Media Mentions

When starting a semester, Harvard Law School (HLS) Professor Carol Steiker likes to ask her first-year criminal law students to describe what they think are the biggest societal changes of the past 40 years. The students often cite the rise of social media, or global warming, or same-sex marriage. Then it’s Steiker’s turn. “I show them the statistics,” said Steiker, the School’s Henry J. Friendly Professor of Law, “and they are stunned.” Her numbers show mass incarceration in the United States...The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act, enacted a sweeping revision of the criminal code. The legislation established the U.S. Sentencing Commission and tasked it with providing guidelines to federal courts — a radical shift in policy, since judges previously had wide discretion in sentencing. The commission introduced mandatory sentencing for various crimes and eliminated federal parole for some cases, immediately boosting prison rolls. Instead of improving fairness in sentencing, as was intended, the new system wound up promoting inequality, says HLS lecturer Nancy Gertner, herself a former federal judge. Judges suddenly had to hand down standard sentences to those convicted of some specified crimes who had particular criminal histories...In addition, court systems around the country increasingly are outsourcing their probation operations to private firms that make money by charging offenders extra fees. “The private company may have little or no interest in achieving justice,” said Jacob Lipton, who leads Harvard’s Systemic Justice Project along with HLS Professor Jon Hanson.

A book review by Kenneth Mack. During her long and contentious life that spanned much of the twentieth century, Pauli Murray (1910–1985) involved herself in nearly every progressive cause she could find. Yet the contributions of this black woman writer, activist, civil rights lawyer, feminist theorist, and Episcopal priest have largely escaped public attention. Murray earned a reputation as an idealist who saw the world differently from many of the activists who surrounded her. She also walked away from several important organizations and movements when they were at the height of their influence. At the same time, her actions have seemed prescient to those involved in many of the social movements that have subsequently claimed a piece of her legacy. Through her friendships and writings, Murray left a long list of people deeply influenced by her, including Eleanor Roosevelt, Representative Eleanor Holmes Norton, social activist Marian Wright Edelman, and Justice Ruth Bader Ginsburg. Murray’s life story deserves to be made available to the larger public, but how does one do so in a way that honors her own obdurate unwillingness to be reduced to any clear set of vectors—to be, in effect, agreeable?

The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door. The 12-year-old from Fairfax, Va., has been charged with threatening her school after police said she posted a message on Instagram in December laden with gun, bomb and knife emojis...“You understand words in a particular way,” said Dalia Topelson Ritvo, assistant director of the Cyber Law clinic at Harvard Law School. “It’s challenging with symbols and images to unravel that.” Ritvo said that some of these issues will likely play out in the Fairfax case.

An article by Michael Linhorst `17. Twelve years ago, in the fall of its 2003 term, the U.S Supreme Court received a written brief from Texas Solicitor General Ted Cruz with a very unusual footnote. The case was called Locke v. Davey, and it concerned the constitutionality of a Washington State college scholarship that excluded students studying religion—a key issue for the movement conservatives Cruz considered his political allies. Texas wasn’t a party in the case, but the ambitious lawyer was already gaining a reputation for inserting himself into national debates by filing briefs about attention-grabbing cases with no direct relation to his state. Like all legal briefs, Cruz’s cited cases, laws and law journal articles as authorities to back up his argument...Cruz didn’t name the student author in his brief. But if the justices had looked it up, they would have found a surprise: It was a 24-year-old Harvard law student named Ted Cruz...Leah Litman, a lecturer at Harvard Law School who served as a clerk for Justice Anthony Kennedy, agrees that it was “a little strange” Cruz didn’t identify himself. “He’s identified as the author of the piece [in the journal]. And when you cite a secondary source in a brief, you give the author. There really isn’t a good reason not to,” she says.

An op-ed by Mark Roe. HSBC’s decision last week to keep its headquarters in London, after reports that it would leave the UK if the levy on bank liabilities were not lifted, will have been greeted with relief at the Treasury. However, there is good reason to think the Treasury got a bad deal, jeopardising financial safety for not very much in return. In his Autumn Statement last year, Chancellor George Osborne promised to phase out the levy, offsetting this with an 8 per cent surcharge tax on bank profits. Taxing bank profits is popular with voters, even though it makes the financial system weaker. Because it makes bank equity more expensive and ending the levy makes debt cheaper, the surcharge will push British banks to use less safe equity and more risky debt.

An op-ed by Noah Feldman. With a new Supreme Court balance somewhere on the horizon, the end is coming for Justice Anthony Kennedy’s dominance of the court. The abortion case Whole Women’s Health v. Hellerstedt may be his swan song, and his last chance to leave a long-term impact on abortion rights. That’s hugely significant for the case that’ll be argued Wednesday. The fate of Texas’s restrictive abortion laws turns on the interpretation of the 1992 decision in Planned Parenthood v. Casey. And Casey was the case in which Kennedy first formulated the vision of autonomy and dignity that led him to become a pioneer of constitutional rights for gay people. Casey is the heart of Kennedy’s legacy -- and he’ll want to preserve it.

An op-ed by Noah Feldman. Tired of campaign lies and the lying liars who tell them? You’ll be sorry to hear that an Ohio law that prohibited false statements about a candidate for office was struck down this week by the U.S. Court of Appeals for the 6th Circuit, some 25 years after it was upheld by the same court. The decision is probably correct in light of the U.S. Supreme Court’s expansive new free-speech precedent. But it’s worth pausing to note just how far the courts have gone in protecting falsehood.

An op-ed by Bruce Hay. In the two weeks since his death, many have spoken about Antonin Scalia’s undeniable impact on American law. As attention shifts to filling the vacancy he has left on the Supreme Court, I would like instead to talk about his less appreciated impact on contemporary physics...His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility. Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.

So now what? The path ahead for President Obama’s Clean Power Plan went from arduous but somewhat clear to murky with the death of Supreme Court Justice Antonin Scalia on Feb. 13. The whirlwind week for the plan, a key commitment by the United States to reduce climate-changing carbon-dioxide emissions, started with the Supreme Court voting 5-4 to freeze the plan in place, halting implementation while legal issues are decided by the U.S. Court of Appeals for the D.C. Circuit and, likely, by the Supreme Court itself. Scalia’s death and the battle over selecting his successor that quickly developed between Obama and Senate Republican leaders have raised the prospect of an extended period with a Supreme Court split 4-4 between conservative and liberal justices ― in other words “a mess” for the plan, according to environmental law expert Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard Law School. Lazarus, who is serving as counsel in the case for two “friends of the court,” former Republican EPA administrators William Ruckelshaus and William Reilly, spoke with the Gazette about both the plan’s impending lower court hearing and its path ahead should it undergo Supreme Court review.

Earlier this month, an excellent, short new documentary debuted. It focuses on one type of state laws that senselessly promote food waste. The documentary, Expired? Food Waste in America, is produced by the Harvard Food Law and Policy Clinic and Racing Horse Productions. It uses the clear shortcomings of a mandatory Montana milk-expiration-date law as a hook to illustrate broader problems with state food expiration-date mandates..."Out of state dairies often can't get milk to the store quickly enough for it to be put on the shelf in time to be sold (since consumers want milk with at least a few days on it), so many out-of-state dairies are no longer selling in Montana," says Harvard Law School Prof. Emily Broad Leib, one of the film's producers, in an email to me this week. "According to local advocates, milk in Montana also costs a lot more than milk in surrounding states."

An op-ed by Laurence Tribe. Justice Antonin Scalia used to say, only partly in jest, that he preferred a “dead” to a “living” Constitution: for him, the whole purpose of any constitution worth having was to nail things down so they would last—to “curtail judicial caprice” by preventing judges, himself included, from manipulating the law to advance their own visions of good policy rather than faithfully doing the people’s bidding as expressed in binding rules. Yet Scalia managed to bring our Constitution to life more deeply than have many proponents of a “living” Constitution...Scalia’s ability to bring the Constitution’s text, structure, and history to the very center of the nation’s conversation through elegant and colorful prose should never be confused with the idea that his “originalist” methods actually served the disciplining and constraining functions he attributed to them. Nor should we permit his captivating rhetoric to seduce us into accepting the judgments he claimed those methods required him to reach.

An op-ed by Tommy Tobin `16. Almost a quarter-million young people in Arkansas are at risk of going hungry each summer. While it may be winter, we can prepare now to ensure that the eligible young people of Arkansas get the food for which they qualify. During the school year, over 230,000 young people receive free or reduced-price lunch at schools in Arkansas. During the summer months, no school can mean no meals for the state's low-income children, which results in already-tight family budgets becoming further constrained. According to the Food Research and Action Center, only 23.3 percent of these low-income students receive the summer meal equivalent of the school lunch program.

...Like the thousands of Central Americans who increasingly are seeking asylum in the United States, Trejo's future will be determined by how a judge interprets one sentence from a law passed in 1980. It puts him smack in the middle of a debate fraught with politics and argued in a system that has struggled to find an answer to what seems like a simple question: When is a migrant a refugee?...The question of whether Central Americans fleeing violence should be considered refugees under the law has been debated since the 1980 Refugee Act was passed. Deborah Anker, a professor at Harvard Law and one of the pre-eminent scholars on asylum law in the United States, says before that time, U.S. law gave asylum only to migrants from the Middle East or communist countries. "We were really trapped in this Cold War framework, whereas the international definition was global and humanitarian in its basic focus," Anker says.

Forty acres and a mule. The order by Union General William T. Sherman in January 1865, just after the Civil War ended, to offer some recompense to newly freed slaves for the harms they had suffered was a radical, tantalizing promise that never came to be. More than 150 years later, the question of whether nations that benefited from the African slave trade between the 16th and 19th centuries bear a responsibility to provide financial reparations for their crimes — as well as the lasting economic, social, and political damage they caused — remains unsettled. Many political and Civil Rights leaders, including Martin Luther King Jr., have tried to gain traction for the idea periodically over the years, without much success...“This is not about retribution and anger, it’s about atonement; it’s about the building of bridges across lines of moral justice,” said Sir Hilary Beckles, a distinguished historian, scholar, and activist from Barbados, during a talk Monday at Harvard Law School...[Kenneth] Mack and [Annette] Gordon-Reed noted the many real-world opportunities in Boston and across the United States that exist right now for HLS students to facilitate getting reparations for black people through the legal system. “All of us derive a present-day benefit from the oppression, the degradation of human beings. And what should we do as an institution to make reparations for that” is what should be on everyone’s mind in thinking broadly about the concept of reparations, said Mack.

An op-ed by Laurence Tribe and Joshua Matz. In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.” Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz. But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

Just one day after it emerged that President Barack Obama was vetting Nevada Gov. Brian Sandoval as a potential Supreme Court nominee, the speculation bubble burst as the Republican politician removed himself from consideration. Why talk of a possible Sandoval nomination flamed out so quickly isn’t totally clear at the moment. But as the White House presses on with its nationwide search for the person to succeed Justice Antonin Scalia, anyone who ends up on the shortlist will have a tricky set of factors to consider...And of course, the GOP Senate leadership could always change its mind and retreat from its pledge not to hold hearings. Harvard law professor Laurence Tribe told Law Blog he thinks the Senate’s position is politically untenable and that they’ll agree to have a vote. But even with the uncertainty, he thinks whoever the president puts forward will still “be honored to accept the nomination.” Mr. Tribe said he expects that person would have the “backbone to take the risk of being out there in front of a recalcitrant Senate.”

To force Apple to help the FBI unlock a San Bernardino shooter's iPhone, a federal magistrate-judge invoked the All Writs Act, which allows courts to make a company turn over a customer's data to law enforcement...Proving that code is protected speech isn't the biggest obstacle Apple faces. Core to Apple's argument against writing a new version of its operating system is that, by complying, it will make its customers less secure. But Apple would have to overcome years of precedent in the way that companies work with law enforcement. "I'm sympathetic, but I can't think of any authority that says that you can evade your obligations to comply with the police because you don't trust they'll keep the information secure enough," said Lawrence Lessig, a Harvard Law professor and constitutional law scholar. Lessig noted that the security issue makes Apple's case unique. "If a bank has vault and the police have a search warrant, then there's no doubt that the bank has to open the vault," Lessig said. "But when bank opens vault, there's no concern that it's making every other vault unsafe."

Apple could easily make changes to the upcoming iPhone 7 that would render the current debate over providing a "back door" to encrypted phone data a moot point by making the phones even harder to unlock, security experts tell Fast Company...The federal district court is relying on a very old and very broad law called the "All Writs Act" to compel Apple to help the FBI. But there's nothing in the law that prohibits Apple from changing its product to make it safer from law enforcement inquiries, says David O'Brien, senior researcher at the Berkman Center for Internet & Society at Harvard. "It’s not clear that there’s anything in the All Writs Act that would prohibit Apple from doing that," O'Brien says. There would be some blowback, however. "It would probably result in more scrutiny from the government and from the public on the changes Apple is making," O'Brien says.

An op-ed by Cass Sunstein. Donald Trump’s success in the Republican primaries, punctuated by his victory Tuesday in Nevada, has been spurred in part by his deviation from traditional Republican policies (on free trade and immigration) and in part by his argument that some of those policies (including lower income taxes and less regulation) would make America great again. But the latter argument runs into an immediate objection: The economy has consistently grown less under Republican presidents than Democratic ones. It’s just not clear why that is -- or how much a president’s policy choices have to do with it.

An op-ed by Noah Feldman. President Barack Obama insisted that his post to Scotusblog on Wednesday about his criteria for a U.S. Supreme Court nominee was “spoiler free.” But he may have been protesting a bit too much. Obama wrote that he sought a justice with “life experience outside the courtroom or the classroom,” which possible nominees like Judge Sri Srinivasan of the Court of Appeals for the D.C. Circuit arguably lack. Then, later in the day, someone in the administration leaked a highly untraditional candidate, Republican Governor Brian Sandoval of Nevada, who has political life experience and was also a federal district judge for four years.

An op-ed by Noah Feldman. It isn’t often that a sitting prime minister offers a lesson in comparative constitutional law. But Israel's Benjamin Netanyahu did so Monday while defending a bill that would allow three-quarters of the Knesset to expel a member who “supports terrorism by word or deed, or denies the Jewish, democratic character of the state of Israel.” Netanyahu compared the provision to the American rule that Congress may expel a member by two-thirds vote and to parliamentary rules in the U.K. and Canada that allow the expulsion of a member of Parliament for misconduct by a simple majority.