Media Mentions

An op-ed by Noah Feldman. When I clerked on the D.C. Circuit in the 1990s, my friends and I dreaded getting “FERC-ed,” which was what we called being assigned a case involving the Federal Energy Regulatory Commission. The very word FERC can still give me a nightmare in which I’m chased through an endless pipeline by relentless administrative lawyers. On Wednesday, the U.S. Supreme Court was FERC-ed, in a case that asks whether the agency is allowed to pursue a plan to pay consumers not to use electricity at peak hours. Although the topic the justices discussed is technical and complex, the bottom line isn’t: The case is a conflict about federalism, in the guise of a fight about the meaning of a federal law.

An op-ed by Johanna Wald. U.S. Secretary of Education Arne Duncan recently proposed to redirect $15 billion from correctional facilities toward increasing teachers' salaries in high poverty schools. Unfortunately, because his suggestion came just days before he announced his resignation, this proposal risks being dismissed as some kind of a Hail Mary; an attempt to be provocative on his way out the door. He even suggested as much, when he stated "I want to lay out an idea today that will strike some as improbable or impractical." Actually, his idea is neither. It is both practical and eminently plausible. With the right kind of leadership and advocacy, it might even become probable.

Amid a nationwide debate over tough criminal sentences and overcrowded prisons, the Supreme Court heard appeals Tuesday over harsh punishments that two convicts contend violate the Constitution....Raising the vote count required to impose the death penalty could have significant implications, according to data the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School published last week.

A leaked portion of text from the Trans-Pacific Partnership (TPP) could have serious consequences not only on the average citizen, but also tech specialists who help ensure product safety. According to an Oct. 9 release by WikiLeaks, the intellectual property chapter of the TPP includes language that seems to indicate judges may be allowed to order the confiscation and destruction of devices belonging to citizens...Vivek Krishnamurthy, a Harvard cyberlaw instructor, also told Motherboard that in addition to the effect the treaty will have on the usage of purchased technology by the average citizen, it could could also impact the work of security researchers. Security researchers, also known as white hats, are “ethical hackers” that use their skills to look for weaknesses or flaws in a product in an effort to warn consumers and manufactures of potential problems.

When Harvard publicly launched its capital campaign in 2013, it set out for the record books. The first fundraising drive to take place at every school across the University simultaneously, it aimed to raise $6.5 billion, more money than any previous effort not only at Harvard, but in the history of higher education...Except at Harvard Law School. Fundraisers there are preparing to launch the public phase of its segment of the University’s larger fundraising drive on Oct. 23, making it the last of Harvard’s schools to do so. For Steven Oliveira, the Law School’s dean for development and alumni relations tasked with coordinating the effort, this fundraising drive is “awkward.” The school just finished a $476 million capital campaign in 2008, funding major construction, and administrators there are weary of over-soliciting their donors.

An op-ed by Noah Feldman. Giving juveniles mandatory life sentences without the opportunity for parole is an unjust punishment, and the U.S. Supreme Court has ruled it unconstitutional. But that's not enough to get young offenders already sentenced to mandatory life resentenced or released. For the court’s 2011 decision to apply retroactively, the justices would have to deem it a new substantive rule of law. On Tuesday, the justices heard arguments on that question. If they follow the technical logic of their retroactivity rule, things don’t look good for the people incarcerated under a principle that the court now says is cruel and unusual.

...Across Harvard, faculty members, students, and researchers are examining those questions, engaging the world’s latest information revolution, the one in “big data.”...Jonathan Zittrain, the George Bemis Professor of International Law at Harvard Law School and Harvard Kennedy School, believes that big data — and the algorithms developed to make sense of it — are both exciting and potentially worrisome at the same time, and that thought should be given to who uses it and how...Zittrain, who is also director and faculty chair of the Berkman Center for Internet & Society and is a professor of computer science at the Harvard Paulson School, said the intersection of big data, artificial intelligence, and our always-on world has created interesting moral, ethical, and potentially legal issues. And he believes that the relatively neutral ground of universities is a good place to sort that out.

As New Delhi gears up for its biggest ever diplomatic jamboree with African nations, the International Criminal Court (ICC) prosecutor has said that India should “contribute” towards the goal of accountability for the “world’s worst crimes” by arresting the visiting Sudanese President, Omar Hassan Ahmad al-Bashir, who has been indicted for 10 counts as a 'war criminal...Harvard Law School's Professor Alex Whiting, who had been attorney in ICC Prosecutor's office from 2010 to 2013, agreed that India "does not have legal obligation" to enforce warrant for Al Bashir as UNSC resolution 1593 "does not obligate non-State parties to cooperate with the ICC but only urges them to do so". "However, India is a signatory to the Genocide Convention which states that "that genocide, whether committed in time of peace or in time of war, is a crime under international law which [the contracting parties] undertake to prevent and to punish," Whiting told Express. India became a party to the 1948 Genocide Convention in 1959. Whiting felt that "this obligation would cause India to think twice about hosting someone who has been charged by an international tribunal with genocide".

An op-ed by Noah Feldman. If you download a free app to your phone or tablet and watch videos without registering, can the service share your viewing preferences with a third party? The answer is now yes in the 11th Circuit, which covers Alabama, Florida and Georgia. The appeals court held last week that the Video Privacy Protection Act doesn’t cover viewers who aren't registered, because they aren't “subscribers” under the meaning of the law. The decision is doubtful as a matter of logic, but it’s also now the law, so watch at your own risk.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the 9th Circuit held last week that Bikram yoga can't be copyrighted. The decision covers California -- yoga’s American heartland -- and it'll probably influence courts elsewhere. Although the ideal of yoga being free to all is appealing, the court got this one wrong. The stylized, precise sequence of poses arranged by Bikram Choudhury, and performed in a 105 degree room, should’ve been treated as choreography, entitled to copyright protection, not as an abstract expression of medical ideas.

An op-ed by Noah Feldman. The quartet of Tunisian civil society leaders who won the Nobel Peace Prize on Friday played an important part in the country’s thus-far successful democratic, constitutional revolution. But their role was no more decisive than that of the leaders who shepherded the country from the Arab Spring protests to the election of the constituent assembly, or of the elected assembly members who produced, negotiated and ratified a liberal democratic constitution. The best way to think about it is that the Nobel committee wanted to reward the Tunisian people for being the only Arab state to have achieved democracy since the regional upheaval in 2011, and they picked the civil society leaders as the stand-in. The Peace Prize is being given to the Tunisian exception.

An op-ed by Cass Sunstein. Presidential candidates from both parties are focusing, as usual, on the middle class. But what’s that? And why, exactly, does it deserve such attention? Princeton’s Angus Deaton, who on Monday was announced as the latest winner of the Nobel Memorial Prize for economics, has offered some intriguing answers. The most important is this: If you care about how people actually experience their lives, you should be concerned about people who earn less than $75,000 per year. Above that amount, Deaton’s evidence suggests that more money may not particularly matter.

The tension is right there in the agency’s name — the Department of Children and Families — and in its mission statement, which charges it with both protecting children from abuse and holding together unstable families...Now, Governor Charlie Baker has made it clear that he believes the balance has tilted too far in one direction....Still, it remains to be seen if the governor will fundamentally shift the agency’s mission, said Elizabeth Bartholet, a Harvard Law School professor who argued that such a change would require an overhaul of the policy that separates high-risk and low-risk cases. “Simply saying safety is our priority is what everybody always says,” Bartholet said. “Without specifics, DCF is never going to do that on its own.”

A bill aimed at increasing legal protections for people who buy foreclosed homes is working its way through the state legislature, but faces criticism from opponents who say it would disproportionately harm minorities....Several minority leaders, including NAACP New England president Juan Cofield, Harvard law professor Charles Ogletree and city councilors Jass Stewart of Brockton and Dana Rebeiro of New Bedford, wrote a letter to Senate leaders opposing the bill. They claimed it would have disproportionate negative impacts in minority communities ravaged by subprime mortgages. They also argued the bill strips victims of illegal foreclosures of their rights. “These homeowners, from communities of color and more broadly, must retain their rights,” the letter stated. “They must have access to adequate legal redress. Denying them the ability to sue to regain title to their illegally foreclosed home is not justice.”

Sheriff's Deputy Charles Hurt was on truant patrol when he came across a teenager in a Baton Rouge park on a cool fall morning. The teenager pulled a gun from his jacket, panicked, he said, and shot Hurt dead. That tragic sequence took place more than a half-century ago, nine days before the Kennedy assassination in 1963. The teenager, Henry Montgomery, is now 69 years old and has been behind bars almost ever since, serving a life sentence. He wants the Supreme Court to give him a chance to get out of prison before he dies...Harvard Law School professor Charles Ogletree is calling on the justices to consider banning life-without-parole sentences altogether for people who commit even the most heinous crimes before their 18th birthdays. Ogletree said the court should take note of the rapid change in sentencing laws to rule out life terms for the young.

Students from the environmental activist group Divest Harvard have appealed the dismissal of their lawsuit filed against the University last November, which asks the court to compel Harvard to divest its $37.6 billion endowment from the fossil fuel industry...Though the plaintiffs may not introduce new arguments at the appeals stage, according to plaintiff and Harvard Law School student Alice M. Cherry, the brief seeks to argue why the dismissal was unwarranted so that the case can proceed in a lower court...“It’s amazing to have the City of Cambridge, Harvard’s own hometown, throw its support behind our lawsuit,” said Joseph “Ted” E. Hamilton, a Law School student, in a press release. “This shows that many people support us and that Harvard owes it to the public to divest from fossil fuels.”

Wynn Resorts and supporters of their plan for a casino in Everett are lashing out in their ongoing feud with the city of Boston. About two dozen Supporters of a planned casino project in Everett gathered outside Boston City Hall Wednesday to protest the city’s ongoing legal fight against the casino plan...The protest comes after Wynn filed a libel lawsuit over press leaks. The suit doesn’t actually name a defendant, but Wynn wants to know how the media obtained a city subpoena of Wynn before it was even served. That subpoena alleges Wynn knowingly made illegal deals for the Everett land with a convicted felon. Wynn says that’s untrue, but Harvard University law professor John Goldberg says the case is an uphill battle for Wynn, since the contents of legal proceedings can’t be considered libel. “And then the only question is whether repeating those privileged contents in some other circumstance would get somebody in trouble, and I think that’s very unlikely.”

Harvard Law Professor Randall Kennedy recently wrote a cover story in Harper’s magazine called "In Defense of Respectability." In it, he lauds the peaceful tactics of the civil rights movement, and he has some criticism for the tactics groups like Black Lives Matter have been using lately, criticism that’s not been well received by everyone.

Oklahoma may have used the wrong drug during an execution in January, just days before the U.S. Supreme Court agreed to hear a case challenging the state’s lethal-injection protocol, officials said Thursday...Opponents of Oklahoma’s death penalty called Thursday for more information about what happened. Charles J. Ogletree Jr., a professor at Harvard Law School and prominent critic of the death penalty, said the Justice Department should investigate the situation.

June 25, 2012, has stood as a barrier to potential freedom for thousands of youths who were sentenced before then to life in prison, without a chance of release, for murders they had committed. The Supreme Court several times since then has refused to consider appeals asking that those youths, too, get the benefit of a ruling on that day that such sentences should seldom be imposed. The Justices have now taken on that retroactivity issue, in Montgomery v. Louisiana...The most provocative amicus brief is the one filed by Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute. Taking no position on either issue that the Court will be reviewing, that brief cited “the national turn away from” juvenile life-without-parole sentences (nine states have abandoned it in the past three years and it is “exceedingly rare” everywhere else), and asserted that the Court should take on the basic question of whether to flatly prohibit all such sentences for juveniles under the Eighth Amendment.

In 1931, Oliver Wendell Holmes Jr., the oldest person ever to sit on the U.S. Supreme Court, turned 90. By then the seemingly ageless judge was widely regarded as a national treasure, so CBS marked the occasion with a prime-time birthday tribute in which he spoke briefly from his home in Washington...Three years ago the Harvard Law School Library, where Holmes’s papers are housed, launched an online “digital suite” (library.law.harvard.edu/suites/owh) that allows anyone with a computer to access its digitized 100,000-document collection of Holmesiana...I got in touch with Harvard a few months ago and suggested that they post the broadcast online, and now they’ve done so at http://nrs.harvard.edu/urn-3:HLS.LIBR:22508576. (You’ll need to download RealPlayer to play the file.) To read what Holmes said on that long-ago evening is to be stirred to the marrow. But to actually be able to hear it—to listen to the tremulous yet dignified voice of a man who met Abraham Lincoln and was wounded three times in the Civil War, then spent the better part of three decades sitting on the U.S. Supreme Court—is an experience of another order altogether.