Media Mentions

An op-ed by Noah Feldman: Dog bites man may not be a news story -- but in nine western states, it’s grounds for a constitutional case. The U.S. Court of Appeals for the 9th Circuit has allowed a lawsuit by a woman who fell asleep in her office after a hard night’s drinking, accidentally tripped a burglar alarm, and was bitten in the lip by a San Diego police dog responding to the alarm. What makes the case so interesting is that the San Diego Police Department trained Bak, a service dog, to enter a room and bite the first person she saw. Her training was to hold the bite in place until her handler ordered her to release her grip.

An op-ed by Noah Feldman: In a victory for both noncitizens and common sense alike, the U.S. Supreme Court on Monday rejected the argument that state election districts must be drawn equally based on eligible voters rather than population. The court’s decision staves off a xenophobic push to discount noncitizens, which is a good thing. But almost equally noteworthy was an opinion by Justice Samuel Alito, who was joined by Justice Clarence Thomas in saying that states could use eligible voters to redraw their districts if they wish.

An op-ed by Noah Feldman. When the first act of a new legislature is to circumvent its country’s written constitution, it’s usually a bad sign. Not so in Myanmar, where the democratically elected parliament moved last week to create the post of “state counselor” and give the job to Aung San Suu Kyi, the leader and symbol of Myanmar’s long struggle against military dictatorship. She’s banned from serving as president by the constitution enacted under the military government that preceded hers, under a provision meant to prevent her from taking the office. Getting around it is a triumph of constitutional creativity and respect, not a worrisome undercutting of the rule of law.

Nearly 200 Democrats in Congress – including most from New England – are supporting the Environmental Protection Administration as it faces a legal challenge to its effort to regulate carbon emissions from coal-burning power plants. “The law is clear: The Clean Air Act gives EPA the authority to regulate air pollution and that is what the agency is doing with the Clean Power Plan rule,” Sen. Edward Markey, D-Mass., said during a conference call Friday with reporters to announce the filing of an “amicus brief” in support of the rule...A similar brief was filed Thursday by Harvard Law Professors Jody Freeman and Richard Lazarus on behalf of two former EPA administrators who had been appointed by Republican presidents Richard Nixon, Ronald Reagan and George H.W. Bush. Former EPA Administrators William D. Ruckelshaus and William K. Reilly are supporting the Clean Power Plan as a “pragmatic, flexible, and cost-effective pollution control program” that respects the authority of states. They argue that the rule “falls well within the bounds” of the agency’s authority to reasonably interpret broadly worded statutory language to address unforeseen problems without the need for congressional amendment of current law.

An article by Michael Shammas `16. The afternoon sun beats down, yet you persist. Your three comrades—tempered into friends by shared hardship—walk behind you. One ushers you over, whispers: “Look.” And you look. Beyond a sun-lit haze you see two red-bearded goatherds abreast their flock—and they, the goatherds, they too look—straight at you. One yields a crooked smile, waves. But deep down, this feels wrong; intuitively, you fear the men will compromise your mission, setting the lives of your fellow SEALs at risk. What do you do? There is little time as the goatherds walk away and recede into the valley. You agree to vote. “Shoot them,” whispers one comrade. “No,” says another. The third abstains. You have the deciding ballot, and your moral instinct says no (not to mention the natural and positive laws of war), and so you yourself say “no.” Despite the anomalous situation, suggesting governing ethics rules—especially international principles against killing civilians—might result in a less-than-optimal outcome, the problem is tough, so you gladly defer to guidelines long-ago dictated by custom, culture, the U.S. Navy. To obey is easy; to reason, hard.

Tensions flared in a standoff between activists and opposing students at Harvard Law School Friday as an intensifying debate that began over posters evolved into one about rights to space and free speech on campus. The controversy began Monday, when third-year Law student William H. Barlow—a vocal critic of the Reclaim Harvard Law student group—put posters on the walls of the Caspersen Student Center lounge equating the activist movement to Republican presidential candidate Donald J. Trump. Activists removed the posters—an action Barlow considered a violation of his right to free speech...Reclaim Harvard Law member Rena T. Karefa-Johnson said activists decided to remove the posters they considered to be offensive, in part because the Muslim Law Students Association held a conference in the lounge the day Barlow put up signs referencing Trump...“This is an occupation. This is our space, our house,” Reclaim Harvard Law member Alexander J. Clayborne said. “Let Bill Barlow put up posters anywhere else, just not here.”

Harvard Law School administrators amped up security and amended school policies in response to an escalating debate about free speech that began with a confrontation over posters last week. Students in the group Reclaim Harvard Law have occupied the Caspersen Center Student lounge—which they are calling “Belinda Hall”—since February to advocate for increased support for minority students on campus. Last Monday, third-year law student William H. Barlow, a vocal critic of Reclaim Harvard Law, posted signs in the lounge comparing the group to Republican presidential candidate Donald J. Trump, a move activists saw as offensive. Reclaim Harvard Law members removed the signs and told Barlow that they had jurisdiction over what could be posted in the space...Activists said they can control speech in the room because they are occupying the hall and designating it a make-shift office of diversity and inclusion. Therefore, they argue, they have the right to remove signs they consider to be offensive. “This is a place made for inclusion. Inclusion doesn’t mean that you let everything that anyone wants go up,” Bianca S. Tylek said. “Inclusion means protecting from exclusion.”...Students have taken to the pages of the Harvard Law Record to weigh in on the debate. The poster dispute has soured several students on the Reclaim Harvard Law movement, which they say they initially supported but now disapprove of activists’ tactics. Marlen Thaten called the movement “authoritarian” in a Record piece, and third-year Law student Stephen M. Silva said activists’ tactics have created a “pervasive” silencing effect on dissenting speech at the school. “They decided they’re going to stifle, basically, any other ideas people are going to say,” Silva said in interview. “I think it’s very unfortunate because they have some very good ideas.”

Recent interpretations of Title IX by the Office of Civil Rights that broadly define sexual harassment have created a “chilling” effect at America’s colleges and universities, threatening academic freedom, due process, and free speech, argues a recent report released by the American Association of University Professors. The report characterizes OCR as conflating conduct and speech cases, creating a “seemingly limitless definition of harassment” without explicitly reaffirming the protected speech of classroom instructors, leaving faculty who teach and research sensitive topics related to gender, sex, sexuality, and rape law vulnerable to sexual harassment charges...“I have heard from a number of colleagues, not just in criminal law but in other subjects, that they are now unwilling to teach any cases having to do with sex or sexuality, that they’re scrubbing their syllabi of material that touches on those topics, because those topics are the areas in which [they] could be perceived as engaging in unwanted verbal conduct of a sexual nature,” said Harvard Law School professor Jeannie C. Suk, whose writings on the challenges of teaching rape law are quoted in the report. “As long as the standard that is being used looks at whether the act is regarded as undesirable or offensive, then of course anything that one teaches having to do with sex or sexuality can be regarded as undesirable or offensive.”

...Although granted broad powers under the USA Patriot Act of 2001 to institute and enforce anti-money-laundering measures in a variety of industries, including banking, mortgage, insurance, and real estate, the Treasury Department has not required those involved in real estate closings, such as title companies, real estate and escrow agents, or lawyers, to ascertain or report who profits from the purchase and sale of properties. Juan Carlos Zarate ’93, J.D. ’97, is a visiting lecturer of law at Harvard Law School, a former deputy national security adviser in the George W. Bush administration, and a former assistant secretary of the U.S. Treasury for terrorist financing and financial crimes. The Gazette spoke with Zarate about the scope of the problem and what this new oversight might portend.

An op-ed by Sam Moyn: The most interesting question to ask about the Universal Declaration of Human Rights, passed by the United Nations General Assembly on 10 December 1948, is why it was ignored in its own time, even as it is celebrated in our own. The reason, I believe, is that the document reflected not a breakthrough internationalist minimalism but a small part of a familiar nationalist welfarism, in which a concern for civil liberties was not separated from economic and social entitlements.

Following a very public fight over the unlocking of the iPhone used by Syed Rizwan Farook, a gunman in the San Bernardino, Calif., shooting last December, the Federal Bureau of Investigation (FBI) has found a way to crack the device without help from Apple. Now, will the federal agency have to tell the tech giant how it was done?..."While it is appropriate for law enforcement, with a warrant, to use a security flaw to gain access to which it is legally entitled, the flaw should be patched as soon as possible for everyone else’s sake,” Jonathan Zittrain, a professor of law and computer science at Harvard Law School, told the Monitor.

A national coalition aiming to improve democracy by taking big money out of politics and expanding voting rights is kicking off a 10-day march to Washington with a rally outside the Liberty Bell on Saturday. Organizers of what is being called "Democracy Spring" said the nonviolent, family-friendly rally will begin at 10 a.m. with speeches and music. Scheduled speakers include Lawrence Lessig, a Harvard University law professor who briefly ran for president but dropped out of the Democratic primary race in December after the debate rules changed; actress Gaby Hoffmann, known for her roles in the TV series Girls and Transparent; and Kai Newkirk, campaign director of Democracy Spring.

Call this the tale of two different sets of state attorneys general: one group represents coal producing and consuming states and the other speaks for states that adversely affected by those who burn coal. While it’s all playing out in the nation’s legal arenas, the efforts are surely political. After all, the office of attorney general is known as the “aspiring governors.”  ,,, “The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a ‘power grab,’” says Harvard law professor Laurence Tribe, in testimony before Congress last year.

The Department of Veterans Affairs is wrongfully denying services to roughly 125,000 post-9/11 veterans with other than honorable discharges, according to a joint study released Wednesday by two veterans advocacy groups and Harvard Law School. Some veterans are missing out on benefits such as healthcare, housing help for the homeless and disability services, in part, because the VA’s own rules are in contravention of the original GI Bill of Rights passed by Congress in 1944, according to the study. That represents roughly 6.5 percent of post-9/11 veterans, including more than 33,000 who served in Iraq and Afghanistan. ... “Veterans who have served since 9/11 are being excluded from the VA at a higher rate than any other generation of veterans,” said Dana Montalto, the study’s author and a Liman Fellow with the Harvard Law School’s Veterans Legal Clinic. “They’re being denied very basic services.”

This time, critics are going after the V.A. to denying benefits to a record number of veterans who have served since the 9-11 attacks.At least 125,000 American veterans who served our country since September 11th are being treated by the V.A. as though they never even put on a uniform. The Department of Veterans Affairs has ruled them ineligible for veterans benefits, not because they didn’t sacrifice, but because they left the military without an honorable discharge. ... The staggering numbers come from a new report from veterans advocacy group Swords to Plowshares, the National Veterans’ Legal Services Program and Harvard, which found that the V.A. is denying valuable benefits at unprecedented levels.

An op-ed by Tommy Tobin `16. The unfilled vacancy on the U.S. Supreme Court, while the most talked about right now, is just the latest in a long line of unfilled seats on the federal bench. Just this month, a retirement from D.C.'s U.S. District Court brought the total number of judicial vacancies up to 84, and if Merrick Garland is indeed confirmed to the country's highest court, it will create yet another vacancy on the D.C. Circuit Court of Appeals, where he currently serves as chief judge. The open positions are leading to a backlog of cases across the country and an overworked judiciary that has to do more with less.

Two former Republican-appointed U.S. EPA administrators are urging federal judges to uphold an Obama administration climate rule that's come under siege in court. William Ruckelshaus and William Reilly are submitting a brief to the U.S. Court of Appeals for the District of Columbia Circuit today as "friends of the court" supporting EPA's Clean Power Plan, which aims to cut power plants' greenhouse gas emissions...The two former EPA administrators are represented in the case by Harvard Law School professor Richard Lazarus. "The Clean Power Plan represents the very kind of pollution control program" that the two former agency bosses "endorsed during their service at EPA," the brief adds. "The Plan is a pragmatic, flexible, and cost-effective pollution control program, which properly respects State sovereignty by affording States substantial authority and latitude to decide whether and how best to administer its provisions."

For the last several weeks, the walls of the protestor-occupied “Belinda Hall” have been covered with messages from Reclaim HLS, a coalition of students seeking institutional change at the Law School. But on Monday, there was a new message—one equating the movement with Republican presidential frontrunner Donald Trump, claiming that both Trump and Reclaim are anti-free speech. The signs were posted by third-year student Bill Barlow, who has been a vocal opponent of perceived censorship by Reclaim HLS. Barlow believes some of the protestors’ demands impinge on academic freedom and stifle dissent—a conviction this incident reaffirmed for him. Shortly after Barlow taped up his signs, he sat down to discuss his message with protestors—a conversation he referred to as “tense but civil.” Later that afternoon, members from Reclaim HLS removed Barlow’s critical posters...Dean [Marcia] Sells issued a statement to the Record reaffirming Harvard Law’s commitment to free speech. “In recent weeks, faced with questions of pressing importance to our community, we have respected the extraordinary use of space in the WCC lounge as a place for the expression of views through, for example, the display of posters and fliers and the holding of teach-ins and the like,” Dean Sells told the Record...But unlike Dean Sells, AJ Clayborne, a third-year student and a Reclaim HLS organizer who was one of several students who has removed Barlow’s posters, said that anything posted in Belinda Hall must be approved by Reclaim first.

There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working...Dahlia Lithwick has a rundown of the theory, which comes from this Yale Law Review article by Matthew Stephenson, a law professor at Harvard. The idea takes off from the Take Care Clause of the Constitution, which says that the president “must take care that the laws be faithfully executed,” and the Appointments Clause...According to Stephenson, there is occasional tension between these two clauses, and it has become more pronounced in our highly polarized modern moment, because the president appoints cabinet secretaries, agency heads, and other executive positions as essentially surrogates to carry out his agenda, denying him the ability to make these appointments keeps whole swaths of the Executive Branch from functioning, thus inhibiting his ability to faithfully execute the laws.

As discussions of sexual assault and Title IX pervade campus rhetoric, Harvard Law School alumna and activist Kamilah Willingham offered her views on the topics and reflected on her experiences at a conference Tuesday. The conference, entitled “Challenges in Title IX Advocacy,” was the first from Harassment/Assault Law-School Team, a new organization of Law School students that advocates for students who file sexual assault claims through internal procedures at schools in the Boston area...Jenae S. Moxie, a Law School student and the president of HALT, spoke during a panel discussions about her disillusionment with the Law School’s ability to educate students about sexual assault...in addition to student activism, [Diane] Rosenfeld said she is optimistic about the potential positive effects of her curriculum. “I have the incredible privilege and luxury of creating my own curriculum, and having created the gender violence program,” Rosenfeld said. “I wanted to develop Title IX as an incredibly strong potential source of civil rights in education.”

An op-ed by Laurence Tribe. A one-line opinion. That's what the Supreme Court gave us this week, in what many expected to be one of the biggest cases of the year. At stake in Freidrichs v. California Teachers Association was the ability of public-sector unions to collect fees from non-joiners unwilling to pay for the unions' collective bargaining efforts. Some thought the fate of the American labor movement hinged on the outcome. The court had mountains of materials to consider. But it said only this: "The judgment is affirmed by an equally divided Court." If the Republican Senate keeps stonewalling Judge Merrick Garland's nomination, pretending that it can discharge its advice and consent duty by doing nothing, get used to hearing that sentence. This year, contraception, abortion, voting rights, religious freedom and affirmative action are on the court's docket. Next year and beyond we can expect cases on guns, campaign finance and the balance between security and privacy. But an incomplete court will deadlock 4-4 on many of these issues.