Media Mentions

An op-ed by Mischa Haider and Bruce Hay. “Let us write a different story this time,” U.S. Attorney General Loretta Lynch urged at her press conference this month, announcing the Department of Justice’s lawsuit to strike down House Bill 2, the notorious anti-LGBT law enacted by the North Carolina legislature in March. Her remarks have been justly celebrated for their simple, compelling declaration that transgender rights are civil rights, period. As we look back on the past month’s developments, which include the Obama administration’s issuance of national guidelines against anti-transgender discrimination in schools and the president’s own pronouncement that “righteous anger” against such discrimination must be augmented by concrete action, it is worth reflecting on the challenge the attorney general has set for the nation with her memorable words.

A Northland man who will be working in a Native American tribal court after he graduates from Harvard Law School believes tribes in the United States have valuable lessons for Maori as they settle with the Crown. Whangarei man Kingi Snelgar and his partner Kiri Toki were awarded Fulbright Scholarships to study at Harvard University in Boston to complete their Master of Laws degrees. They headed overseas in August last year and will graduate on May 26. After graduation Mr Snelgar will work as a judge's clerk at the Oglala Sioux Tribal Court in Pine Ridge, South Dakota, and Ms Toki at the Navajo Nation Supreme Court in Arizona.

A letter by Fellow Delcianna Winders...Kudos to the students of the Pace Environmental Policy Clinic, Assemblywoman Amy Paulin and State Senator Terrence Murphy for their efforts on behalf of elephants. Although Ringling Bros. and Barnum & Bailey Circus has removed elephants from its traveling performances, numerous other circuses continue to bring shackled elephants into New York State to force them to perform under the constant threat of physical punishment.

On Monday, Harvard’s Mark Wu published a paper titled “China Inc.,” highlighting how China’s unique economic structure could easily create tensions with other countries that are a part of the international trade regulator.

An op-ed by Noah Feldman. The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people. The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it. But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party.

An op-ed by Nancy Gertner. Access to justice means more than fancy courthouses, a courtroom with high ceilings, the American flag unfurled, and even compelling quotes from the U.S. Constitution. Access to justice means more than a presiding judge looking dignified in a long black robe, on an elevated platform, with the lawyers before him or her. Access to justice is not a Kabuki show—the ceremony of justice but not the reality. But to those accused of misdemeanor offenses in the Bronx, a court proceeding is just a hollow ritual. According to the lawsuit filed by The Bronx Defenders, Emery Celli Brinckerhoff & Abady, and Morrison & Foerster, there are few trials, no opportunity to confront witnesses, no way to challenge the government's case, no opportunity to be publicly vindicated in a speedy proceeding, and unconscionable delays.

An article by Samuel Moyn. In 1947 Julian Huxley, English evolutionary theorist and director-general of UNESCO, wrote Mohandas Gandhi to ask him to contribute an essay to a collection of philosophical reflections on human rights. Gandhi declined. “I learnt from my illiterate but wise mother,” he replied, “that all rights to be deserved and preserved came from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world.” Huxley should not have been surprised by the rejection. As far back as Hind Swaraj (1909), his masterpiece in political theory, Gandhi had bemoaned “the farce of everybody wanting and insisting on . . . rights, nobody thinking of . . . duty.” And during World War II, when another Englishman, H. G. Wells, solicited Gandhi’s support for his bill of rights defining war aims, the mahatma recommended that Wells write a cosmopolitan charter of duties instead—a statement of what citizens of the world owe to each other...So we are now very familiar with the claim that all humans everywhere have rights. But we are much less familiar with the notion that rights are protected by the fulfillment of duties.

Op-ed by Noah Feldman: Foreign governments can't be sued in U.S. courts. Foreign companies can. What happens when China's state-owned companies claim to be part of the government? Nobody knows because the law is confusing, but some U.S. courts are taking the Chinese claim seriously.

Sight, sound, smell, touch and taste can all trigger traumatic flashbacks. So can words. And right now, battle lines are being drawn around attempts to limit exposure to words that could rekindle past trauma. ... In The New Yorker, Jeannie Suk, a Harvard law professor, wrote that student organisations had asked teachers to warn their classes the rape-law unit might "trigger" traumatic memories.

Q&A with Charles Ogletree: The internationally renowned legal theorist reveals the inside scoop on the Obamas, talks race relations at Harvard, and shares his thoughts on the new Supreme Court nominee.

An op-ed by Jeannie Suk. In this country we don’t ban “Mein Kampf,” Ku Klux Klan screeds, or objectionable terms for racial groups. It is clear that the government cannot disallow offensive or hateful speech. But the federal trademark law, known as the Lanham Act, has since 1946 barred the registration of marks that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” In 2014, after nearly half a century of registering and renewing “The Redskins,” the government cancelled the football team’s trademark registrations, on the grounds that the name may be disparaging to Native Americans. The cancellation does not ban the team’s use of the name. Instead, it does away with the legal presumption that the team has the exclusive right to use the name in commerce, thus providing a substantial incentive for the Redskins—and other groups—to avoid using a name that may be considered offensive. The Supreme Court will likely consider the question of whether the government is permitted, under the First Amendment, to deny registration of disparaging trademarks, in the case of Simon Tam, for whom the Redskins are strange bedfellows. When Tam applied to register the name of his all-Asian dance-rock band, the Slants, he meant to reclaim an epithet for Asians as a badge of pride, but the government refused the registration on the grounds that the name was likely disparaging to people of Asian descent.

An op-ed by Noah Feldman. North Carolina bans registered sex offenders from Facebook. Unsurprisingly, a sex offender wants the Supreme Court to strike down the law. Perhaps more surprisingly, he has support from 16 notable professors of constitutional law -- from left, right and center. I’m loath to disagree with an all-star cast of colleagues that includes some of my teachers and good friends. But I think their argument goes too far.

An op-ed by Noah Feldman. Secrecy and justice don't mix. Just look at the latest contortions in the case of Khalid Sheikh Mohammed, the accused mastermind of the September 11 attacks. Mohammed's lawyer has filed a motion alleging that, at the prosecutor’s request, the judge allowed the government to destroy evidence that Mohammed could have used in his own defense. The proceedings of the special military tribunal at Guantanamo Bay are so secret that no one is allowed to say what the evidence was or to read the motion.

A U.S. appeals court in New York revived a lawsuit seeking to stop the government from collecting on loans made to students of a nationwide beauty school chain, since it knew the now-defunct company routinely falsified student eligibility for those loans...It is a victory for thousands of borrowers who said Wilfred American Educational Corp victimized them into obtaining loans to attend its roughly 60 for-profit trade schools, popularly known as the Wilfred Academy. The last closed in 1994. Toby Merrill, director of Harvard Law School's Project on Predatory Student Lending, said low-income borrowers like many of the plaintiffs are "primary targets of predatory schools," and often unable to vindicate their rights. "This has been an enormous problem in for-profit trade schools," Merrill, who filed a brief supporting the plaintiffs, said in an interview. "The decision shows that the Department of Education can't sit on those rights."

The pitchforks are out for Facebook, which is under increasing scrutiny for the role humans take in deciding what stories merit inclusion in its "Trending Topics" feature. As a First Amendment matter, it's an open-and-shut case: Facebook has the right to exercise editorial judgment — by human editors or algorithms — in any manner it chooses....A call for greater transparency in Facebook's role as a news organization might bring bad publicity, but it would have no legal authority. "There may be a call for greater transparency, accountability, but now you’re running right up against the First Amendment," said Andrew Sellars, the Dunham First Amendment Fellow at Harvard University's Berkman Center for Internet & Society.

...But this week, Facebook’s reputation for neutrality took a major hit...But even if Thune and other Republicans wanted to regulate Facebook, it’s not clear how they would do it. “It’s all tricky, because it’s all speech,” says Jonathan Zittrain, a law and computer-science professor at Harvard University and a co-founder of the school’s Berkman Center for Internet and Society. At the end of the day, Facebook makes an editorial product, and like any editorial product it is protected under the First Amendment. But federal regulators or entrepreneurial legislators would still have several options...But Zittrain said there may be an even more promising way to keep Facebook from acting against its users’ interest. In an unpublished paper that he is writing with Jack Balkin, a Constitutional law professor at Yale Law School, Zittrain recommends that certain massive repositories of user data—like Apple, Facebook, and Google—be offered a chance to declare themselves “information fiduciaries.” An information fiduciary would owe certain protections to its users, closing the “disconnect between the level of trust we place in [online services] and the level of trust in fact owed to us,” according to the paper.

An op-ed by Noah Feldman. A company whose violation of human rights abroad strongly affects the U.S. can be sued in any federal court in the country -- except New York and Connecticut’s Second Circuit. A decision there Tuesday means it will remain stubbornly outside the pack. The U.S. Court of Appeals for the Second Circuit refused to reconsider an earlier decision that might have put it into conformity with the other circuits. The majority in the court's opinion said it wasn't worth bothering after the Supreme Court sharply reduced liability under international law in 2013. The dissenters thought the appeals court should fix what it saw as a mistake made in 2011 when it first held that corporations can’t be held responsible for human rights violations in other countries.

An op-ed by Benjamin Levin, Climenko Fellow. What happens after a prison sentence ends? For many individuals with criminal records, their troubles are just beginning. Every year, more than 600,000 people are released from prison, but, a year after release, more than 70% remain jobless. Finding a job can be even harder for people of color with convictions or arrests on their record. To address these obstacles, President Barack Obama recently made a major policy proposal: “ban the box” for all federal employment. This policy would forbid employers from requiring job applicants to disclose past convictions (i.e., they would remove the criminal history checkbox from the application). While the specifics of Obama’s proposal aren’t entirely clear, the rule would mean that federal job applicants wouldn’t be required to reveal any criminal history when they first applied for a position.

When do you toss food from the fridge or cabinet to the garbage? When it’s past the “use by” or “sell by” date marked on the packaging? When starts to look clammy, wilted, or moldy? When it tastes off or fails the sniff test? Turns out, a lot of people rely on those labels, even when they’re not quite sure what they mean, according to a new survey released today at a food waste summit in Washington, D.C. The survey, conducted by a team from the National Consumers League, Harvard Food Law and Policy Clinic, and Johns Hopkins Center for a Livable Future, probed how customers make sense of food labels, which are notoriously variable and unstandardized... “Many people throw away food once the date on the package has passed because they think the date is an indicator of safety, but in fact for most foods the date is a manufacturer’s best guess as to how long the product will be at its peak quality,” Emily Broad Leib, the director of the Harvard Food Law and Policy Clinic and a survey co-author, said in a statement.

An op-ed by Michael Shammas `16. Writing for Harper’s last month, Ralph Nader issued a warning: Tort law is dying. In combating ambulance chasers, malpractice premiums, and frivolous lawsuits, we went too far. Tort reform became tort deform. The public was played, hustled into dismantling its Seventh Amendment right to a jury trial. Too bad. By making negligence costly through the threat of lawsuits, tort law assures us — visiting a theme park, driving a car, taking a prescription drug — that we’re safe. It fills the gap between legislative failures and market failures. It allows the poorest victims to sue, since plaintiff’s attorneys aren’t compensated unless they win. It operates democratically, transferring decision-making power from elites to lay jurors, using subpoenas to force even the most powerful actors to disclose wrongdoing.

An op-ed by Kayleigh McEnany`16. It was about a year ago that Donald Trump stormed onto the political scene. Many were taken aback by the confident, unapologetic and far from politically correct New York businessman -- including me. I admit that, for the first month of his candidacy, I had my concerns about Trump. I questioned, for example, whether someone with such cutting yet candid honesty, a candidate who veered so sharply from so many of the usual political expectations, could ever become president. The more I watched Trump on the campaign trail, though, the more some of these supposed weaknesses turned out to be strengths. I kept an open mind...Like many others, I fully expected Trump to back down from his controversial statements as any good, scripted Washington politician would. After all, such brazenness was not permissible in mainstream political discourse. But rather than backing down, Trump pushed forward and the media was incensed. His audacious, unflinching boldness in the face of an onslaught of criticism is a virtue that I would not just come to accept, but also to appreciate and admire, leading me to endorse him before voting ever began.