Media Mentions

The Supreme Judicial Court of Massachusetts heard arguments Tuesday on three major cases. Judge Nancy Gertner joins us to analyze their impact. We first delve into the use of mandatory minimums in drug sentencing. The case centers around a 1996 state law that the lawyers for the defendant say gives judges discretion to sentence outside of mandatory minimums. However, the Middlesex County District Attorney disagrees. The second looks at the Shrine of Our Lady of La Salette in Attleboro. The shrine sits on almost 200 acres of land and attracts thousands of visitors each year, especially during the Christmas season with its “Festival of Lights.” In 2012, the Shrine received a tax bill from the town, but the case argues religious organizations should be tax exempt.

An op-ed by Cass Sunstein: Predicting the experience of his successor General Dwight Eisenhower, President Harry Truman said this: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike -- it won’t be a bit like the Army. He’ll find it very frustrating.” Donald Trump and Ted Cruz have promised to get rid of a whole host of executive actions from the Barack Obama administration. (If the Republican convention produces a different nominee, expect similar promises.) But there’s good reason to doubt how much would happen if one of them wins. The principal reason is simple: the law.  

The Seminole Tribe of Florida urged a district court Friday to remand to state court a lawsuit accusing Wells Fargo of mismanaging a $1.4 billion trust, saying that its breach of trust claims do not belong in federal court. ... Moreover, the minor beneficiaries would not normally be understood by trust lawyers as the purchasers or sellers of securities held in trust, Harvard Law Professor Robert Sitkoff said. The experts’ opinions show that precluding the lawsuit under SLUSA would have far-reaching consequences such as enabling trustees to misappropriate trust property “with impunity,” insulating trustees from fiduciary accountability and sacrificing “portfolio efficiency” by removing several asset classes as potential investments, the tribe said.

New research from the Harvard University Center for Health Law and Policy Innovation (CHLPI) is another piece of evidence showing how health insurance plan design may be trying to discourage enrollment by patients with certain conditions and also preventing some individuals from actually getting care. CHLPI looked at trends in state health insurance exchange plans over several years and reports they are “increasingly alarmed by lower rates of coverage for necessary HIV and HCV [hepatitis c] treatment regimens.”  At the same time, cost sharing for those treatment regimens, even if the plan covers them, is increasing. They note, “This insurance practice has the discriminatory effect of discouraging individuals in needs [sic] of specific medications from enrolling in these plans or of shifting the burden of the cost back to these enrollees.” For example, the Harvard researchers found in 2016 some insurers are requiring coinsurance of 40 percent or more for all hepatitis c medicines; this high coinsurance is also sometimes required for most or all HIV medicines.

A new "sex bureaucracy" is attempting a full takeover of young people's sex lives through moral strictures that trample free speech and the due process of law. In only the most recent symptom of this disease, a court recently ruled that George Mason University wrongfully expelled a student in 2014 -- for engaging in consensual sex with his girlfriend. ...A forthcoming paper to appear in the August issue of the California Law Review outlines "The Sex Bureaucracy," which Harvard Law School professors Jacob Gersen and Jeannie Suk argue is thoroughly regulating "the space of sex" in America. The "bureaucracy dedicated to that regulation of sex ... operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

A letter by HLS’s Animal Law & Policy Program Fellow Delcianna J. Winders: While tuberculosis cases rose last year in the U.S. for the first time in 23 years, the federal government has stopped regulating an important vector of this potentially deadly disease (“Tuberculosis Cases Climb for the First Time in Years,” U.S. News, March 25). Experts have found that at least 18% of elephants in this country carry tuberculosis, and elephants can easily transmit TB to humans because it is airborne.

Prospective students who converged on the Law School’s campus last weekend found themselves in the midst of protests and a new financial justice campaign by activists. ...“The Fees Must Fall campaign is a start of a conversation around financial justice that we believe that Harvard Law School should be engaging in,” Reclaim Harvard Law member Sam S. Koplewicz [’16] said. “It’s not just about fees; it’s also about wages for workers and healthcare for workers, and about how we invest our money. Those things cut across both financial discrepancies and racial discrepancies.”

It was raining lightly when marchers of the Democracy Spring coalition set out Saturday, trudging past Independence Hall in Philadelphia on their way south toward Washington, D.C. ... The visionary of the new, expanded reform movement is another professor, Larry Lessig of Harvard Law. He's written a book about political money, organized other grassroots groups, even tried running for president on the issue last year. At the march, Lessig said the goal is not to undo Citizens United. "Citizens United was the best thing for the reform movement since Richard Nixon. What it did was rally people," he said. But big donors already had too much sway, he said: "The democracy was already dead. The Supreme Court might have shot the body, but the body was already cold."

An essay by Michael Shammas ’16 :  Over the last few days, I’ve struggled to come up with an article that captures my conflicting thoughts about what’s going on right now at Harvard Law School. I’ve been depressed that the maturity of an important discussion on group identity has utterly failed to meet even the low standard set by my family’s internecine Lebanese dinner parties. So initially I came up with four words instead, words that are apparently controversial here at Harvard Law School, but that—when applied to all—facilitate respectful debate: “You might be wrong.”

An op-ed by Scott Brewer: This past Wednesday evening I attended the screening of the film “Bridge of Spies” that Dean Minow and the Program on Negotiation hosted here at HLS. I had known nothing of the main subject of the film, James B. Donovan, a 1940 HLS alum (played in the film by Tom Hanks) who had a distinguished career as a lawyer-statesman-negotiator. Donovan’s career came to mind as I listened to conversations among some of my colleagues about the controversial contest over student use of a WCC space that some students have been, as they put it, “Reclaiming” (actually, “claiming”?), while other students (one, Mr. Barlow, has been especially prominent) have been seeking to use it to speak by means of posters even as Reclaim has sought to deny him that speech. The film made clear that Donovan was willing to champion robust advocacy, as a matter of principle, even in support of deeply unpopular causes, at personal cost and risk. As far as I can tell, the historical record of Donovan’s life seems to support the conclusion that the real-life Donovan really had and lived by these views.

Saturday morning was rainy and cold, as a few hundred activists gathered in front of Philadelphia’s historic Independence Hall, home of both the Declaration of Independence and United States Constitution. They were there to draw attention to ways in which our government has become less representative and democratic. ... As they prepared to step off, Lawrence Lessig, the Harvard professor, activist, march organizer and — briefly — presidential candidate, addressed the crowd. “When Madison puttered around in that building convincing people to sign onto a constitution,” Lessig said, “at the core of his ideal was a democracy that would be responsive to the people, with this ideal of equality.

An op-ed by Noah Feldman: Dog bites man may not be a news story -- but in nine western states, it’s grounds for a constitutional case. The U.S. Court of Appeals for the 9th Circuit has allowed a lawsuit by a woman who fell asleep in her office after a hard night’s drinking, accidentally tripped a burglar alarm, and was bitten in the lip by a San Diego police dog responding to the alarm. What makes the case so interesting is that the San Diego Police Department trained Bak, a service dog, to enter a room and bite the first person she saw. Her training was to hold the bite in place until her handler ordered her to release her grip.

An op-ed by Noah Feldman: In a victory for both noncitizens and common sense alike, the U.S. Supreme Court on Monday rejected the argument that state election districts must be drawn equally based on eligible voters rather than population. The court’s decision staves off a xenophobic push to discount noncitizens, which is a good thing. But almost equally noteworthy was an opinion by Justice Samuel Alito, who was joined by Justice Clarence Thomas in saying that states could use eligible voters to redraw their districts if they wish.

An op-ed by Noah Feldman. When the first act of a new legislature is to circumvent its country’s written constitution, it’s usually a bad sign. Not so in Myanmar, where the democratically elected parliament moved last week to create the post of “state counselor” and give the job to Aung San Suu Kyi, the leader and symbol of Myanmar’s long struggle against military dictatorship. She’s banned from serving as president by the constitution enacted under the military government that preceded hers, under a provision meant to prevent her from taking the office. Getting around it is a triumph of constitutional creativity and respect, not a worrisome undercutting of the rule of law.

Nearly 200 Democrats in Congress – including most from New England – are supporting the Environmental Protection Administration as it faces a legal challenge to its effort to regulate carbon emissions from coal-burning power plants. “The law is clear: The Clean Air Act gives EPA the authority to regulate air pollution and that is what the agency is doing with the Clean Power Plan rule,” Sen. Edward Markey, D-Mass., said during a conference call Friday with reporters to announce the filing of an “amicus brief” in support of the rule...A similar brief was filed Thursday by Harvard Law Professors Jody Freeman and Richard Lazarus on behalf of two former EPA administrators who had been appointed by Republican presidents Richard Nixon, Ronald Reagan and George H.W. Bush. Former EPA Administrators William D. Ruckelshaus and William K. Reilly are supporting the Clean Power Plan as a “pragmatic, flexible, and cost-effective pollution control program” that respects the authority of states. They argue that the rule “falls well within the bounds” of the agency’s authority to reasonably interpret broadly worded statutory language to address unforeseen problems without the need for congressional amendment of current law.

An article by Michael Shammas `16. The afternoon sun beats down, yet you persist. Your three comrades—tempered into friends by shared hardship—walk behind you. One ushers you over, whispers: “Look.” And you look. Beyond a sun-lit haze you see two red-bearded goatherds abreast their flock—and they, the goatherds, they too look—straight at you. One yields a crooked smile, waves. But deep down, this feels wrong; intuitively, you fear the men will compromise your mission, setting the lives of your fellow SEALs at risk. What do you do? There is little time as the goatherds walk away and recede into the valley. You agree to vote. “Shoot them,” whispers one comrade. “No,” says another. The third abstains. You have the deciding ballot, and your moral instinct says no (not to mention the natural and positive laws of war), and so you yourself say “no.” Despite the anomalous situation, suggesting governing ethics rules—especially international principles against killing civilians—might result in a less-than-optimal outcome, the problem is tough, so you gladly defer to guidelines long-ago dictated by custom, culture, the U.S. Navy. To obey is easy; to reason, hard.

Tensions flared in a standoff between activists and opposing students at Harvard Law School Friday as an intensifying debate that began over posters evolved into one about rights to space and free speech on campus. The controversy began Monday, when third-year Law student William H. Barlow—a vocal critic of the Reclaim Harvard Law student group—put posters on the walls of the Caspersen Student Center lounge equating the activist movement to Republican presidential candidate Donald J. Trump. Activists removed the posters—an action Barlow considered a violation of his right to free speech...Reclaim Harvard Law member Rena T. Karefa-Johnson said activists decided to remove the posters they considered to be offensive, in part because the Muslim Law Students Association held a conference in the lounge the day Barlow put up signs referencing Trump...“This is an occupation. This is our space, our house,” Reclaim Harvard Law member Alexander J. Clayborne said. “Let Bill Barlow put up posters anywhere else, just not here.”

Harvard Law School administrators amped up security and amended school policies in response to an escalating debate about free speech that began with a confrontation over posters last week. Students in the group Reclaim Harvard Law have occupied the Caspersen Center Student lounge—which they are calling “Belinda Hall”—since February to advocate for increased support for minority students on campus. Last Monday, third-year law student William H. Barlow, a vocal critic of Reclaim Harvard Law, posted signs in the lounge comparing the group to Republican presidential candidate Donald J. Trump, a move activists saw as offensive. Reclaim Harvard Law members removed the signs and told Barlow that they had jurisdiction over what could be posted in the space...Activists said they can control speech in the room because they are occupying the hall and designating it a make-shift office of diversity and inclusion. Therefore, they argue, they have the right to remove signs they consider to be offensive. “This is a place made for inclusion. Inclusion doesn’t mean that you let everything that anyone wants go up,” Bianca S. Tylek said. “Inclusion means protecting from exclusion.”...Students have taken to the pages of the Harvard Law Record to weigh in on the debate. The poster dispute has soured several students on the Reclaim Harvard Law movement, which they say they initially supported but now disapprove of activists’ tactics. Marlen Thaten called the movement “authoritarian” in a Record piece, and third-year Law student Stephen M. Silva said activists’ tactics have created a “pervasive” silencing effect on dissenting speech at the school. “They decided they’re going to stifle, basically, any other ideas people are going to say,” Silva said in interview. “I think it’s very unfortunate because they have some very good ideas.”

Recent interpretations of Title IX by the Office of Civil Rights that broadly define sexual harassment have created a “chilling” effect at America’s colleges and universities, threatening academic freedom, due process, and free speech, argues a recent report released by the American Association of University Professors. The report characterizes OCR as conflating conduct and speech cases, creating a “seemingly limitless definition of harassment” without explicitly reaffirming the protected speech of classroom instructors, leaving faculty who teach and research sensitive topics related to gender, sex, sexuality, and rape law vulnerable to sexual harassment charges...“I have heard from a number of colleagues, not just in criminal law but in other subjects, that they are now unwilling to teach any cases having to do with sex or sexuality, that they’re scrubbing their syllabi of material that touches on those topics, because those topics are the areas in which [they] could be perceived as engaging in unwanted verbal conduct of a sexual nature,” said Harvard Law School professor Jeannie C. Suk, whose writings on the challenges of teaching rape law are quoted in the report. “As long as the standard that is being used looks at whether the act is regarded as undesirable or offensive, then of course anything that one teaches having to do with sex or sexuality can be regarded as undesirable or offensive.”

...Although granted broad powers under the USA Patriot Act of 2001 to institute and enforce anti-money-laundering measures in a variety of industries, including banking, mortgage, insurance, and real estate, the Treasury Department has not required those involved in real estate closings, such as title companies, real estate and escrow agents, or lawyers, to ascertain or report who profits from the purchase and sale of properties. Juan Carlos Zarate ’93, J.D. ’97, is a visiting lecturer of law at Harvard Law School, a former deputy national security adviser in the George W. Bush administration, and a former assistant secretary of the U.S. Treasury for terrorist financing and financial crimes. The Gazette spoke with Zarate about the scope of the problem and what this new oversight might portend.

An op-ed by Sam Moyn: The most interesting question to ask about the Universal Declaration of Human Rights, passed by the United Nations General Assembly on 10 December 1948, is why it was ignored in its own time, even as it is celebrated in our own. The reason, I believe, is that the document reflected not a breakthrough internationalist minimalism but a small part of a familiar nationalist welfarism, in which a concern for civil liberties was not separated from economic and social entitlements.