Media Mentions

An op-ed by Noah Feldman. A Senate panel has called the online advertising site Backpage.com a clearinghouse for sex trafficking in minors, and has subpoenaed its policies and records. The company says it’s a canary in the coal mine for government intrusion into the editorial decisions of journalists -- and has asked the Supreme Court to block the subpoena. Chief Justice John Roberts has stayed the subpoena to read briefs from the opposing parties. When he digs into the details, he may find that both sides are at least partly right.

An op-ed by Annette Gordon-Reed. By now, very few Americans remain who have not at least heard of the Broadway smash hit Hamilton, which tells the story of America’s first secretary of the Treasury. The vast multitudes who have been unable to score a ticket to see the play have gotten to know it from the chart-topping cast album. Lyrics from the songs have become catchphrases — the determined Hamilton insisting, "I’m not throwing away my shot"; a gleeful Jefferson crowing, after Hamilton did throw away his "shot" (his political career) by publicly confessing to adultery, "Nevah’ gon’ be president now!" That last one was perfect for the 2016 primary season, with candidates falling left and right before the Trump juggernaut...The robust debates about Hamilton will continue as well. Despite the truly astonishing amount of good press the play has received, it has been the subject of a few strong critiques — which have been met with forceful responses. These debates, though informative, seem to me curiously and unfortunately polarized. Defenders of the play often appear to believe that critical discussion of the work must inevitably diminish Miranda’s accomplishment. That is simply not the case.

Marcia Sells, BC ’81 and the dean of students at Harvard Law School, emphasized the importance of self-discovery in her keynote speech at Barnard’s 127th convocation on Tuesday. Sells, who served as the dean of students at Columbia Law School before arriving at Harvard, was also the vice president for employee and organizational development at Reuters America and the assistant district attorney for the Kings County district attorney’s office. In an elaborate “The Wizard of Oz” metaphor, Sells described the many parallels she saw between Dorothy’s journey through Oz and a Barnard student’s experience at the college.

The future of food is here, and it’s decidedly female. The editors of Food & Wine and Fortune magazines teamed up to spotlight women entrepreneurs, activists and leaders in the food world who’ve worked in the past year to transform the way people dine. Twenty earned a spot on their Most Innovative Women in Food and Drink 2016 list...Emily Broad Leib At the Harvard Food Law and Policy Clinic, Leib is tackling the enormous problem of wasted food, which crowds landfills and leaves many hungry, by trying to change legislation around the way food is labeled. “We want to make labeling laws clearer, so when people pick up a yogurt, they know when it’s OK to eat it and when to throw it out,” she tells Food & Wine and Fortune. It may also make perfectly fine food easier to donate.

Jamarria Hall can’t stomach walking into his high school on Detroit’s east side some days. The classrooms are hot, water fountains don’t work and only 2.2% of students last year achieved college-ready scores in reading and English...A federal civil rights lawsuit filed on Tuesday aims to challenge Hall’s educational system by asserting a constitutional right to literacy, in what attorneys say is the first legal challenge of its kind in the US. The 133-page complaint says the state of Michigan has disinvested in education in Detroit so much that children lack fundamental access to literacy...Harvard constitutional law professor Laurence Tribe, who is not involved in the litigation, said he expects the lawsuit will make history, “much as Brown v Board of Education did”. “The legal theory underlying the suit is both creative and rock-solid,” he said, “and Mark Rosenbaum’s legal team is nothing short of extraordinary.” “If you think of Brown v Board as one shoe that dropped, this is the other shoe,” he said, “because though it eliminated, technically, inferior schools for blacks, and eliminated de jure segregation, it didn’t achieve one of its basic goals. And that is a decent educational opportunity for all kids, regardless of race, regardless of class, regardless of geography. That’s become a more elusive goal.”

A federal appeals court questioned during a hearing Tuesday whether the city of Berkeley is unduly discouraging customers from buying cell phones by requiring retailers to warn them about the possible radiation effects of carrying switched-on phones close to their bodies...“If we interpret this (ordinance) as warning that cell phones are unsafe, I don’t see that you have defended it,” Judge Michelle Friedland told Berkeley’s lawyer, Lawrence Lessig, a Harvard law professor...Lessig replied that the federal agency had labeled its standards as safety measures and required cell phone manufacturers to include them in their manuals with each sale, the same message that Berkeley is conveying to consumers. “The FCC has never said that cell phones are safe” in all uses, Lessig said. “We should be allowed to rely on the FCC’s judgment.”

High-profile appellate advocates faced off Tuesday in the U.S. Court of Appeals for the Ninth Circuit in a fight over how and when local governments can force businesses to make statements about the safety of their products. Arguing on behalf of a wireless industry group, Gibson, Dunn & Crutcher's Theodore Olson asked a Ninth Circuit panel to block a Berkeley law requiring retailers to warn customers against keeping cellphones too close to their bodies. Olson claims that the compelled commercial speech violates the First Amendment and, if allowed to stand, would spur the creation of a patchwork of local rules. Meanwhile, Berkeley's lawyer, Harvard Law School professor Lawrence Lessig, argued that the city ordinance only calls for retailers to make factual statements echoing language the Federal Communications Commission already requires manufacturers to include in cellphone use manuals...Lessig, who helped the city craft the language of the law and has signed on to defend it pro bono, pointed out that the disclosure only points to language that cellphone manufacturers themselves are required to put in user manuals. "Our position is that we are relying on a regulation of the FCC," he said. Local governments, he said, shouldn't have to fund research to retest industry-established standards in order to compel safety disclosures by industry.

The story goes that human rights rhetoric took down the Soviet Union. The USSR couldn’t stand up to the propaganda onslaught, led by internal and external dissidents propelled by newly-minted human rights language. But the story has more to it, Samuel Moyn, Harvard law and history professor and author of The Last Utopia: Human Rights in History, told teleSUR. The Soviet constitution of 1936 “offered more human rights to its citizens than any state in human history”—especially in what would later become known as social and economic rights—he said, but it couldn’t stand up to the romantic moralism of the West. No matter that the United States had not ratified key human rights covenants that the USSR had: one side was weaker and came up short in the war of words.

An op-ed by Cass Sunstein. Last week was the 50th anniversary of “Star Trek” -- or more precisely, as my Bloomberg View colleague Stephen Carter notes, the airing of the first episode of the series. It’s not often that after a half-century, a television show sparks a national celebration (including a set of commemorative stamps from the U.S. Postal Service). What accounts for the series’ enduring appeal? The answer lies in its portrayal of experiences and societies that, by virtue of their radical differences from our own, allow us to see the most familiar things in a new light. That’s what the best science fiction does...With that point in mind, here’s an account of three iconic Star Trek episodes -- ones you’d show someone who wants to know what the fuss is about.

An op-ed by Noah Feldman. We have the right to pick and choose our friends, romantic partners and guests. And there are laws to ensure that hotels or restaurants can’t discriminate on the basis of race or sex or national origin. What’s less clear is which of these standards should apply to sharing-economy services such as Airbnb, which fall somewhere in between the public and private spheres: The host is renting space, but that space is otherwise private and the host often lives there. In general, the Civil Rights Act prohibits race and sex discrimination in “public accommodations” such as hotels and lunch counters. And the Fair Housing Act prohibits discrimination in long-term rentals and sales. But courts haven’t yet held that these federal laws cover an overnight stay in a private home.

An op-ed by Winston Shi `19. Regardless of where you came from or where you are going, the first thing you learn at Harvard University is that you don’t know anything. Was this something you expected to read in The Crimson this early in the year? No. Probably not. But this is the only information you’ll really need, both here and in life. At the very least, it’s the most important thing I’ve learned. Freshmen, transfers, everyone: I’m a first-year law student. I’m new here, too. And like you, I just learned that I don’t know anything. Again.

The House on Friday approved a bill to allow families of those killed in the Sept. 11, 2001, attacks to sue Saudi Arabia for any role in the terrorist plot, setting up a rare bipartisan showdown with the White House...The bill “is a politically cost-free way for Congress to send a signal of seeming seriousness about terrorism on the dawn of the 15th anniversary of 9/11,” said Jack Goldsmith, a professor of law at Harvard who served in the Department of Justice under President George W. Bush. “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

Sean Ellis was convicted of murdering Boston Police Detective John J. Mulligan in 1993. In 2015, Ellis was released on bail after 22 years behind bars. Friday morning, the Supreme Judicial Court of Massachusetts concluded Ellis was unfairly tried and entitled to a new trial. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

An op-ed by Jack Goldsmith and Matthew Waxman. Tomorrow is the fifteenth anniversary of the beginning of the longest armed conflict in American history. But another significant anniversary in the “Forever War” is today, September 10, for two years ago on this date President Obama announced his “comprehensive and sustained counterterrorism strategy” to defeat the Islamic State. The United States had been bombing the Islamic State sporadically throughout the summer of 2014, under the President’s Article II Commander-in-Chief power. But at about the time on September 10 when President Obama announced the United States’ ramped-up efforts “to degrade and ultimately destroy” the Islamic State, he also shifted the legal basis for the effort to the 2001 Authorization to Use Military Force (AUMF) that had been the foundation for the conflict against the Taliban, al Qaeda, and Associates since a few days after the 9/11 attacks. Obama “welcome[d] congressional support for this effort” in that address while making clear that he did not require it. One month later, the Pentagon named the campaign “Operation Inherent Resolve.”

An op-ed by Noah Feldman. A Superior Court judge just took over Connecticut's education system, ordering state officials to undertake major reforms of funding, teacher evaluation and graduation standards. The impulse to improve education is admirable, but the judge wildly overreached his authority. The Sept. 7 decision is an object lesson in what happens when judicial restraint is ignored. Judges are poorly placed to compel and supervise detailed policy reforms, and they’re less expert on the subject than state officials who are responsible to the electorate.

The reinstatement of banana workers' pesticide exposure claims against Dole Foods and other corporate defendants brings the Third Circuit into line with other circuits on a procedural question involving what happens when duplicate suits are filed in different federal courts...“The en banc court held that ‘a district court should generally avoid terminating a claim under the first­filed rule that has not been, and may not be, heard by another court,’” Professor Rhonda Wasserman, University of Pittsburgh School of Law and Visiting Professor of Law, Harvard Law School told Bloomberg BNA. In doing so, Wasserman said, the full appeals court properly spent its time, “focusing on the ‘basic fairness' of providing litigants with an opportunity to present the merits of their claims in court.” Wasserman's scholarship includes federal class action practice, and she has written a treatise on procedural due process. “The ruling preserves the goals of the first­ filed rule—judicial economy, comity, and avoidance of inconsistent judgments—while ensuring the plaintiffs a much belated opportunity to present their claims on the merits,” she said.

The transgender debate has never been confined to public restrooms. And a recent federal lawsuit filed against the Department of Health and Human Services by five states and two faith-based organizations shows how far-reaching the government's interpretation of the word "sex" could be. The lawsuit filed Aug. 23 alleges that a newly adopted regulation intended to prevent discrimination based on sex in federally funded health care programs "would force doctors to ignore science and their medical judgment and perform gender transition procedures on children."...The dispute over the latest HHS mandate is latest example of how the government's interpretation of Title IX could go beyond the scope of federally funded education programs, legal experts say. "Any government action that depends on interpretation of the word 'sex' in any federal statute, regulation, or policy could be affected by the Department of Education's interpretation of 'sex' in Title IX," Harvard Law School professor Jeannie Suk Gersen told Deseret News. "Even if one agency’s interpretation is not binding on other agencies for the purposes of other statutes, it may still be influential on other agencies."

...Climate change, Mr. Obama often says, is the greatest long-term threat facing the world, as well as a danger already manifesting itself as droughts, storms, heat waves and flooding. More than health care, more than righting a sinking economic ship, more than the historic first of an African-American president, he believes that his efforts to slow the warming of the planet will be the most consequential legacy of his presidency...Another critic, Laurence H. Tribe, likened the rules to “burning the Constitution” — a charge that might have stung, since Mr. Tribe, a liberal constitutional scholar, was a mentor to Mr. Obama at Harvard Law School. Mr. Obama dismissed the criticism as the voice of Mr. Tribe’s client, Peabody Energy, the nation’s largest coal company, which filed for bankruptcy protection in April. “You know, I love Larry,” he said, but “when it comes to energy issues, Larry has a history of representing fossil fuel industries in big litigation cases.”

An op-ed by Cass Sunstein. Last month, the University of Chicago appeared to pick sides in the latest iteration of America's culture wars. But it was really announcing just how silly those culture wars are -- and how to get past them. The school informed incoming students that its “commitment to academic freedom means that we do not support so-called 'trigger warnings,' we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own." Conservatives saw the letter as a political intervention, a courageous stand against “political correctness” -- as if the University of Chicago shared the concern of Donald Trump, Ben Carson, and others about left-wing orthodoxy on campus, in the media and political debates. But the letter’s real lesson lies elsewhere. It’s a political intervention that doesn't involve contemporary political issues at all.

An op-ed by Noah Feldman. The defamation lawsuit that Roger Ailes’s lawyer is threatening against New York magazine would seem to have no chance of legal success. So why has the former chairman of Fox News bothered to hire the lawyer who brought down Gawker on behalf of Hulk Hogan? The answer is that the threat puts the magazine on the defensive -- and that's a problem for free speech. The First Amendment has been interpreted to protect even defamatory speech against public figures. But as the Hogan case shows, not every court applies the constitutional standard correctly. In that environment, even legally empty threats have a chilling effect.

This morning lawyers at the Center for Health Law & Policy Innovation of Harvard Law School filed a complaint with the U.S. Department of Human Services alleging that seven insurers in eight states, including Humana, Cigna and Anthem, are discriminating against people with HIV/AIDS by “refusing to cover key medications and requiring high cost sharing.”...Center attorney Kevin Costello said under the ACA, it is illegal to target the sick. "What the Affordable Care Act says is you are not allowed as an insurer to discourage enrollment for high-cost populations.”