Media Mentions

An Alabama circuit judge has ruled the state's death penalty scheme unconstitutional.  Jefferson County Circuit Judge Tracie Todd barred the death penalty for capital murder defendants Benjamin Acton, Terrell McMullin, Stanley Chatman and Kenneth Billups on Thursday, AL.com reports. It wasn't immediately clear what sentences the men will now receive. ...A 2015 study from the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that 26 out of 34 Alabama death sentences in the past five years were non-unanimous decisions.

Senate Republican leaders have insisted they won’t consider an Obama nominee to the Supreme Court, leaving that choice to the next president. But they may want to reconsider after this week — especially if they care about protecting the pro-business rulings that are among the late Justice Antonin Scalia’s most important legacies. ... “If Hillary is elected, and certainly if there’s a Democratic Senate, the Republicans would be much better off with a moderate nominee now,” said Laurence H. Tribe, professor of constitutional law at Harvard Law School. “That’s a rational way of looking at it. I’d hope they’d see reason but I wouldn’t bet the family farm on it.”.

Susan Crawford in Backchannel: This week, Google launched what amounts to a religious war in American telecom land. In a surprising announcement, the Alphabet company known as Google Fiber said it would expand its high speed Internet access services to Huntsville, Alabama — but in a different way that it currently has started up operations in cities like Austin and Kansas City.

Insurers are grappling with the high cost of hep C meds from companies such as Gilead Sciences ($GILD) and AbbVie ($ABBV), often limiting access to the drugs to the sickest patients. Now, the New York state attorney general is investigating the matter, calling on 16 health insurance companies to answer questions about their hep C coverage. ... "When an insurer limits coverage only to its sickest members, it amounts to an irrational and short-sighted rationing of care. From the perspective of an individual living with HCV who is excluded from the cure, that care is the very definition of 'medically necessary,'" said Kevin Costello, litigation director at the Center for Health Law and Policy Innovation at Harvard Law School.

Harvard Law School constitutional expert Laurence Tribe, who was Cruz’s professor, is the most visible scholar questioning the Texan’s eligibility. “Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe at a Harvard Federalist Society meeting last month. And, since the Constitution had its basis in English common law, that would mean a citizen born on American soil.

Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors...."Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished," said Richard Fallon, a Harvard law professor who studies the court.

To those who knew him best, Justice Antonin Scalia was "Nino," a man whose contrarian legal views belied his warm and friendly demeanor off the bench. Fellow justices gathered at the Mayflower Hotel on Tuesday to remember their friend. ... Scalia was remembered for his sense of humor by many, as a magnificent performer by Justice Ruth Bader Ginsburg, and a poor estimator of travel time by his daughter Catherine. "That was Justice Scalia's gift," said John Manning, a former clerk for Justice Scalia who is now a professor at Harvard Law School. Scalia took boring technical everyday law and he showed what was at stake for constitutional democracy, Manning said. Clerking for Justice Scalia changed Manning's life, he said.

An op-ed by Noah Feldman: What’s an undue burden? That question was at the heart of Wednesday’s oral argument at the U.S. Supreme Court in the Texas abortion case of Whole Woman’s Health v. Hellerstedt. In particular, the conversation focused on whether the court needs to do a cost-benefit comparison to determine an undue burden -- and if it does, what statistical evidence is needed to do it properly. As expected, the oral argument reinforced the sense that the outcome of the case depends on Justice Anthony Kennedy. The four liberal justices made it pretty clear that the Texas law, which requires abortion clinics to operate more like hospitals, should be struck down. The three conservatives, sorely missing the support of Justice Antonin Scalia, will surely vote to uphold it, although Justice Clarence Thomas kept silent on Wednesday. What matters, therefore, is how Kennedy is thinking about the undue-burden problem.

No matter which candidate emerges victorious in November’s U.S. presidential election, little progress will be made on the major problems facing the nation because the way Congress operates is broken, a Harvard law professor said during his address Wednesday as part of The Forum series. Lawrence Lessig, a one-time Democratic candidate in the presidential race before he dropped out four months ago, told the audience at UW-Eau Claire’s Schofield Auditorium that big money unduly influences members of Congress, meaning politicians pay attention to those funding their campaigns at the expense of the wishes of the vast majority of Americans. “It doesn’t matter who is elected president until we find a way to fix the way campaigns are funded,” Lessig said during his presentation titled Republic, Lost: How Money Corrupts Congress — And a Plan to Stop It.

Pittsburgh’s Lauren Wallace is willing to go the extra mile to make sure she’s getting the freshest milk possible at the grocery store. She regularly inspects the sell-by dates on the cartons and even digs to the back of the cooler to get the best ones. And when the milk in her fridge hangs around beyond the expiration date, she doesn’t even give the milk a chance to make a case that it’s still viable. ... According to Harvard Law School’s Food Law and Policy Clinic, 90 percent of us throw food away — either always, most of the time or occasionally — when that sell-by date arrives. But what many consumers don’t realize is that those dates aren’t intended to be hard and fast deadlines; they’re just a guess by manufacturers about how long food will stay fresh.

Bloomberg Law Brief with June Grasso. Noah Feldman, a Harvard Law School professor and Bloomberg View Contributor, and Steven Vladeck, a law professor at the American University Washington College of Law, discuss a Texas abortion case that was heard in the supreme court on Wednesday. The case could have wide-ranging effect on women’s healthcare across the country, but after the death of Justice Antonin Scalia, there is the chance that the case could end in a 4-4 tie. They spoke with Bloomberg Law Hosts Michael Best and June Grasso on Bloomberg Radio’s "Bloomberg Law".

The decision by Harvard to use the term "faculty deans" to describe the lead advisors of student dormitories, instead of "house masters", is to do with the word's reminiscence of slavery in the US. Harvard is not the only Ivy League school to dispense with "master" in some academic titles. Yale and Princeton have discontinued its use, andMassachusetts Institute of Technology is considering a similar change. ... "There's just something to the stories we choose to tell," says Rathna Ramamurthi, a second year law student and member of Reclaim Harvard Law. "[The Royalls were] a particularly brutal slave owning family, a family that violently oppressed slaves, made all of their money off the backs of slaves."

The U.S. Supreme Court dealt a blow to state efforts to collect health data when it ruled 6-2 that Vermont's all-payer claims database is preempted by the Employee Retirement Income Security Act to the extent it seeks data from employer-sponsored health plans....Carmel Shachar, a clinical instructor at Harvard Law School’s Center for Health Law & Policy Innovation who filed a pro-database amicus brief, told Bloomberg BNA March 1 that the decision was “a very broad application of ERISA, as well as the preemption clause.” On that point, Shachar said the justices found ERISA's preemptive powers to apply, even though the Vermont program in question concerned areas “very different” from those regulated by ERISA—specifically, health-care spending and financing.

Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors. With her valedictory on the court undetermined but within sight, Ginsburg, 82, may have only one more chance to leave a mark on reproductive rights. It comes in the most consequential abortion case during her time on the court...“Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished,” said Richard Fallon, a Harvard law professor who studies the court.

An op-ed by Einer Elhauge. Like many people, I have been wondering: What on Earth explains Donald Trump’s remarkable appeal to voters? I’ve come to the conclusion that the answer is fairly simple. The message of his Republican opponents has effectively been: We are more faithful to conservative principles. Trump’s message has been entirely different. He essentially says: I will protect you. I’m conservative, but if protecting you requires jettisoning conservative ideology, I will do so. Protecting you is the prime directive. This message has powerful resonance, especially for voters who feel the Republican Party has failed to protect their interests.

Justice Clarence Thomas paid tribute on Tuesday to “Brother Nino” at a memorial service for Justice Antonin Scalia at the Mayflower Hotel attended by all eight remaining members of the Supreme Court...Prof. John F. Manning, a former law clerk who now teaches law at Harvard, said Justice Scalia welcomed debate and disagreement in his chambers, to a point. “When one of us got a little overinvested, he had to say, ‘Hey, remember, it’s my name that has to go on the opinion,’” Professor Manning said. “And especially with me, for some reason, this was often followed by the further observation, ‘And I am not a nut.’”

Is the FBI violating Apple employees' First Amendment rights in its efforts to extract data from a terrorist's iPhone?...Vivek Krishnamurthy of Harvard's Cyberlaw Clinic said some forms of expression can be ordered. "It's pretty clear there are certain types of speech you can't compel," Krishnamurthy said. "[The government] can't compel you to voice support of Republicans or Democrats or some other type of belief. But you can compel a private company to put a warning label on a product. So it can be constitutionally permissible in some circumstances."

Ten research projects driven by faculty collaborators across six Harvard Schools will share over $1 million in the second round of grants awarded by the Climate Change Solutions Fund, an initiative launched last year by President Drew Faust to encourage multidisciplinary research around climate change...This year’s winners are:...Wendy Jacobs and Alma Cohen, Harvard Law School. Jacobs and Cohen will work with existing community organizations to encourage behavior changes that meaningfully reduce greenhouse gas emissions and build social and political support for policies to mitigate climate change...Katherine Konschnik and Jody Freeman, Harvard Law School. Konschnik and Freeman’s project, called Power Shift, will help policymakers, regulators, and stakeholders design a modern legal infrastructure to support 21st-century electricity by creating and supporting a new network of expert communities.

An op-ed by Noah Feldman. The problem of presidential nominees who can’t get a vote from the U.S. Senate isn’t restricted to Supreme Court justices. It’s a recurring, structural issue that’s affecting executive officials of all kinds, including ambassadors. One partial solution to unfilled executive appointments, adopted by Barack Obama’s administration and by previous presidents, is to make someone the acting head of a department, then nominate that same person to fill the job permanently. Last year, the U.S. Court of Appeals for the D.C. Circuit issued a decision that makes this fix essentially impossible. Now the Obama administration has said it will ask the Supreme Court to reverse that decision.

An op-ed by Noah Feldman. Should laws be understood based on the way people speak? Or should they be interpreted according to technical rules of statutory construction, so that law becomes a specialized language game all its own? In a decision issued Monday, the U.S. Supreme Court voted, 6-2, for the second option. The case, Lockhart v. U.S., promises to be a classic. The court’s breakdown was about jurisprudence, not partisan ideology. And the issue was, remarkably enough, dangling modifiers.

Justice Clarence Thomas choked up. Justice Ruth Bader Ginsburg got lost in her notes. Law clerks recalled stern admonitions with affection. Sons and daughters recounted family dinners, Sunday religious services and "the tickle monster." Justice Antonin Scalia was remembered Tuesday as a man whose brilliance and jurisprudence hid a softer side that included baseball, opera, red wine and pizza with anchovies, singing in his chambers and a sonorous laugh that reverberated through the courtroom...Two former law clerks regaled the audience with tales of how those opinions came together, often in raucous free-for-alls inside Scalia's chambers. "The whole thing was unforgettable," recalled Harvard Law School professor John Manning, who clerked for Scalia during the 1988 term. "His openness, his enthusiasm, his clarity, his playfulness, his common sense, his commitment to principle — all of this made even the blandest legal issue seem vivid and human and consequential."