Media Mentions

An op-ed by Noah Feldman. A federal judge in Puerto Rico ruled Tuesday that the Supreme Court’s decision in favor of gay marriage doesn't apply on the island, which is a commonwealth with a unique constitutional status. The ruling will eventually be reversed on appeal. But its effect is meaningful nonetheless, because it functions as a double protest: against the high court's support for gay marriage and against the unresolved constitutional status of the island.

An op-ed by Noah Feldman. Filing a friend-of-the-court brief to the Supreme Court sounds like an act of spontaneous intellectual generosity meant to help the justices see all sides of a case. Or maybe an exercise in lobbying by interest groups. Actually, it's neither. A new article by two law professors shows that an organized business they dub the “amicus machine” generates hundreds of amicus curiae briefs, planned and coordinated by the specialized guild of lawyers who argue before the court. Surprisingly, the authors think the machine is a good thing.

This week, The National Law Journal released its 2016 list of law schools that send the most graduates to the 100 largest firms, and Columbia led the pack. With 220 of its 2015 graduates becoming first year BigLaw associates, this is the third straight year the New York Ivy Leaguer won the title...The 2015 list does not include graduates who went on to complete judicial clerkships. This could explain Yale Law School, Stanford Law School, and Harvard Law School’s lower rankings on the list. Mark Weber, assistant dean of career services at Harvard Law, said that the school produces a large amount of judicial clerks who later move into big law firms. He maintains that law firm recruiting is up at Harvard Law.

If you have so much as tiptoed into the arena of personal finance over the past few decades, you will have heard about the virtues of passive investing. ...In a discussion paper written last year, Einer Elhauge, a law professor at Harvard University, found that index-fund ownership was having a similar effect in the airline industry, where nearly eighty per cent of all stocks are owned by a handful of investors. Elhauge argues that institutional investors with an emphasis on index funds, such as Vanguard and Fidelity, are playing an outsized role in the sector, and that their rapid adoption is accelerating ownership concentration, resulting in higher prices for travellers. “Alone, index funds are not enough, but they are growing like gangbusters,” he explained in an interview.

I had expected fireworks—or at least strong disagreements—when Internet privacy advocate Jonathan Zittrain and former CIA director John Deutsch debated the impasse between Apple and the FBI over a locked iPhone used by one of the San Bernardino shooters. Instead, the two men offered nuance and a rough if imperfect consensus over how much access we should have to technologies that allow us to encrypt our personal data in ways that place it beyond the government’s reach. “Many other paths to data are available. We are exuding data all over the place,” said Zittrain, a professor at Harvard Law School and the author of The Future of the Internet—And How to Stop It. “The FBI has chosen this case … in large part, I think, because there is so little privacy interest on the other side.”

An op-ed by Noah Feldman. Europe can’t build a wall to keep out Syrian refugees. But today European Union leaders did the next best thing from their perspective, announcing an agreement with Turkey to repel and return all those trying to come illegally into Greece by boat from Turkey. The plan represents a major shift for the EU in dealing with the Syrian refugee crisis. In place of a generous legal approach that rejected mass returns of asylum seekers, Europe is now adopting a much more hard-line attitude that distinguishes sharply between migrants seeking illegal entry and refugees who’ve already been processed within Turkey and may be granted legal settlement rights and asylum.

An op-ed by Noah Feldman. A Senate committee report has charged that U.S. President Barack Obama “bowled over” the independent Federal Communications Commission when he urged it to regulate net neutrality last year. An influential commentator went so far as to say that the White House “broke the law.” But a clear understanding of executive power and the relevant law indicates that these claims are misguided. It’s perfectly appropriate for the president to try to influence an executive agency, even one that’s independent in the sense that its leadership can only be removed for good cause. Nothing in the Senate report even vaguely suggests that Obama or his aides broke any law.

Be wary of any promises from Republican presidential candidates to abolish federal entities such as the Environmental Protection Agency and Energy Department, legal scholars told Bloomberg BNA, because they will not come true...“This is just red meat to their supporters, of course, and cannot be unilaterally accomplished,” Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA. “Presidents can ask Congress for skeletal agency budgets, try to stymie or slow agency work or control them and weaken regulation through centralized White House review, but they cannot eliminate agencies or zero out budgets by fiat, which is what these candidates are promising.” ...Laurence Tribe, Harvard Law professor and legal scholar, told Bloomberg BNA in an e-mail that the agency's origins are “legally irrelevant” to whether it could now be abolished. “The fact that an executive order by President Nixon preceded the Acts of Congress constituting the current EPA, delegating regulatory powers to that agency, authorizing its expenditures and appropriating the funds in its budget doesn't make it vulnerable to unilateral presidential abolition,” Tribe said.

An op-ed by clinical instructor Robert E. Proctor. As Housing Day approaches and we celebrate “randomization” as a mechanism to diversify the House system, Harvard still struggles to make House staff more diverse. According to House lore, in the early 1990’s there was a top ranked law student, and later president of the Harvard Law Review, who applied to be a tutor in each Harvard College House. Without so much of an interview, every House outright rejected him—save one that rejected him after his interview. This law student went on to become the 44th President of the United States.

Three weeks into their occupation of the lounge in the Law School’s Caspersen Student Center, student activists said they will remain in the hall, despite the concerns of other students and administrators...“I think when we first started, we didn’t quite imagine exactly what it is we’re doing now,” Alexander J. Clayborne, a member of Reclaim Harvard Law and the group Royall Must Fall, said. “We’ve basically transformed the space into a school within a school.” Some students, however, questioned the activists’ approach. One student critical of the occupation wrote an anonymous editorial in the Harvard Law Record, equating the activists to “bullies.”

A group of more than 350 legal scholars on Monday called upon Senators to fulfill their constitutional obligation to consider a U.S. Supreme Court nominee submitted by President Obama. In a letter sent to Senate leaders, 356 professors and scholars said that leaving an eight-justice court in place would have dire consequences. They asserted that allowing Justice Antonin Scalia’s seat to remain unfilled until after the presidential election could cripple the court and set bad precedent...Law scholars from more than 100 law schools signed on, including Harvard Law School professors Charles Ogletree and Laurence Tribe; University of California, Irvine School of Law Dean Erwin Chemerinsky; University of California, Berkeley School of Law professor Herma Kay; Stanford Law School professor Deborah Rhode; and New York University School of Law professor Kenji Yoshino.

An article by I. Glenn Cohen and Eli Y. Adashi...Mitochondrial replacement therapies (MRTs) constitute a family of technologies that seek to prevent the transmission of mutant mitochondrial DNA (mtDNA) from carrier mothers to their children. The embryos so created comprise nuclear DNA from the intended mother and nonpathogenic mtDNA from another woman (the 'mitochondrial donor')2. As such, MRTs allow a woman at risk to be the 'genetic mother' of the resulting child (at least in terms of her nuclear DNA) without passing on the pathogenic mtDNA.

An op-ed by Noah Feldman. Can the government limit nasty political ads on public buses? Great question. Just not one the Supreme Court will be answering this year. On Monday the justices refused to address it in a case arising from ads considered Islamophobic by the Seattle public transit authority. Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the court's refusal to hear the case. His reasoning -- and the implicit logic behind the denial of certiorari by the court -- sheds light on a truly fascinating and important problem in free-speech law.

An op-ed by Noah Feldman. You’ll be forgiven for chuckling at the story that a former law student is suing her law school because she didn’t get a job she liked after graduation. What could be more measure for measure? The Thomas Jefferson School of Law in San Diego taught Anna Alaburda to sue. Now she’s suing it. Alaburda’s suit essentially alleges false advertising: She says the school misrepresented the employment record of its graduates, inducing her to attend and amass debt.

...The committee’s report sent shockwaves through the legal system, and forensic science is now grinding toward reform. A series of expert working groups, assembled by the National Institute of Standards and Technology (NIST) and the Department of Justice, has begun to gather and endorse standards for collecting and evaluating different kinds of evidence...Some judges are already pretty savvy about statistics. In the Boston racketeering case, federal district court judge Nancy Gertner found the detective’s conclusion that only one gun on the entire planet could have produced the imprints on the bullet cartridges “preposterous.” She believed the evidence should have been excluded completely. But Gertner—now a professor at Harvard University—feared that an appeals court would reverse that move, so she “reluctantly” ruled that the detective could describe ways in which the bullet casings looked similar, but not conclude that they came from the same pistol. Ultimately, a jury said there was no evidence of a racketeering operation; Gertner cleared the defendants of the more serious federal charges and their cases were moved to state court.

A months-long debate over Harvard Law School's controversial seal came to an uncertain close Friday, when a committee recommend the University replace it. But in the wake of the committee's lofty suggestion to retire the seal, alumni and affiliates responded with range of opinions...“I have found from the responses that I’ve received that many people...respect the care and respect with which the committee conducted itself, and often compliment us on having handled a difficult task in a fair and open and reasoned fashion,” committee chair and Law School professor Bruce H. Mann said. Not all of the feedback Mann has received has been supportive of the change. He said he has received responses on both sides of the issue and called disagreement "inevitable."...For activists, the committee’s recommendation was an unsurprising victory. “It was exactly what I expected all along,” President of the Black Law Students Association Leland S. Shelton said...However, activists said they were disappointed the letter from Minow accompanying the report did not mention their efforts. “It totally elides over all of the tireless hard work that student activists, staff members, faculty members from across the University have been putting in day in and day out to make this happen,” Aparna Gokhale, a member of the group Reclaim Harvard Law, said...While students with dissenting opinions also commended administrators’ open approach, third-year Law student William H. Barlow, who has publicly decried activism at the school, said activists have created an environment that silences opposing voices. “There’s tremendous amounts of social pressure, especially in a university that leans heavily left, to not say anything that could be perceived as offensive or hurtful. A lot of people have chosen to stay out of the debate because they don’t want to be called a racist,” Barlow said...By no means did our charge close the chapter on Isaac Royall and racial inclusion at the Law School,” [Janet] Halley said. “Those discussions need to continue.”

The Colonial Williamsburg Foundation’s board of trustees recently elected historian and scholar Annette Gordon-Reed to the board. Gordon-Reed was the first African American to win the Pulitzer Prize for History with the publication of her book The Hemingses of Monticello: An American Family in 2009. More than a decade earlier, Gordon-Reed broke onto the scene with the publication of Thomas Jefferson and Sally Hemings: An American Controversy. That book challenged previous research suggesting Jefferson was not the father of Hemings’ children and came a year ahead of the DNA tests that confirmed a genetic match between Jefferson and Hemings descendants. “Annette’s work illustrates that one scholar’s research can change how we see fundamental individuals and events of that history, and with it our shared American identity,” said Thomas F. Farrell II, chairman of Colonial Williamsburg’s board of trustees and the chairman, president and CEO of Dominion Resources.

Elizabeth Garrett, a lawyer and scholar who was the first woman to be president of Cornell University, died on Sunday at her home in Manhattan, only eight months after starting the post. She was 52...She earned a bachelor’s degree in history from the University of Oklahoma, graduating Phi Beta Kappa in 1985, and a law degree from the University of Virginia School of Law in 1988. After graduating, she was a clerk for Justice Thurgood Marshall of the Supreme Court and a professor at the University of Chicago Law School. She also taught law as a visiting professor at the University of Virginia Law School and Harvard Law School, and in Budapest and Israel.

Even by the standards of an epically polarized Washington, the political talk about President Obama’s effort to close the Guantánamo Bay prison is starkly divorced from facts. On both sides of the debate, many claims collapse under scrutiny....“Both the Republicans and the president are significantly exaggerating the threats and harms posed by the other side’s positions,” said Jack Goldsmith, a top Justice Department official in the George W. Bush administration, now at Harvard Law School. “The moral and national security arguments on both sides mostly serve other agendas — political advantage for the Republicans, and legacy burnishing for the president.”

An op-ed by Mihir Desai. Removing the incentive for American companies to move their headquarters abroad is a widely recognized goal. To do so, the U.S. will need to join the rest of the G-7 countries and tax business income only once, in the country where it was earned. Notably, this principle—called territoriality—is included in the bipartisan framework for international tax reform developed by Sens. Rob Portman (R., Ohio) and Charles Schumer (D., N.Y.) in 2015. Unfortunately, recent reform proposals have a serious flaw: a “minimum tax” on foreign business income. This flaw is in President Obama’s fiscal 2017 budget, and Republican presidential front-runner, Donald Trump, has broached a similar idea on the campaign trail.

An op-ed by Cass Sunstein. On the Supreme Court, both conservatives and liberals admire bold, heroic figures, invoking the Constitution to strike down what they dislike most -- whether it's Obamacare, affirmative action programs, restrictions on abortion, bans on same-sex marriage or executive actions by Democratic or Republican presidents. But the U.S. has had enough of judicial heroism. As the nation debates the future membership and direction of the court, it's a good time for minimalists, who speak softly and carry a small stick.