Media Mentions

An op-ed by Jack Goldsmith. Last week the State Department’s top lawyer, Brian Egan, gave an important but underreported speech that marked the final stage of the Obama administration’s normalization of once-controversial Bush-era doctrines about the conduct of war. Before a gathering of geeky international law-loving lawyers in Washington, D.C., Egan announced the Obama administration’s official embrace of the same preemption doctrine that justified the invasion of Iraq. Egan’s speech marks the culmination of a continuity project that began, to many people’s surprise, at the beginning of Barack Obama’s first term. Since 2009, Obama has adopted the notion of a global war against al-Qaeda and associates; he expanded the legal basis of that war to include ISIS; he embraced military detention without trial, military commissions, state secrets and large-scale secret surveillance; and he ramped up drone strikes, deployment of Special Forces and cyberattacks.

Harvard students, faculty, and fellows are training new high-tech instruments on Boston’s skies, searching for one well-known troublemaker and one escapee among the atmosphere’s invisible gases. The old troublemaker is carbon dioxide, the greenhouse gas released by burning fossil fuels that long has been known as the main cause of climate change. The escapee is methane, an even more powerful emission that is the main component of the natural gas burned in home furnaces and in the electricity-generating power plants that are shouldering aside coal-fired plants across the country...The project is being conducted in collaboration with Hutyra and Wendy Jacobs, clinical professor of law and director of the Emmett Environmental Law and Policy Clinic at Harvard Law School. Jacobs said the interdisciplinary nature of the project is key, and the goal is not just to use science to illuminate the problem of methane and carbon dioxide emissions in the city, but to design laws and regulations to address the problem. “Laws, regulations, and public policy will not be effective unless informed by reliable science and data. Reliable science and data can effectively be deployed to solve a problem when integrated into new technologies, laws, regulations, and public policies,” Jacobs said. “The collaboration of our distinct disciplines is more powerful than either discipline alone.”

It has recently come to light that U.S. Chamber of Commerce President Tom Donohue, along with the presidents of the Business Roundtable and the National Association of Manufacturers, sent a letter last fall to their member corporations urging them to resist efforts aimed at encouraging corporations to make their political, or lobbying and election spending (including donations to trade associations like the Chamber), more transparent. ...But beyond mere rank hypocrisy, there is ample evidence to suggest that the Chamber's opposition to corporate political spending transparency is also bad for its corporate members. Harvard professor John Coates shows that companies that engage in lobbying and campaign spending have less robust corporate governance practices (like shareholder engagement with the board and proxy access) which may impact shareholder value, than do companies that don't play in politics.

An op-ed by Noah Feldman: Law and tradition say that a jury verdict shouldn't be overturned on the basis of something jurors say in their deliberations, no matter how ignorant or offensive. But what if there’s strong evidence that the jury deliberations were racially biased? Does the defendant’s right to a fair trial supersede the tradition of letting the verdict stand? The Supreme Court has agreed to hear this fascinating question in a sexual assault case where one juror, a former cop, told the others that Mexican men "do whatever they want" with women.

An op-ed by Tyra J. Walker ’18: In response to the thoughtful and candid article posted by Michael Shammas, I would like to contribute to a debate which I have been hesitant to partake in for fear that I might be wrong—and that someone, somewhere was bound to disagree with me. I’ve found myself in an interesting place as a black, female, first-generation law student in the middle of the so-called “Postergate” controversy. There’s much that I am still processing in regards to the flurry of activity from the last few days, but there are a few things I know, and wish to share:  

An op-ed co-written by Professor Bruce Hay and Harvard University Researcher Mischa Haider:  Bathroom predators stalking our wives. Cross-dressing perverts out for our daughters. Shoes and ships and sealing wax, and cabbages and kings. The absurd, mendacious claims made by proponents of legal segregation of transgender peo.ple, most recently in the vicious laws enacted in North Carolina and Mississippi, bring to mind the Walrus — the Lewis Carroll character who wished to talk of many things, such as whether pigs have wings. With his nonsensical words, theatrically uttered as he sets the table, he distracts his attentive audience of oysters from their impending doom on his plate.

The New England Center for Investigative Reporting earlier this week published an article detailing the many instances in which Massachusetts prosecutors “have violated defendants’ rights to a fair trial regularly and without punishment.” These violations, according to NECIR, range from prosecutors failing to turn over important evidence to defense lawyers or to disclose information bearing negatively on witness credibility, to prosecutors misrepresenting evidence in their closing statements to the court. ... Nancy Gertner, a retired federal judge and a professor at Harvard Law School, said in an email that prosecutors can be held responsible for misconduct in-house through “demotion, suspension, censure." They can also be held accountable from the “outside, i.e. through the ethical rules governing counsel.”

Housing rights advocates interrupted an event featuring Federal Housing Finance Agency Director Melvin Watt at the Law School Monday evening to protest Watt’s housing finance policies, prematurely ending the event and prompting questions about security protocol at the school. The event, organized by Law School professor Hal S. Scott, was intended to be a “fire-side chat” about federal housing policy. Scott said he heard beforehand that activists might protest, and as a result, Harvard University Police Department assigned two plainclothes officers to the event at the request of Law School administrators.

Thomas Jefferson has long been a lightning rod, but the past year has been tougher on him than usual. Protesters on college campuses have plastered Jefferson statues with Post-it notes reading “racist” and “rapist.” And on Broadway, the musical “Hamilton” has deliciously skewered him as a flamboyantly scheming hypocrite. Still, on a recent afternoon, there was America’s third president, standing serenely on his pedestal in front of the Columbia School of Journalism, flanked by Annette Gordon-Reed and Peter S. Onuf, the authors of the latest book to plumb the mysteries of his character. ... Ms. Gordon-Reed, a professor of history and law at Harvard and the author of the Pulitzer Prize-winning book “The Hemingses of Monticello,”seconded the point. “People read history the way we watch movies, where you have a good guy and a bad guy,” she said. “What’s the point of even going to the library to do research if you already know what you think?"

Emily Broad Leib is the co-founder and director of Harvard’s Food Law and Policy Clinic. The clinic pairs Harvard law students with nonprofits and government agencies working to increase access to healthy food and assist farmers engaged in sustainable agriculture.Emily’s work began in Mississippi, which has one of the highest rates of poverty and obesity in the country. While a fellow in the Mississippi Delta, Emily worked on simplifying and clarifying laws that prevented small-scale farmers from selling their produce in farmers’ markets and helped start the Mississippi Food Policy Council. I spoke with her about food-policy councils, small farmers, food waste, and using food as a lens for understanding a community’s wider health problems.

The Supreme Judicial Court of Massachusetts heard arguments Tuesday on three major cases. Judge Nancy Gertner joins us to analyze their impact. We first delve into the use of mandatory minimums in drug sentencing. The case centers around a 1996 state law that the lawyers for the defendant say gives judges discretion to sentence outside of mandatory minimums. However, the Middlesex County District Attorney disagrees. The second looks at the Shrine of Our Lady of La Salette in Attleboro. The shrine sits on almost 200 acres of land and attracts thousands of visitors each year, especially during the Christmas season with its “Festival of Lights.” In 2012, the Shrine received a tax bill from the town, but the case argues religious organizations should be tax exempt.

An op-ed by Cass Sunstein: Predicting the experience of his successor General Dwight Eisenhower, President Harry Truman said this: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike -- it won’t be a bit like the Army. He’ll find it very frustrating.” Donald Trump and Ted Cruz have promised to get rid of a whole host of executive actions from the Barack Obama administration. (If the Republican convention produces a different nominee, expect similar promises.) But there’s good reason to doubt how much would happen if one of them wins. The principal reason is simple: the law.  

The Seminole Tribe of Florida urged a district court Friday to remand to state court a lawsuit accusing Wells Fargo of mismanaging a $1.4 billion trust, saying that its breach of trust claims do not belong in federal court. ... Moreover, the minor beneficiaries would not normally be understood by trust lawyers as the purchasers or sellers of securities held in trust, Harvard Law Professor Robert Sitkoff said. The experts’ opinions show that precluding the lawsuit under SLUSA would have far-reaching consequences such as enabling trustees to misappropriate trust property “with impunity,” insulating trustees from fiduciary accountability and sacrificing “portfolio efficiency” by removing several asset classes as potential investments, the tribe said.

New research from the Harvard University Center for Health Law and Policy Innovation (CHLPI) is another piece of evidence showing how health insurance plan design may be trying to discourage enrollment by patients with certain conditions and also preventing some individuals from actually getting care. CHLPI looked at trends in state health insurance exchange plans over several years and reports they are “increasingly alarmed by lower rates of coverage for necessary HIV and HCV [hepatitis c] treatment regimens.”  At the same time, cost sharing for those treatment regimens, even if the plan covers them, is increasing. They note, “This insurance practice has the discriminatory effect of discouraging individuals in needs [sic] of specific medications from enrolling in these plans or of shifting the burden of the cost back to these enrollees.” For example, the Harvard researchers found in 2016 some insurers are requiring coinsurance of 40 percent or more for all hepatitis c medicines; this high coinsurance is also sometimes required for most or all HIV medicines.

A new "sex bureaucracy" is attempting a full takeover of young people's sex lives through moral strictures that trample free speech and the due process of law. In only the most recent symptom of this disease, a court recently ruled that George Mason University wrongfully expelled a student in 2014 -- for engaging in consensual sex with his girlfriend. ...A forthcoming paper to appear in the August issue of the California Law Review outlines "The Sex Bureaucracy," which Harvard Law School professors Jacob Gersen and Jeannie Suk argue is thoroughly regulating "the space of sex" in America. The "bureaucracy dedicated to that regulation of sex ... operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

A letter by HLS’s Animal Law & Policy Program Fellow Delcianna J. Winders: While tuberculosis cases rose last year in the U.S. for the first time in 23 years, the federal government has stopped regulating an important vector of this potentially deadly disease (“Tuberculosis Cases Climb for the First Time in Years,” U.S. News, March 25). Experts have found that at least 18% of elephants in this country carry tuberculosis, and elephants can easily transmit TB to humans because it is airborne.

Prospective students who converged on the Law School’s campus last weekend found themselves in the midst of protests and a new financial justice campaign by activists. ...“The Fees Must Fall campaign is a start of a conversation around financial justice that we believe that Harvard Law School should be engaging in,” Reclaim Harvard Law member Sam S. Koplewicz [’16] said. “It’s not just about fees; it’s also about wages for workers and healthcare for workers, and about how we invest our money. Those things cut across both financial discrepancies and racial discrepancies.”

It was raining lightly when marchers of the Democracy Spring coalition set out Saturday, trudging past Independence Hall in Philadelphia on their way south toward Washington, D.C. ... The visionary of the new, expanded reform movement is another professor, Larry Lessig of Harvard Law. He's written a book about political money, organized other grassroots groups, even tried running for president on the issue last year. At the march, Lessig said the goal is not to undo Citizens United. "Citizens United was the best thing for the reform movement since Richard Nixon. What it did was rally people," he said. But big donors already had too much sway, he said: "The democracy was already dead. The Supreme Court might have shot the body, but the body was already cold."

An essay by Michael Shammas ’16 :  Over the last few days, I’ve struggled to come up with an article that captures my conflicting thoughts about what’s going on right now at Harvard Law School. I’ve been depressed that the maturity of an important discussion on group identity has utterly failed to meet even the low standard set by my family’s internecine Lebanese dinner parties. So initially I came up with four words instead, words that are apparently controversial here at Harvard Law School, but that—when applied to all—facilitate respectful debate: “You might be wrong.”

An op-ed by Scott Brewer: This past Wednesday evening I attended the screening of the film “Bridge of Spies” that Dean Minow and the Program on Negotiation hosted here at HLS. I had known nothing of the main subject of the film, James B. Donovan, a 1940 HLS alum (played in the film by Tom Hanks) who had a distinguished career as a lawyer-statesman-negotiator. Donovan’s career came to mind as I listened to conversations among some of my colleagues about the controversial contest over student use of a WCC space that some students have been, as they put it, “Reclaiming” (actually, “claiming”?), while other students (one, Mr. Barlow, has been especially prominent) have been seeking to use it to speak by means of posters even as Reclaim has sought to deny him that speech. The film made clear that Donovan was willing to champion robust advocacy, as a matter of principle, even in support of deeply unpopular causes, at personal cost and risk. As far as I can tell, the historical record of Donovan’s life seems to support the conclusion that the real-life Donovan really had and lived by these views.

Saturday morning was rainy and cold, as a few hundred activists gathered in front of Philadelphia’s historic Independence Hall, home of both the Declaration of Independence and United States Constitution. They were there to draw attention to ways in which our government has become less representative and democratic. ... As they prepared to step off, Lawrence Lessig, the Harvard professor, activist, march organizer and — briefly — presidential candidate, addressed the crowd. “When Madison puttered around in that building convincing people to sign onto a constitution,” Lessig said, “at the core of his ideal was a democracy that would be responsive to the people, with this ideal of equality.