Media Mentions

However worrying Tuesday was for the success of xenophobic politics in America, it might have been more worrying for the planet’s climate. In the early evening, the Supreme Court temporarily blocked the implementation of the Obama administration’s Clean Power Plan, a set of Environmental Protection Agency regulations which would limit greenhouse-gas emissions from the power sector. ...The idea wasn’t for naught. Coal stocks tanked over the last year, and many of the largest American coal companies have filed for bankruptcy. In fact, opponents of the plan cited this exact effect in their brief: The “EPA hopes that, by the time the judiciary adjudicates the legality of the Power Plan, the judicial action will come too late to make much if any practical difference,” said one brief from the Harvard law professor Laurence Tribe. He called the plan a “targeted attack on the coal industry.”

U.S. House of Representatives lawmakers will introduce bipartisan legislation on Wednesday that would prohibit states from requiring tech companies to build encryption weaknesses into their products. ... But technology companies, privacy advocates and cryptographers say any mandated vulnerability would expose data to hackers and jeopardize the overall integrity of the Internet. A study from the Berkman Center for Internet and Society at Harvard University released last month, citing some current and former intelligence officials, concluded that fears about encryption are overstated in part because new technologies have given investigators unprecedented means to track suspects.

An op-ed by Noah Feldman:  There’s no mistaking the message of the U.S. Supreme Court’s 5-4 decision to stay the Barack Obama administration’s Clean Power Plan regulation while it’s being challenged before the U.S. Court of Appeals for the D.C. Circuit. Before Tuesday, the court had never granted a regulatory stay in such circumstances, where the lower court hasn’t ruled and has itself declined to block the regulation while it’s considering the case. It’s understandable that environmental advocates are upset. What’s less obvious is why the Supreme Court hasn’t done this sort of thing before, and what’s wrong with them doing it now, if anything. Evaluating the competing values at stake should help us understand whether the court got it right -- and whether we should expect more such stays in the future.

An op-ed by Noah Feldman: The civilians fleeing Aleppo don’t prove definitively that, with Russian backing, President Bashar al-Assad will win the Syrian civil war. But it’s certainly time to game out that scenario and ask: What would victory look like to Assad? And what will happen to the other regional actors engaged in this fight? The decisive element to consider is whether Assad needs to defeat Islamic State to be a winner. If the answer is yes -- and if Assad could do it -- the world would probably breathe a sigh of relief, and accept Assad’s victory, despite its extraordinary human costs and egregious violations of human rights.

The Supreme Court’s decision to delay implementation of President Obama’s Clean Power Plan has dealt a serious blow to American efforts to fight climate change, leaving an air of uncertainty—both in the U.S. and abroad with international partners—around a plan Obama once heralded as “the biggest, most important step” ever taken to combat global warming. ..“At least five of them think there’s a serious issue with the validity of the Clean Power Plan,” says Richard Lazarus, a professor of environmental law at Harvard Law School. “If the Court thought there was nothing to the claims, they wouldn’t have granted the stay.”

For the better part of a year, Facebook Inc’s global ambitions have bumped up against this question: Is some Internet better than none? This week, India delivered a bruising answer. India’s telecommunications regulator on Monday banned programs that offer access to a limited set of websites and apps, including Facebook’s Free Basics service...That approach has defenders. Facebook’s service “may be a worthy experiment” in a world where Internet access can be too expensive for some people, said Jonathan Zittrain, professor of Internet law at Harvard Law School.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the 4th Circuit has struck down Maryland’s law regulating assault weapons, creating a split with the 2nd Circuit, which upheld similar laws in New York and Connecticut. That split could, and probably should, lead the U.S. Supreme Court to take up and decide the issue. It’s time therefore to ask: How should the justices treat the question? In particular, what does the right to bear arms, created to preserve a “well-regulated militia,” say about assault weapons today?

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants. The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups. But the high court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices...“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

The letter arrived right on time—and for Wilson Ausmer Jr., that turned out to be a very bad thing. It was 2011, and Ausmer, a lieutenant colonel in the U.S. Army Reserves, was in Afghanistan, serving his third tour of duty overseas. The decorated soldier had already paid a personal price to serve his country: he suffered from post-traumatic stress disorder (PTSD) related to his time on the battlefield, and had incurred a significant foot injury as well. The letter, mailed to his home in Missouri, contained invaluable information on how he could file an appeal for disability compensation. It also stated that he had to respond within 120 days of receipt. Ausmer wouldn’t return home for another five months. By the time he read the letter, he’d lost his one chance to appeal his benefits case. The Veterans Benefits Administration wasn’t going to help him—but a trio of Harvard Law School (HLS) students did. Bradley Hinshelwood, J.D. ’14, Juan Arguello, J.D. ’15, and Christopher Melendez, J.D ’15, took up Ausmer’s case, arguing, among other things, that the clock on an appeals claim should start only after a veteran has returned home, rather than when a letter arrives in his or her hometown mailbox. The student lawyers became involved in Ausmer’s case in 2013, while interning at the HLS Veterans Law and Disability Benefits Clinic, within the school’s WilmerHale Legal Services Center (LSC). Each year since 2012, when the clinic was established in Boston’s Jamaica Plain neighborhood, dozens of students have assisted veterans with legal cases, winning verdicts of local and national importance.

An op-ed by Derecka Purnell `17. If activists decide to run for political office, the Black Lives Matter Movement will endure. One person or organization did not build this movement. Political candidacy will not break it. Agendas by groups like BYP100, Campaign Zero, Organization for Black Struggle and the Movement for Black Lives to eliminate state violence, achieve economic justice, improve black health and build black futures challenge the critique that the movement is leaderless and without goals. But it's also difficult to appeal to elected officials who are already aware of state violence, poisoned water and unequal wages, and have done little to address it.

An op-ed by Noah Feldman. The Phoenix City Council has voted to no longer to begin its meetings with a public prayer. Sounds like a victory for the separation of church and state, right? Maybe even the influence of Justice Elena Kagan’s dissent in the Town of Greece case, in which the court’s majority allowed such prayers to continue? Think again. The Phoenix City Council is banning prayer so that self-described Satanists won’t have a chance to give one. The decision isn’t about tolerance but intolerance. In the end, that’s a good thing, a sign of the establishment clause working -- and of James Madison’s First Amendment logic in action.

An op-ed by Cass Sunstein. In recent years, American progressivism has been torn between two competing approaches to reducing inequality. The first focuses on the top 1 percent; the second emphasizes the bottom 10 percent. Bernie Sanders and Hillary Clinton have been operating within the terms set by Top 1 Percent progressivism. For both the Democratic Party and the country, that’s the wrong focus.

Shortly before Lady Gaga took to the stage to inaugurate Super Bowl 50, in balmy Santa Clara, California, Marco Rubio was standing on a turf field within the Ultimate Sports Academy in frigid Manchester, New Hampshire. Before him was an amalgam of supporters, hangers-on, the media, and New Hampshirites who view their state’s quadrennial primary contest as a sort of Mardi Gras, or Art Basel Miami Beach, for strong-willed and thick-accented Yankees...Rubio needed the help. Unspoken in Ultimate Sports Academy, but certainly undeniable, was his vexing performance at the previous night’s Republican debate...“There’s no correlation between being a good debater and being a good president,” said Harvard Law student Nick Mayne [`18]. “It’s been shown.”

“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both,” Associate Supreme Court Justice Louis Brandeis said decades ago during another period of pronounced inequality in America. Echoing the concern of the Harvard Law School (HLS) graduate, over the past 30 years myriad forces have battered the United States’ legendary reputation as the world’s “land of opportunity.” The 2008 global economic meltdown that eventually bailed out Wall Street financiers but left ordinary citizens to fend for themselves trained a spotlight on the unfairness of fiscal inequality. The issue gained traction during the Occupy Wall Street protest movement in 2011 and during the successful U.S. Senate campaign of former HLS Professor Elizabeth Warren in 2012...“Money has corrupted our political process,” said Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at HLS. In Congress, he said, “They focus too much on the tiny slice, 1 percent, who are funding elections. In the current election cycle [as of October], 158 families have given half the money to candidates. That’s a banana republic democracy; that’s not an American democracy.”...Though labor rights have been eroding for decades, Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at HLS, still thinks that unions could provide an unusual way to help equalize political power nationally...To restore some balance, Sachs suggests “unbundling” unions’ political and economic activities, allowing them to serve as political organizing vehicles for low- and middle-income Americans, even those whom a union may not represent for collective bargaining purposes.

Last week, The Crimson reported that a committee made up of graduate students, undergraduates, and professors had been created to review the University’s Title IX policies and to recommend potential changes. The committee—whose exact mandate remains unclear—is chaired by former interim Dean of the College Donald H. Pfister. Harvard announced its first University-wide sexual assault policies in July 2014 when both Harvard College and Harvard Law School were under investigation by the U.S. Department of Education’s Office for Civil Rights for repeatedly mishandling sexual assault cases. Harvard’s subsequent reforms were then hailed as a step in the right direction on an urgent and previously under-discussed issue. However, it soon became clear that the new policies had been assembled too hastily: For example, not a single Law School professor was consulted in their drafting. The results of this failure of consultation were clear.

...Perhaps the loudest point that Democrats have made, especially Vermont Sen. Bernie Sanders, is about the way the Supreme Court’s Citizens United ruling allowed money from unknown sources to pour into elections. On the question of whether corporations and labor unions should be able to spend unlimited sums advocating for or against candidates and issues, many Republicans see it as a question of free speech protected by the First Amendment – as did the Supreme Court. But the court couldn’t have understood the current reality, in which money to be used influencing politics is funneled through nonprofits that aren’t required to disclose their donors, said Lawrence Lessig, a Harvard law professor and campaign finance reformer. “The Supreme Court didn’t even realize there was the dark money loophole. The court explicitly said all this stuff would be disclosed. That means it either was lying or it didn’t understand the way (501(c)4s) interacted with super PACs,” Lessig said.

Bloomberg Law hosts June Grasso and Michael Best discuss a human rights lawsuit against Yusuf Abdi Ali, a former colonel in the Somali National Army, who is accused of presiding over the deaths of hundreds of people in northern Somalia in 1984. They speak with Noah Feldman, a law professor at the Harvard Law School.

An op-ed by Noah Feldman. Can a payday lender’s contract require all borrowers’ disputes be subject to an arbitration process in which decisions are exempt from federal law? In a decision announced this week with potential consequences for millions of contracts signed every day, the U.S. Court of Appeals for the 4th Circuit has said no. The decision shines a light on a particularly disreputable instance of the generally worrisome phenomenon of payday loans. Its importance, however, touches on broader issues, including the sovereignty of Indian tribes.

An op-ed by Noah Feldman. In an astonishing report, the United Nations Working Group on Arbitrary Detention has accused Sweden and the U.K. of arbitrarily detaining Wikileaks founder Julian Assange because of a sexual-assault investigation against him in Sweden. To be sure, it’s unknown whether he’s guilty of the charges. Likewise, it’s impossible to know whether Assange criminally conspired with U.S. Army Private Chelsea Manning (then known as Bradley) to steal classified material, or whether Assange and Wikileaks simply published that material in a manner that should be protected by the First Amendment. But what seems highly likely is that Assange’s detention is anything but arbitrary -- it’s because of the investigation of serious crimes.

...Hydraulic fracturing involves injecting a cocktail of fluid, typically about 99 percent water, down a wellbore and into tight rock formations to help release oil and gas. The practice has revolutionized the American energy industry, but some environmentalists and public health officials have expressed concern about potential public exposure. A provision in Texas law requires the disclosure of chemicals listed as trade secrets to emergency personnel, but not to toxicologists or academics. That has left researchers like Hildenbrand frustrated with FracFocus, the Internet clearinghouse used by Texas and at least 20 other states for public disclosure of ingredients in fracking fluid...A recent Harvard University analysis of FracFocus records found companies are withholding the identities of more chemicals now than they were three years ago...Kate Konschnik, a coauthor of the study and the director of Harvard Law School's Environmental Policy Initiative, noted improvements in the quality of data in FracFocus, including fewer clerical errors. But, she said, "there were lower rates of disclosure across the board."

Comparative constitutional law, which involves the study of constitutional jurisprudence and its relative application to political institutions in different countries, has in recent times emerged as an important field of examination. But much of the academia involved in these comparative studies has focused its attention on the constitutions of Western democracies. Even when constitutions of developing countries are considered, the comparison often features their structures qua those contained in the constitutions of supposedly more sophisticated societies. As a result, what we have is a highly lopsided compendium — for instance, existing studies partake very little of the challenges faced by constitutional democracies in South Asia. This imbalance is sought to be corrected by a new, and admirable, anthology of academic essays, Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet, a professor of law at Harvard Law School and Madhav Khosla, a Ph.D. candidate at the Department of Government at Harvard University.