Media Mentions

An op-ed by Noah Feldman:  It’s hard to imagine much work getting done in most offices on Tuesday -- except at the U.S. Supreme Court, which will hear cases, pretending to be blithely oblivious to the history being made in voting booths across the country. As it turns out, one of those cases is actually pretty important. It concerns whether the city of Miami can bring claims against Wells Fargo and Bank of America for racially discriminatory predatory lending under the Fair Housing Act -- or whether the law only allows suits by individuals directly affected by discrimination. The justices may split, 4-4. And the issue is exactly the kind that will be affected by the election results.

This year, new death sentences across the U.S. are set to hit their lowest levels since capital punishment was reinstated in 1976. Support for the death penalty in the U.S. is still high, but the option of life in prison and flawed prosecutions — which have resulted in more than 150 death-row exonerations— have caused district-attorney candidates to campaign on platforms of restraint, according to a report from Reuters. ... A Harvard Law School study, The Fair Punishment Project, recently named Harris and Dallas counties as "outlier" counties, where prosecutors imposed five or more death sentences between 2010 and 2015.

The court battle between the cellphone industry and Berkeley, Calif., which wants notices posted at the point of sale, exposes flaws in the U.S. legal system. The battle was covered in an extensive article in Newsweek Nov. 3 by Ronnie Cohen. ...Lawrence Lessig, attorney for Berkeley, says it is a matter of "free speech" and companies are discouraging governments from imposing regulations by filing First Amendment lawsuits that are prohibitively expensive to defend.

As M&A transactions have increased in size over the years so have their contracts. The average merger agreement has more than doubled in length over the past 20 years, according to new research from John Coates, a Harvard law professor. Contracts have gone from about 17,000 words in 1994 to nearly 45,000 in 2014. Some of the added heft is a response to new regulations, Mr. Coates found.

For an Election Day broadcast, we go back to our country's founding with a recent book on Thomas Jefferson that challenges some of the cliches about our third president.  We talk with Annette Gordon-Reed, co-author of "Most Blessed of the Patriarchs" about Jefferson's life at Monticello, his sojourn in Paris, and his views on slavery and race.  GUEST:  Annette Gordon-Reed, co-author with Peter S. Onuf, of "Most Blessed of the Patriarchs".  Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School.  Gordon-Reed won the National Book Award and Pulitzer Prize for "The Hemingses of Monticello."

A Northeastern University student has sued the school and several administrators, alleging they failed to prevent her rape on campus by another student, and that the school failed to protect her rights. ... Harvard Law School Professor Jeannie Suk Gersen said Title IX can cut both ways, as it’s been used around the country in the last year both by alleged victims and by those accused of sexual assault.

For two years, Harvard’s admissions policies have been at the center of an ongoing lawsuit alleging race-based discrimination against Asian American applicants. The case was put on hold in advance of a Supreme Court ruling on the affirmative action case Fisher vs. The University of Texas at Austin. Now that the Court upheld that admissions policy over the summer, Harvard’s case is again moving forward. ,,,Harvard Law School Dean Martha L. Minow also filed an amicus brief in conjunction with her legal counsel and Yale Law School Dean Robert C. Post ’69 last November in support of UT Austin. They wrote that a ruling against using race as one factor in a “holistic” admissions process would have “devastating” effects.

An op-ed by Noah Feldman:  Lots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best for the U.S. Supreme Court. With the hours ticking away, it’s worth running through the three most plausible scenarios to see what the election outcome will mean for the court. Most desirable for liberals will be if Clinton wins the White House and gets a Democratic majority in the U.S. Senate. If that happens, the lame-duck Republican Senate might or might not confirm the relatively moderate Judge Merrick Garland, President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat.

The list is long and shameful. The Wachovia Bank helped launder hundreds of millions for Mexican drug cartels. Wells Fargo illegally created nearly two million fake accounts and then charged customers service fees for them. ...Lawrence Lessig, a Harvard professor who specializes in the study of corruption and had a quixotic run for the 2016 Democratic presidential candidacy, said in an interview with the Star, “This is business as usual. It is deeply corrupt, but it’s not criminal. This is why the system needs to change.” The regulation of the American financial system is a series of shifting parts that includes the Federal Reserve, Treasury and several other agencies. The Senate is supposed to oversee this complicated machinery through the 22-member banking committee. “The American system is made deliberately to have a number of overlapping veto points,” Lessig said. “So all (the banks) have to do is capture one of those veto points and they can make sure that nothing gets into legislation. In fact, control over a veto point gives tremendous power over questions of staffing and personnel as well.”

As far as the Rev. Terry Jones knows, they were his ideas first. “We are asking for the immediate halting of all Muslim immigration and the removal of all illegal aliens from the United States,” the controversial Florida pastor told a Detroit radio station back in 2011. “We are asking for the monitoring of all the mosques in America.” ... Sharia is not a codified document like the U.S. Constitution, say religious and legal scholars, but rather a broad and variably interpreted set of ideas and principles for how to live life as a Muslim. It offers an array of guidance, including on prayer practices, marriage, diet and finances. It also draws on tens of thousands of texts and scholarly interpretations, meaning that there is no universally approved body of Islamic law, said Intisar A. Rabb, an Islamic legal scholar at Harvard University.

... Across the United States, 49 new death sentences were handed down in 2015, a drop from a recent peak of 315 in 1996, according to the Death Penalty Information Center. ... According to a Harvard University Law School study this year, three people sentenced to death in Harris County have been exonerated and there have been dozens of instances of prosecutorial misconduct in death penalty cases.

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.