Media Mentions

...Like the thousands of Central Americans who increasingly are seeking asylum in the United States, Trejo's future will be determined by how a judge interprets one sentence from a law passed in 1980. It puts him smack in the middle of a debate fraught with politics and argued in a system that has struggled to find an answer to what seems like a simple question: When is a migrant a refugee?...The question of whether Central Americans fleeing violence should be considered refugees under the law has been debated since the 1980 Refugee Act was passed. Deborah Anker, a professor at Harvard Law and one of the pre-eminent scholars on asylum law in the United States, says before that time, U.S. law gave asylum only to migrants from the Middle East or communist countries. "We were really trapped in this Cold War framework, whereas the international definition was global and humanitarian in its basic focus," Anker says.

Forty acres and a mule. The order by Union General William T. Sherman in January 1865, just after the Civil War ended, to offer some recompense to newly freed slaves for the harms they had suffered was a radical, tantalizing promise that never came to be. More than 150 years later, the question of whether nations that benefited from the African slave trade between the 16th and 19th centuries bear a responsibility to provide financial reparations for their crimes — as well as the lasting economic, social, and political damage they caused — remains unsettled. Many political and Civil Rights leaders, including Martin Luther King Jr., have tried to gain traction for the idea periodically over the years, without much success...“This is not about retribution and anger, it’s about atonement; it’s about the building of bridges across lines of moral justice,” said Sir Hilary Beckles, a distinguished historian, scholar, and activist from Barbados, during a talk Monday at Harvard Law School...[Kenneth] Mack and [Annette] Gordon-Reed noted the many real-world opportunities in Boston and across the United States that exist right now for HLS students to facilitate getting reparations for black people through the legal system. “All of us derive a present-day benefit from the oppression, the degradation of human beings. And what should we do as an institution to make reparations for that” is what should be on everyone’s mind in thinking broadly about the concept of reparations, said Mack.

An op-ed by Laurence Tribe and Joshua Matz. In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.” Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz. But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

Just one day after it emerged that President Barack Obama was vetting Nevada Gov. Brian Sandoval as a potential Supreme Court nominee, the speculation bubble burst as the Republican politician removed himself from consideration. Why talk of a possible Sandoval nomination flamed out so quickly isn’t totally clear at the moment. But as the White House presses on with its nationwide search for the person to succeed Justice Antonin Scalia, anyone who ends up on the shortlist will have a tricky set of factors to consider...And of course, the GOP Senate leadership could always change its mind and retreat from its pledge not to hold hearings. Harvard law professor Laurence Tribe told Law Blog he thinks the Senate’s position is politically untenable and that they’ll agree to have a vote. But even with the uncertainty, he thinks whoever the president puts forward will still “be honored to accept the nomination.” Mr. Tribe said he expects that person would have the “backbone to take the risk of being out there in front of a recalcitrant Senate.”

To force Apple to help the FBI unlock a San Bernardino shooter's iPhone, a federal magistrate-judge invoked the All Writs Act, which allows courts to make a company turn over a customer's data to law enforcement...Proving that code is protected speech isn't the biggest obstacle Apple faces. Core to Apple's argument against writing a new version of its operating system is that, by complying, it will make its customers less secure. But Apple would have to overcome years of precedent in the way that companies work with law enforcement. "I'm sympathetic, but I can't think of any authority that says that you can evade your obligations to comply with the police because you don't trust they'll keep the information secure enough," said Lawrence Lessig, a Harvard Law professor and constitutional law scholar. Lessig noted that the security issue makes Apple's case unique. "If a bank has vault and the police have a search warrant, then there's no doubt that the bank has to open the vault," Lessig said. "But when bank opens vault, there's no concern that it's making every other vault unsafe."

Apple could easily make changes to the upcoming iPhone 7 that would render the current debate over providing a "back door" to encrypted phone data a moot point by making the phones even harder to unlock, security experts tell Fast Company...The federal district court is relying on a very old and very broad law called the "All Writs Act" to compel Apple to help the FBI. But there's nothing in the law that prohibits Apple from changing its product to make it safer from law enforcement inquiries, says David O'Brien, senior researcher at the Berkman Center for Internet & Society at Harvard. "It’s not clear that there’s anything in the All Writs Act that would prohibit Apple from doing that," O'Brien says. There would be some blowback, however. "It would probably result in more scrutiny from the government and from the public on the changes Apple is making," O'Brien says.

An op-ed by Cass Sunstein. Donald Trump’s success in the Republican primaries, punctuated by his victory Tuesday in Nevada, has been spurred in part by his deviation from traditional Republican policies (on free trade and immigration) and in part by his argument that some of those policies (including lower income taxes and less regulation) would make America great again. But the latter argument runs into an immediate objection: The economy has consistently grown less under Republican presidents than Democratic ones. It’s just not clear why that is -- or how much a president’s policy choices have to do with it.

An op-ed by Noah Feldman. President Barack Obama insisted that his post to Scotusblog on Wednesday about his criteria for a U.S. Supreme Court nominee was “spoiler free.” But he may have been protesting a bit too much. Obama wrote that he sought a justice with “life experience outside the courtroom or the classroom,” which possible nominees like Judge Sri Srinivasan of the Court of Appeals for the D.C. Circuit arguably lack. Then, later in the day, someone in the administration leaked a highly untraditional candidate, Republican Governor Brian Sandoval of Nevada, who has political life experience and was also a federal district judge for four years.

An op-ed by Noah Feldman. It isn’t often that a sitting prime minister offers a lesson in comparative constitutional law. But Israel's Benjamin Netanyahu did so Monday while defending a bill that would allow three-quarters of the Knesset to expel a member who “supports terrorism by word or deed, or denies the Jewish, democratic character of the state of Israel.” Netanyahu compared the provision to the American rule that Congress may expel a member by two-thirds vote and to parliamentary rules in the U.K. and Canada that allow the expulsion of a member of Parliament for misconduct by a simple majority.

Judge John Coughenour is a rebel. It’s not because—or not only because—he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s...Nancy Gertner, a Harvard Law professor and former federal judge, wrote in 2010 that judges were “surgeons without Grey’s Anatomy.” And that is the crux of the opposition to Coughenour’s argument: For too long Americans exclusively trusted the wisdom of judges who, of course, were just as a fallible as anyone else. Besides, it was judges themselves who became the first proponents of reform.

An op-ed by Yochai Benkler. The showdown between Apple and the FBI is not, as many now claim, a conflict between privacy and security. It is a conflict about legitimacy. America’s national security agencies insist on wielding unaccountable power coupled with “trust us, we’re the good guys”, but the majority of users have no such trust. Terrorism is real, and surveillance can sometimes help prevent it, but the only path to sustainable accommodation between technologies of secrecy and adequately informed policing is through a root-and-branch reform of the checks and balances in the national security system.

Apple is launching a two-pronged attack in its fight against the FBI: It's going to Congress and it is invoking the First Amendment. But in extending its case to lawmakers and the Constitution, it faces a tough sell, legal experts say..."The government has picked its turf carefully" around a narrow issue that gives it the best chance to make its case, says Jonathan Zittrain, professor of law and computer science at Harvard Law School. "It's a tough lift for Apple because traditional privacy as we know it is not at stake."

Milbank, Tweed, Hadley & McCloy’s decision to reallocate a $1 million gift originally meant to fund student events and journals at Harvard Law School has sparked an unusual public clash between the firm and a group of prominent law professors. After a student group called Justice for Palestine used $500 of Milbank’s funds to buy pizza for a panel discussion about free speech for pro-Palestinian advocates, the firm decided its gift to the school should no longer be used to sponsor student events. The student group had named Milbank as the sponsor of the event on a Facebook page. On Monday, a group of professors at top law schools posted an open letter to the law school community admonishing Milbank for seeking to influence discussions held on a law campus. The following day, Milbank partner Thomas Arena called the letter inaccurate in a response sent to the professors, a version of which was posted to the firm’s website on Wednesday...A statement from Harvard Law School, also published on Milbank’s website, said the firm was never involved in decisions about which events its gift would fund. It does not say how the Milbank funds will be used from now on. “We have an exceptionally strong relationship with Milbank, which has acted appropriately and with integrity in all respects, and we look forward to continuing that strong relationship in the future” the Harvard statement said.

An op-ed by Noah Feldman. Who’s in charge of patent law? The answer lies in an ongoing conflict between two courts: the U.S. Court of Appeals for the Federal Circuit, which was created by Congress in 1982 and given control over the entire patent law docket, and the U.S. Supreme Court, which gets to choose which Federal Circuit cases to review and which to leave untouched.

An op-ed by Noah Feldman. Buried in the middle of President Barack Obama’s speech Tuesday on closing the military prison at Guantanamo Bay, Cuba, was a remarkable statement very close to a repudiation of the military commissions trying Khalid Sheikh Mohammed and nine other terrorists.

An op-ed by Noah Feldman. The fight over whether Apple should write new software to unlock the iPhone used by the San Bernardino, California, killer may be poised to go to Congress -- and that’s the first good news I’ve heard about the confrontation. The case raises profound matters of public policy with constitutional, domestic and international ramifications. A magistrate judge working for the federal district court isn’t the right person to decide these issues, nor would higher courts be in a good position to make wise judgments on appeal. What we need here is a law -- one that reflects, to the extent possible, the legitimate competing values in play.

The use of so-called “health sharing ministries” has soared in the wake of President Barack Obama’s health care reforms, but long-skeptical regulators are raising new questions about the plans’ aims to assist in the cost of medical bills while remaining exempt from rules placed on traditional insurance...Rachel Sachs, academic fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School, says some academics are concerned that the sudden growth in membership within health sharing ministries could threaten the private, individual health insurance market. Members of sharing ministries tend to be healthier because they avoid risky behavior, meaning that people who are sicker or have more expensive conditions to manage turn to the marketplace or to publicly funded Medicaid because ministries won’t share in many of their health needs. This results in adverse selection, particularly as the federal government and states are trying to enroll healthy, young citizens in tax-subsidized private insurance so they can balance the costs for people whose medical needs are more expensive and complex. “I think health sharing ministries seem to be terrific institutions for most of the people in them, but I do have concerns about their effects externally,” Sachs says.

Harvard law professor and political activist Lawrence Lessig declared his unlikely candidacy for president, last summer, on a single-issue platform: campaign-finance reform. He was forced to drop out before the second Democratic debate and has since been overtaken by his better-known (and, to be sure, better-financed) competitors. But that doesn’t mean he is done agitating, especially since the American public has caught on with his anti–Citizens United v. F.E.C. message. Here he expresses his admiration for Donald Trump, frustration with Bernie Sanders, and speculation on the future of both parties.

Books served as a window to the world for a young Charles J. Ogletree Jr. His parents and grandparents may not have been formally educated — they weren’t even high school graduates — but Ogletree says they let him go to the library every Saturday. It was there he’d read and imagine places he’d never been and explore future career paths. “I didn’t read the books for no reason,” Ogletree said. “I read them because I wanted to be somebody who wrote books.” That was back then. Today, Ogletree is a Harvard Law School graduate and professor who’s written several books on education, race and other topics. He serves as both founder and executive director for the Charles Hamilton Houston Institute for Race and Justice — an institute that’s engaged in a wide range of educational, legal and policy issues in the past six years. On Tuesday, Ogletree addressed students on the campus of Kentucky State University as part of its African-American Living Legends series.

The legal showdown between Apple Inc and U.S. law enforcement over encryption, no matter the outcome, will likely accelerate tech company efforts to engineer safeguards against government intrusion, tech industry executives say. Already, an emerging industry is marketing super-secure phones and mobile applications...But even a government victory could have unintended consequences for law enforcement, potentially prompting a wave of investment by U.S. tech companies in security systems that even their own engineers can't access, said Jonathan Zittrain, co-founder of Harvard University's Berkman Center for Internet & Society. "A success for the government in this case may further spur Apple and others to develop devices that the makers aren't privileged to crack," he said.

An op-ed by Susan Crawford. Late last month, CTC Technology & Energy, an independent consulting firm that had been retained by the state of Connecticut, released a report that included some shocking stories about business connectivity in Hartford, the capital of the state. Connecticut has the highest per capita income of all fifty states. Hartford is largely black (38%) and Hispanic (43%). Connecticut as a whole is mostly white (69%). CTC found that high-quality fiber and cable high-speed Internet access services did exist close to the business locations in Hartford that the firm visited. But close doesn’t mean connected. And the businesses CTC talked to said that they’d have to pay sky-high amounts to Comcast to get hooked up — and after that it would cost them enormous monthly fees to have a persistent connection.