Media Mentions

An op-ed by Noah Feldman: When a state has made it easier to vote, can it reverse course and make it harder? The simplest answer is that it can -- provided the effects don’t disproportionately hurt racial minorities. But the devil is in the details, as a divided federal appeals court proved this week when it upheld Ohio’s rollback of its “Golden Week,” in which voters could register and vote at the same time. Two judges thought Ohio’s otherwise expansive voting opportunities made the revocation of Golden Week no problem. A third thought the Ohio legislature’s decision imposed a disparate burden on black voters, and was unlawful. Both positions were right. Behold the difficulty of applying voting rights law fairly and rationally in the age of subtle discrimination.

An op-ed by Noah Feldman: Cockfighting, although practiced around the world, is banned in all 50 states. But is someone who breaks the ban committing a crime of moral turpitude? A federal appeals court has said no, declining to deport an immigrant convicted of facilitating a cockfight. In a line that may outrage animal-rights activists, the court said that a crime of moral turpitude must involve harm to third parties, not just directly to the chickens. The outcome is correct for the immigrant, but not precisely for the reason the court gave. In a society that condones the factory-farm killing of billions of animals, it would be the height of hypocrisy to deport someone for killing just one rooster pursuant to an unfamiliar cultural practice.

Differences aside, Donald Trump and Senate Republicans are strongly united on one issue — ideological balance on the Supreme Court. While Democrats are pushing the GOP-led Senate to confirm Supreme Court nominee Merrick Garland by the end of President Barack Obama's term, Majority Leader Mitch McConnell, R-Ky., has been resolute in blocking him, saying the next president should fill the high court vacancy. Republicans maintain it's a winning political strategy in a year when some GOP rank and file are struggling with reasons to vote for their nominee. ... Friends of Garland point out that he went through another lengthy confirmation delay when his appeals court appointment was held up for 19 months. He was later confirmed in 1997 on a 76-23 vote. "He has given no sign of being frustrated," said Laurence Tribe, a Harvard Law professor and longtime friend to his former student.

Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: A convention of the 50 states, summoned to consider amending the Constitution. ... So what rules would an amendments convention follow? “The answer to almost every question you could ask is ‘We don’t know,'” said Michael J. Klarman, a constitutional law expert at Harvard whose book on that convention, “The Framers’ Coup: The Making of the United States Constitution,” will be published in October. “I think a convention can do anything they want — re-establish slavery, establish a national church. I just don’t think there’s any limit.”

Conservative groups pushing for a constitutional convention are just six states short of their goal. Thirty-four states are needed to call a constitutional convention under Article 5of the Constitution. So far 28 states have adopted resolutions for a constitutional convention to consider an amendment that requires a balanced federal budget, the New York Times reports. ... Harvard law professor Lawrence Lessig isn’t worried about a runaway convention. “The very terms of Article 5 state that proposals aren’t valid unless they’re ratified by three-fourths of the states,” he tells the Times. “There’s no controversial idea on the left or the right that won’t have 13 states against it.”

An essay by Jeannie Suk Gersen: Years ago, I briefly considered a job on a different career path. A person whose position made him a gatekeeper for that job had contacted me to ask if I was interested in being considered. He suggested we meet to discuss it, and named a restaurant. When I arrived, we had a respectful conversation about my qualifications.

More than a year after Usaamah Rahim was shot to death by an FBI agent and a Boston police officer in a Roslindale parking lot, Suffolk County District Attorney Daniel Conley has announced that his office will not be pursuing criminal charges against the agent and officer who shot him. ... Harvard Law Professor Ronald Sullivan, who is representing Rahim’s family, said that while they still have to review the report, which is more than 700 pages, the possibility of pressing civil charges against the FBI and Boston police remains open.

A study by Harvard Law School’s Fair Punishment Project is pointing to Duval County as a national hot-spot for the death penalty. A new study by Harvard researchers says Duval is one of only 16 counties in the country that imposed five or more death sentences in the past five years.  Senior Research Fellow Robert Smith says that puts Duval in the same league with major urban areas like Los Angeles and Phoenix. “When we started looking into the cases, what we found was this record of just overzealous prosecution.” Sixteen death sentences were handed down in Duval in the past five years, according to the study, and nearly half of the cases involved defendants with serious mental impairment.

One of the leading liberal lights of American law now says the “IRS is engaged in unconstitutional discrimination against conservative groups and must be halted.” To be clear, Harvard prof Laurence Tribe is a convert: Early in the week, he sent out a tweet dismissing the idea of an IRS scandal as long-debunked. But, as the Cato Institute’s Walter Olson noted at Overlawyered, for once social media actually shed light on a dispute: Others asked Tribe to read this month’s DC Circuit Court of Appeals ruling against the IRS in the case — and he did.

The unique American right to privacy – the Constitutional right to be “secure in their persons, houses, papers, and effects” birthed as a direct response to the British crown’s unfettered “general warrant” rights to search colonial homes is so fundamental today that nary a politician will seek to question it. The same can be said for our First Amendment’s freedom of speech and the Fifth Amendment’s guarantee of equal protection. This is what makes so amazing how the FCC might be thumbing its nose at all three core principles in its latest “privacy rulemaking.” And the noting of this came in a major broadside delivered by the most revered constitutional scholar of the day – Harvard Law School’s Laurence Tribe. In a major speech before the Media Institute, Tribe says that the effort by the FCC to strictly regulate some Internet companies’ privacy practices and not others is an affront – one that will not survive constitutional scrutiny.

Chief Justice John Roberts may not think much of legal scholarship coming out of the academy these days, but judges (or at least their clerks) do read law reviews. That much is apparent in a new study gauging the judicial impact of articles published in peer-reviewed and student-edited law journals. ...Below is the paper’s ranking of professors by judicial citations. The top three all come from Harvard law school: constitutional scholars Richard Fallon and Cass Sunstein and administrative law professor John Manning. UCLA professor and Washington Post legal blogger Eugene Volokh and Yale professor Akhil Amar follow right below them.

Op-ed by Jacob Gersen: ... [T]he federal government estimates that each year the average four-person household wastes more than two million calories, the equivalent of $1,500. Why exactly are we paying millions of dollars to throw away food? One answer—maybe the answer—is law. A mix of federal, state and local laws make it almost impossible to get food that would otherwise be wasted to those who could use it.

A new Harvard Law School report and The New York Times Magazine feature released Tuesday focus on Duval County’s role as a leading place where convicted criminals are sent to death. The Fair Punishment Project, of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, highlighted the 16 counties that sentenced at least five people to death from 2010 to 2015. Duval ranked second in the nation per capita with 16 death sentences, and 88 percent of its death sentences since 2006 were not unanimous.

Conservative groups pushing for a constitutional convention are just six states short of their goal. Thirty-four states are needed to call a constitutional convention under Article 5 of the Constitution. So far 28 states have adopted resolutions for a constitutional convention to consider an amendment that requires a balanced federal budget, the New York Times reports. ... Harvard law professor Lawrence Lessig isn’t worried about a runaway convention. “The very terms of Article 5 state that proposals aren’t valid unless they’re ratified by three-fourths of the states,” he tells the Times. “There’s no controversial idea on the left or the right that won’t have 13 states against it.”

Twenty states and the District of Columbia have abolished capital punishment. Four more have imposed a moratorium on executions. ... A new geography of capital punishment is taking shape, with just 2 percent of the nation’s counties now accounting for a majority of the people sitting on death row. ... “Racism is the historical force that has most deeply marked the American death pen­alty,” says Carol Steiker, a Harvard law professor and an author of the forthcoming book “Courting Death: The Supreme Court and Capital Punishment From Colonial Days to the Present.”

An op-ed by Mark Roe and David Skeel Jr:  The House of Representatives is pushing to enact a bankruptcy act for banks. It has passed a bankruptcy-for-banks bill, sent it to the Senate, and now embedded it in its appropriations bill, meaning that if Congress is to pass an appropriations bill this year, it may also have to enact the bankruptcy-for-banks bill. Is that a good idea? In concept, bankruptcy for banks makes sense: Why should they get the benefits of government bailouts that industrial companies rarely receive? The answer usually is that a bank failure can bring down the economy, while an industrial failure cannot. But if banks can be reorganized in bankruptcy, the possibility of a win-win result is in the cards. We could restructure a big bank to stop it from damaging the economy, but without having to bail it out. The two of us support this concept — and indeed one of us worked extensively with the Hoover Institution to draft such a bankruptcy proposal. But the bill in play has several dangerous features that could make bailouts more likely, not less likely.

Like many companies confronted with sexual harassment in their executive ranks, Fox News and its parent, 21st Century Fox, say they do not tolerate such behavior and have strict policies prohibiting it. ...If that’s so, how could the former Fox News chief executive, Roger Ailes, have conducted what now appears to have been a decades-long campaign of sexual abuse and harassment of subordinates? ... “A lot of men have gotten away with sexual harassment with absolutely no consequences,” said Catharine A. MacKinnon, a professor of law at the University of Michigan and Harvard Law School who pioneered sexual harassment lawsuits. No matter what companies say, she added, “the real rule is that the more powerful a man is, the more he gets away with.”

When Denton, Texas, passed a fracking ban in November 2014, it was national news. The story seemed out of a movie, a David-and-Goliath tale in which a scrappy band of citizens goes up against big industry and wins. Located in the heart of oil and gas territory, the town is hardly a liberal bastion; its state representative is a staunch conservative, and among its biggest annual events is the North Texas State Fair and Rodeo. But residents were watching gas drills come closer and closer to their parks and schools. ...Preemption is a relatively cut-and-dry legal matter in most states. Localities are creations of the states and have whatever power states grant them. “For more than a century, it’s been understood that city power derives from state law,” says Harvard Law School professor Gerald Frug, co-author of City Bound: How States Stifle Urban Innovation. “A lot of the fights have to be done at the state [level].”, co-author of City Bound: How States Stifle Urban Innovation. “A lot of the fights have to be done at the state [level].”

Holding a defendant in jail simply because they can’t afford a fixed bail amount is unconstitutional, the Justice Department said in a brief it filed Thursday in a Georgia lawsuit. "Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment," the department said in an amicus brief, referring to the Equal Protection Clause of the Constitution. ... Questions about the fairness of the criminal justice system even extend to the Supreme Court. A recent study published by Harvard Law Prof. Andrew Manuel Crespo found that in two-thirds of Supreme Court cases, criminal defense lawyers had argued fewer than two cases before the Court.

When the Roman Emperor Jovian ordered the burning of the Library of Antioch in the 4th century AD, there was nobody around to make him answer for what ancient Syrian culture buffs deemed a "barbaric act", according to records. Modern history is littered with cases of wartime razing, from the levelling of Dresden to the Taliban's Buddha demolition at Bamiyan. Politicians have been slow to crack down on ruinous acts, but experts hope that this month the curve will bend in the right direction. ...According to Harvard Law School scholar Alex Whiting, progress is slow, but gains are palpable. "When the US invaded Iraq, there was chaos, looting and the destruction of art and culture. No one had prepared for it at all," Whiting told Al Jazeera."This process is about drawing attention to the importance of those things. Hopefully, more care will be paid in the future."

An op-ed by Michael Golden and Harvard Law Professor Lawrence Lessig:  Over the last year, presidential candidates from both parties have ridden to great success the populist cry of a “rigged system” – in which billions of dollars in campaign cash have destroyed the very idea of a representative democracy. The American electorate has embraced this message. Donald Trump distilled the charge to a dozen words: “When you give, they do whatever the hell you want them to.” And in differing degrees and with different styles, Bernie Sanders and Hillary Clinton have both attacked the tight grip of campaign cash on the politics of our nation.But with three months to go before ballots get cast, only one of the two frontrunners – and her party – has unequivocally supported specific plans to solve these problems. And though the presidential race now dominates the media conversation, it is in Congress, which currently carries a 14 percent approval rating, where these solutions will matter the most. The polarization and paralysis on Capitol Hill, stemming from our rigged election system, prevents legislators from negotiating and compromising to make meaningful progress on the issues that Americans consistently prioritize.