Media Mentions

An op-ed by Noah Feldman. The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties. If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office. If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.

An op-ed by Cass Sunstein. Why do so many Americans oppose immigration, and why has it become a central issue in the presidential campaign? A growing body of research suggests that the answer isn't economic anxiety, or concerns about public spending, or even general nationalism. It is more specific -- and more disturbing. The question of what drives anti-immigrant sentiment is put in sharp relief by an extensive report released last week by the National Academies of Sciences, Engineering, and Medicine. The report finds that immigration has positive effects on economic growth -- and doesn't hurt the employment or wages of native-born workers.

President Obama’s signature effort to combat global warming was alternately lauded as a reasonable attempt to move the nation toward cleaner energy sources and faulted as an unconstitutional, job-killing power grab during seven hours of vigorous legal arguments Tuesday....Laurence H. Tribe, a Harvard law professor and former teacher of President Obama, argued against the plan on behalf of Peabody Energy, the nation’s largest coal company. Tribe said the EPA is inappropriately stepping in where Congress has failed to act on climate change. Doing so created fundamental concerns about overreach by the executive branch, he said. “There’s a reason 27 states are on the petitioners’ side and 19 are on the other,” Tribe asserted.

The Senate and the House are expected to vote this week on whether to override President Obama’s veto of a bill that would allow families of the victims of the Sept. 11 attacks to sue Saudi Arabia for any role it had in the terrorist operations. The lawmakers should let the veto stand. The legislation, called the Justice Against Sponsors of Terrorism Act, would expand an exception to sovereign immunity, the legal principle that protects foreign countries and their diplomats from lawsuits in the American legal system. While the aim — to give the families their day in court — is compassionate, the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.

The nation’s second-most powerful court grappled Tuesday with the intractable and potentially catastrophic problem of climate change, weighing whether constitutional questions surrounding President Obama’s climate change regulations should trump the moral obligations of upholding a plan to curb global warming...Among the most prominent opponents of the plan is Laurence H. Tribe, a constitutional authority who was Mr. Obama’s mentor at Harvard Law School. “This action by the E.P.A. is impermissible,” Mr. Tribe told the court. Judge David Tatel, an Obama appointee, appeared to disagree. He likened the rule to the Americans With Disabilities Act, in which the federal government set standards for states to make public spaces accessible to people with disabilities, and supplied states with federally devised plans for doing so. Tribe pushed back at that comparison. “Imagine if Congress had been unable to pass the Americans With Disabilities Act, as it was unable to pass cap-and-trade, and if instead that same agency told states they had to each pass a mini-A.D.A., and said if they don’t, we will use executive authority to put it into place?” he said.

A case against President Obama's Clean Power Plan will be heard today in the U.S. Court of Appeals for the D.C. circuit — 28 mostly Republican states, along with over 100 companies and labor and industry groups, will be fighting to overturn the plan, which was stayed by the Supreme Court back in February. Jody Freeman joins The Takeaway to explain what's next for this case. She's a professor at Harvard Law School and director of the Harvard Law School environmental law program. She also served as the White House counselor for energy and climate change from 2009 to 2010.

An op-ed by Noah Feldman. In a case that evokes a modern-day hangman’s mask, a pharmacy that provides lethal drugs for carrying out the death penalty is arguing that it has a constitutional right to anonymity. The argument should fail, because there’s no right to confidentiality in providing government services. But it shows just how dangerously far the idea of corporate constitutional rights has gone in the era of Citizens United and Hobby Lobby.

Republican lawmakers are accusing the Obama administration of allowing countries like Russia, China and Iran to take control over the Internet. Their beef with the administration focuses on a relatively obscure nonprofit overseen by the U.S. government that is scheduled to become fully independent Saturday. The organization is called the Internet Corporation for Assigned Names and Numbers, or ICANN for short. Its history traces back to a graduate student at UCLA named Jon Postel. He started keeping track of the unique numbers assigned to particular computers using the Internet, during its early days. Jonathan Zittrain, an Internet law professor at Harvard, says Postel kept a clipboard to make sure no user had the same number — sort of like a phone book. "It was just sort of an honor system that would stop Caltech from coming in, or Bulgaria, from saying, 'You know what, we're going to start using those numbers,' " Zittrain says. "It's just something that would be a way of coordinating as people came online and needed to use numbers and, later, names."

An op-ed by Winston Shi `19. A few nights ago, I stayed up way too late drawing up a CV of my various professional failures. For most of America’s existence, we’ve made a point to celebrate risk-taking, boldness, and even sometimes failure, and I wanted to get a sense of how I stacked up. But what I learned from that exercise was absolutely not what I had expected: While I make a lot of mistakes and get rejected from a lot of opportunities, in the grand scheme of things, I frankly don’t think I’ve failed enough.

A book review by Samuel Moyn. During World War I, Roger Nash Baldwin was running a rag tag organization called the American Union against Militarism when he decided to create a civil liberties bureau, in part because he felt that defending conscientious objection to conscription would serve his wider pacifist goals. He knew that there was no mention of “civil liberties” in the United States Constitution—and that even the phrase itself would be unfamiliar, since it had not much figured in political rhetoric before...Over the course of those three decades, as the story is usually told, Americans were convinced to honor free speech in new ways thanks to heroic judges who had the good sense to agree with civil libertarians. The starring role in this tale is given to Justice Oliver Wendell Holmes...Laura Weinrib overturns this simple narrative in her utterly brilliant new book. “The Taming of Free Speech: America’s Civil Liberties Compromise” shows that civil libertarian politics originated out of a trade-unionist movement for economic justice, and that its conscious choice to frame itself as serving constitutional principles above the political fray ironically disarmed the progressive movement out of which it was born.

History, as a rule, unfolds slowly at the Supreme Court. The Justices serve for decades. The cases take years. The Court’s languorous work schedule includes three months of downtime every summer. But the death of Antonin Scalia, earlier this year, jolted the institution and affirmed, once again, a venerable truism, attributed to the late Justice Byron White: “When you change one Justice, you change the whole Court.”...“There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”

The pitched battle over President Obama’s signature climate change policy, which is moving to the courts this week, carries considerable political, economic and historical stakes. Yet its legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law. That error, which left conflicting amendments on power plant regulation in the Clean Air Act, will be a major focus of oral arguments by opponents of Mr. Obama’s initiative when the case is heard on Tuesday in the United States Court of Appeals for the District of Columbia Circuit...The judges have allocated four hours to hear the arguments, rather than the usual one or two. The chief judge of the court, Merrick B. Garland, who is also Mr. Obama’s Supreme Court nominee, has recused himself. Adding to the drama will be the presence of Mr. Obama’s mentor at Harvard Law School, Laurence H. Tribe, who will argue against the climate plan on behalf of the nation’s largest coal company, Peabody Energy.

Conservative organizations are pouring money into the coffers of the Republican Attorneys General Association, which is far outpacing its Democratic rival in fundraising to elect candidates who will stand up to what they see as an activist Democratic agenda. The Republican Attorneys General Association (RAGA) had raised $15.7 million by early May, according to the Center for Responsive Politics, a campaign finance watchdog, well ahead of the $5.7 million collected by the Democratic Attorneys General Association...“The amount of money is staggering,” said James Tierney, a former Maine attorney general and an adjunct professor at Harvard Law School who blames the Citizens United ruling, which lifted limits on corporate political contributions. “But that’s because it’s legal, and it’s legal because the Supreme Court said it was legal.”

An op-ed by Noah Feldman. It’s delicious to watch the Saudi outrage at being excluded from a conference in Chechnya to define who counts as a Sunni Muslim. Wahhabism, the Sunni offshoot that dominates Saudi Arabia, has done more than any other movement in Islamic history to read other Muslims out of the faith, and turnabout is fair play. Unfortunately, the conference, organized by Chechen strongman Ramzan Kadyrov, is actually part of Russian President Vladimir Putin's fiendishly clever plan to weaken Saudi Arabia, a U.S. ally. The entire episode shows how ideologically vulnerable the Saudis feel in the age of Islamic State -- and how good Putin is at affecting Middle Eastern politics.

Hillary Clinton and Donald J. Trump are spoiling for an extraordinary clash over race and gender that could come as early as Monday’s debate, with both presidential candidates increasingly staking their fortunes on the cultural issues that are convulsing the nation....“The extremity of the divergence is unlike anything I have confronted in my adult life,” said Randall L. Kennedy, a professor of law at Harvard whose books include “The Persistence of the Color Line: Racial Politics and the Obama Presidency.” “The analogies that come to mind are Goldwater versus Johnson in 1964, and Lincoln versus Douglas in 1860.”

An op-ed by Kristen A. Carpenter and Angela R. Riley. What sparks and sustains a movement? For more than a month, members of the Standing Rock Sioux tribe and thousands of allies have gathered in camps along the Missouri River in Cannon Ball, North Dakota. They are protesting the $3.8 billion Dakota Access Pipeline which, if completed, would carry half a million gallons of crude oil per day ultimately to refineries along the Gulf of Mexico.* More urgently for the protesters, the pipeline is slated to be built within a half mile of the Standing Rock Sioux Reservation, traveling across treaty-guaranteed lands, under the tribe’s main source of drinking water, and through sacred sites. As lawyers for the tribe have argued, “An oil spill at this site would constitute an existential threat to the Tribe’s culture and way of life.”...The recent judicial decision gives the federal government time to consider more carefully the risks that the pipeline will pose for humans, the water, and the environment. But it’s not enough. The United States has affirmative obligations, both legal and moral, to protect Indian water, land, culture, and religion.

An op-ed by Noah Feldman. Prisoners can be counted in population totals for determining a voting district, even though they can’t cast ballots in the place where they’re being held. That's what an appeals court relying on a U.S. Supreme Court decision from last term has said -- even though that case involved noncitizens who are fully members of the community, not inmates who don’t contribute to the city or use local services. Wednesday’s decision casts some doubt on the theory of virtual representation that the justices used, and raises deep issues about the connection between voting and being represented.

Yahoo Inc. said Thursday that hackers backed by an unnamed foreign government had stolen personal information from more than 500 million of its users’ accounts, one of the largest security breaches of the Internet age...Bruce Schneier, a fellow at the Berkman Klein Center for Internet & Society at Harvard University, said the Yahoo breach was very serious because so many Internet users routinely store sensitive data on Internet-based systems — not on the hard drives in their desktop PCs, for example. “We no longer keep our stuff on our computers,” he said. “We keep our stuff on their computers.”

Corporate tax reform may be the issue with the highest degree of consensus among Republicans and Democrats. But when it comes to most issues regarding personal taxes, it’s been hard for those on both sides of the aisle to agree. That said, in a recent Harvard Business School (HBS) study on competitiveness, professor Mihir Desai explained there is one key area where both sides seem to agree: a minimum tax on the highest earners. While personal tax reform “cuts a little closer to home” than corporate tax reform, according to Desai, changing the tax brackets at the highest level is something that would have a real revenue impacts without too much resistance. Desai, who is both a business and law professor at Harvard, explained that there is a distinct opportunity for a new top tax bracket, especially given the changing composition of the current brackets.

A letter by fellow Delcianna Winders. Thank you for your editorial on the bill to ban elephants in circuses (“Elephant ban a first to be proud of,” Sept. 21). If passed, it will go far in protecting humans and animals. Abuse is the rule for elephants in circuses...animals subjected to constant abuse sometimes lash out. As the world’s largest land animals, elephants can easily kill a human with a single foot stomp or trunk swipe. They kill about one person every year in the United States — and injure many more.

Whether looking for some reason, any reason, to support one candidate over another, or just wanting to watch high-stakes political mud wrestling, millions of Americans will tune in Monday night to see Hillary Clinton and Donald Trump face off in the first of three presidential debates...“In my view, they’ve gotten morphed into less about the candidates’ actual substantive views on an issue, and it’s turned into a slugfest and who can have the sound bite for the next morning. And that just seems to me to be counter to helping informed citizens in a democracy make an educated choice about who they might select for their leader,” said Robert Bordone, Thaddeus R. Beal Clinical Professor of Law and director of the Harvard Negotiation and Mediation Clinical Program at HLS. “I think most viewers expect to see sound bites and fights, and that sort of expectation sets up the debates. It’s almost like the incentives to have a healthy dialogue between the two, with a debate on issues, are not there,” said lecturer Heather Kulp, who has co-written with Bordone about the need to overhaul the way presidential debates are run. “I think we underestimate what people would be interested in seeing.”