Media Mentions

An op-ed by Noah Feldman. In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.

An op-ed by Noah Feldman. Donald Trump’s claim that a Mexican-American judge would be biased against him has put the topic of judicial ethnicity front and center. So it’s worth pausing to consider the most important -- and controversial -- discussion of the significance of a judge’s ethnic or religious background in the history of Supreme Court opinions. That would be this declaration by Justice Felix Frankfurter in 1943...Before you get excited about using Frankfurter’s oratory as a rebuttal to Trump, consider this: He prefaced the statement with a profession of his Jewishness that his colleagues tried to suppress. And he did all this in a dissent that argued that Jehovah’s Witnesses shouldn’t be exempt from pledging allegiance to the flag.

Ninety-one percent of Americans toss their food after the date on the labels have passed, but in many cases, they may actually be wasting perfectly safe food. There are three types of dates used on food labels: "sell by," "best if used by," and "use by." But all three have nothing to do with food safety. Rather, they signal how long the manufacturer thinks the food will taste best. "So the manufacturer will do taste tests with consumers and say, 'this is when everyone still thought my product tasted good,' and they're not about safety, but many people throw food away," said Emily Broad Leib, director of Harvard's Food Law and Policy Clinic..."Food safety means it was contaminated, you could get E.coli or salmonella, something like that.... We want to eat food that tastes good, that's good quality, but it's much more subjective," Leib said. "You're not going to get sick if you eat something. It's just about what you think tastes good."

John Tortelli recently received some good news: The virus that has lurked in his body for nearly four decades, threatening to destroy his liver, can no longer be detected in his blood. Tortelli, a 64-year-old retiree who lives in Arlington, contracted hepatitis C as a young man, from a blood transfusion during heart surgery. Over the years, the virus has led to fatigue, joint aches, mental fogginess — and continual worry that the infection might progress to cirrhosis, as happens to 5 to 20 percent of infected people...The advocates’ position got a big boost last month when a federal District Court judge in Seattle ordered Medicaid in Washington state to start covering the drugs regardless of the condition of the patient’s liver. A few days later, Florida — also facing a suit — adopted a similar policy change....Robert Greenwald, the Harvard Law School professor who sued Washington state, said he sent an e-mail to MassHealth director Daniel Tsai on Thursday, advising that Medicaid rules clearly require coverage. Asked whether he planned to sue Massachusetts, Greenwald said, “I’m not there yet. I have been assured they are working as quickly as they can.” But Greenwald, who directs Harvard Law School’s Center for Health Law and Policy Innovation, said if the state’s process “does not result in access mandated under law,” he will reconsider taking legal action.

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books. But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren't opinions. Rather, they were the death of one of the high court's most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court..."The fact is ... there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise." Speaking to an audience of environmental lawyers the week before those events, Lazarus noted presciently, "The court tends to start out looking like it's going to be sleepy, and by the end of the term they've got a lot of big hot-button issues." Overall, Lazarus said in an interview, the term has been "unsettling because of the uncertainty it means about future litigation in the court."

An op-ed by Glenn Cohen and Eli Y. Adashi. On February 3, 2016, the Institute of Medicine (IOM) released its Ethical and Social Policy Considerations of Novel Techniques for Prevention of Maternal Transmission of Mitochondrial DNA Diseases report...Expansive in its purview and thorough in its scrutiny, the report concludes that it is “ethically permissible” to embark on clinical trials involving human beings, subject to rigorous safety and efficacy imperatives. The report further recommends that initial clinical trials be limited to male embryos whose mitochondria cannot be transmitted to their progeny. In so doing, the IOM is seeking to preclude transmission of unintended outcomes to the progeny. In an unforeseen turn of events, the release of the IOM report was preceded by the enactment of a federal statute that prohibits the FDA from considering research applications for the conduct of this therapy. This Viewpoint seeks to contextualize the IOM report by describing the drive to bring mitochondrial replacement therapy to the clinic and the statutory constraints blocking its adoption.

U.S. opposition to language on financial services regulatory cooperation in the pending trans-Atlantic trade deal could be challenged by a new coalition of 14 European and U.S industry and business associations...Some Treasury Department officials are likely skeptical about whether trade agreements are the right forum to tackle to issue of regulatory harmonization, Mark Wu, an assistant professor at Harvard Law School who specializes in international trade and international economic law, told Bloomberg BNA.

The 70th Annual Tony Awards will be held in New York City on Sunday, June 12, and the big winner is expected to be Hamilton, Lin-Manuel Miranda’s musical adaptation of Ron Chernow’s biography of the famous Founding Father...Joining We the People to remember “the 10-dollar founding father without a father” are two of the nation’s leading legal historians. Annette Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School. She is also the Carol K. Pforzheimer Professor at the Radcliffe Institute for Advanced Study and a Professor of History in the Harvard Faculty of Arts & Sciences. Michael Klarman is the Kirkland & Ellis Professor of Law at Harvard Law School.

In their new book, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination, historians Annette Gordon-Reed and Peter S. Onuf take another look at the life and legacy of the third president. More a collection of interpretive essays than a cradle-to-grave biography, the book combines a careful analysis of Jefferson’s thought (the focus of Onuf’s influential body of work) with a deft portrayal of his personal life, closely attuned to his intertwined black and white families (the study of which Gordon-Reed revolutionized in her Pulitzer-winning 2008 volume The Hemingses of Monticello). I sat down with the authors to talk about the complexities of their central character, the shallowness of the hypocrisy charge, and the continuing importance of thinking seriously about Jefferson and his contemporaries in the age of “founder chic.”

Former New England Patriots star Aaron Hernandez has new lawyers for his upcoming double murder trial in Boston, a team led by the Florida attorney who represented Casey Anthony — who was accused of killing her toddler daughter — and a Harvard Law School professor who represents the family of an alleged Muslim terrorist shot by police...Joining Baez in representing Hernandez — who is already serving a life without parole sentence for the murder of Odin L. Lloyd in 2013 — will be Ronald S. Sullivan Jr., a Harvard Law professor who has represented the family of Usaama Rahim after the 26-year-old man was shot in Roslindale during a confrontation with Boston Police and Joint Terrorism Task Force members. Sullivan is also widely respected in the legal community for creating the Conviction Review Unit in the Brooklyn district attorney’s office. In that unit, prosecutors try to identify wrongful convictions instead of leaving it to the defense attorneys to take the first step.

Olympic athletes going to Rio de Janeiro might come home with more than just a medal. Some public health officials are concerned about athletes, tourists and members of the media getting bitten by mosquitos carrying the Zika virus...Dr. Holly Fernandez-Lynch (@PetrieFlom), signed the letter to the W.H.O. She is the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University. From her perspective, the main concern is having athletes and tourists that could potentially carry the Zika virus return to their home country with a weak public health infrastructure, including the United States. Congress has not funded research regarding the Zika in a way that the CDC and the President has requested.

An op-ed by Simon Hedlin `19...Many Clinton backers worry that Sanders is moving the party too far to the left, making the Democratic nominee less electable. But aside from electoral politics, another problem is that much of Sanders’ policy agenda, in an attempt to turn the U.S. into a Northern European welfare state, is ill-informed and would put America at great risk, if ever implemented. Considering all the praise that Sanders, a self-proclaimed democratic socialist, and his supporters have heaped on the leftist countries of Scandinavia in particular, they should look to Sweden for critical policy lessons. Sweden has already tried numerous of Sanders’ ideas, and unfortunately many of the senator’s proposals overlook the country’s successes and repeat its failures.

A book review by Samuel Moyn. A few years ago, the British human-rights lawyer Philippe Sands received an invitation to give a lecture in Lviv, Ukraine, the city where his grandfather had been born and lived as a young man. As he prepared his lecture on genocide and crimes against humanity, Mr. Sands learned that the two men responsible for those very concepts—and thus for his own professional concerns—were also intimately connected with the Galician town, which since World War I has passed from Austro-Hungarian through Polish, German, Soviet and Ukrainian hands. One of these two Jewish lawyers, Hersch Lauterpacht, was born near Lviv and spent much time there. The other, Rafael Lemkin, trained in law at the city’s university, where he and Lauterpacht shared some influential teachers. They were also both present at the Nuremberg trials, where the legal concepts they had each forged were pioneeringly used in the case against the Nazis.

For decades now, we’ve worried about an epidemic of sexual assault and un-safety at American colleges and universities...Harvard Law School professor Jeannie Suk begins the show with a provocative statement. In an article co-written with her colleague and husband Jacob Gersen, Suk faults universities for overcompensating, after years of neglect, on matters of sexual safety by built a paranoid atmosphere and a self-defensive “sex bureaucracy.”

An op-ed by Joseph Gallardo `19. As a beneficiary of the exact affirmative action policy awaiting its fate this month at the Supreme Court, I feel compelled to share my story. There are many criticisms of affirmative action, and I believe most of them are flawed. One argument is that affirmative action is counter-productive for minorities — that we are better off at “slower-track” schools. But my life is evidence to the contrary. I struggled mightily in school, in part because of my family’s frequent moves in search of safer neighborhoods. I had gone to three high schools and was anticipating a move to a fourth when, a few weeks into my sophomore year, I decided to drop out...But then something happened. With the help of tutors, mentors and caring professors, I began to excel at the university. In a matter of months, I belonged at UT— and I knew it.

An op-ed by Cass Sunstein. Many observers, especially Democrats, have deplored the fact that the Supreme Court is now sitting with just eight justices, thanks to the partisan standoff over replacing the late Antonin Scalia. But the current situation has had an unexpected consequence: a significant increase in judicial “minimalism” and a big decrease in grand, far-reaching rulings. Both Democrats and Republicans should be celebrating—and hoping that the court continues to embrace the minimalist approach to constitutional law after the current vacancy is filled. Chief Justice John Roberts has long championed what he calls “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” That simple principle contains two different ideas.

California’s revised eligibility rules for hepatitis C drugs appear to be easing Medi-Cal patients’ access to the highly effective medications, according to state data. Yet even with the relaxed guidelines, the vast majority of those on Medi-Cal with hepatitis C still aren't getting the costly drugs, state health officials say..."A really large state took a bold move and really reduced the restrictions, and that was a great first step toward sending the message that, 'we understand how important it is to provide treatment access to people living with [hepatitis C],'" says Robert Greenwald, director of Harvard Law School's Center for Health Law and Policy Innovation.

An op-ed by Andrew Manuel Crespo. First he called Latinos “rapists.” After that, Donald Trump forcibly ejected the country’s leading Latino journalist from a press conference, swiped at Jeb Bush for being married to a Latina, praised supporters who assaulted a Latino man, and sharply criticized the country’s only Latina governor — a fellow Republican. In terms of denigrating Latinos, that’s a hard list to top. But Trump’s most recent attack, this time against federal judge Gonzalo Curiel, is among his very worst. Unanimously confirmed by the Senate, Judge Curiel is presiding over a lawsuit that accuses Trump of swindling students at the unaccredited Trump “University,” which Trump’s own employees have described as a fraud. At a recent rally, Trump said that Judge Curiel should step off the case, and then told the crowd, who had previously chanted “build that wall,” that Judge Curiel, born in Indiana, “happens to be Mexican.” That comment was widely criticized as coded racism. A week later, however, Trump doubled down, telling a reporter that Judge Curiel’s “Mexican heritage” disqualifies him from the case because, in Trump’s words, “I’m building a wall. It’s an inherent conflict of interest.” Being Latino, that is. Only numbness to Trump’s streaming insults could spare this latest slur from becoming a campaign ender.

An op-ed by Marc Mauer, Nancy Gertner, and Jonathan Simon. Despite growing national discussion on criminal justice reform, Weldon Angelos sits in a federal prison serving out his 55-year prison term. Angelos was convicted in 2004 for three marijuana sales to an undercover agent totaling about $1,000 within a 72-hour period. During the course of these transactions he possessed a gun, which he did not use nor threaten to do so. But because of federal mandatory minimum sentencing laws, the sentencing judge was obligated to impose this draconian prison term because he had committed a repeat drug offense with a firearm, all the while acknowledging that the sentence was excessive. While President Obama has stepped up the pace of granting clemencies in drug cases, his total since taking office is only 306. With 85,000 drug offenders in federal prisons, many deserving of consideration, the pace of commutations to date is encouraging but still quite modest. With only months to go in this administration there is growing concern that the clemency initiative announced by the Department of Justice in 2014 will fall far short of expectations.

An op-ed by Noah Feldman. Are teachers entitled to free speech in the classroom? As a teacher of free-speech law, I've got a particular interest in this broadly important question. Yesterday a federal appeals court said the answer was no -- at least at public schools below the university level. The decision makes some sense in light of existing precedent. But the Supreme Court has never directly addressed the issue. When it does, it should consider the possibility that the whole law of public workplace free speech has gone awry -- and that teachers as well as other public employees should be given greater latitude to express their opinions.

An op-ed by Noah Feldman. I've been generally sympathetic to the military prosecutors seeking to convict the 9/11 planners in Guantanamo. My take has been that they are honorable people trying to accomplish a task that may be impossible, namely making the tribunal into something more than a show trial. But now the prosecutors have made a serious misstep in the form of a foray into public relations. They’re asking the court to allow public testimony by ten elderly, sick relatives of 9/11 victims this October -- before the guilt-or-innocence phase of the trial has begun. Such testimony is legally unnecessary before the sentencing phase, when it's potentially plausible to allow victim-impact statements.