Media Mentions

An op-ed by Noah Feldman. By law, the federal government is supposed to manage the wild horse population in the West. But what happens if, despite an overabundance of the beautiful beasts, the government does nothing about it? The official answer is not much, according to a federal appeals court that turned down Wyoming’s challenge to federal inaction. The decision follows familiar principles of deference to agency action (or, in this case, inaction). But it leaves farmers or others negatively affected by the overpopulation with essentially no recourse, a result that seems at odds with the intent of the law.

An op-ed by Mark Roe. An often-heard refrain, increasingly voiced in US politics, is that corporate America is excessively influenced by short-term stock-market considerations. While the US presidential election is not particularly focused on policy at the moment, the campaign will soon end, at which point people will govern and policies will be adopted. Given that both Republicans and Democrats have criticized short-termism, it is possible that some of those policies might aim to address it. They are unlikely to make any difference. Not only has the problem of short-termism been woefully exaggerated, but the policy proposals for addressing it are severely lacking. Consider Democratic presidential nominee Hillary Clinton’s proposal – which Vice President Joe Biden has endorsed – to use the capital gains tax to encourage shareowners to hold on to their stock for a longer time.

A letter by Charles Fried. In “The Supreme Court Is Being Hypocritical” (Op-Ed, Oct. 11), Gabe Roth criticizes the justices for playing by their own rules instead of heeding their decisions in suits before them “that have parallels with how they act as stewards of their institution.” He writes that “surely Justice Kagan’s experience in the Obama administration constituted ‘significant involvement’ in the Affordable Care Act cases” and that the justice should have recused herself. Justice Elena Kagan’s “significant involvement” was as solicitor general, a position that is primarily concerned with managing the administration’s appellate litigation.

Leaders of Harvard’s renewed “Living Laboratory” initiative, designed to engage students and faculty in sustainability efforts, say the program reflects growing interest in environmental action on campus. The core idea of the Living Laboratory initiative, which will be housed in the Office for Sustainability, is to use the Harvard campus as a test bed for new ideas related to combating climate change and improving public health. The Climate Solutions Living Lab Course and Research Project, led by Law School clinical professor Wendy B. Jacobs, will launch in spring 2017. The interdisciplinary course will discuss various approaches to reducing greenhouse emissions at Harvard and beyond. “The object of the course is for the students to do some real life problem solving about climate change,” Jacobs said. Jacobs also talked about the importance of collaboration and a multidisciplinary approach in the course. “The class is specifically designed to bring together faculty and students across campus,” she said.

Christian business owners are pursuing a new legal strategy to oppose laws they say would force them to use their artistic talents to promote same-sex marriage...ADF hopes to win with pre-enforcement challenges, which have been an effective legal maneuver for decades on several high-profile cases involving abortion, campaign financing and the Affordable Care Act. "They require that there (is) a realistic possibility that the plaintiff would actually be subject to some enforcement action," said Harvard Law School professor Mark Tushnet. He said this generally happens when a government agency announces that a policy — such as a non-discrimination law — will be enforced, or when someone has been denied service and threatens to sue.

An op-ed by Hal S. Scott and John Gulliver. A new Securities and Exchange Commission rule goes into effect Friday that can restrict investors from withdrawing their cash from the money-market funds that were at the heart of the 2008 financial crisis. If the G-20's international regulator (the Financial Stability Board) has anything to say about it then a similar rule will soon apply to the $16 trillion invested in all U.S. mutual funds. This would be a dangerous mistake. The FSB's proposal is to charge investors' penalty fees if they try and sell their mutual-fund investment during a crisis and would even include a complete prohibition of such sales in extreme circumstances. It is expected to finalize its proposal later this year and then the SEC, U.S. Treasury and Federal Reserve are expected to promptly implement them in the U.S.

An op-ed by Jeannie Suk Gersen. Last year, in holding that states must allow gay and straight couples alike to enter civil marriage, the Supreme Court extolled the “transcendent importance of marriage,” its beauty, nobility, and dignity. That was the fulsome culmination of the decades that led to marriage equality. But, just as two people must enter marriage with the law’s blessing, they need the law in order to exit it. As legal marriage is now universally available, so, too, is legal divorce. Marking the start of a period in which divorce may well get more attention is the new HBO series “Divorce,” which began airing this month. Sarah Jessica Parker, the show’s star and executive producer, has explained that her desire to tell the story of an ordinary suburban couple’s divorce was motivated by fascination with the inside of a marriage. The show, written by Sharon Horgan, of “Catastrophe,” understands that how people divorce can reveal more about a marriage than anything one could see before its unravelling.

"I feel very strongly about our Constitution," Donald Trump told Fox News in January. "I'm proud of it, I love it, and I want to go through the Constitution." It must be a love/hate relationship that the Republican presidential nominee has with the Constitution of the United States, because many of his plans and statements would violate many of its most important amendments. "It would take more time than I can spare today to list all the provisions of the Constitution, and all the principles underlying it, that contradict Trump's various pronouncements about what he wants to do," Laurence Tribe, a constitutional law professor at Harvard Law School, told ATTN: in an email.

Chester Finn, co-founder of the charity Community Empowerment Programs, talked about overcoming the judgments of others through self-advocacy at Harvard Law School on Friday. Finn currently works with Michael A. Stein, executive director of the Law School's Project on Disability, developing storytelling projects so that people with disabilities can talk about how they make their own choices and where they fit in the world...Stein lauded the work Finn has done as a self-advocate while introducing Finn. “In all those places, Chester has lent his wisdom, his smarts, his savvy to programming and work,” Stein said. Alice Osman [`17], a student at the Law School, said she enjoyed listening to Finn’s personal narrative.

Current and prospective students, activists, and legal experts explored how legal strategy and international human rights advocacy influences indigenous rights in the U.S. at Harvard Law School’s Indigenous Rights Movement conference last week. Kristen A. Carpenter, an Oneida Indian Nation Visiting Professor of Law at HLS, said the conference sought to give students access to conversations on federal Indian law, a subject for which Harvard has no permanent professor. “It seems important to really do a lot of programming when we’re lucky enough to be here teaching for a short time, and really make an impact on the community and the students’ educational opportunities, as well as to note particularly what’s going on in the present moment of advocacy around American Indian issues,” Carpenter said. Carpenter co-chaired the event with Robert T. Anderson, another Oneida Indian Nation Visiting Professor of Law; Angela R. Riley, law professor at the University of California, Los Angeles; and Lorie M. Graham, law professor at Suffolk University Law School.

An op-ed by Noah Feldman. There’s no need to believe the Russian propaganda that says the U.S. agreed to let 9,000 Islamic State fighters flee Mosul to go fight President Bashar al-Assad in Syria. But the story “reported” Wednesday by Russia Today (on the basis of a single anonymous source) does capture a strategic truth in the run-up to the attack on the Islamic State-controlled city: The fighters have good reason to flee -- and the Iraqis and the U.S. have good reason to let them.

An op-ed by Cass Sunstein. Bob Dylan has surpassed Walt Whitman as the defining American artist, celebrating the capacity for self-invention as the highest form of freedom. “He not busy being born is busy dying,” Dylan sang, in “It’s All Right, Ma (I’m Only Bleeding).” Reinventer of folk music, voice of the 1960s, blues singer, rock star, born-again Christian, champion of gospel, country singer, old-style crooner, and now winner of the Nobel Prize for Literature, Dylan has found a million different ways to say the same thing.

The imposing architecture of New York City’s courts give the impression that the law is immutable. The long-serving district attorneys who marshal that law are similarly so permanent as to be like statues, their names unshakably on the ballot. But Ken Thompson’s brief tenure as Brooklyn district attorney threatened to change that, by bringing the zeal of a reformer to the borough’s courts. He quickly drew national attention for halting prosecutions for most low-level marijuana possession in 2014, for example...Harvard Law professor Ronald S. Sullivan Jr. had been the chief public defender in the DC court system. An adversarial judicial system traditionally puts defense attorneys on the other side of a deep divide from prosecutors. Sullivan had done academic work on exoneration and the potential for errors in certain types of convictions. “The first time he called, I had to make sure that he had the right guy,” Sullivan says...For Sullivan, one of the crucial changes embedded in the CRU was prosecutors being encouraged to think of themselves as “ministers of justice.”

Wells Fargo...has come under fire for deceptive sales practices that led to the opening of about 2 million accounts without customer authorization. After facing a grilling on Capitol Hill, CEO John Stumpf retired effective immediately on Wednesday...For Hal Scott, Harvard Law professor and author of "Connectedness and Contagion," the black mark on Wall Street could have serious repercussions. "It really affects the ability of the federal government, and in particular the Fed, to be a lender of last resort to Wall Street if we go into another crisis," he said. "The more unpopular Wall Street becomes, the less possible it is for the Fed to support it in a crisis."

Four sections of Law School students voted to use discretionary funds to host lunch events with striking dining hall workers, despite the reservations of school administrators...First-year law student and social committee member Zach Sosa said some students raised concerns about the use of funds potentially alienating students who disagreed with the strike...For first-year Law student Alexandra Rawlings, using section funds rather than personal contributions was part of the point of the proposal.“Half of the point was like ‘Hey, you guys won’t use your money to take care of your employees, but we want to use it to do that’ so that symbolic decision—which didn’t actually happen for my section—was pretty important,” she said.

At the Conference on Race and Justice in the Age of Obama, academics, activists, and government officials engaged in a heated debate about whether President Barack Obama effectively addressed race-related issues during his administration...Ronald S. Sullivan Jr., a professor at Harvard Law School, argued that despite Obama’s limited executive powers, his administration’s Justice Department is working resolutely to advance civil liberties. “A president can’t wave a magic wand and say, ‘Civil rights, repair!’ That doesn’t happen. The executive is constrained in very real ways,” he said.

Donald Trump reiterated Thursday that he’s preparing a lawsuit against The New York Times after the paper published what he called a “fabricated” account of new sexual assault allegations against the Republican nominee....“Trump has no case at all,” Laurence Tribe, a Harvard law professor, told The New Republic in an email. “It’s really not even debatable,” said Nadine Strossen, former president of the American Civil Liberties Union. Both Tribe and Strossen said Trump would need to meet the legal standard of the landmark Supreme Court case New York Times Co. v. Sullivan and prove, in Tribe’s words, that the story “was factually false and that the Times either knew that it was false or was reckless in the story’s creation and reporting.” “Trump could not possibly meet that standard,” Tribe said, “and his case would be dead on arrival. It wouldn’t even reach the discovery stage.”

An op-ed by Jonas Monast, Sarah Adair and Kate Konschnik. "What steps will your energy policy take to meet our energy needs, while at the same time remaining environmentally friendly and minimizing job loss for fossil power plant workers?" Like it or not, the next president will need an answer to this question, posed by audience member Ken Bone in the second presidential debate, in the early days of his or her administration. The electricity sector that powers our country is undergoing its most significant transition since mass electrification. Last year, for the first time ever, the United States generated as much electricity from natural gas as from coal, thanks to the shale gas boom and historically low natural gas prices...Decisions by the next president will shape how the electricity sector responds to these and other changes that carry with them wide-ranging economic and environmental consequences. Yet energy policy has barely registered as an issue this election cycle despite dramatic differences in the candidates’ platforms.

An op-ed by Cass Sunstein. In one of the most stunning rulings in recent years on separation of powers, the prestigious federal court of appeals in Washington, DC, on Tuesday struck down the law creating the Consumer Financial Protection Bureau -- at least as the independent agency that Congress designed. To cure what it saw as a constitutional defect, the court ruled that the bureau’s head must not be independent of the president, but must serve at his pleasure and be subject to his complete control. It’s an appealing idea, elaborated with an unusual level of scholarship, clarity, and even passion. But as a matter of constitutional law, it’s a bit wild. The Supreme Court shouldn't accept it -- and probably won't.

An op-ed by Noah Feldman. Is it unlawful race discrimination for a company to ban dreadlocks in the workplace? In a decision that has become a topic of debate among law professors, a federal appeals court said no last month. The case is so important because the court defined race as biology, emphasizing “immutable characteristics” as the subject of anti-discrimination law. But for more than 75 years, scholars have understood that race is as much or more a matter of culture than it is about biological reality. The decision in EEOC v. Catastrophic Management Solutions is therefore built on quicksand -- and it’s a mistake to embrace it, even if on some level the result might seem like common sense.

An op-ed by Raymond Flynn and Mary Ann Glendon. “You can get all A’s and still flunk life,” wrote the great 20th-century Catholic novelist Walker Percy. The authors of this paper have done Catholic educators and families a tremendous service by explaining precisely why the secularized Common Core national standards, which were devised primarily for public schools, are incompatible with and unsuited for a traditional Catholic education. There are many similarities between Catholic schooling and its public K-12 educational counterpart, but the two have fundamental and profound differences. In addition to providing students with the academic knowledge and skills they need to prosper, Catholic schools have a unique spiritual and moral mission to nurture faith and prepare students to live lives illuminated by a Catholic worldview. It is that religious focus that makes the Common Core standards particularly ill-suited for Catholic schools.