Media Mentions

Americans, if your postprandial football game or James Bond movie marathon is interrupted — again and again — by presidential primary ads on Thursday, do not blame Citizens United, the 2010 Supreme Court ruling that opened a gusher of campaign cash. Blame instead a little-reported lower-court decision argued just days after Citizens United, which gave rise to the phenomenon of the super PAC, and which the Supreme Court, surprisingly, has never reviewed....Harvard Law professor Laurence Tribe last week called it “comical” that super PAC contributions would be treated differently than contributions to the candidates themselves, since the supposed independence of the committees is little more than a fig leaf...The situation may be comical, but it’s also deeply damaging; Tribe called it “the plutocratic takeover of our politics.” Along with two other constitutional scholars who spoke on a panel convened by the campaign reform organization Free Speech for People (and which I moderated), Tribe believes that the SpeechNow decision is vulnerable to being overturned should a challenge be brought to the Supreme Court.

An op-ed by Diane Rosenfeld. The documentary film “The Hunting Ground” exposes the systemic problem of campus sexual assault. Through harrowing narratives of student-survivors, we see the profoundly devastating effects that one act of sexual violence can have on a victim’s entire educational trajectory. It is all too prevalent on college campuses and represents a massive deprivation of women’s civil rights to educational equality. Those who argue that sexual assault cases involving college students should simply be handled by the criminal justice system are missing the critical point that schools have legal obligations to enforce the civil rights of students.

An op-ed by Noah Feldman. The Nuremberg trials opened 70 years ago, on Nov. 20, 1945 -- with every prospect of ending in disaster. Nuremberg was the first time in modern history that the victors of a war decided to treat a defeated European enemy as criminal. The prosecution faced one overwhelming problem: There was no clear legal authority to say that starting a war was a crime under international law. Today we often think of the Nuremberg trials as having been about the Holocaust. But in fact the prosecution team, led by U.S. Supreme Court Justice Robert Jackson and including British, French and Russian lawyers, focused on the theory that Germany’s crime was to have engaged in “aggressive war.”

Half the state governors in America are constitutionally ignorant or shamefully demagogic. Most likely it's the latter, but some may be both..."I've gotten past the point of being astounded by grandstanding," constitutional scholar Laurence H. Tribe told me. "I'm sure they know better. But by their calculations, they have nothing to lose by joining a bandwagon that can't move. "It's not something a governor who cares about the law would do in great conscience, but I wonder how many governors really give a damn." I asked Tribe, a Harvard constitutional law professor who has argued scores of cases before the U.S. Supreme Court, whether governors have any control over immigration. "None," he replied. "Absolutely none. Federal law is supreme."

An op-ed by Lecturer on Law Norm Champ. In recent testimony before the House Financial Services Committee, David Grim, the director of the Securities and Exchange Commission’s Division of Investment Management, said the agency is working on a proposal that if adopted would “establish a program of third-party compliance reviews for registered investment advisers.” The third-party reviews would not replace examinations conducted by the SEC, but would “supplement them in order to improve compliance by registered investment advisers.” The SEC only examines about 10% of investment-management firms in the U.S. each year, so the idea of forcing such firms to pay for third-party exams is appealing because it would increase the number of firms examined. Sounds sensible, but the unintended consequences need to be examined. Not that long ago the SEC turned its “gatekeeper” powers over to private parties—with disastrous results.

...Colleges and universities across the country are required by federal law to investigate and adjudicate whenever a student makes allegations of sexual misconduct. The procedures vary widely. Most schools hold disciplinary hearings, often made up of teachers and students, some with little training, acting as prosecutor, judge and jury..."The schools, upon receipt of the Dear Colleague letter and looking at its requirements, weren't completely sure of exactly how to comply, and so in many cases they did more than they necessarily needed to do," says Jeannie Suk, a Harvard Law professor and outspoken critic of the campus tribunals. "They kind of in a sense over-complied. Now, they bent over backwards, and then that's when they put in place -- kind of in a hurry -- these procedures that now don't respect fair process."

Issues of race and inclusion swept across Harvard late last week, with a College report on efforts to create a more diverse and inclusive campus, a demonstration and march in solidarity with the Black Lives Matter movement, an incident at Harvard Law School that spurred outrage and national attention, demands from students of Latin-American origin, and statements of support from University administrators. On Thursday morning, portraits of black professors on the walls of Wasserstein Hall at Harvard Law School had black tape across their faces. The incident prompted an ongoing police investigation and set off a wave of concern among students and University officials amid a growing movement for racial justice that is unfolding in colleges across the country. “It was an act of blatant racism,’ said Leland Shelton, JD’16, president of the Harvard Black Law Students Association. “I was taken aback that somebody had the audacity to do this.”

Carrying scales and wearing a blindfold, the image of justice has long symbolized judgment delivered without bias or prejudice. That was not the case for Victor Rosario. “The blindfold meant something different for me: that sometimes justice closes her eyes to the truth,” said Rosario, who served 32 years in prison for a crime he said he didn’t commit. Now 58 years old, Rosario was 24 when he was charged with homicide by arson in a Lowell fire that killed three adults and five children...The Law School hosted Rosario on Nov. 13 for a talk before students titled “Anatomy of a Wrongful Conviction: Why Did Victor Rosario Serve 32 Years in Prison for a Crime He Didn’t Commit?” His lawyers, Lisa Kavanaugh and Andrea Petersen, accompanied him to the event, which was sponsored by the Criminal Justice Program of Study, Research & Advocacy.

An op-ed by Antuan Johnson [`16], Alexander Clayborne [`16], and Sean Cuddihy [`16]. The Harvard Law School crest is a glorification of and a memorial to one of the largest and most brutal slave owners in Massachusetts. But Isaac Royall, Jr., was more than simply a slave owner; he was complicit in torture and in a gruesome conflagration wherein 77 black human beings were burned alive. This fact and others were absent from The Crimson’s recent editorial, “Recognizing History”—an erasure of history that shows precisely why the seal must be changed. Now that the Law School has been subject to an act of racism, we feel that it is more important than ever to bring this history to light. As the students of Royall Must Fall, we call on the Law School to confront and address this history, not to sanitize and ignore it.

When someone placed strips of black tape over the faces of black professors’ portraits at Harvard Law School on Thursday, many people were appalled. But Derecka Purnell, a black law student, said she wasn’t surprised. Purnell and other students of color said racism — intentional or otherwise — occurs frequently on campus. But unfortunately, they said, it often takes something as egregious as the tape incident for others to notice. “What’s happens is, it’s not public and ... it typically stays among the group that’s impacted,” Purcell, a second-year student from St. Louis...Law professor Ronald Sullivan Jr., whose portrait was among those defaced, said that in his 25 years as a student at the law school and now a professor and a housemaster, he could not recall any act that was as “boorish” as this. “To say that there is unfair treatment is not to say that these places were absolutely horrible and the experiences of black students were always intolerable,” Sullivan said in a telephone interview. “It is to say, however, that with all the progress we’ve seen, there are still areas that need to be addressed.”

On Sunday night, CNN will air The Hunting Ground—a work of activist propaganda disguised as a documentary about sexual assault on American college campuses....Nineteen Harvard University law professors have denounced the film for (among other faults) misrepresenting the case of Harvard law student Brandon Winston, whose life was put on hold after a night of drunken, drug-fueled sexual contact resulted in his expulsion from the university and criminal charges. “What our student did is not the kind of violent, repeat sexual assault that the movie claims is both the nature of the problem nationwide and that each of the people in the film are an example of that,” said Elizabeth Batholet, one of the Harvard law professors speaking out about The Hunting Ground’s errors, in an interview with Reason. “That’s an amazing lie at the heart of a movie claiming to be a documentary.”...“Three good years of his life have gone solely to this,” said Harvard Law Professor Janet Halley, who also rejects The Hunting Ground’s narrative, in an interview with Reason. “It’s not right for the filmmakers to extend it out to yet another trial in the court of public opinion, when the underlying claims have been so conclusively rejected. It’s bad for the overall effort for justice, and it’s bad for this young man.”...“We who have spoken out at Harvard are completely committed to addressing sexual assault,” said Bartholet. “It’s horrible that this film is coming out that is now misrepresenting the nature of the problem and diverting attention away from how we can address it.”

Derecka Purnell was one of the first Harvard law students to see the black tape placed over about six portraits of Harvard Law School’s tenured black faculty Wednesday morning. “I was surprised to see it ...” Purnell said, before reconsidering: “Actually, I wasn’t surprised at all.”...At Harvard, the tape that was pasted across the faces of black professors appears to have been taken from an “art-action” in which student activists placed black gaffer tape over the law school seal in several locations of the school’s main hub, Wasserstein hall. The action was carried out by members of the campus group Royall Must Fall (RMF) and was intended to draw attention to the seal’s history as the family crest of the wealthy and ruthless slaveholder Isaac Royall Jr....Alexander Clayborne, a spokesperson for RMF, told the Guardian that the art-action was meant to be educational. “It was purely meant to call attention to the fact that the Harvard seal is the seal of a slaver and should be removed.”He called the response of taking that tape and placing it on the faces of black professors “an act of blatant racial intimidation”...Ronald Sullivan, one of the black professors whose face was vandalized by the tape, said: “I’ve learned more about the crest than I’ve known in 25 years of association with Harvard,” citing the efforts of the student protesters.

When Harvard Law student Michele Hall went to class today, she found that the portraits of every black law professors had been covered with tape. She joins to discuss the act of vandalism and racial tension on campus.

A letter by Charles Fried. Instead of dignifying with inflated philosophical bloviation the grim nastiness of the anonymous vandal(s) who pasted strips of black tape on the portraits of African-American professors, Harvard Law students responded with wit and human warmth: They put along the frames of those same portraits hundreds of colored Post-it notes bearing messages of affection and gratitude. These young men and women teach us all a valuable lesson.

As you’ve likely heard, a group of Harvard students have been holding protests for the past few weeks, both in solidarity with students at the University of Missouri, and to make their own demands. Among them, they want the law school seal changed because the current image is derived from the family crest of an 18th-century slaveholder, Isaac Royall, Jr., whose estate funded the first professorship there. Now, Harvard is looking into what appears to be an incident of racially motivated vandalism overnight. Black tape was placed over the faces of the portraits of some of the law school’s black faculty. Among the defaced portraits was that of Harvard Law professor Ron Sullivan, also the director of the school’s criminal justice institute.

The Rastafari Rootzfest, launched on October 27, 2015 at the Bob Marley Museum in Kingston, Jamaica, brought together reggae music and ganja in a groundbreaking event on the Caribbean island that has led the way in decriminalising marijuana. It was described as “the first international wellness festival which celebrates Jamaica's indigenous peoples and their cultural heritage.” ... Charles Nesson, the William F. Weld professor of law at Harvard Law School and founder of the Berkman Center for Internet and Society at Harvard University, called it nothing short of amazing that the small farmers of Westmoreland can “finally reach out to connect with and feel support from small farmers everywhere.”

It was with tragic timeliness that Professor Patrick Weil discussed “After the Paris Attacks: What Is the Future for French Society?” on Wednesday at Harvard Law School. The French sociologist, historian, and legal scholar, who is currently a visiting professor at Yale Law School, had been invited several months ago to speak on the roots and repercussions of the shootings at the offices of the satirical magazine Charlie Hebdo and at a kosher supermarket in Paris in January. After the city was again torn by terrorist violence on Friday, his topic was even more current.

Payments made to officers, directors and other “insiders” in control of a distressed corporate debtor are closely scrutinized by other stakeholders as well as the media in larger chapter 11 cases. Bankruptcy rules require companies to disclose insider payments during the 12-month period leading up to a bankruptcy filing. ...Whatever the merits of the disclosure debate may be, the debate is swept up in the larger controversy surrounding executive pay faced by healthy and distressed businesses alike. For example, in their controversial treatise on the unfulfilled promise of executive compensation, Lucian Bebchuk and Jesse Fried weave a detailed account of how structural flaws in corporate governance have enabled managers to influence their own pay and have produced widespread distortions in pay arrangements. They believe that directors must focus on shareholder interests and operate independently from the executives whose compensation they set by making directors more directly accountable to shareholders. In rebuttal, critics point to executive compensation practices of distressed businesses to demonstrate that reducing “agency costs”—the problem created by the separation of ownership and control in larger public companies which is mitigated in distressed situations through the consolidation of ownership interests and assertion of control by sophisticated investors—doesn’t lead to material changes in executive compensation arrangements.

An op-ed by Noah Feldman. Louis Brandeis, the father of market regulation in the U.S., famously called sunlight “the best of disinfectants.” The Securities and Exchange Commission announced Wednesday that it would apply his dictum to dark pools, the electronic alternative trading systems where the size and price of orders are hidden from other market participants. The proposed SEC rules, now open for 60 days of public comment, are aimed at revealing potential conflicts of interest between the trading systems and those who use them, and clarifying some aspects of order routing in the dark pools. The proposed rules raise an intriguing question: Do we need more regulation for markets that are used overwhelmingly by extremely sophisticated traders, and that are themselves in competition with one another? Put another way, shouldn't the market for alternative trading systems (the market for markets, if you will) be sufficient to ensure that they operate fairly and efficiently?

President Barack Obama repeatedly promised to close the Guantanamo Bay detention facility in Cuba after he took office in 2009, but that hasn't worked out so well. Now, as he approaches his final year in office in the wake of last week's terror attacks in Paris, his pledge seems as doomed as ever — but he insists he's undeterred...In testimony this week before the House Judiciary Committee, US Attorney General Loretta Lynch said that she is unaware of any effort by Obama to act unilaterally on Guantanamo. In response, Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, which provides legal guidance to the president, wrote on the blog Lawfare, "Nothing in Lynch's remarks would preclude the President from later concluding that the transfer restrictions are unconstitutional."

A new program at Harvard Law School (HLS) aims to help reform the nation’s criminal justice system, with assistance from Harvard students and faculty. The program’s executive director is Larry Schwartztol, who has been a lawyer with the American Civil Liberties Union. Schwartztol has worked on issues including racial justice, policing in schools, educational equality, and economic justice concerns involving the home foreclosure crisis and discriminatory lending practices. When he decided to attend Yale Law School Schwartztol said, “I wanted to find ways to use the law as a vehicle for social justice.”...Our mission is to help advance criminal justice reform by bringing rigorous and creative legal thinking to bear on hard, cutting-edge policy problems. The program builds on an incredible infrastructure already at the Law School. I work with the two faculty directors, Carol Steiker and Alex Whiting, and we are excited about bringing together our own mix of backgrounds in doing this type of work.