Media Mentions

An op-ed by Noah Feldman. The “death of fathers,” Claudius tells Hamlet, is nature's “common theme.” That theme played out last week at the U.S. Supreme Court. In the shadow of memorial services for Justice Antonin Scalia, Justice Clarence Thomas, who is something like Scalia's jurisprudential son, stepped into the light and broke his decade-long silence during an oral argument. He did it in a classic Scalian manner, catching a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights. Then Justice Elena Kagan published a Scalia-style dissent in a statutory interpretation case, the late justice’s area of special expertise.

...At the very least, the process can be made more transparent. Mark Wu, an assistant professor at Harvard University Law School who led US negotiations on intellectual property for several previous trade agreements, says: “There’s a concern by certain members of the public that their views aren’t being heard by the negotiators, but also a concern that they don’t have the necessary information to make informed choices about the trade-offs that affect American interests.” He suggests that the USA publicly releases more details about its negotiating objectives for each section, similar to the European Union; releases information about proposals under consideration as long as its negotiating partners agree; and provides more details about the economic models they review in their decision making.

Harvard Law School is poised to abandon an 80-year-old shield based on the crest of a slaveholding family that helped endow the institution, as campuses across the country debate the use of historic names and symbols that some consider offensive...But it came with a passionate dissent from Annette Gordon-Reed, a professor of legal history who is known for her scholarship on Thomas Jefferson and his relationship with Sally Hemings, his slave. The work of Ms. Gordon-Reed, who had argued that historians had too readily discounted the oral testimony of Hemings’s descendants, was vindicated in 1998 by DNA evidence showing that Jefferson fathered a child by Hemings...In an email Friday, Ms. Gordon-Reed said she had been influenced by her scholarship on Hemings. “This is my life’s work,” she said. “I sincerely believe that we owe it to the enslaved to work through those feelings and think of ways to carry their stories forward. And we should do that in a way that shows the inherently entwined nature of the good and bad of our past, using written text and symbols like the sheaves and, even, buildings like Monticello.”

A committee at Harvard Law School has recommended that the shield that has long been used as a symbol should be retired, because it is the family crest of a slaveholder and does not reflect the values of the school...More than a thousand people contacted the committee with their opinions, which did not fall along predictable lines such as age, race, or political leanings, said Bruce H. Mann, the chair of the committee and Carl F. Schipper Jr. Professor of Law. The conversations they had were extraordinary, he said...Asked if the committee discussed possible alternative symbols for the law school, Mann said, “No, no, no. One problem at a time.”

Yesterday, the dean of Harvard Law School endorsed a recommendation to change the school's official shield because it contains the crest of Isaac Royall, a slave owner whose endowment of land helped establish the school. The recommendation came from a committee appointed by the dean, but it was also one of several demands from a student group calling itself Reclaim Harvard Law, and organization that was part of a wave of protest movements that developed on campuses across the country last fall...Student Cameron Clark tells a joke that's circulated among students of color after the tape incident...Here is Dean Marcia Sells. "The reality is many of them are things that students have been talking about for a while, so we're not, you know, looking at it from the context of we have to respond to demand. But we are looking at here are the things we have been doing."...Sarah Gitlin is a third-year student and a self-described progressive who believes in racial justice. But she thinks Reclaim is going about it the wrong way. "Instead of working with the administration, Reclaim has been fighting them, has been creating a really antagonistic environment."

A committee of Harvard Law School faculty, students, alumni, and staff recommended Friday in a report that the school abandon the shield that has long represented the school, after students decried its links to a slave-holding family. The decision comes after months of discussion and the formation of the special committee tasked with examining whether the shield’s reference to the Isaac Royall family, which owned and brutally abused slaves, was insensitive to the school community. “We believe that if the Law School is to have an official symbol, it must more closely represent the values of the Law School, which the current shield does not,” the committee said in its report to the Harvard Corporation.

The sudden death of Justice Antonin Scalia on February 13, 2016 inflicted a great loss upon the Supreme Court of the United States, the federal judiciary, and on the American legal profession. ... Historians likely will conclude that Scalia’s appointment to the Supreme Court was not just President Reagan’s best judicial appointment, but one of the best judicial appointments of the twentieth century. As Harvard Law School Dean Martha Minow stated upon his death: “Justice Scalia will be remembered as one of the most influential jurists in American history – he changed how the Court approaches statutory interpretation, and in countless areas introduced new ways of thinking about the Constitution and the role of the Court. … He was also one of the most effective writers in the history of the Court, and he had an exceptional gift for the memorable phrase.  He had a terrific sense of humor, which was accompanied by great personal warmth.”

An op-ed by Noah Feldman: Reading Justice Elena Kagan’s breezy, colloquial, witty dissent inLockhart v. U.S., the grammar case handed down Tuesday, wasn’t like reading an ordinary Supreme Court opinion -- because it was breezy, colloquial and witty. Spurred by the competition, Justice Sonia Sotomayor, writing for the majority (which is much harder), tried out a few colloquialisms herself. Something new is afoot at the court, and Kagan is at the forefront of it. In the era of fan-girl books about the court, like “The Notorious RBG,” humor is becoming a permissible mode of judicial expression.

A committee tasked with re-considering Harvard Law School’s seal in light of its ties to slavery recommended Friday that the Harvard Corporation revoke the emblem’s status as the school’s official symbol. The seal bears the crest of the former slave-owning Royall family, whose donation helped establish Harvard’s first law professorship in the late 18th century. The committee sent a report to the Corporation—the University’s highest governing body— summarizing the history of the seal and arguments for and against its removal. Their recommendation was not unanimous; two of the 12 members of the committee argued in a dissenting opinion sent along with the report that the seal should be preserved as an “honest” and conspicuous reminder of the Law School’s connection to “those enslaved at the Royall Plantation.”

An op-ed by Jordan Raymond ’16: Recent protests across university campuses have exposed the dissatisfaction that has long troubled students of color in the United States. For most of our nation’s history, collegiate environments did not tolerate black and brown people. As political scientist Ira Katznelson explained, back then “affirmative action was white.” Only in the last half-century have students of color come to expect consideration when applying to universities, largely thanks to our utility in advancing the “compelling interest” of diversity that underlays the Supreme Court decision in Grutter v. Bollinger.

Bruce Schneier, a preeminent cybersecurity expert and the chief technology officer at a Cambridge-based tech firm that was just acquired by IBM, has come out in support of Apple Inc. in its crusade against the FBI. Schneier signed an amicus brief with the U.S. District Court in support of Apple Inc.'s motion to vacate an order compelling the firm to assist FBI agents in searching an Apple iPhone seized from the car belonging to the perpetrators of the San Bernardino shootings.

An op-ed by Matthew Weybrecht 16: In an ancient Greek puzzle known as Zeno's Paradox, a tortoise challenges Achilles to a race, if only Achilles will give him a 10-meter head start. Achilles accepts the challenge, believing he can easily make up that distance. But the tortoise proceeds to explain why Achilles can never win. ... In 2016, Bernie Sanders has created his own version of this paradox. He has convincingly argued that he cannot win the race for the White House. Here's how: Sanders rails against what he sees as the corrupting influence of money in politics, focusing particularly on the Supreme Court's Citizens United decision. There, the Court ruled that the First Amendment protects independent expenditures promoting a political position or candidate, even if that money comes from a union or a corporation.

An Alabama circuit judge has ruled the state's death penalty scheme unconstitutional.  Jefferson County Circuit Judge Tracie Todd barred the death penalty for capital murder defendants Benjamin Acton, Terrell McMullin, Stanley Chatman and Kenneth Billups on Thursday, AL.com reports. It wasn't immediately clear what sentences the men will now receive. ...A 2015 study from the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that 26 out of 34 Alabama death sentences in the past five years were non-unanimous decisions.

Senate Republican leaders have insisted they won’t consider an Obama nominee to the Supreme Court, leaving that choice to the next president. But they may want to reconsider after this week — especially if they care about protecting the pro-business rulings that are among the late Justice Antonin Scalia’s most important legacies. ... “If Hillary is elected, and certainly if there’s a Democratic Senate, the Republicans would be much better off with a moderate nominee now,” said Laurence H. Tribe, professor of constitutional law at Harvard Law School. “That’s a rational way of looking at it. I’d hope they’d see reason but I wouldn’t bet the family farm on it.”.

Susan Crawford in Backchannel: This week, Google launched what amounts to a religious war in American telecom land. In a surprising announcement, the Alphabet company known as Google Fiber said it would expand its high speed Internet access services to Huntsville, Alabama — but in a different way that it currently has started up operations in cities like Austin and Kansas City.

Insurers are grappling with the high cost of hep C meds from companies such as Gilead Sciences ($GILD) and AbbVie ($ABBV), often limiting access to the drugs to the sickest patients. Now, the New York state attorney general is investigating the matter, calling on 16 health insurance companies to answer questions about their hep C coverage. ... "When an insurer limits coverage only to its sickest members, it amounts to an irrational and short-sighted rationing of care. From the perspective of an individual living with HCV who is excluded from the cure, that care is the very definition of 'medically necessary,'" said Kevin Costello, litigation director at the Center for Health Law and Policy Innovation at Harvard Law School.

Harvard Law School constitutional expert Laurence Tribe, who was Cruz’s professor, is the most visible scholar questioning the Texan’s eligibility. “Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe at a Harvard Federalist Society meeting last month. And, since the Constitution had its basis in English common law, that would mean a citizen born on American soil.

Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors...."Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished," said Richard Fallon, a Harvard law professor who studies the court.

To those who knew him best, Justice Antonin Scalia was "Nino," a man whose contrarian legal views belied his warm and friendly demeanor off the bench. Fellow justices gathered at the Mayflower Hotel on Tuesday to remember their friend. ... Scalia was remembered for his sense of humor by many, as a magnificent performer by Justice Ruth Bader Ginsburg, and a poor estimator of travel time by his daughter Catherine. "That was Justice Scalia's gift," said John Manning, a former clerk for Justice Scalia who is now a professor at Harvard Law School. Scalia took boring technical everyday law and he showed what was at stake for constitutional democracy, Manning said. Clerking for Justice Scalia changed Manning's life, he said.

An op-ed by Noah Feldman: What’s an undue burden? That question was at the heart of Wednesday’s oral argument at the U.S. Supreme Court in the Texas abortion case of Whole Woman’s Health v. Hellerstedt. In particular, the conversation focused on whether the court needs to do a cost-benefit comparison to determine an undue burden -- and if it does, what statistical evidence is needed to do it properly. As expected, the oral argument reinforced the sense that the outcome of the case depends on Justice Anthony Kennedy. The four liberal justices made it pretty clear that the Texas law, which requires abortion clinics to operate more like hospitals, should be struck down. The three conservatives, sorely missing the support of Justice Antonin Scalia, will surely vote to uphold it, although Justice Clarence Thomas kept silent on Wednesday. What matters, therefore, is how Kennedy is thinking about the undue-burden problem.

No matter which candidate emerges victorious in November’s U.S. presidential election, little progress will be made on the major problems facing the nation because the way Congress operates is broken, a Harvard law professor said during his address Wednesday as part of The Forum series. Lawrence Lessig, a one-time Democratic candidate in the presidential race before he dropped out four months ago, told the audience at UW-Eau Claire’s Schofield Auditorium that big money unduly influences members of Congress, meaning politicians pay attention to those funding their campaigns at the expense of the wishes of the vast majority of Americans. “It doesn’t matter who is elected president until we find a way to fix the way campaigns are funded,” Lessig said during his presentation titled Republic, Lost: How Money Corrupts Congress — And a Plan to Stop It.