Media Mentions

Passed by Congress 150 years ago (thanks in large part to Maine’s own William Pitt Fessenden), learn about its history and why it is cited in more litigation than any other amendment. Guests: Kenneth W. Mack, Lawrence D. Biele Professor of Law and Affiliate Professor of History, Harvard University. Patrick Rael, Professor of History, Bowdoin College.

An op-ed by Noah Feldman. There’s a quiet revolution going on in the constitutional law of guns. Since the Supreme Court declared gun ownership a fundamental right less than a decade ago, the lower courts have been expanding upon that landmark ruling. Now they've added heightened constitutional protection for gun sellers, including potential exemption from zoning laws. It’s as though the Second Amendment is on its way to joining the First Amendment in a special, preferred position among the panoply of constitutional rights.

An op-ed by Noah Feldman. The Supreme Court's do-over on the question of religious exemptions from the Affordable Care Act’s contraceptive care mandate is bizarre, but it reflects the weirdness of an eight-justice court. Unable to resolve the question, but unwilling to leave a patchwork of different results in different circuits, the justices told various appeals courts to try again. Most likely, the lower courts will split again, and the issue will come back to the Supreme Court. By then, there might be nine justices to decide it.

The D.C. Circuit announced that it’s delaying arguments on the Clean Power Plan by three months, until Sept. 27. For those keeping track at home, that’s after the date the panel had pledged to rule on the case — and EPA’s deadline for states to submit their preliminary plans. Yes, this throws a wrench in the works. But, it’s not all bad news for the EPA and environmentalists. Instead of a three-judge panel hearing the case, it will be heard en banc by a full slate of nine judges. Of those nine judges, five were appointed by Democrats...“The court has anticipated, obviously, the significance of whatever the panel would say and the related likelihood that it would end up en banc. They’ve basically truncated that process,” Richard Lazarus, a Harvard Law School professor representing former EPA administrators William D. Ruckelshaus and William K. Reilly in defense of the Clean Power Plan, told Bloomberg BNA.

A collection of prominent law school professors, including Harvard’s Alan Dershowitz, shot back at President Barack Obama’s Education Department over its practice of using “Dear Colleague” letters to lay down policy mandates that ride roughshod over Americans’ constitutional rights. A letter from the educators dated Monday asserts that the department’s civil rights office “has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment” through its directives regarding Title IX, the 1972 law that bans discrimination on the basis of sex in providing access to education...Dershowitz joined three colleagues from Harvard Law School in Cambridge to sign the letter, along with 17 other professors hailing from schools scattered across the country. The letter also quotes one of the signatories, Harvard civil rights expert Elizabeth Bartholet, who called the elimination of due process “madness” in 2014.

An op-ed by Cass Sunstein. Here’s the most important legal principle that you’ve probably never heard of: If a regulation issued by a government agency turns out to be ambiguous, the agency, not the court, gets to resolve the ambiguity. It’s called the Auer principle, after the 1977 Supreme Court decision that established it...For the past five years, the Auer principle has been under sustained assault from the conservative justices, who have argued that it is a violation of the separation of powers and an unacceptable aggrandizement of executive authority. Few people have noticed, but on Monday the court made it clear that Auer is going to be with us for the long time. For the next president -- whether Hillary Clinton or Donald Trump -- there’s a big reason to celebrate. The rest of us should be celebrating along with them.

An op-ed by Noah Feldman. On Monday the Supreme Court issued no fewer than six opinions. The one that will make headlines -- involving the contraceptive mandate of the Affordable Care Act -- wasn’t really a decision at all, but an attempt to make the lower courts do the case over. The other five were business as usual -- and in this strange eight-justice term, that means they were all decided on narrow, technical grounds. The theme was small-ball, if you will: the court is avoiding big issues that it can’t resolve or decide.

An op-ed by Mischa Haider and Bruce Hay. “Let us write a different story this time,” U.S. Attorney General Loretta Lynch urged at her press conference this month, announcing the Department of Justice’s lawsuit to strike down House Bill 2, the notorious anti-LGBT law enacted by the North Carolina legislature in March. Her remarks have been justly celebrated for their simple, compelling declaration that transgender rights are civil rights, period. As we look back on the past month’s developments, which include the Obama administration’s issuance of national guidelines against anti-transgender discrimination in schools and the president’s own pronouncement that “righteous anger” against such discrimination must be augmented by concrete action, it is worth reflecting on the challenge the attorney general has set for the nation with her memorable words.

A Northland man who will be working in a Native American tribal court after he graduates from Harvard Law School believes tribes in the United States have valuable lessons for Maori as they settle with the Crown. Whangarei man Kingi Snelgar and his partner Kiri Toki were awarded Fulbright Scholarships to study at Harvard University in Boston to complete their Master of Laws degrees. They headed overseas in August last year and will graduate on May 26. After graduation Mr Snelgar will work as a judge's clerk at the Oglala Sioux Tribal Court in Pine Ridge, South Dakota, and Ms Toki at the Navajo Nation Supreme Court in Arizona.

A letter by Fellow Delcianna Winders...Kudos to the students of the Pace Environmental Policy Clinic, Assemblywoman Amy Paulin and State Senator Terrence Murphy for their efforts on behalf of elephants. Although Ringling Bros. and Barnum & Bailey Circus has removed elephants from its traveling performances, numerous other circuses continue to bring shackled elephants into New York State to force them to perform under the constant threat of physical punishment.

On Monday, Harvard’s Mark Wu published a paper titled “China Inc.,” highlighting how China’s unique economic structure could easily create tensions with other countries that are a part of the international trade regulator.

An op-ed by Noah Feldman. The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people. The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it. But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party.

An op-ed by Nancy Gertner. Access to justice means more than fancy courthouses, a courtroom with high ceilings, the American flag unfurled, and even compelling quotes from the U.S. Constitution. Access to justice means more than a presiding judge looking dignified in a long black robe, on an elevated platform, with the lawyers before him or her. Access to justice is not a Kabuki show—the ceremony of justice but not the reality. But to those accused of misdemeanor offenses in the Bronx, a court proceeding is just a hollow ritual. According to the lawsuit filed by The Bronx Defenders, Emery Celli Brinckerhoff & Abady, and Morrison & Foerster, there are few trials, no opportunity to confront witnesses, no way to challenge the government's case, no opportunity to be publicly vindicated in a speedy proceeding, and unconscionable delays.

An article by Samuel Moyn. In 1947 Julian Huxley, English evolutionary theorist and director-general of UNESCO, wrote Mohandas Gandhi to ask him to contribute an essay to a collection of philosophical reflections on human rights. Gandhi declined. “I learnt from my illiterate but wise mother,” he replied, “that all rights to be deserved and preserved came from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world.” Huxley should not have been surprised by the rejection. As far back as Hind Swaraj (1909), his masterpiece in political theory, Gandhi had bemoaned “the farce of everybody wanting and insisting on . . . rights, nobody thinking of . . . duty.” And during World War II, when another Englishman, H. G. Wells, solicited Gandhi’s support for his bill of rights defining war aims, the mahatma recommended that Wells write a cosmopolitan charter of duties instead—a statement of what citizens of the world owe to each other...So we are now very familiar with the claim that all humans everywhere have rights. But we are much less familiar with the notion that rights are protected by the fulfillment of duties.

Op-ed by Noah Feldman: Foreign governments can't be sued in U.S. courts. Foreign companies can. What happens when China's state-owned companies claim to be part of the government? Nobody knows because the law is confusing, but some U.S. courts are taking the Chinese claim seriously.

Sight, sound, smell, touch and taste can all trigger traumatic flashbacks. So can words. And right now, battle lines are being drawn around attempts to limit exposure to words that could rekindle past trauma. ... In The New Yorker, Jeannie Suk, a Harvard law professor, wrote that student organisations had asked teachers to warn their classes the rape-law unit might "trigger" traumatic memories.

Q&A with Charles Ogletree: The internationally renowned legal theorist reveals the inside scoop on the Obamas, talks race relations at Harvard, and shares his thoughts on the new Supreme Court nominee.

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."