Media Mentions

An op-ed by Noah Feldman. The secrecy rules for grand juries contain no exceptions for cases with historical importance. In an important victory for historians, however, a divided appeals court is unsealing testimony from a 1942 leak investigation after the Battle of Midway. The decision, which was opposed by the Obama administration, sheds some light on the debate about whether the leaks by former National Security Agency contractor Edward Snowden were justified by historic importance or were an inexcusable violation of national security.

An op-ed by Noah Feldman. If Hillary Clinton wins in November, will the lame-duck Republican Senate confirm Judge Merrick Garland to the U.S. Supreme Court? Last week, Clinton said she would look for diversity and wouldn’t feel bound to renominate Garland, which in theory should give Republican senators more reason to confirm Garland, before Clinton can nominate a more liberal candidate. Yet a careful analysis of Republican senators’ incentives in the case of a Democratic win in November points the other way. If Republicans lose the presidency, the party will enter an intense period of self-reflection and disarray. And if they also lose the Senate, the disarray will be greater still. Under those conditions, it seems most likely that Republican senators wouldn’t want the final act of their majority session to be acquiescence to the judicial candidate nominated by President Barack Obama. Instead, looking to future primary challenges, they’ll have reason to reject Garland by denying him a vote -- even if that may lead to a more liberal Supreme Court in the long run.

Anyone paying attention to Tuesday's Senate Banking Committee hearing over Wells Fargo's sales tactics is likely to hear a lot about a single word: "Clawbacks." It's the practice of doing just what it sounds like: Taking money back from an executive for compensation they've already been paid for things such as misconduct, gross negligence or "material" errors...Jesse Fried, a professor at Harvard Law School who studies corporate governance, says "it's still extremely rare to hear of a public company using its own voluntarily adopted clawback provision" to go after their own executive's pay.

Harvard Law School first-year students arrived on campus last month to an orientation program redesigned to better help them understand the educational road ahead and foster an inclusive atmosphere...We spoke with dean of students Marcia Sells about the revamped orientation and what was new at the Cambridge, Massachusetts, school this year.

Make no mistake, the Clean Power Plan is almost certainly heading for an ultimate showdown at the U.S. Supreme Court. The stakes are so high that virtually any lower court decision will be challenged. But the U.S. Court of Appeals for the District of Columbia Circuit slated to consider the case first, with oral arguments beginning Sept. 27. So is that court's decision just a mere formality? Absolutely not, say experts..."The lower court decision sets up the case," said Ari Peskoe, senior fellow in electricity law at the Harvard Law School Environmental Law Program Policy Initiative. "The D.C. Circuit decision is going to be important regardless."

The IDF’s war crimes probes in the 2014 Gaza war are a thinly veiled attempt to appear to investigate while providing a whitewash mechanism to clear all the soldiers, commanders and politicians involved of wrongdoing, a B’Tselem report said on Tuesday....In a recent posting on the influential Just Security blog, top ICC commentator Alex Whiting (along with Ryan Goodman) wrote that “where military forces follow targeting practices that repeatedly result in unjustified civilian casualties...‘or is aware that it will occur in the ordinary course of events’ – could provide a hook for prosecution.” While not addressing Israel specifically, he added, “The Office of the Prosecutor has indicated that it might argue that failing to correct a process that results in repeated unjustified civilian casualties could satisfy the intent requirement in the Statute.”

Harvard University Professor Hal Scott doesn't think financial markets are safer eight years after the 2008 financial crisis. He said the government has a limited ability to bail out banks, something that saved the financial system from further turmoil in 2008. He also comments on the effectiveness of the extra capital banks are required to hold.

An op-ed by Hal Scott and John Gulliver. The stress tests that big American banks face each year are about to get more stressful. The Fed is planning to substantially increase—by an average of 57%, we calculate—the regulatory capital that the eight largest banks in the U.S. need to pass the annual tests. Had these expected higher capital levels been in effect this year, it is likely that the country’s four largest banks ( J.P. Morgan Chase, Bank of America, Wells Fargo and Citigroup ) all would have failed the test. As a consequence, they would have been barred from remitting more profits to their shareholders. The higher capital requirements will diminish these banks’ ability to lend, potentially affecting economic growth. That isn’t all: The Fed’s secretive process for designing stress tests might well be illegal. It likely violates the Administrative Procedure Act of 1946, requiring government agencies to be transparent and publicly accountable.

An op-ed by Jack Goldsmith. A “pardon Snowden” campaign was launched Wednesday in conjunction with the Snowden film. Snowden himself made the “moral case” for why he should be pardoned, and Tim Edgar made a much more powerful case. I remain unconvinced. I don’t think the president will, or should, pardon Snowden...But to say that the intelligence community benefited from the Snowden leaks is not to say that the president should pardon Snowden, for the price of the benefits was enormously high in terms of lost intelligence and lost investments in intelligence mechanisms and operations, among other things. Many Snowden supporters pretend that these costs are zero because the government, understandably, has not documented them. But it is naïve or disingenuous to think that the damage to US intelligence operations was anything but enormous.

Cass R. Sunstein, the Harvard Law polymath who annoyed business and activists in his three-year ride as Obama's White House regulatory chief and the author of The World According to Star Wars and heavier-thinking books, is a prescient student of our digital way of talking. As I noted in my 2004 book Comcasted, while Web evangelists were still idealizing online as the place to tie our world into one big friendly village, Sunstein worried it was ghettoizing into "echo chambers" where we avoid people we disagree with, sharpen prejudices, and abandon standards of evidence. Now, the professor (whose Philadelphia ancestors make him a cousin of Comcast boss Brian Roberts) is asking the question: Do we really want to read our leaders' emails?

When Bishop C. Holifield was a student at Harvard Law School in 1967 at the apex of the civil rights movement, the fledgling organization he had founded—the Harvard Black Law Students Association—had just two members: himself and co-founder Reginald E. Gilliam. Nearly 50 years and six deans later, BLSA has a membership of around 150 students, the Law School has seen a marked increase in the numbers of black students and faculty, and several waves of race-related activism have swept its campus...The Celebration of Black Alumni was started by alumnus and Law professor David B. Wilkins in 2000 to showcase the accomplishments of black Law School graduates and entice them back to campus. He said he had observed that many black alumni previously avoided general class reunions, because of their troubled relationship with the Law School. “For many of the black alumni, it was a difficult experience for a variety of reasons and one of them was they didn’t feel welcomed or included in the school in many ways,” Wilkins said. “[CBA] was a kind of transformative experience for people, and it gave them an opportunity to work through some of the pain that they had associated with the school, and to reconcile with themselves that the school had actually done wonderful things for them over the years.”

An op-ed by Noah Feldman. Judges aren't history teachers. Or are they? That question lies at the heart of a deep left-right split over voting-rights laws. One side says that changes in state voting requirements should be assessed in the context of the American civil rights struggle. The other side says that history is irrelevant to the legality of modern voting practices. It's an emotional issue, exposed last week in an unusual dissent by a 94-year-old African-American federal appeals court judge in Ohio. The judge, Damon Keith, gave readers a history lesson complete with photographs and biographies of 36 men and women killed in pursuit of civil rights between 1955 and 1968.

This week, the International Criminal Court announced that it would give special consideration to pursuing crimes involving environmental destruction and land grabs. The announcement, made in a policy document released by the ICC's prosecutor on Thursday, appeared to show a deliberate expansion in focus for The Hague-based court..."They aren't changing the definitions of crimes or expanding the law or creating new crimes or anything like that," said Alex Whiting, a professor at Harvard Law School. "They are paying particular attention to crimes that are committed by use of environmental impact or have consequences of environmental impact."

An op-ed by Noah Feldman. Federal law is supposed to protect the privacy of your Social Security number from government inquiries -- but apparently that doesn’t extend to a check on whether you’ve paid back taxes and child support. In a decision with worrying implications for those who oppose a single national identification number, a divided federal appeals court has rejected a lawyer’s refusal to submit his Social Security number along with his renewal of Maryland bar membership.

A letter by Eileen Connor, director of litigation for the Project on Predatory Student Lending. The editorial board’s defense of ITT Technical Institutes and attack on the Obama administration’s regulatory enforcement actions were premised on a claim that “not a single allegation of wrongdoing has been proven against” ITT. This is a hollow claim in light of the fact that ITT used one-sided contracts of adhesion to bind students and employees to secret and confidential arbitration as a means of suppressing claims against it. Not only did ITT require students to arbitrate claims, but also it mandated that students who seek justice in court pay the cost of ITT’s lawyers.

A new report out Thursday by a top group of executives at some of the country’s largest financial institutions finds the Federal Reserve may be engaging in illegal activity as it tries to regulate the banking sector. The Committee on Capital Markets Regulation, which includes executives from J.P. Morgan (JPM), Citigroup (C) and Goldman Sachs (GS), explains that it is the Fed’s "stress tests" on big banks that may be against the law...“This law makes clear that if an agency wants to do something that affects a large number of institutions, they must tell you [and] put it up for comment,” says Hal Scott, director of the Committee on Capital Markets Regulation and professor at Harvard Law School.

This September is a big month for the coal industry. Early in the month, the US Environmental Protection Agency released its final version of a modified Cross-State Air Pollution Rule that seeks to cut emissions from power plants tied to smog. And, at the end of the month, a federal circuit court will begin hearing arguments over the Clean Power Plan that aims to cut carbon emissions...Harvard Law Professors Jody Freeman and Richard Lazarus explain that EPA’s rule gives states several alternative options to comply, such as replacing their coal-fired generation with plants that run on cleaner natural gas, or with green energies. States with a lot of coal, for instance, have less stringent requirements. With that, Freeman and Lazarus point out that coal plants in this country are on average 42-years-old and pollute a lot more than newer plants. Still, coal is expected to supply 30 percent of the nation’s energy mix by 2030, which negates the argument that the plan is nothing more than a “power grab.”

Following a year of of tension and discussion related to diversity at Harvard Law School, administrators unveiled a total overhaul of first-year orientation this year to acclimate students from varying backgrounds...Dean of Students Marcia L. Sells oversaw the restructuring process—a year-long project in which she consulted students and faculty to re-envision a “holistic approach” to orientation. “We really looked at the whole shape of orientation, from the key vantage point that it’s about how do we provide an opportunity for students to feel like they are acclimated to HLS and their surroundings and what the whole law school experience is about,” she said....As early as last September, first-year students dissatisfied with their orientation experiences brought the issue to Sells’s attention. One of these students was now-second-year Charlie Fletcher, who felt the Law School’s orientation fell short compared to the program at the Kennedy School, where he was a joint-degree student...Fletcher and Cameron Clark, who is now a second-year Law student and member of the student government’s Diversity and Inclusion committee and several affinity groups, also felt there weren't many affinity groups contacting incoming students at the start of the semester, leaving students feeling lost.

An op-ed by Noah Feldman. What good is the establishment clause if you can never use it? That’s the takeaway from a federal appeals court that refused to entertain a claim by parents in a New York town who allege that the Hasidic majority of the school board is illegally diverting money to religious institutions. The court relied on a narrow interpretation of the doctrine of standing, holding that the parents’ case couldn’t continue because they hadn’t been directly harmed by exposure to an unwanted religious law or message. This would be a shock to the Founding Fathers, who staunchly opposed spending tax dollars on religious causes -- but weren’t much troubled by government endorsement of religion. The appeals court’s decision stands the Framers’ establishment-clause values on their head.

Syrian refugees, while unable to seek asylum in Jordan, have been hosted with remarkable hospitality. However, their legal status and future security are contingent upon a broad array of identity documents that are not always accessible...“Over time, it’s become harder to get the documentation necessary to access services: you now can’t go to a public hospital without an MOI card, and you can’t get an MOI card unless you have an asylum seeker’s certificate,” explained Anna Crowe of the International Human Rights Clinic at Harvard Law School, who collaboratively researched identity documentation and registration issues among urban-dwelling Syrian refugees with the Norwegian Refugee Council (NRC).

Today, 13 years after he became the the first defendant ever sentenced to death in federal court in Massachusetts, Gary Lee Sampson returned to court for a new sentencing trial. Back in 2003, Sampson pleaded guilty to the stabbing murders of two men in the course of two separate carjackings in 2001, and jurors in the case unanimously chose the death penalty as his sentence. But in 2011, U.S. District Judge Mark Wolf overturned that sentence, because one of the jurors lied during jury selection. So now the court will seat a new jury, tasked with deciding Sampson's fate once again. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.