Media Mentions

An op-ed by Jeannie Suk. In this country we don’t ban “Mein Kampf,” Ku Klux Klan screeds, or objectionable terms for racial groups. It is clear that the government cannot disallow offensive or hateful speech. But the federal trademark law, known as the Lanham Act, has since 1946 barred the registration of marks that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” In 2014, after nearly half a century of registering and renewing “The Redskins,” the government cancelled the football team’s trademark registrations, on the grounds that the name may be disparaging to Native Americans. The cancellation does not ban the team’s use of the name. Instead, it does away with the legal presumption that the team has the exclusive right to use the name in commerce, thus providing a substantial incentive for the Redskins—and other groups—to avoid using a name that may be considered offensive. The Supreme Court will likely consider the question of whether the government is permitted, under the First Amendment, to deny registration of disparaging trademarks, in the case of Simon Tam, for whom the Redskins are strange bedfellows. When Tam applied to register the name of his all-Asian dance-rock band, the Slants, he meant to reclaim an epithet for Asians as a badge of pride, but the government refused the registration on the grounds that the name was likely disparaging to people of Asian descent.

An op-ed by Noah Feldman. North Carolina bans registered sex offenders from Facebook. Unsurprisingly, a sex offender wants the Supreme Court to strike down the law. Perhaps more surprisingly, he has support from 16 notable professors of constitutional law -- from left, right and center. I’m loath to disagree with an all-star cast of colleagues that includes some of my teachers and good friends. But I think their argument goes too far.

An op-ed by Noah Feldman. Secrecy and justice don't mix. Just look at the latest contortions in the case of Khalid Sheikh Mohammed, the accused mastermind of the September 11 attacks. Mohammed's lawyer has filed a motion alleging that, at the prosecutor’s request, the judge allowed the government to destroy evidence that Mohammed could have used in his own defense. The proceedings of the special military tribunal at Guantanamo Bay are so secret that no one is allowed to say what the evidence was or to read the motion.

A U.S. appeals court in New York revived a lawsuit seeking to stop the government from collecting on loans made to students of a nationwide beauty school chain, since it knew the now-defunct company routinely falsified student eligibility for those loans...It is a victory for thousands of borrowers who said Wilfred American Educational Corp victimized them into obtaining loans to attend its roughly 60 for-profit trade schools, popularly known as the Wilfred Academy. The last closed in 1994. Toby Merrill, director of Harvard Law School's Project on Predatory Student Lending, said low-income borrowers like many of the plaintiffs are "primary targets of predatory schools," and often unable to vindicate their rights. "This has been an enormous problem in for-profit trade schools," Merrill, who filed a brief supporting the plaintiffs, said in an interview. "The decision shows that the Department of Education can't sit on those rights."

The pitchforks are out for Facebook, which is under increasing scrutiny for the role humans take in deciding what stories merit inclusion in its "Trending Topics" feature. As a First Amendment matter, it's an open-and-shut case: Facebook has the right to exercise editorial judgment — by human editors or algorithms — in any manner it chooses....A call for greater transparency in Facebook's role as a news organization might bring bad publicity, but it would have no legal authority. "There may be a call for greater transparency, accountability, but now you’re running right up against the First Amendment," said Andrew Sellars, the Dunham First Amendment Fellow at Harvard University's Berkman Center for Internet & Society.

...But this week, Facebook’s reputation for neutrality took a major hit...But even if Thune and other Republicans wanted to regulate Facebook, it’s not clear how they would do it. “It’s all tricky, because it’s all speech,” says Jonathan Zittrain, a law and computer-science professor at Harvard University and a co-founder of the school’s Berkman Center for Internet and Society. At the end of the day, Facebook makes an editorial product, and like any editorial product it is protected under the First Amendment. But federal regulators or entrepreneurial legislators would still have several options...But Zittrain said there may be an even more promising way to keep Facebook from acting against its users’ interest. In an unpublished paper that he is writing with Jack Balkin, a Constitutional law professor at Yale Law School, Zittrain recommends that certain massive repositories of user data—like Apple, Facebook, and Google—be offered a chance to declare themselves “information fiduciaries.” An information fiduciary would owe certain protections to its users, closing the “disconnect between the level of trust we place in [online services] and the level of trust in fact owed to us,” according to the paper.

An op-ed by Noah Feldman. A company whose violation of human rights abroad strongly affects the U.S. can be sued in any federal court in the country -- except New York and Connecticut’s Second Circuit. A decision there Tuesday means it will remain stubbornly outside the pack. The U.S. Court of Appeals for the Second Circuit refused to reconsider an earlier decision that might have put it into conformity with the other circuits. The majority in the court's opinion said it wasn't worth bothering after the Supreme Court sharply reduced liability under international law in 2013. The dissenters thought the appeals court should fix what it saw as a mistake made in 2011 when it first held that corporations can’t be held responsible for human rights violations in other countries.

An op-ed by Benjamin Levin, Climenko Fellow. What happens after a prison sentence ends? For many individuals with criminal records, their troubles are just beginning. Every year, more than 600,000 people are released from prison, but, a year after release, more than 70% remain jobless. Finding a job can be even harder for people of color with convictions or arrests on their record. To address these obstacles, President Barack Obama recently made a major policy proposal: “ban the box” for all federal employment. This policy would forbid employers from requiring job applicants to disclose past convictions (i.e., they would remove the criminal history checkbox from the application). While the specifics of Obama’s proposal aren’t entirely clear, the rule would mean that federal job applicants wouldn’t be required to reveal any criminal history when they first applied for a position.

When do you toss food from the fridge or cabinet to the garbage? When it’s past the “use by” or “sell by” date marked on the packaging? When starts to look clammy, wilted, or moldy? When it tastes off or fails the sniff test? Turns out, a lot of people rely on those labels, even when they’re not quite sure what they mean, according to a new survey released today at a food waste summit in Washington, D.C. The survey, conducted by a team from the National Consumers League, Harvard Food Law and Policy Clinic, and Johns Hopkins Center for a Livable Future, probed how customers make sense of food labels, which are notoriously variable and unstandardized... “Many people throw away food once the date on the package has passed because they think the date is an indicator of safety, but in fact for most foods the date is a manufacturer’s best guess as to how long the product will be at its peak quality,” Emily Broad Leib, the director of the Harvard Food Law and Policy Clinic and a survey co-author, said in a statement.

An op-ed by Michael Shammas `16. Writing for Harper’s last month, Ralph Nader issued a warning: Tort law is dying. In combating ambulance chasers, malpractice premiums, and frivolous lawsuits, we went too far. Tort reform became tort deform. The public was played, hustled into dismantling its Seventh Amendment right to a jury trial. Too bad. By making negligence costly through the threat of lawsuits, tort law assures us — visiting a theme park, driving a car, taking a prescription drug — that we’re safe. It fills the gap between legislative failures and market failures. It allows the poorest victims to sue, since plaintiff’s attorneys aren’t compensated unless they win. It operates democratically, transferring decision-making power from elites to lay jurors, using subpoenas to force even the most powerful actors to disclose wrongdoing.

An op-ed by Kayleigh McEnany`16. It was about a year ago that Donald Trump stormed onto the political scene. Many were taken aback by the confident, unapologetic and far from politically correct New York businessman -- including me. I admit that, for the first month of his candidacy, I had my concerns about Trump. I questioned, for example, whether someone with such cutting yet candid honesty, a candidate who veered so sharply from so many of the usual political expectations, could ever become president. The more I watched Trump on the campaign trail, though, the more some of these supposed weaknesses turned out to be strengths. I kept an open mind...Like many others, I fully expected Trump to back down from his controversial statements as any good, scripted Washington politician would. After all, such brazenness was not permissible in mainstream political discourse. But rather than backing down, Trump pushed forward and the media was incensed. His audacious, unflinching boldness in the face of an onslaught of criticism is a virtue that I would not just come to accept, but also to appreciate and admire, leading me to endorse him before voting ever began.

After Harvard issued new restrictions on students who join single-sex social groups, opponents raised the possibility of challenging the university in court on the grounds that Harvard violated the right to free association...But experts said a legal challenge against Harvard would have to clear a high hurdle: Harvard University is a private institution. Therefore, the U.S. Constitution’s first amendment protections, such as the freedom of association, don’t apply. “I’m not really sure what the basis of a legal challenge would be because Harvard is a private university,” said Erica Goldberg, the Climenko Fellow and Lecturer on Law at Harvard Law School. “I don’t see any way around it.”

Deciding between a law school with a generous scholarship and a school with a well-known loan assistance plan, 30-year-old Michael Kaercher made his choice based on the loan assistance plan provided after graduation. "I thought that if I ended up at a firm, then I wouldn't miss the $100,000 in scholarships," says Kaercher, who graduated from Harvard Law School in 2010 and works as an attorney adviser at the IRS. "But if ended up going into the public sector and went to Harvard, then I'd qualify for this program."..."Harvard has one of the most generous programs that I've seen based on their formula," says the fifth-year attorney, who receives $8,849 in loan assistance every six months from Harvard to pay his $220,000 law school debt. "You don't have to work for a 501(c)(3) or anything like that in order to be eligible. You just have to not make that much money."..."LIPP functions very much like a backend scholarship – we often describe it that way to students – because LIPP benefits can potentially be as generous as many up-front merit scholarships," says Kenneth Lafler, assistant dean for student financial services at Harvard Law School.

An op-ed by Noah Feldman. North Carolina and the federal government are suing each other over whether the state’s new transgender bathroom regulation violates federal civil rights laws. The cultural stakes are clear: the two governments have sharply different ideas about the acceptance of transgender people. But what about the legal stakes? The legal problem in the case is whether the North Carolina law, which bars transgender people from restrooms, locker rooms and changing rooms, violates the provision of the Civil Rights Act of 1964 that prohibits discrimination on the basis of sex. That question may sound simple, but it’s actually profound. It will require a court to decide whether gender is the same thing as sex, and if so, for what purposes.

An op-ed by Noah Feldman. Laws that ban street begging often are challenged as a violation of First Amendment free speech rights. Appellate courts are divided on the question, and the Supreme Court has never answered it definitively. But in the last year, courts across the country have begun striking down laws against panhandling on the ground that they prohibit certain speech on the basis of its content. The reason is a major Supreme Court decision from last year that barred an Arizona town from using content to distinguish between different types of temporary signs erected on public property.

An op-ed by Noah Feldman. When Alabama Chief Justice Roy Moore ordered his state’s probate judges in January to ignore a Supreme Court ruling legalizing gay marriage, he put himself in jeopardy of losing his job – for the second time. Now Alabama’s Judicial Inquiry Commission has filed formal charges against him for his defiance. Moore should lose his job. But as he’s shown before, that’s a setback he can overcome. Last time he was removed from office, he ran for governor before settling for reelection as chief justice. Who knows? This time he might even win the governorship.

Facebook scrambled on Monday to respond to a new and startling line of attack: accusations of political bias. The outcry was set off by a report on Monday morning by the website Gizmodo, which said that Facebook’s team in charge of the site’s “trending” list had intentionally suppressed articles from conservative news sources. The social network uses the trending feature to indicate the most popular news articles of the day to users...“The agenda-setting power of a handful of companies like Facebook and Twitter should not be underestimated,” said Jonathan Zittrain, a professor of computer science and law at Harvard University. “These services will be at their best when they are explicitly committed to serving the interests of their users rather than simply offering a service whose boundaries for influence are unknown and ever-changing.”

Who owns the most U.S. Treasury bonds? China? Japan? Saudi Arabia? The answer: None of the above. It’s us. We Americans own almost $5 trillion in Treasury bonds, all told. That’s more than twice as much as China, Japan and all the oil exporting countries put together...A President Trump just winging it in public is going to cause chaos in the Treasury and currency markets. Legal experts aren’t sure what a default crisis would entail. The U.S. Constitution says government debt can’t be questioned. But it’s never been tested. “No one knows what happens if it is,” Harvard Law School’s Noah Feldman tells me.

Last summer, shortly after Donald Trump launched his angry missile of a campaign with that memorable remark about Mexicans and rapists, Kayleigh McEnany [`16] sounded like pretty much every other talking head on cable news. “I think he said something very unartful, very inappropriate,” she told Don Lemon during a June 29 segment on “CNN Tonight.”...Today, McEnany sounds very different — both from her earlier self and from better-known conservative commentators such as Karl Rove and S.E. Cupp, who remain highly critical of the presumptive GOP nominee for president. McEnany is now a staunch Trump supporter, a turnaround that has helped make the newly minted Harvard Law School graduate a rising star on CNN, which increasingly relies on her to furnish a perspective that is hard to find among the usual roster of right-leaning pundits.

A law degree from Harvard is generally a ticket to everything from the presidency of United States (think President Obama) to the Supreme Court (think Ginsburg, Scalia, Breyer, Kennedy, Roberts and Kagan) and major law firms. In other words, Harvard Law doesn’t immediately conjure images of influential environmental activists. But Ted Hamilton, a current Harvard Law student and one of the leaders of the student divestment movement, may be helping to change that perception. “Being in a place like Harvard and Harvard Law School gives you a really special opportunity to rock the boat,” Hamilton says. “People listen to you — maybe unfairly. There’s unfair attention shined upon the Harvard campus. Even though we're students, we have this unearned power to influence conversation and to make a difference for the climate movement.” Hamilton says that, like a lot of other divestment campaigns, one of the primary goals of the student movement is to shine a light on the “moral urgency” underlying the issue.

An op-ed by Adrian Vermeule. I admire the spirit of Philip Wallach’s essay. Excepting his rather defensive one-liners about the professors of administrative law, he tries to put a range of views about the administrative state in their best light, mining truth from wherever it lies and proposing a middle way of incrementalist legislation to discipline the bureaucracy. It therefore feels almost churlish to argue, as I will, that there is no need for even a moderate solution because there is no demonstrated problem to begin with. Although the spirit of the essay is admirable, the substance is weak. Three concepts are indispensable to any discussion of a putative “legitimacy crisis” in the administrative state: delegation, the presidency, and welfare, in the sense of well-being.