Media Mentions

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.

The can of worms opened with a teasing tweet from @tribelaw, the Twitter account of Harvard Law School professor Laurence Tribe. Tribe, a frequent social media critic of Republican presidential candidate Donald Trump, disclosed that Trump had called him for legal advice 20 years ago. Saying he kept his notes from the call and implying he might release them, the constitutional law scholar mused whether his discussion with Trump in 1996 would fall under the attorney-client privilege. (Tribe's tweet came in response to Democratic consultant Bob Shrum, who called Trump a blowhard — a charge with which Tribe appears to agree.)

An op-ed by Cass Sunstein...Which brings us to Donald Trump. No one should deny that Islamic terrorists want to kill Americans, and Trump is right to emphasize the need for careful screening procedures to keep Americans safe. But by branding his political opponents as in league with terrorists, and in calling for a new kind of Cold War, Trump is engaging in a form of 21st-century McCarthyism. In some ways, he’s outdoing McCarthy. The most alarming line in Trump’s national security speech this week has received far too little attention. It wasn’t his claim that we should admit only those people who “share our values.” Nor was it his vague proposal for a new “immigration screening test.” The most alarming line was his identification of “the common thread linking the major Islamic terrorist attacks that have recently occurred on our soil,” which turns out to be “that they have involved immigrants or the children of immigrants.”

An op-ed by Noah Feldman. It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will. How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?

A quarter century after the end of the cold war, Donald Trump has proposed restoring ideological tests for immigrants, a move that legal experts say raises a tangle of practical and even constitutional concerns. In a speech on Monday devoid of policy details or specifics, the Republican nominee called for the “extreme vetting” of immigrants, including a screening process to root out applicants who do not uphold “American values”. Laurence Tribe, a liberal constitutional law professor at Harvard University, said Trump’s proposal was “a nonstarter”. “The proposal ... is very deeply un-American, is probably unconstitutional, would almost certainly fail in Congress and is another example of Trump having no idea what he’s talking about,” he said. Restricting immigrants on the basis of ideology is anathema to American values, Tribe argues. Freedom of speech and religion are enshrined under the first amendment of the constitution and the enduring symbol of freedom is the Statue of Liberty welcoming weary immigrants to its shores.

An op-ed by Adrian Perkins `18. Police departments across the country should draw heavily from military veterans to fill their ranks. Many already do this, but they should take it a step further and adapt the United States Army’s sensitivity training program, which soldiers take before deployment. This program includes mock engagements with communities, as well as religious and cultural classes. The cultural and demographic divide between local law enforcement and the communities they police can be enormous. When there is a cultural gap as wide as the one in cities like Ferguson and the north side of Baton Rouge, inadequate training, military grade equipment and cell phone and body camera technology can turn neighborhoods into tinderboxes. Ideally, our police departments should focus on improving diversity within the force, but cultural training would also be good. Actively recruiting from the military could help on both fronts.

An op-ed by Jonathan Zittrain. This month, Apple previewed some changes to its next generation of iPhones and iPads with the promise that “all the things you love to do are more expressive, more dynamic and more fun than ever.” That especially includes emojis, those little icons that, according to one study, 92 percent of the online population now make part of their everyday communication. One change in particular, though, is not delighting everyone. Apple’s new suite of operating systems appears to replace its pistol emoji, which was an image of a six-shooter, with a squirt gun...To eliminate an elemental concept from a language’s vocabulary is to reflect a sweeping view of how availability of language can control behavior, as well as a strange desire for companies — and inevitably, governments — to police our behavior through that language. In the United States, this confuses taking a particular position on the Second Amendment, concerning the right to bear arms, with the First, which guarantees freedom of speech, including speech about arms.

Nearly a year after the Boston Police Department launched a mediation program to reduce a backlog of minor grievances against officers, not a single complaint has been mediated because the officers involved have refused to participate. The program, which began in September, was billed as a way to quickly resolve routine complaints such as allegations of disrespectful treatment, which would allow the department to spend more time investigating more serious allegations of misconduct or use of excessive force. But for a complaint to be mediated, both parties must agree to participate. Under the program, managed by the Harvard Mediation Program at Harvard Law School, officers are asked first if they want to participate. If they refuse, the party who filed the complaint is not offered the option of mediation...It’s not unusual that officers are reluctant, officials say. “Officer resistance” is the primary reason similar programs fail to catch on during the first year, said Rachel A. Viscomi, assistant director of the mediation program. “It’s not a process [officers are] familiar with,” she said. “It’s a challenge anytime you’re starting something new, especially when it’s so different from what they’re used to.” “It is disappointing, but not out of the norm by any stretch,” Viscomi said.

...During the controversy, [Bryan] Stevenson visited the University of Texas Law School, in Austin, for a conference on the relationship between the death penalty and lynching. Jordan Steiker, the professor who convened the meeting, told me, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” Drawing on the work of such noted legal scholars as David Garland and Franklin Zimring, Steiker and his sister Carol, a professor at Harvard Law School, have written a forthcoming book, “Courting Death: The Supreme Court and Capital Punishment,” which explores the links between lynching and state-sponsored executions. The Steikers write, “The practice of lynching constituted ‘a form of unofficial capital punishment’ that in its heyday was even more common than the official kind.”

...In 2010, the International Criminal Court (ICC), the Hague-based tribunal created in 1998 to try the worst atrocities on earth — war crimes, crimes against humanity and genocide — announced plans to charge six Kenyans for orchestrating the postelection violence. The most important suspect was Uhuru Kenyatta; the son of Kenya’s first president, Jomo Kenyatta, he was considered by many Kikuyu to be their natural leader...Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime” — though, for this reason, Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”

...An examination of 75 think tanks found an array of researchers who had simultaneously worked as registered lobbyists, members of corporate boards or outside consultants in litigation and regulatory disputes, with only intermittent disclosure of their dual roles. With their expertise and authority, think tank scholars offer themselves as independent arbiters, playing a vital role in Washington’s political economy. Their imprimatur helps shape government decisions that can be lucrative to corporations...“I think we have too much influence of funded research with clear interests at stake that is treated as though it is independent and academic research,” said Yochai Benkler, a professor at Harvard Law School and co-director of its Berkman Klein Center for Internet & Society. “There is no culture in the discipline to mark funded research clearly, or systematically treat it as less reliable.”