Media Mentions

An op-ed by Nancy Gertner. When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous. In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.

An op-ed by Noah Feldman. Should female African-American cadets at West Point be punished for posing for a photograph with their fists raised? Most discussion so far has focused on the contemporary meaning of the gesture and whether it’s a political statement of solidarity with the Black Lives Matter movement. But there’s a further free-speech question that must also be answered: How much leeway should members of the uniformed, active-duty military have to express themselves -- photographically, politically, or otherwise? The best answer, grounded in military regulations and the First Amendment, indicates that the cadets have not violated the letter or spirit of the law and should not be subject to sanction.

An op-ed by Lawrence Lessig. U.S. Rep. David Jolly, a Republican from Indian Shores, has generated enormous enthusiasm for his Stop Act — a proposal to ban members of Congress from personally asking people for money. "60 Minutes" did a special segment about the idea. That followed an incredibly powerful piece by comedian John Oliver describing with perfect clarity just how absurd the system has become. From my own survey of research, we know that members of Congress can spend anywhere between 30 percent and 70 percent of their time raising money. Even at the low end of that estimate, this should astonish anyone. Critics are wrong to call this a "do-nothing Congress." To the contrary, it does an incredible amount — of fundraising. That life of fundraising changes the members of Congress. How could it be otherwise? If you spent half of your time sucking up to powerful and wealthy people, you'd be changed, too.

This report from the Berkman Center's Berklett Cybersecurity Project offers a new perspective on the "going dark" debate from the discussion, debate, and analyses of an unprecedentedly diverse group of security and policy experts from academia, civil society, and the U.S. intelligence community.

An op-ed by Noah Feldman. Spend a million of your Super PAC dollars to elect a governor, and you can expect him to take your calls and set up meetings with state officials. Courtesy of the Supreme Court and its 2010 Citizens United decision, it’s all protected by the First Amendment. But give the same governor a Rolex before asking for the meetings – and both of you might be convicted of bribery. Is there a meaningful difference? That’s the question in McDonnell v. U.S., which the court is currently considering. The bribery conviction of former Virginia Governor Bob McDonnell follows the second pattern – complete with the Rolex.

An op-ed by Noah Feldman. My 10-year old put it best: “First you said Trump wouldn’t win any primaries. Then you said he wouldn’t win the nomination. So why exactly are you so sure he won’t become president?” Given this reasonable question, it’s time to start asking: Is the Constitution in danger from a Donald Trump presidency? How far can he push the envelope of our constitutional structure and traditions?

An op-ed by Tommy Tobin `16. North Carolina is home to the nation’s longest-running federal court vacancy. Recently, Patricia Timmons-Goodson was nominated to fill the post that’s been unfilled for over a decade. Sen. Richard Burr reacted to this news by vowing to block this former state supreme court justice from the federal bench. Federal judicial vacancies occur all over the country. Right now, 60 nominees are awaiting confirmation. Judicial vacancies have consequences. A forthcoming paper by Professor Crystal S. Yang in the American Economic Journal: Economic Policy found significant real-world effects on criminal justice outcomes during judicial vacancies.

As Harvard Law School admissions officers finalize next year’s class, they do so with an eye toward a group of fields that deviate from the traditional path to legal studies: STEM. Law School chief admissions officer Jessica L. Soban said the percentage of admitted students with backgrounds in STEM—science, technology, engineering, and mathematics—will remain in the double digits for the second year in a row, reflecting a deliberate effort by Law School admissions officers in recent years to increase the number of students with such backgrounds...Law School clinical professor Christopher T. Bavitz said he thinks students with STEM backgrounds possess skills well-suited to the law. “There are a lot of reasons why people with tech backgrounds can do well in the law,” he said. “A lot of law practice is explaining complicated concepts to people...and people with science and tech backgrounds do that well. I think they’re great analytical thinkers in ways that kind of map on to the thinking lawyers do.” The Law School has pioneered programs bridging science and the law. The school’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics—which was established a decade ago—was the first of its kind among law schools, according Faculty Director and Law professor I. Glenn Cohen, putting Harvard ahead of peer institutions.

...Though offerings in Native American studies at Harvard are few and far between, a small number of committed students and faculty are dedicated to maximizing the resources available to them, and hope to see more opportunities in the future...Native American studies at Harvard Law School has a larger presence compared to other schools at the University. Lowe cited the establishment of the Oneida Indian Nation Visiting Professor of Law position as an example of a positive development towards increasing Native American studies faculty. The visiting position, endowed by the Oneida Nation, a federally recognized tribe headquartered in New York, is currently filled by Robert T. Anderson, who is serving two consecutive five-year appointments as the Oneida Chair. Anderson said he thinks there is enough student interest in American Indian Law to fill more classes than are currently offered in the field. “Students are very interested [in American Indian Law] because it’s a very high-level student body as you would expect at Harvard, and many of the students are going on to prestigious federal and state clerkships where they’re encountering these issues,” he said. In addition to the Oneida professorship, professor Joseph W. Singer has developed an American Indian Law problem for a mandatory “Problem Solving Workshop” required for every first-year Law student. He also leads a reading group on American Indian Law. Additionally, the Law School runs a Native Amicus Briefing Project, which recruits students partly to keep track of cases of federal Indian law and ultimately provide amicus briefs to the cases.

A letter by Delcianna J. Winders, fellow. If the Pittsburgh Zoo & PPG Aquarium is truly concerned about elephants and elephant-born tuberculosis, why is it supporting cruel, outmoded elephant-back safaris?

There’s a new, deeply troubling, report about misconduct at a state drug testing lab. The report by Attorney General Maura Healey alleges that Amherst chemist Sonja Farak got high off of drugs she took from the lab nearly every day for eight years...Guests...Nancy Gertner, WBUR legal analyst, retired federal judge, Harvard Law School professor.

A 28-year-old Army officer on Wednesday sued President Obama over the legality of the war against the Islamic State, setting up a test of Mr. Obama’s disputed claim that he needs no new legal authority from Congress to order the military to wage that deepening mission...Jack Goldsmith, a Harvard Law School professor who has criticized the administration’s use of the 2001 war authorization to cover the Islamic State but is not involved in the suit, said the case was significant because it could overcome a major hurdle to getting a court to review that theory. But Mr. Goldsmith said Captain Smith faced many other hurdles, including precedents that suggest that when Congress appropriates money for a conflict it has implicitly authorized it. He also predicted that if a court did rule that the conflict was illegal, Congress would authorize the fight to continue – perhaps giving it broader scope than Mr. Obama has wanted. “We’re in a terrible equilibrium where Congress doesn’t want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do,” Mr. Goldsmith said. “It would be a lot better for everyone, including the president, if Congress got more involved.”

An op-ed by Cass Sunstein. Donald Trump is an iconic System 1 candidate -- more clearly so than any party nominee in at least sixty years. Hillary Clinton is an iconic System 2 candidate -- as clearly so as any party nominee in the same period. That distinction may well end up defining the general election. Let me explain. Psychologists, and most prominently Nobel Prize winner Daniel Kahneman, have distinguished between two ways of thinking -- fast and slow. Fast thinking is associated with the brain’s System 1: It is intuitive, quick, and sometimes emotional...System 2 is deliberative and reflective.

An op-ed by Noah Feldman. The Black Lives Matter movement may be starting to affect the thinking of federal judges, if a Texas case is any indication. Wednesday, a George W. Bush appointee wrote a dissent that started this way: “Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information.” The opinion was a dissent because the two other judges on the appellate panel thought the officers who killed Pratt during an arrest were entitled to immunity from being sued. So it's not as if the social protest movement has yet won a complete victory. But the Republican appointee’s language was noteworthy and her opinion deserves analysis.

Yale University announced last week that it will retain the name of Calhoun College, one of its 12 residential colleges. The college was named for John C. Calhoun, a 19th-century alumnus and a fervent supporter of slavery. The decision set off an angry response from students on campus, who condemned the decision at an intense university-sponsored town hall last Thursday. But one prominent race relations expert doesn't believe that Yale made a mistake in their decision to keep Calhoun's name on the college. While removing the name would have been Harvard law professor Randall Kennedy's "preference," he "can respect the decision thay [Yale] made," he told Business Insider. "People speak as if you keep John C. Calhoun's name, that means you're indifferent to the legacy of racism," he continued. "I don't believe that. I think that there are people who embrace the idea of keeping his name who are deeply concerned with the legacy of slavery and racism and want to do things to address that legacy."

Learn about constitutional law, we will. Harvard Law Professor Cass Sunstein is best known for his influential scholarship on constitutional law and behavioral economics as well as his three-year stint as administrator of the White House Office of Information and Regulatory Affairs under President Obama. But his latest project has him venturing beyond the ivory tower into a subculture far, far away: Star Wars.

An op-ed by Noah Feldman. The Supreme Court has announced that it will decide a fascinating copyright case about cheerleaders’ uniforms. It's a big deal because the case isn’t just about cheerleaders -- it could determine whether many kinds of fashion designs can be copyrighted. The copyright law seems simple: It says that “useful items” can’t be protected. You can't own exclusive rights to make dining tables or dinner plates. A uniform, like any other piece of clothing or furniture, is useful. But that isn’t the end of the problem. What about designs on useful objects: a pattern on a dinner plate or a stripe on a garment?

An op-ed by Noah Feldman. Justice Stephen Breyer is against the death penalty -- but not because it’s morally wrong. He briefly reiterated his arguments Monday when dissenting from the court’s refusal to hear a California death row inmate’s case. First, he said the death penalty may be unconstitutional in California because it’s applied arbitrarily and unreliably. Those are plausible and unremarkable arguments. They no doubt appeal to the technician in Breyer, who believes that government should do things pragmatically and correctly. But his third reason was most striking. Following a view he has held since the 1990s, Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.

An article by Samuel Moyn. The duty to remember—especially to remember victims lost to political evil—has become one of the most commanding mantras of our culture. Yet it is astonishing how recently this imperative became so authoritative. Kings have raised monuments to their own alleged greatness for millennia, but commemoration of the dead of the wars of nations reached its apogee only in the early twentieth century with the end of World War I and now-familiar invocations of the heroism and self-sacrifice of soldiers for the sake of the nation’s political fortunes.

South Jersey truck driver Michael Fright plans to celebrate by watching the first six movies, back to back to back. Bucks County accountant Carl Cardozo will take the day off from work, going in search of collectible, newly-on-sale figures of Boba Fett. Harvard professor Cass Sunstein intends to travel to the purest planet in the galaxy, Dagobah - at least in his mind. "It's gorgeous there," he said. And he should know. On Wednesday, these fans will join thousands of others - film buffs, academics, nerds everywhere - to observe an unofficial but hugely popular national holiday: Star Wars Day. That's May 4, as in, May the Fourth be with you!...But why does the holiday exist? Why is there a day for Star Wars when there's no Jurassic Park Day? Or Hunger Games Day?"Because it's awesome, and full of mysteries, and fun, and because it is handed down from one generation to another," Sunstein said.

In our earlier segment, we examined some of the repercussions of the current vacancy on the Supreme Court. This week we will examine in more detail the specific impact on the Fifth Circuit and how the vacancy impacts splits in decisions between the 11 circuits of the United States Courts of Appeals. The National Law Review turned to the expertise of Andrew Pincus of Mayer Brown, Daniel Volchok of Wilmer Hale and [lecturer] Tejinder Singh of Goldstein & Russell, P.C. for help fleshing out these issues.