School professor who specializes in corporate governance. “Who wants to rule over a collapsing kingdom?”

President Trump, who came into office courting labor unions and vowing to stand up for American workers, is taking a major step to alter the direction of federal labor policy, positioning the National Labor Relations Board to overturn a series of high-profile Obama-era decisions...“The question is, on the major issues of the day, can we update the act to take account of changes in the labor market?” said Benjamin Sachs, a professor of labor law at Harvard Law School and a former union lawyer. “These guys are on one side; the Obama board was on the other. We’ll see a profound change in direction of labor law.”

The mistrial in the Bill Cosby case has left us deadlocked on another question: Is the legal system stacked against women in she said/he said sexual assault cases?...Jeannie Suk Gersen, a professor at Harvard Law School, has a provocative thesis: There is an inherent bias against women, but it doesn’t stem from sexism. “We chose to set up our system to be stacked in favor of the defendant in all cases,” she said. “So, in areas where most of the defendants are male, and most of the accusers are female, it’s a structural bias in favor of males. Even if we were to get rid of sexism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.”

An op-ed by Delcianna Winders. Ringling Bros. shuttered last month following a decade of falling ticket sales. Its Worcester shows in April were the final Massachusetts appearance for the iconic circus. But numerous circuses with elephants continue to tour Massachusetts - and virtually every single one of them contracts with elephant trainers or exhibitors who have a history of abuse and public endangerment. It’s a circus spectacle beloved by many but which in many cases also comes with an undercurrent of abusive treatment of these majestic animals. It’s an abuse that pending legislation in Massachusetts could help address by banning traveling elephant shows from the state.

An article by Susan Crawford. A couple of months ago, I interviewed a woman in public housing in the small town of Wilson, North Carolina. She told me that the best thing that ever happened to her family was getting internet access over the city's municipal fiber network. Included in her monthly rent bill is a $10 fee for 50 Mbps symmetric access (equal uploads and downloads). Why is this so wonderful? Because her sons are getting better grades, now that they don't have to go to the library to use the internet. Sadly, New York City is far behind Wilson, NC when it comes to ensuring ubiquitous, reasonably priced fiber optic internet access for every resident.

An op-ed by Nancy Gertner. Governor Baker introduced a criminal justice bill in February to great fanfare. Designed to give prisoners incarcerated on mandatory minimum sentences access to good-time credit to hasten their release and to provide reentry programming, it received wide bipartisan support — as it should. The justification was clear. “Reducing recidivism,” Baker said, was the bill’s focus. The people of Massachusetts benefit “when more individuals exit the system as law abiding and productive members of the society.”

A few weeks ago I was interviewing the Rev. Laura Everett, at an intersection in Boston's Back Bay where a bicyclist was recently hit and killed, when in the background, we heard a pedestrian yelling at another pedestrian...Harvard law professor Randall Kennedy wrote a book about the N-word, a word he called the "atomic bomb of racial slurs." "Not only [was] it used in that way 33 years ago," Kennedy said at his desk in Cambridge. "But is it used in that way today? Sure it is." Kennedy says the current political climate has created a sense that bigotry can be OK.