Media Mentions

As voters around the country decided the fates of Sens. Marco Rubio and John McCain and Rep. Debbie Wasserman Schulz, at least a few observers focused on the primary for Jacksonville’s elected prosecutor. Ten-time Grammy Awards winner John Legend celebrated State Attorney Angela Corey’s loss. So did “Orange Is The New Black” author Piper Kerman and former Democratic presidential candidate and Vermont Gov. Howard Dean...Harvard Law School professor Ronald Sullivan said, “Overzealous prosecutors, like Angela Corey, who have resorted to pursuing draconian sentences regardless of the circumstances will soon see themselves being replaced with leaders who have rejected these failed policies of the 1980s and ’90s, and are truly committed to reforming the justice system with proven, evidence-based, equitable solutions that increase public safety.”...David Harris, managing director of the Charles Hamilton Houston Institute at Harvard Law School, said the election results show that “voters have spoken in no uncertain terms about the kind of change they want to see and it speaks well beyond any single prosecutor to changes across the justice system.”

...Despite the lengthy road ahead, John T. Trumpbour, research director of the Labor and Worklife Program at Harvard Law School, said he believes the students can win their battle. “The Harvard graduate students right now are in a much better position to achieve victory for unions than was the case then,” Trumpbour said. “People right now are so much more organized and energized.” In the same turn of events that happened in the early 2000s, the upcoming presidential election could impact the Board’s decision. Trumpbour said a Donald Trump administration would be in the University’s best interest, with the idea that he would pack the NLRB with Republican appointees who would reverse the decision. “They’re kind of in a tough position because they are very afraid of Trump getting elected for a variety of reasons, but on this particular issue they would much more be in need of a Republican president to get the Board’s composition to change,” Trumpbour said.

An op-ed by Susan Crawford. America, we have a problem, and it is tall, ubiquitous, and on the side of the road. It is poles. Not the polls that do or do not track the progress of Donald Trump. Not people of Polish extraction. Utility poles. Poles are the key to our future, because poles are critical components of high-speed fiber optic internet access. The lucky towns that have dominion over them have been transformed—take, for example, Chattanooga.

An op-ed by Charles Fried. It was urgent that Hillary Clinton in her Reno speech indict Donald Trump for his regular, unremitting embrace of the slogans, causes and emblems of the far right (not conservative, please!) hate-mongering fringe of our public discourse.This is not just an accidental association. It is his chosen signature. Remember, he was an enthusiastic birther and has gone on to embrace every sinister paranoid fantasy since.These are not ghosts you can raise just when it seems convenient or because a particular crowd might thrill to them and then when the time comes to govern you can waive aside and pretend you never summoned them. You lie down with dogs, you get up with fleas. And these fleas carry the disease of virulent hatred and discord.

Not too long ago, a statement like this spoken in the hushed, hallowed hallways of the Harvard Law School library would have been considered heresy: "I think for court decisions, law books are becoming obsolete and even to some some degree a hindrance." That's Adam Ziegler, and he's no heretic. He's the managing director of the Library Innovation Lab at Harvard. Ziegler is leading a team of legal scholars and digital data workers in the lab's Caselaw Access Project. "We want the law, as expressed in court decisions, to be as widely distributed and as available as possible online to promote access to justice by means of access to legal information," Ziegler said. "But also to spur innovation, to drive new insights from the law that we've never been able to do when the law was relegated to paper."

An op-ed by Steve Ansolabahere and Jacob E. Gersen. In late July, President Obama signed a bill requiring some form of labeling of foods containing genetically engineered materials. The measure preempts state laws, like Vermont’s, that require different labels than those mandated by the federal measure. The law requires companies to disclose any genetically engineered materials, but does not require them to disclose that fact on the label or product itself. Rather, if companies choose, they can simply put a bar code or QR code that consumers could scan with a smartphone to retrieve the relevant information. Smaller companies would be allowed to include only a phone number that consumers could call to learn whether their food is genetically engineered. The call-me-later approach to food labeling is more than a bit unusual.

A letter by Fellow Delcianna Winders. Will Coggin of the Center for Consumer Freedom — a lobbying group that shamelessly defends tobacco companies, agribusiness and other corporations — suggests that S63, state Sen. Ray Lesniak’s bill to protect consumers, cats, and dogs, is “a bad bill” Nothing could be further from the truth. Lesniak’s bill, which the Senate overwhelmingly passed and is now pending before the Assembly as A2338, is an important measure to protect against the many problems created by large-scale commercial breeders, which, like many of the businesses Coggin represents, put profits above the interests of consumers and animals.

An op-ed by Lecturer David Hoffman. After 31 years as a courtroom lawyer, I have decided to walk away from litigation. I have been mulling this decision for many years, primarily because of my disgruntlement — and my clients’ disgruntlement — over the costs, delays, and the sheer unpredictability of courtroom battle. Trial lawyers often comment ruefully: “I have lost cases I should have won, and just as often won cases I should have lost.” It was not an easy decision. To be completely blunt, litigation is lucrative, even if it is sometimes ruinously expensive for clients. Litigation can also be immensely satisfying, when you win.

An op-ed by Noah Feldman: Major media outlets in France have recently decided not to publish the names and faces of terrorists so as not to glorify them and encourage copycats. On the surface, this might seem like reasonable self-imposed discretion in the interests of national security. But it’s actually self-censorship -- and it’s dangerous. It reflects a subtly mistaken conception of why jihadis are prepared to die for their cause, and it risks dehumanizing an enemy that is dangerous precisely because its adherents are humans with identifiable motives. The French daily Le Monde, the Catholic newspaper La Croix and a French affiliate of CNN called BFM-TV expressly connected their decisions to the recent spate of attacks in France. Le Monde said the goal was to prevent “posthumous glorification” of the terrorists.

An op-ed by Noah Feldman: Religious liberty and transgender rights are two of the signature civil-rights issues of our era. So it was only a matter of time before these competing ideals of freedom and equality came into direct conflict -- and now a federal district court has held that religious-liberty laws can trump the laws that prohibit sex-based discrimination. The decision is an indication that the courts need to recognize bias against transgender people as a form of sex discrimination. The case involves an employee of a Michigan funeral home who began transitioning from male to female. The funeral home has a gendered dress code that requires male funeral directors to wear suits with trousers and female directors to wear skirt suits. The employer refused to allow the transitioning employee to wear a skirt suit on the job, firing her when she refused to wear the men’s attire.

An op-ed by Noah Feldman: In a victory for teachers’ unions, the California Supreme Court on Monday refused to strike down the state’s generous tenure laws -- which a lower court had said violated students’ rights to an adequate education. Significantly, the court’s 4-3 ruling didn’t break down on purely partisan lines. Two prominent liberals, each of whom could be contenders for the U.S. Supreme Court in a Hillary Clinton administration, dissented. That’s evidence of a growing divide among liberals about whether favoring teachers might actually be a bad thing for students. In 2014, a California lower court judge struck down teacher tenure provisions as violating the state constitution. As I noted the time, California’s laws seem poorly designed, allowing tenure after just two years and even when the teacher may not be fully credentialed. Aside from the badness of the law, I criticized the judicial decision harshly for its lack of well-developed constitutional reasoning. Among other things, the court simply asserted in a single paragraph that poor schools tend to get worse teachers, and that this counts as a violation of the equal protection of the laws.

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.