Media Mentions

A recent Harvard Law Record op-ed questioned if the shield conversation really has two sides. This week, we polled members of the HLS community to find out...We received 517 individual responses. In addition, nearly 100 responses included expanded comments. Some of these comments are highlighted in this article, and all are published below the poll results. We appreciate all of those who took the time to thoughtfully respond and to share their feelings on the shield, Reclaim HLS, Belinda Hall and more.

A California law that allows the state to seize unclaimed property after three years without making much of an attempt to contact the owners will not be reviewed by the U.S. Supreme Court, but Justice Samuel Alito warned that such laws could face a serious constitutional challenge in the future. ...  In a brief penned by lawyers including Lawrence Tribe of Harvard Law School, challengers urged the Supreme Court to grant certiorari because “the UPL is a recipe for abuse.”

The annual Gittler Prize, which honors contributions to racial, ethnic or religious relations, was awarded to Harvard Law School Dean Martha Minow at Brandeis Thursday. “It’s…

Two U.S. Supreme Court justices on Monday sent strong signals to property rights advocates that they are prepared to examine the constitutionality of state unclaimed-property laws and so-called inclusionary housing ordinances. Although Justices Clarence Thomas and Samuel Alito Jr. agreed with the high court’s denial of review in Taylor v. Yee and California Building Industry Association v. City of San Jose, they wrote separately—Alito in Yee and Thomas in San Jose—to raise due process and takings concerns. In Yee, Harvard Law School’s Laurence Tribe, representing Chris Taylor, challenged on due process grounds California’s Unclaimed Property Law, which permits the state to confiscate forgotten security deposits, uncashed money orders, unused insurance benefits and other funds if the assets lie dormant for three years.

The mostly but perhaps not entirely dismissible case against Ted Cruz's eligibility to run for president will begin to unfold on Tuesday in front of New York State Supreme Court Justice David Weinstein. He'll be hearing arguments in a lawsuit filed by two New Yorkers who claim that the junior senator from Texas, born in Calgary to an American mother and Cuban father, is not a “natural-born U.S. citizen,” and thus is constitutionally disallowed from becoming president of the United States. ... Most legal scholars have said that Cruz's mother's citizenship settles the question; there have been a few dissenters, though, notably Harvard Law School's Laurence Tribe has argued that Cruz is now arguing against his own strict reading of the Constitution.

An op-ed by Noah Feldman. Remember when Justice Antonin Scalia refused to recuse himself from a case involving then-Vice President Dick Cheney, even though they’d just been on a duck-hunting trip together? That episode yielded a priceless Scalia memorandum-opinion in which he declared, among other things, that he’d never been in the same blind with Cheney on the trip. But the main take-away from the episode was that Scalia -- and no one else -- got to decide whether he should be recused. On such matters, the justices’ own decisions are final.

An op-ed by Noah Feldman. Is it domestic violence if you didn’t mean to hurt your partner but recklessly did so anyway? Ordinarily, the U.S. Supreme Court wouldn’t weigh in on such a question, because the misdemeanor crime of domestic violence is determined state-by-state, not by federal law. But Monday the justices heard arguments on exactly that question, in a case involving a federal law that prohibits people convicted of domestic violence from having guns.

Harvard jointly filed an amicus brief to the National Labor Relations Board on Monday arguing against the unionization of graduate students, joining six other Ivy League universities, Stanford, and MIT in a call for the board to uphold existing rulings that define the relationship between private universities and graduate students as strictly academic....John T. Trumpbour, research director of the Labor and Worklife Program at Harvard Law School, said he thought the University’s move was not surprising. “I think that the private universities really feel that they are at a turning point, so a lot of them really want to do as much as they can to stop these victories now, and this they see as a very crucial decision,” Trumpbour said. He added that if a Democrat is elected the next U.S. President in 2016 and the NLRB rules in favor of graduate students, it could be difficult for a future board to reverse that decision.

As Iowa caucus winner Ted Cruz makes last-minute appeals for votes during Tuesday’s 11-state Republican primary bonanza, his legal team will quietly urge an Illinois judge to kill a lawsuit that claims he's ineligible to be president. The lawsuit is being heard in a state court system that grants ordinary voters standing to challenge a candidate’s ballot access, a soft target for opponents of the Canada-born Texas senator...“I do think a state court path is the most promising for challengers to Ted Cruz's eligibility at this pre-nomination stage,” says Harvard Law School professor Laurence Tribe. His GOP rivals are “the only plausible federal plaintiffs, but even their status would be a bit tenuous on ripeness grounds," he says. Tribe, a nationally prominent legal expert who taught Cruz constitutional law, said earlier this year it’s unclear if Cruz meets the Constitution’s undefined “natural born citizen” requirement, giving intellectual heft to Cruz critics.

When starting a semester, Harvard Law School (HLS) Professor Carol Steiker likes to ask her first-year criminal law students to describe what they think are the biggest societal changes of the past 40 years. The students often cite the rise of social media, or global warming, or same-sex marriage. Then it’s Steiker’s turn. “I show them the statistics,” said Steiker, the School’s Henry J. Friendly Professor of Law, “and they are stunned.” Her numbers show mass incarceration in the United States...The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act, enacted a sweeping revision of the criminal code. The legislation established the U.S. Sentencing Commission and tasked it with providing guidelines to federal courts — a radical shift in policy, since judges previously had wide discretion in sentencing. The commission introduced mandatory sentencing for various crimes and eliminated federal parole for some cases, immediately boosting prison rolls. Instead of improving fairness in sentencing, as was intended, the new system wound up promoting inequality, says HLS lecturer Nancy Gertner, herself a former federal judge. Judges suddenly had to hand down standard sentences to those convicted of some specified crimes who had particular criminal histories...In addition, court systems around the country increasingly are outsourcing their probation operations to private firms that make money by charging offenders extra fees. “The private company may have little or no interest in achieving justice,” said Jacob Lipton, who leads Harvard’s Systemic Justice Project along with HLS Professor Jon Hanson.

A book review by Kenneth Mack. During her long and contentious life that spanned much of the twentieth century, Pauli Murray (1910–1985) involved herself in nearly every progressive cause she could find. Yet the contributions of this black woman writer, activist, civil rights lawyer, feminist theorist, and Episcopal priest have largely escaped public attention. Murray earned a reputation as an idealist who saw the world differently from many of the activists who surrounded her. She also walked away from several important organizations and movements when they were at the height of their influence. At the same time, her actions have seemed prescient to those involved in many of the social movements that have subsequently claimed a piece of her legacy. Through her friendships and writings, Murray left a long list of people deeply influenced by her, including Eleanor Roosevelt, Representative Eleanor Holmes Norton, social activist Marian Wright Edelman, and Justice Ruth Bader Ginsburg. Murray’s life story deserves to be made available to the larger public, but how does one do so in a way that honors her own obdurate unwillingness to be reduced to any clear set of vectors—to be, in effect, agreeable?

The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door. The 12-year-old from Fairfax, Va., has been charged with threatening her school after police said she posted a message on Instagram in December laden with gun, bomb and knife emojis...“You understand words in a particular way,” said Dalia Topelson Ritvo, assistant director of the Cyber Law clinic at Harvard Law School. “It’s challenging with symbols and images to unravel that.” Ritvo said that some of these issues will likely play out in the Fairfax case.

An article by Michael Linhorst `17. Twelve years ago, in the fall of its 2003 term, the U.S Supreme Court received a written brief from Texas Solicitor General Ted Cruz with a very unusual footnote. The case was called Locke v. Davey, and it concerned the constitutionality of a Washington State college scholarship that excluded students studying religion—a key issue for the movement conservatives Cruz considered his political allies. Texas wasn’t a party in the case, but the ambitious lawyer was already gaining a reputation for inserting himself into national debates by filing briefs about attention-grabbing cases with no direct relation to his state. Like all legal briefs, Cruz’s cited cases, laws and law journal articles as authorities to back up his argument...Cruz didn’t name the student author in his brief. But if the justices had looked it up, they would have found a surprise: It was a 24-year-old Harvard law student named Ted Cruz...Leah Litman, a lecturer at Harvard Law School who served as a clerk for Justice Anthony Kennedy, agrees that it was “a little strange” Cruz didn’t identify himself. “He’s identified as the author of the piece [in the journal]. And when you cite a secondary source in a brief, you give the author. There really isn’t a good reason not to,” she says.

An op-ed by Mark Roe. HSBC’s decision last week to keep its headquarters in London, after reports that it would leave the UK if the levy on bank liabilities were not lifted, will have been greeted with relief at the Treasury. However, there is good reason to think the Treasury got a bad deal, jeopardising financial safety for not very much in return. In his Autumn Statement last year, Chancellor George Osborne promised to phase out the levy, offsetting this with an 8 per cent surcharge tax on bank profits. Taxing bank profits is popular with voters, even though it makes the financial system weaker. Because it makes bank equity more expensive and ending the levy makes debt cheaper, the surcharge will push British banks to use less safe equity and more risky debt.

An op-ed by Noah Feldman. With a new Supreme Court balance somewhere on the horizon, the end is coming for Justice Anthony Kennedy’s dominance of the court. The abortion case Whole Women’s Health v. Hellerstedt may be his swan song, and his last chance to leave a long-term impact on abortion rights. That’s hugely significant for the case that’ll be argued Wednesday. The fate of Texas’s restrictive abortion laws turns on the interpretation of the 1992 decision in Planned Parenthood v. Casey. And Casey was the case in which Kennedy first formulated the vision of autonomy and dignity that led him to become a pioneer of constitutional rights for gay people. Casey is the heart of Kennedy’s legacy -- and he’ll want to preserve it.

An op-ed by Noah Feldman. Tired of campaign lies and the lying liars who tell them? You’ll be sorry to hear that an Ohio law that prohibited false statements about a candidate for office was struck down this week by the U.S. Court of Appeals for the 6th Circuit, some 25 years after it was upheld by the same court. The decision is probably correct in light of the U.S. Supreme Court’s expansive new free-speech precedent. But it’s worth pausing to note just how far the courts have gone in protecting falsehood.

An op-ed by Bruce Hay. In the two weeks since his death, many have spoken about Antonin Scalia’s undeniable impact on American law. As attention shifts to filling the vacancy he has left on the Supreme Court, I would like instead to talk about his less appreciated impact on contemporary physics...His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility. Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.

So now what? The path ahead for President Obama’s Clean Power Plan went from arduous but somewhat clear to murky with the death of Supreme Court Justice Antonin Scalia on Feb. 13. The whirlwind week for the plan, a key commitment by the United States to reduce climate-changing carbon-dioxide emissions, started with the Supreme Court voting 5-4 to freeze the plan in place, halting implementation while legal issues are decided by the U.S. Court of Appeals for the D.C. Circuit and, likely, by the Supreme Court itself. Scalia’s death and the battle over selecting his successor that quickly developed between Obama and Senate Republican leaders have raised the prospect of an extended period with a Supreme Court split 4-4 between conservative and liberal justices ― in other words “a mess” for the plan, according to environmental law expert Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard Law School. Lazarus, who is serving as counsel in the case for two “friends of the court,” former Republican EPA administrators William Ruckelshaus and William Reilly, spoke with the Gazette about both the plan’s impending lower court hearing and its path ahead should it undergo Supreme Court review.

Earlier this month, an excellent, short new documentary debuted. It focuses on one type of state laws that senselessly promote food waste. The documentary, Expired? Food Waste in America, is produced by the Harvard Food Law and Policy Clinic and Racing Horse Productions. It uses the clear shortcomings of a mandatory Montana milk-expiration-date law as a hook to illustrate broader problems with state food expiration-date mandates..."Out of state dairies often can't get milk to the store quickly enough for it to be put on the shelf in time to be sold (since consumers want milk with at least a few days on it), so many out-of-state dairies are no longer selling in Montana," says Harvard Law School Prof. Emily Broad Leib, one of the film's producers, in an email to me this week. "According to local advocates, milk in Montana also costs a lot more than milk in surrounding states."

An op-ed by Laurence Tribe. Justice Antonin Scalia used to say, only partly in jest, that he preferred a “dead” to a “living” Constitution: for him, the whole purpose of any constitution worth having was to nail things down so they would last—to “curtail judicial caprice” by preventing judges, himself included, from manipulating the law to advance their own visions of good policy rather than faithfully doing the people’s bidding as expressed in binding rules. Yet Scalia managed to bring our Constitution to life more deeply than have many proponents of a “living” Constitution...Scalia’s ability to bring the Constitution’s text, structure, and history to the very center of the nation’s conversation through elegant and colorful prose should never be confused with the idea that his “originalist” methods actually served the disciplining and constraining functions he attributed to them. Nor should we permit his captivating rhetoric to seduce us into accepting the judgments he claimed those methods required him to reach.

An op-ed by Tommy Tobin `16. Almost a quarter-million young people in Arkansas are at risk of going hungry each summer. While it may be winter, we can prepare now to ensure that the eligible young people of Arkansas get the food for which they qualify. During the school year, over 230,000 young people receive free or reduced-price lunch at schools in Arkansas. During the summer months, no school can mean no meals for the state's low-income children, which results in already-tight family budgets becoming further constrained. According to the Food Research and Action Center, only 23.3 percent of these low-income students receive the summer meal equivalent of the school lunch program.