Media Mentions

A federal lawsuit brought by states against the Obama administration marks the first major court test of its new policy that transgender students should be allowed to use the bathroom of their choice. On one level, the case is about whether civil rights laws that Congress enacted decades ago envisioned such protections of transgender rights. But underlying the complaint are also fundamental questions about the discretionary power of federal agencies, checks and balances and the difference between clarifying laws and rules and writing new ones...In a recent op-ed, Harvard law professor Jacob E. Gersen described it as an example of stealth regulation. “[T]his letter was one of those nonbinding documents. Yet it contains obligations that exist nowhere else in federal law,” the professor wrote.

An op-ed by Cass Sunstein. Democrats pride themselves on their commitment to science. Citing climate change, they contend that they are the party of truth, while Republicans are “denialists.” But with respect to genetically modified organisms, many Democrats seem indifferent to science, and to be practicing a denialism of their own -- perhaps more so than Republicans. What’s going on here?

An op-ed by Noah Feldman. Chicago squared off against the First Amendment this week -- at Wrigley Field, of all places. An appeals court upheld a city ordinance that bans all peddling, including printed matter, on the blocks immediately around the stadium. But at the same time, the court insisted that the rules must apply to everybody, including the Cubs. The home team is accustomed to selling team merchandise in this area. The First Amendment is as American as baseball, and it was at the heart of this interesting and important case.

“Know that listening is your secret weapon,” award-winning actor and humanitarian Sarah Jessica Parker told imminent Harvard Law School (HLS) graduates and their families on Class Day...Parker shared the dais with professor of law Jeannie C. Suk, recipient of the Albert M. Sacks-Paul A. Freund Award for Teaching Excellence, and Gabriela Follett, HLS program assistant in the Human Rights Program, who has been a strong supporter of the student movement on campus, Reclaim Harvard Law. She received the Suzanne L. Richardson Staff Appreciation Award. Both Suk and Follett talked openly about campus activism.

An op-ed by Noah Feldman. Historians of the future will want to know why almost no one went to jail in connection with the collapse of mortgage-backed securities that triggered the 2007-8 financial crisis. Monday’s appeals court decision reversing a $1.2 billion fraud judgment against Bank of America will be an important part of the answer. To put it bluntly, the law failed -- because the law as it existed didn’t properly anticipate or cover the events that occurred.

An op-ed by Noah Feldman. On a sunny day in Warsaw, it’s difficult to understand why the city’s well-kept streets simmer with anger and discontent over the European vision. The economy has been growing at 3.6 percent, roughly twice the overall European rate. And there’s little or no influx of Syrian or Afghan refugees: Warsaw must be whiter than any other major city in Europe, including Budapest. Yet the far-right Law & Justice Party, led by Jaroslaw Kaczynski and known as PiS, bitterly denounces the European Union for invading Polish “sovereignty” -- language reminiscent of the advocates of British exit from the EU.

An op-ed by Jeannie Suk. This month, regional battles over the right of transgender people to access public bathrooms were elevated to national legal theatre. First, the Justice Department told North Carolina that its recent law, requiring education boards and public agencies to limit the use of sex-segregated bathrooms to people of the corresponding biological sex, violated federal civil-rights laws. Governor Pat McCrory responded with a lawsuit, asking a court to declare that the state’s law doesn’t violate those federal laws. Meanwhile, in a suit filed on the same day, the Justice Department asked a court to say that it does. To top it off, on May 13th the Education Department’s Office for Civil Rights (O.C.R.) and the Justice Department’s Civil Rights Division issued a Dear Colleague letter announcing to the nation’s schools that, under Title IX—the 1972 law banning sex discrimination by schools that receive federal funding—transgender students must be allowed to use rest rooms that are “consistent with their gender identity.” The threat was clear: schools that failed to comply could lose federal funding. Protests of federal overreach immediately ensued, including from parents citing safety and privacy as reasons for children and teen-agers to share bathrooms and locker rooms only with students of the same biological sex.

Growing up in the South, Tommy Tobin was part of a family that loved food. “We liked to eat a lot,” said Tobin, who graduates this month with degrees from Harvard Law School (HLS) and Harvard Kennedy School (HKS) and a plan to build his career around food law and policy. When a severe speech impediment left him struggling to be understood, food became a way for Tobin to connect with others. In high school, he volunteered at a food bank and with the Boys & Girls Clubs of America, and watched his actions speak volumes. “I didn’t need to speak, I could just do,” said Tobin. “And speaking through service became a theme for me.”

Two years ago, James Luongo was thrilled to hear about the first new drugs that could rid his body of hepatitis C. The virus had been silently circulating in his blood for years and would likely cause liver disease, perhaps cancer. But he still felt fine. The drugs seemed like a good thing until his Medicaid insurer denied coverage of the treatment. Twice...And they hope, critics say, that they can get away with neglecting a stigmatized population. Hepatitis C can strike anyone - more than one percent of the U.S. population is infected - but is more frequent among low-income people who have injected drugs. "A disenfranchised, vulnerable community was one where they could draw the line," said Robert Greenwald, a Harvard law professor and coauthor of a study last year that found most states were rationing hepatitis C treatment. "A person with Alzheimer's on Medicaid would have family who would not tolerate not getting the cure," he said, if one became available.

An op-ed by Noah Feldman. As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods. And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on colorblindness because it’s better for blacks.

An op-ed by Noah Feldman. It's complicated to sue for discriminatory firing when you haven't actually been fired. But it's doable. The lesson from the Supreme Court on Monday is that timing matters. The justices weighed in on the important question of when the clock starts for plaintiffs who have been “constructively discharged” -- that is, effectively fired because of discriminatory treatment. Seven of the eight justices agreed that if someone quit a job and alleges discrimination was the reason, his claim starts when he quit, not when the discriminatory treatment against him is said to have occurred.

An op-ed by Noah Feldman. At the moment, Europe’s attention is focused on Austria’s presidential election, where a far-rightist was defeated by a razor-thin margin on Monday. But in Poland, where I spent the last several days, the consequences of a far-right government can already be felt. The European Union has given the ruling Law and Justice Party, known as PiS, until Monday to repeal its effort to hamstring Poland’s constitutional court. PiS has answered with a resounding “No.” A full-blown domestic constitutional crisis is brewing, which could have major implications for democracy in Europe.

The U.S. Supreme Court has ruled that a Georgia man sentenced to death is entitled to a new trial because prosecutors deliberately excluded all African Americans from the jury based on their race. The 7-to-1 ruling was one of three high court decisions issued Monday involving racial discrimination...Harvard Law Professor Charles Nesson, an expert on jury selection, says peremptory strikes invite discrimination. Striking a qualified juror by saying "Sorry, you're gone," is "an insult, and yet, it's perfectly tolerated," Nesson said.

An op-ed by Lecturer Thomas Rubin. When the story broke earlier this month that Facebook might be manipulating its “trending” news section to suppress conservative news, the reaction was quick and predictable. There was an outcry from the right and some users. The site then issued a flurry of posts explaining its editorial position and released its internal guidelines. Finally, a meeting was held between Facebook leaders and 17 leading conservatives to quell the controversy. In short, it was democracy (political fairness) and business (damage control) in action. But action is also taking place on another stage, one that should be much more worrisome to Facebook, its users, the public, and even the right. The day after the story broke, Republican Sen. John Thune of South Dakota—chairman of the U.S. Senate Committee on Commerce, Science, and Transportation—sent a pointed letter to Facebook CEO Mark Zuckerberg. In it, he demanded answers to a series of questions, including: the identification of individuals responsible for the trending section; how Facebook will hold those individuals accountable; whether any stories with conservative views were targeted for exclusion; and a list of all stories ever removed from or put into the trending section.

...The museum performance whet her appetite to continue to stage the plays, and Zier reached out to the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School (HLS), where Managing Director David J. Harris was eager to incorporate art into social justice programming. “It was an easy sell for us,” said Harris. “That these plays were written by women, and the fact that women today are leading so many social movements, especially in communities of color — lots was compelling.”...Held in the Ames Courtroom last month, the performance, “Plays That Don’t Play: The Drama of Lynching” featured the three plays performed by 14 students from the College, HLS, and the Harvard Graduate School of Education, as well as one student from Northeastern University. It was an evening (followed by a panel discussion the next day) that Harris described as “unbelievably powerful.”

An op-ed by Elizabeth Bartholet and Paulo Barrozo. Republican Representative Tom Marino of Pennsylvania and Democratic co-sponsors David Cicilline of Rhode Island, Jim McDermott of Washington, and Brian Higgins of New York introduced a bill last week that would put the United States in the position of supporting — rather than undermining — the human rights of children worldwide. It is a simple bill, consisting of only a few lines of text and requiring no new resources. But it would have a profound effect on one of the most significant human rights crises of our time. The bill would essentially tell the State Department to stop discriminating against children through its refusal to consider the violations of human rights inherent in their unnecessary institutionalization.

Staggeringly long lines at the nation's airports this spring have led officials in Chicago, New York City, Atlanta and Seattle to discuss turning security over to private contractors, instead of employees of the Transportation Security Administration..."There's this weird belief that if a corporation does something, it's good, but if the government does something it's bad," said security expert Bruce Schneier, a fellow at Harvard University's Berkman Center. "There's a lot of things the TSA could do differently, but putting it in private hands will not solve any of the problems." The problems, private or public, include inadequate funding and a tricky mission — trying to stop something horrible but unlikely, said Schneier, who comments frequently on airport security and terrorism. "The thing they're preventing almost never happens, so you're stuck in a world where everything is a false alarm," Schneier said.

An op-ed by Cass Sunstein. Here’s some excellent news on inequality: Measured from birth, the gap in life expectancy between rich and poor in the U.S. has been rapidly narrowing. It appears that a variety of policy initiatives, including those designed to promote children’s health and cut smoking, are actually working. These findings run counter to the widespread view that the economic gap increasingly means that the rich live longer while the poor don’t. That view has some solid research behind it: By some measures, rich people are indeed showing longevity gains, but in many parts of the country, poor people aren’t.

An op-ed by Noah Feldman. On Friday, Oklahoma Governor Mary Fallin vetoed a bill that would have effectively banned abortion in the state. The bill, which would have made performing the procedure a felony, was certainly unconstitutional. But it was unlawful in a very interesting way, because it raised the question of whether the right to abortion belongs to a woman or to her doctor. As it turns out, that question has been an important one ever since Roe v. Wade, a decision that actually emphasizes the rights of the physician.

An op-ed by Noah Feldman. What would the Supreme Court look like if ideology didn’t matter? We’re finding out this term. Since Justice Antonin Scalia's death in February, it's impossible for the court to land on its common 5-4 split. Now the justices -- and we -- can pay close attention to cases where the vote breakdown is much harder to explain. A case in point is Thursday’s decision clarifying what kind of “aggravated felony” can get an immigrant deported.

An op-ed by Noah Feldman. The Supreme Court's decision on attorneys' fees is not really about attorneys' fees. Behind the bland topic lies a deep and interesting philosophical question about the nature of a lawsuit, especially one brought on civil rights grounds: What counts as a win? The Supreme Court answered this question Thursday in a case called CRST Van Expedited v. EEOC. The case involved a $4 million award of fees that the trial court ordered the government to pay the trucking company’s lawyers after the court dismissed more than 150 sex harassment claims brought by the Equal Employment Opportunity Commission against the company.