Media Mentions

An article by Jeannie Suk Gersen: In a strange triumph for feminists, the election that may give us our first female President has brought extraordinary attention to women’s sexual victimization. The election turned in Hillary Clinton’s favor, perhaps decisively, when footage emerged of Donald Trump bragging about assaulting women.

Here amid the screaming riders of the Hersheypark roller-coasters and delighted customers of Hershey's Chocolate World is an educational institution unlike any other: a boarding school for poor kids that has more money than it can spend. Gushing with cash, the charitable Milton Hershey School has amassed more assets than every elite private college-prep school in the nation. ... Robert Sitkoff, a Harvard Law professor who has studied the Hershey School, said that when a charity "has resources out-of-proportion to its mission, you invite waste and mismanagement because there is all this slack. The trend in the law is to expand the charitable purpose when there are more resources, not buy golf courses."

Africa is “rising,” or so authoritative sources declared a few years ago. An Economist cover story in 2013 amplified the claim; the Wall Street Journal carried a series of articles on economic growth in Africa under this title. African “lions,” according to a report published as recently as September by the McKinsey Global Institute, are “on the move.” ... Those concerned about the health of democracy must reckon with the extraordinary influence of technocratic expertise. For, as David Kennedy, a legal scholar at Harvard, argues in a brilliant new book, “The World of Struggle: How Power, Law, and Expertise Shape Global Political Economy,” experts only appear to be describing pre-existing economic and political worlds.

The initial fear when a troika of African countries announced their intention to quit the International Criminal Court (ICC) was that the tribunal would unravel like granny’s knitting grabbed by an unruly puppy. Happily, this has not happened. ... Harvard Law professor Alex Whiting, who worked in the ICC prosecutor’s office, says the most serious challenge facing the court is not disaffected members leaving but getting the major powers to commit to fight against impunity. “If you take the long view, countries like the United States and China and Russia have to decide that either joining the court or finding other ways to ensure that there is international criminal accountability in places like Syria and other places around the world. And that is, to bring it back to the question about Africa, that’s the real problem. The real problem is not a bias of the court, but the real problem is the uneven justice around the world,” says Whiting.

...  The initiative, known as Question 4, would legalize and create a commission to regulate marijuana in Massachusetts. Under the new law, individuals at least 21 years old would be able to use marijuana, possess it, and grow up to six marijuana plants in their homes. For Charles Nesson, Weld Professor of Law at Harvard Law School and co-founder of the Berkman Center for Internet and Society at Harvard University, the issue was the subject of an in-depth discussion at the Harvard Ed Portal in Allston. Nesson’s discussion Tuesday evening on the upcoming vote was part of the faculty lecture series at the Ed Portal, and drew strongly from Nesson’s HarvardX course “JuryX: Deliberations for Social Change.”

An interview with Adrian Vermeule: In the midst of scandals, intra-ecclesial ideological battles, and a widespread attitude of indifference—if not scorn—toward religion in general and the Catholic faith in particular, a steady stream of courageous souls continue to convert from other confessions—or no confession—to the Catholic faith. ...Below, Adrian Vermeule, the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School, answers a few questions about his own recent conversion experience.

A recent federal appeals court ruling that gives the White House more power over the Consumer Financial Protection Bureau doesn't necessarily mean it will now be subject to the same cost-benefit mandates as other federal agencies. ... John Coates, a Harvard Law School professor, said Executive Order 12866 explicitly excludes “independent regulatory agencies,” as listed at 44 U.S.C. 3502(10). And the CFPB was specifically included by Congress when the agency was created. “Nothing in the PHH decision purported to interpret, address or even refer to this clear statement of Congressional intent. Nothing that I saw in the Hensarling letter addresses it, either. It remains law,” he said.

Free-speech advocates were aghast—and data-privacy campaigners were delighted—when the European Court of Justice (ECJ) embraced the idea of a digital “right to be forgotten” in May 2014. It ruled that search engines such as Google must not display links to “inadequate, irrelevant or no longer relevant” information about people if they request that they be removed, even if the information is correct and was published legally. ...  In the analogue age, such transnational problems would have been dealt with in the appropriate intergovernmental organisation. On criminal matters, information was exchanged through bilateral mutual legal-assistance treaties (MLATs). But such mechanisms are designed for limited amounts of information in a slow-moving world. Now cross-border data flows are the rule (see chart 1) and technology is evolving fast. Urs Gasser, executive director at the Berkman Klein Centre for Internet & Society at Harvard Law School, says that the existing system of international co-operation is becoming overwhelmed.

In the back of the Apple Store in Berkeley, California, at the end of the bar where those “geniuses” repair iPhones and MacBooks, is a placard with this warning: “If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.” Read the safety instructions in the manual, it tells consumers. Or else. ... CTIA hired Theodore Olson, a former solicitor general who argued the case that put George W. Bush in the White House and is considered one of the nation’s most effective U.S. Supreme Court advocates. Berkeley is represented by Lawrence Lessig, a Harvard law professor and cyberlaw expert who last year ran for president as a Democrat to push for an overhaul of campaign finance. The two are now jousting over the Berkeley ordinance in federal court.

An op-ed by Michael Perloff  ’17:  Cleveland won't have another champion this year. Instead, after the Cleveland Indians fell to the Chicago Cubs in Game 7 of the World Series Wednesday night, the only winners were the cynics, who put their cigarette butts in our champagne months ago. During a week like this one, all that's left for the rest of us are embers and disillusions.  But unlike past Cleveland letdowns, this year, we land on a pillow: The Cavs are still world champions. And now that we've experienced The Win, perhaps we can recognize a championship for what it is: a sweet reward but, at heart, a hollow one that conceals much of what makes sports meaningful.

An op-ed by Cass Sunstein: Employers, like most people, tend to trust their intuitions. But when employers decide whom to hire, they trust those intuitions far more than they should.

Are you having a crushingly tedious day at work? Try playing Google autocomplete. Type the start of a question into the world’s most trusted search engine, and marvel as the aggregated curiosity of the global crowd is marshalled to anticipate your inquiry. ...Professor Jonathan Zittrain of Harvard Law School has since described the potential for “digital gerrymandering” — tech corporations influencing the outcome of elections by, say, sending voting reminders to some users and not others. Facebook and Twitter already know your political leanings. Digital gerrymandering is possible whenever personalised information is served up by an intermediary, and it can tilt the game when margins are narrow.

A bipartisan group of congressional members and candidates is filing a federal suit Friday against the Federal Election Commission, seeking to force the agency to act on a complaint it brought against 10 super PACs in July. ... The powerhouse legal team working on the case — which includes Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush — faces an uphill fight. Half a dozen federal appellate courts have held that contribution limits cannot be placed on groups doing independent spending.

An op-ed by Noah Feldman: It’s easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there’s a deeper point that matters more and shouldn’t be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

When the Supreme Court announced its ruling last June that the Constitution guarantees the right to same-sex marriage, Diann Rust-Tierney was sitting in the front of the ornate courtroom in Washington D.C., waiting to hear the result of a death penalty case. ... “The stars seem to be lining up in a way so that the court is going to have to grapple with it,” said Robert Smith, a researcher with Harvard Law School’s Fair Punishment Project. “It would be unfathomable 10 or 20 years ago that this issue would be so debatable—and yet, today, the demise of the death penalty feels inevitable.”

An op-ed by Noah Feldman: Striking a blow against popular sovereignty by referendum, the U.K. High Court of Justice held Thursday that Britain can’t leave the European Union without an act of Parliament. Because British constitutional thought is so different from its U.S. and European equivalents, the decision will be difficult for the U.K.’s Supreme Court to overturn. It’s now much more likely than not that the courts will save Britain from its ill-conceived Brexit vote. The people may have spoken -- but the court said that wasn’t good enough.

An article by Heidi K. Gardner,  Harvard Law School Center on the Legal Profession:  Recent reports of the persistent pay gap between men and women law firm partners have prompted debates about the role of origination credits in that inequity. Thoughtful scholars, law firm leaders and partners, and consultants to the industry are typically careful not to point fingers or suggest that the bias is intentional. But the statistics can’t help but make a number of people uncomfortable or defensive.  Until now, we have relied mostly on interviews, self-reported surveys, and anecdotal evidence about the root causes of the inequitable distribution of origination credits in so many firms.  Those who are invested in the status quo point to the potential subjectivity in such data sources as a way to discredit the findings.  Even those who are keen to change the system are often at a loss about how to affect change. My empirical research at Harvard Law School’s Center on the Legal Profession gives some new insights into the foundation of this problem and some possible ways forward.

Donald Trump's refusal to release his tax returns is beginning to seem less an aberration than a prelude. And that has open-government advocates worried that a decades-long standard of transparency is at risk of extinction. ...  Beyond the information and revelation of the documents themselves, open-government advocates argue, this nonlegal standard of disclosure has represented a rare example of political compromise. "Democracy doesn't work if the attitude of people running for leadership is 'I will get away with whatever I can get away with and what the law doesn't specifically prohibit,'" said Yochai Benkler, a Harvard Law professor and advisor to the Sunlight Foundation. "That is a barely acceptable way for people who work in the private sector."

A nonpartisan Boston-based organization is training election protection volunteers to monitor the voting process across the country on Election Day. Given the heated political rhetoric ahead of Nov. 8, the Lawyers’ Committee for Civil Rights and Economic Justice says it's seeing increased desire from folks wanting to get involved, including here in Massachusetts. At a recent packed, all-ages training session at Harvard Law School, Sophia Hall detailed volunteer poll monitoring. ... Hall says the focus is on places with a combination of past voting issues and diverse demographics. "As we've seen nationally with litigation about voter ID laws and early voting, we know that the group that's most likely to be disenfranchised is going to be people of color and low-income individuals, as well as students and elderly people," Hall said.

At a lecture Thursday, Harvard Law School Dean Martha L. Minow emphasized the benefits of resolving bioethical issues through mediation, rather than litigation Minow gave her speech at the Harvard Medical School’s annual George W. Gay Lecture, an event HMS describes on its website as “quite possibly the oldest medical ethics lectureship in the United States.” ...She began by discussing Zubik v. Burwell, a 2016 Supreme Court case brought by a group of religious non-profits challenging the contraception coverage requirement in the Affordable Care Act. Minow called the case, which was ultimately sent back to the lower courts without a decision, a key example of the interplay between medicine and law, and an example of the justice system failing to resolve a bioethical issue.

An op-ed by Noah Feldman. Is the middle-finger gesture obscene? Not in Pennsylvania, according to a state appellate decision filed this week reversing a man’s conviction for giving his ex-wife the finger. Decided in the shadow of the First Amendment, the decision raises the ever-intriguing question of what counts as obscenity. It also calls into question the old idea that obscene speech is exempt from the constitutional rules governing freedom of speech.