Media Mentions

An article by Ron Elving and Nadia Farjood `18. As the Supreme Court's term comes to an end, here are some takeaways: The signal event in the 2015-2016 term was not a decision but a death. The court lost its longest-serving current member, Antonin Scalia, who died in February at age 79. Scalia had been appointed by President Ronald Reagan in 1986 and had long been the court's intellectual anchor on the right. Scalia strove to read the Constitution as written and resisted efforts to expand its meaning or intent. His absence from a closely divided court led to a number of 4-4 ties, which allowed the last decision by lower courts to stand. Harder to quantify was the difference Scalia's absence made to the other justices' thinking and decision making.

Corporate profits are at record highs, economic growth is low, formation of new companies has been low for years, and inequality is close to Gilded Age levels. Professor Einer Elhauge from Harvard Law School believes that all these phenomena can at least partly be explained by a common problem. To prove his point he combines very recent empirical and theoretical economics literature that has been gaining attention in the last few years with some insight into regulatory activities that go back more than 70 years.

Snack maker Mondelez International Inc. or any other potential bidder for Hershey Co. is up against not only a board that indicated it doesn’t want to sell, but a secretive, controlling shareholder—and the state’s top law officer. Mondelez, whose roughly $23 billion bid was quickly rebuffed this week, is expected to continue fighting for a union...Other food makers, including Kellogg Co. and Campbell Soup Co. , have significant ownership by family and trusts, but Hershey is further subject to a state law that requires the top law-enforcement official to green light the sale of any company controlled by a charitable trust.The law is a “public policy tragedy,” according to Robert Sitkoff, a Harvard Law School professor who has studied the trust. He said that diversifying the trust’s portfolio would benefit the school and community but said he thinks any deal would face difficulties.

...As head prosecutors in their counties, just five individuals have been responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who are currently awaiting execution in the US, it is equivalent to one out of every seven. Or express the figure another way: of the 8,038 death sentences handed down since the death penalty was restarted in the modern era 40 years ago this week, some one in 20 of them have been the responsibility of those five district attorneys alone. The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman.

An op-ed by Tomiko Brown-Nagin. In a stunning win for the University of Texas, the U.S. Supreme Court last week rejected Abigail Fisher's challenge to the university's affirmative action program. The court's decision is a striking reversal of fortune for affirmative action's critics. Just a few years ago, affirmative action appeared doomed. The first time Fisher v. the University of Texas was heard (known as Fisher I), the court in a 7-2 vote vacated an appellate court's decision upholding the very same admissions policy at issue in the matter decided last week (known as Fisher II). The justices ordered more exacting judicial scrutiny of Texas' race-conscious system. Fisher I sent a strong signal to the University of Texas and universities with similar admission systems: Seriously consider "race-neutral" alternatives to affirmative action, or else federal courts would strike down unnecessary – and thus unconstitutional – race-sensitive programs. Entirely consistent with the Roberts court's school desegregation and voting rights decisions, Fisher I signaled that race-conscious decision-making by government had run its course.Against that backdrop, Fisher II was an upset victory for the University of Texas. What accounts for the court's about-face? More pointedly, what caused Justice Kennedy – the court's swing vote and a vocal skeptic of race-conscious state action until now – to change course? The underlying facts and the law shaped the outcome, but race and legacy likely mattered as well.

An op-ed by Cass Sunstein. Whether or not it was justified, Britain's vote to leave the European Union was rooted, in large part, in a widespread sense of outrage. To understand the underlying political psychology, and see how to respond to it, it’s important to know something about outrage in general. A few years ago, Daniel Kahneman of Princeton, David Schkade of the University of San Diego and I teamed up to study how ordinary people think about punishment. We looked in particular at punitive damages, which juries award in the face of egregious misconduct -- say, when tobacco companies have hidden information about the health risks of smoking, or when a manufacturer has sold toys that it knows are dangerous to children. One important thing we learned was that people’s judgments are driven mainly by outrage.

A federal judge in Wyoming recently struck down Bureau of Land Management rules to regulate hydraulic fracturing on public and tribal lands. But while the fate of the rules is far from final—with the Obama administration immediately indicating it would appeal—the implications of the controversial decision could extend far beyond fracking and the BLM, according to environmental, legal and policy experts. In the decision, released last week, U.S. District Judge Scott Skavdahl stated the BLM, which is overseen by the U.S. Department of the Interior, has no authority to regulate the most widely used process for extracting oil and gas resources on publicly owned land..."Congress probably didn't have in mind bungee jumping or Burning Man when it gave BLM authority over public lands," said Kate Konschnik, a lecturer at Harvard Law School . But that hasn't stopped BLM from managing these activities and events as they've come up. But this ruling challenges this logic, said Konschnik, emphasizing that "hydraulic fracturing" is not directly named in BLM's authorizing statutes as part of the evidence cited for why the agency can't regulate the process.

The Supreme Court issued a historic decision Monday, weighing in again in the nation’s fractious abortion debate. In a 5-3 ruling, the court overturned a Texas law requiring that abortion clinics maintain hospital-like standards at their facilities as well as admitting privileges at local hospitals. Pro-life activists argued that the rules were aimed at protecting women’s health, but those in the pro-choice camp countered that the law left many abortion clinics with no choice but to shut down and infringed on women’s constitutional rights...Harvard Law School’s I. Glenn Cohen, a professor of law and faculty director at the School’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, spoke with the Gazette about the ruling. Cohen filed an amicus brief in support of the court’s decision.

An op-ed by Noah Feldman. Today the Supreme Court upheld the constitutional right to abortion -- and laid down a new framework for how courts should evaluate future legislation limiting it. For the first time, the court expressly held that laws limiting access to abortion must be evaluated on a cost-benefit basis, to see if health benefits to women outweigh the costs in making abortion less available. The cost-benefit scheme gives greater precision to the undue-burden test established in the landmark 1992 case of Casey v. Planned Parenthood. But it also raises the difficult question of how, exactly, costs and benefits should be determined if and when other states pass laws that limit abortion access while purporting to protect women’s health.

London's position as one of the world's premiere financial centers is bound to change in the wake of a vote to leave the European Union. In coming years, it's highly possible that major companies in London will no longer have unfettered access to the EU — and many firms have voiced a need to move employees elsewhere. That's where Dublin comes in...Ireland's economic growth soared from the mid 1990's until the financial crisis. The tax system was a big part of both the boom and the recovery, according to Hal Scott, professor of international financial systems at Harvard Law School. "They made a big comeback after the crisis. Ireland was very inviting," Scott said. "They're doing very well again." Ireland opened itself as a sort of a back office to banks and operations that can be done from anywhere, like clearing of settlements, he said. It's likely to ramp up similar business post-Brexit.

A book review by Samuel Moyn. Since the Greeks, we have known of blood feuds of violence and vengeance that repeat in endless cycles, with new rounds only taking the catastrophe further out of control. And since the Greeks, escape routes have been identified and sought — Aeschylus hoped law could provide reconciliation; Jesus later claimed this power for love. But in his disturbing new book, “Spiral,” Mark Danner worries there is no way out of today’s “forever war,” which continues unabated after 15 years. Danner spares no analogy, classical or modern, to raise awareness of this predicament. In our spiral, he says, we are both like Cadmus sowing dragon’s teeth — our victories produce new adversaries — and like the madcap inventors of a perpetual motion machine that continuously recreates the problem it was designed to solve.

In 2010, the International Criminal Court, 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. The court’s chief prosecutor, Luis Moreno-Ocampo, sought to charge Kenyatta with five counts of crimes against humanity, for inciting murder, rape, forcible transfer of people, persecution and “other inhumane acts.”...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.”

Four major Supreme Court decisions were released Thursday that amount to a win for supporters of affirmative action, a setback for President Obama's immigration plan and significant implications for mandatory minimum sentencing. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. Charles Fried, professor of law at Harvard Law School and former U.S. solicitor general.

If a police officer stops you, asks for an ID and runs a routine check, he might find an outstanding "small traffic warrant." You could be arrested and charged with a serious crime based on that warrant, not for any traffic violation, but for drugs found during a search...Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

In a landmark victory for Harvard and affirmative action supporters across the nation, the Supreme Court rejected a challenge to race-conscious admissions policies in a 4-3 vote...Thursday’s ruling is a “decisive victory” for Harvard, Law professor Laurence H. Tribe ’62 said, adding that the decision is “favorable to what Harvard has tried to do over the years to overcome racial stereotypes.”“Our affirmative action program and others like it will of course continue to be the targets of litigation, some of it well intended, but those creating and administering such programs will now be able to point to what amounts to a clear blueprint for their design and defense,” Tribe wrote in an email.

Many Massachusetts colleges and universities are pleased by Thursday's U.S. Supreme Court ruling upholding the use of race as a factor in college admissions. But that doesn't mean that the legal fight about race conscious admissions decisions is over. Perhaps the Massachusetts school most closely watching this case was Harvard University. It's facing a separate lawsuit alleging that its admissions policies discriminate against Asian Americans. Some say Thursday's high court ruling is going to affect that suit. "I can hear the death knell of that lawsuit," said Harvard law professor Laurence Tribe. Tribe, who is advising the school on that suit, says the Supreme Court ruling bolsters Harvard's argument that race is one of several factors that schools should consider in admissions decisions.

The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas at Austin, handing supporters of affirmative action a major victory....Supporters of affirmative action hailed the decision as a landmark. “No decision since Brown v. Board of Education has been as important as Fisher will prove to be in the long history of racial inclusion and educational diversity,” said Laurence H. Tribe, a law professor at Harvard, referring to the Supreme Court’s 1954 decision striking down segregated public schools.

The Supreme Court on Thursday upheld the University of Texas’s consideration of race in its admissions policy, handing a victory to supporters of affirmative action in a case closely watched by universities in Massachusetts and across the country...“The decision means that race-conscious affirmative action programs in higher education, like the one Harvard University has, for example, will be upheld as long as they follow the court’s guidelines of avoiding crude racial quotas,” and are finely tuned, said Laurence H. Tribe, a professor of constitutional law at Harvard Law School. If the court had ruled the other way, he said, it could have ended any consideration given to race in college admissions. Instead, he said, the court “rendered a huge national reprieve for racial inclusion.”

An op-ed by Cass Sunstein. In refusing to strike down a race-conscious admissions plan at the University of Texas at Austin on Thursday, the Supreme Court did more than uphold an affirmative action program. Just as important, it struck a much-needed blow for judicial modesty. The justices showed an awareness that others might know better than they do. We could use a lot more of that. The crucial part of Justice Anthony Kennedy’s majority opinion came toward the end. “Considerable deference is owed to a university," he wrote, "in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

An op-ed by Noah Feldman. The Supreme Court ruled Monday that if the police stop you illegally but then find out that there’s a traffic warrant out for you, they can search you and charge you with a crime if you're carrying something illegal. The 5-to-3 decision can be read as an implicit vindication of controversial stop-and search policies. In a blistering dissent, Justice Sonia Sotomayor invoked Ferguson, Missouri, to argue that the court's decision impugns the dignity of the individual. She said that the effects will be felt disproportionately by “black and brown parents” who for generations “have given their children ‘the talk’” out of “fear of how an officer with a gun will react to them.”

An op-ed by Noah Feldman. There’s no question that President Barack Obama suffered a significant loss today when a deadlocked Supreme Court left in place a lower court freeze on his signature immigration reform. It’s also true that the Republican Senate played a major role in this defeat by refusing to confirm -- or even vote on -- Obama’s nominee, Judge Merrick Garland, who surely would have voted to lift the stay. But it’s also worth remembering that Obama would have been defeated anyway if Justice Antonin Scalia had lived to vote against the reform, assuming the eight other justices split 4-4. And that would’ve been worse for the Democratic Party, because it almost certainly would have resulted in an opinion blocking such unilateral executive action in the future. Now, if Hillary Clinton is elected president, the issue can be revisited without a binding judicial precedent to preclude her from doing something similar.