Media Mentions

Harvard Law School administrators amped up security and amended school policies in response to an escalating debate about free speech that began with a confrontation over posters last week. Students in the group Reclaim Harvard Law have occupied the Caspersen Center Student lounge—which they are calling “Belinda Hall”—since February to advocate for increased support for minority students on campus. Last Monday, third-year law student William H. Barlow, a vocal critic of Reclaim Harvard Law, posted signs in the lounge comparing the group to Republican presidential candidate Donald J. Trump, a move activists saw as offensive. Reclaim Harvard Law members removed the signs and told Barlow that they had jurisdiction over what could be posted in the space...Activists said they can control speech in the room because they are occupying the hall and designating it a make-shift office of diversity and inclusion. Therefore, they argue, they have the right to remove signs they consider to be offensive. “This is a place made for inclusion. Inclusion doesn’t mean that you let everything that anyone wants go up,” Bianca S. Tylek said. “Inclusion means protecting from exclusion.”...Students have taken to the pages of the Harvard Law Record to weigh in on the debate. The poster dispute has soured several students on the Reclaim Harvard Law movement, which they say they initially supported but now disapprove of activists’ tactics. Marlen Thaten called the movement “authoritarian” in a Record piece, and third-year Law student Stephen M. Silva said activists’ tactics have created a “pervasive” silencing effect on dissenting speech at the school. “They decided they’re going to stifle, basically, any other ideas people are going to say,” Silva said in interview. “I think it’s very unfortunate because they have some very good ideas.”

Recent interpretations of Title IX by the Office of Civil Rights that broadly define sexual harassment have created a “chilling” effect at America’s colleges and universities, threatening academic freedom, due process, and free speech, argues a recent report released by the American Association of University Professors. The report characterizes OCR as conflating conduct and speech cases, creating a “seemingly limitless definition of harassment” without explicitly reaffirming the protected speech of classroom instructors, leaving faculty who teach and research sensitive topics related to gender, sex, sexuality, and rape law vulnerable to sexual harassment charges...“I have heard from a number of colleagues, not just in criminal law but in other subjects, that they are now unwilling to teach any cases having to do with sex or sexuality, that they’re scrubbing their syllabi of material that touches on those topics, because those topics are the areas in which [they] could be perceived as engaging in unwanted verbal conduct of a sexual nature,” said Harvard Law School professor Jeannie C. Suk, whose writings on the challenges of teaching rape law are quoted in the report. “As long as the standard that is being used looks at whether the act is regarded as undesirable or offensive, then of course anything that one teaches having to do with sex or sexuality can be regarded as undesirable or offensive.”

...Although granted broad powers under the USA Patriot Act of 2001 to institute and enforce anti-money-laundering measures in a variety of industries, including banking, mortgage, insurance, and real estate, the Treasury Department has not required those involved in real estate closings, such as title companies, real estate and escrow agents, or lawyers, to ascertain or report who profits from the purchase and sale of properties. Juan Carlos Zarate ’93, J.D. ’97, is a visiting lecturer of law at Harvard Law School, a former deputy national security adviser in the George W. Bush administration, and a former assistant secretary of the U.S. Treasury for terrorist financing and financial crimes. The Gazette spoke with Zarate about the scope of the problem and what this new oversight might portend.

An op-ed by Sam Moyn: The most interesting question to ask about the Universal Declaration of Human Rights, passed by the United Nations General Assembly on 10 December 1948, is why it was ignored in its own time, even as it is celebrated in our own. The reason, I believe, is that the document reflected not a breakthrough internationalist minimalism but a small part of a familiar nationalist welfarism, in which a concern for civil liberties was not separated from economic and social entitlements.

Following a very public fight over the unlocking of the iPhone used by Syed Rizwan Farook, a gunman in the San Bernardino, Calif., shooting last December, the Federal Bureau of Investigation (FBI) has found a way to crack the device without help from Apple. Now, will the federal agency have to tell the tech giant how it was done?..."While it is appropriate for law enforcement, with a warrant, to use a security flaw to gain access to which it is legally entitled, the flaw should be patched as soon as possible for everyone else’s sake,” Jonathan Zittrain, a professor of law and computer science at Harvard Law School, told the Monitor.

A national coalition aiming to improve democracy by taking big money out of politics and expanding voting rights is kicking off a 10-day march to Washington with a rally outside the Liberty Bell on Saturday. Organizers of what is being called "Democracy Spring" said the nonviolent, family-friendly rally will begin at 10 a.m. with speeches and music. Scheduled speakers include Lawrence Lessig, a Harvard University law professor who briefly ran for president but dropped out of the Democratic primary race in December after the debate rules changed; actress Gaby Hoffmann, known for her roles in the TV series Girls and Transparent; and Kai Newkirk, campaign director of Democracy Spring.

Call this the tale of two different sets of state attorneys general: one group represents coal producing and consuming states and the other speaks for states that adversely affected by those who burn coal. While it’s all playing out in the nation’s legal arenas, the efforts are surely political. After all, the office of attorney general is known as the “aspiring governors.”  ,,, “The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a ‘power grab,’” says Harvard law professor Laurence Tribe, in testimony before Congress last year.

The Department of Veterans Affairs is wrongfully denying services to roughly 125,000 post-9/11 veterans with other than honorable discharges, according to a joint study released Wednesday by two veterans advocacy groups and Harvard Law School. Some veterans are missing out on benefits such as healthcare, housing help for the homeless and disability services, in part, because the VA’s own rules are in contravention of the original GI Bill of Rights passed by Congress in 1944, according to the study. That represents roughly 6.5 percent of post-9/11 veterans, including more than 33,000 who served in Iraq and Afghanistan. ... “Veterans who have served since 9/11 are being excluded from the VA at a higher rate than any other generation of veterans,” said Dana Montalto, the study’s author and a Liman Fellow with the Harvard Law School’s Veterans Legal Clinic. “They’re being denied very basic services.”

This time, critics are going after the V.A. to denying benefits to a record number of veterans who have served since the 9-11 attacks.At least 125,000 American veterans who served our country since September 11th are being treated by the V.A. as though they never even put on a uniform. The Department of Veterans Affairs has ruled them ineligible for veterans benefits, not because they didn’t sacrifice, but because they left the military without an honorable discharge. ... The staggering numbers come from a new report from veterans advocacy group Swords to Plowshares, the National Veterans’ Legal Services Program and Harvard, which found that the V.A. is denying valuable benefits at unprecedented levels.

An op-ed by Tommy Tobin `16. The unfilled vacancy on the U.S. Supreme Court, while the most talked about right now, is just the latest in a long line of unfilled seats on the federal bench. Just this month, a retirement from D.C.'s U.S. District Court brought the total number of judicial vacancies up to 84, and if Merrick Garland is indeed confirmed to the country's highest court, it will create yet another vacancy on the D.C. Circuit Court of Appeals, where he currently serves as chief judge. The open positions are leading to a backlog of cases across the country and an overworked judiciary that has to do more with less.

Two former Republican-appointed U.S. EPA administrators are urging federal judges to uphold an Obama administration climate rule that's come under siege in court. William Ruckelshaus and William Reilly are submitting a brief to the U.S. Court of Appeals for the District of Columbia Circuit today as "friends of the court" supporting EPA's Clean Power Plan, which aims to cut power plants' greenhouse gas emissions...The two former EPA administrators are represented in the case by Harvard Law School professor Richard Lazarus. "The Clean Power Plan represents the very kind of pollution control program" that the two former agency bosses "endorsed during their service at EPA," the brief adds. "The Plan is a pragmatic, flexible, and cost-effective pollution control program, which properly respects State sovereignty by affording States substantial authority and latitude to decide whether and how best to administer its provisions."

For the last several weeks, the walls of the protestor-occupied “Belinda Hall” have been covered with messages from Reclaim HLS, a coalition of students seeking institutional change at the Law School. But on Monday, there was a new message—one equating the movement with Republican presidential frontrunner Donald Trump, claiming that both Trump and Reclaim are anti-free speech. The signs were posted by third-year student Bill Barlow, who has been a vocal opponent of perceived censorship by Reclaim HLS. Barlow believes some of the protestors’ demands impinge on academic freedom and stifle dissent—a conviction this incident reaffirmed for him. Shortly after Barlow taped up his signs, he sat down to discuss his message with protestors—a conversation he referred to as “tense but civil.” Later that afternoon, members from Reclaim HLS removed Barlow’s critical posters...Dean [Marcia] Sells issued a statement to the Record reaffirming Harvard Law’s commitment to free speech. “In recent weeks, faced with questions of pressing importance to our community, we have respected the extraordinary use of space in the WCC lounge as a place for the expression of views through, for example, the display of posters and fliers and the holding of teach-ins and the like,” Dean Sells told the Record...But unlike Dean Sells, AJ Clayborne, a third-year student and a Reclaim HLS organizer who was one of several students who has removed Barlow’s posters, said that anything posted in Belinda Hall must be approved by Reclaim first.

There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working...Dahlia Lithwick has a rundown of the theory, which comes from this Yale Law Review article by Matthew Stephenson, a law professor at Harvard. The idea takes off from the Take Care Clause of the Constitution, which says that the president “must take care that the laws be faithfully executed,” and the Appointments Clause...According to Stephenson, there is occasional tension between these two clauses, and it has become more pronounced in our highly polarized modern moment, because the president appoints cabinet secretaries, agency heads, and other executive positions as essentially surrogates to carry out his agenda, denying him the ability to make these appointments keeps whole swaths of the Executive Branch from functioning, thus inhibiting his ability to faithfully execute the laws.

As discussions of sexual assault and Title IX pervade campus rhetoric, Harvard Law School alumna and activist Kamilah Willingham offered her views on the topics and reflected on her experiences at a conference Tuesday. The conference, entitled “Challenges in Title IX Advocacy,” was the first from Harassment/Assault Law-School Team, a new organization of Law School students that advocates for students who file sexual assault claims through internal procedures at schools in the Boston area...Jenae S. Moxie, a Law School student and the president of HALT, spoke during a panel discussions about her disillusionment with the Law School’s ability to educate students about sexual assault...in addition to student activism, [Diane] Rosenfeld said she is optimistic about the potential positive effects of her curriculum. “I have the incredible privilege and luxury of creating my own curriculum, and having created the gender violence program,” Rosenfeld said. “I wanted to develop Title IX as an incredibly strong potential source of civil rights in education.”

An op-ed by Laurence Tribe. A one-line opinion. That's what the Supreme Court gave us this week, in what many expected to be one of the biggest cases of the year. At stake in Freidrichs v. California Teachers Association was the ability of public-sector unions to collect fees from non-joiners unwilling to pay for the unions' collective bargaining efforts. Some thought the fate of the American labor movement hinged on the outcome. The court had mountains of materials to consider. But it said only this: "The judgment is affirmed by an equally divided Court." If the Republican Senate keeps stonewalling Judge Merrick Garland's nomination, pretending that it can discharge its advice and consent duty by doing nothing, get used to hearing that sentence. This year, contraception, abortion, voting rights, religious freedom and affirmative action are on the court's docket. Next year and beyond we can expect cases on guns, campaign finance and the balance between security and privacy. But an incomplete court will deadlock 4-4 on many of these issues.

An op-ed by Cass Sunstein. A good nudge is like a GPS device: A small, low-cost intervention that tells you how to get where you want to go -- and if you don’t like what it says, you're free to ignore it. But when, exactly, will people do that? A new study sheds important light on that question, by showing the clear limits of nudging. Improbably, this research is also good news: It shows that when people feel strongly, it’s not easy to influence them to make choices that they won’t like. The focus of this new research, as with much recent work on behavioral science, is on what people eat.

An op-ed by Noah Feldman. Finally, someone's standing up for the rich. The Supreme Court struck a blow for wealthy criminal defendants today, holding that before trial the government can freeze only those assets that are demonstrably tainted, not all assets up to the value of the wrongdoing alleged. It's a distinction that doesn't matter to very many people, but matters a lot to a few. One result will be to make it a bit easier for rich defendants to use their (unfrozen) money to pay for lawyers of their choice, instead of getting by with an appointed public defender. But the court’s cautious plurality opinion, the result of a very strange voting lineup, relied on some seriously doubtful economic logic to get to the desired outcome.

Patient advocates say too many health plans are requiring patients with HIV to spend large sums on their medications, potentially raising concerns about discrimination. In a report provided this month to the Star Tribune, researchers from Harvard Law School and the Minnesota AIDS Project highlight health plan options on the state’s MNsure exchange that feature high degrees of “cost-sharing” for medications used by people with HIV. The report, which also looked at hepatitis C medications, is one of the latest to examine how health insurers in different states are covering HIV treatments on new government-run insurance exchanges. “I think they know the impact that putting high cost-sharing on these medications has to deter people,” said Carmel Shachar, an attorney at Harvard’s Center for Health Law and Policy Innovation. “We do think the pattern of tiering is suggestive of discrimination.”

The Department of Veterans Affairs is wrongfully denying services to roughly 125,000 post-9/11 veterans with other than honorable discharges, according to a joint study released Wednesday by two veterans advocacy groups and Harvard Law School...“Veterans who have served since 9/11 are being excluded from the VA at a higher rate than any other generation of veterans,” said Dana Montalto, the study’s author and a Liman Fellow with the Harvard Law School’s Veterans Legal Clinic. “They’re being denied very basic services.”

An op-ed by Noah Feldman. It’s happening: The Supreme Court is getting desperate. With a 4-4 tie looming over whether religious organizations have to file a form with the government requesting an exemption from the mandatory contraceptive care provisions of the Affordable Care Act, the justices took an extreme step. They issued an order that basically told the federal government and the religious entities to reach a compromise -- and described what the compromise would look like. Federal district court judges will sometimes tell the parties that they’d better compromise, or else they might not like the results that will follow. The Supreme Court essentially never does, both because it lacks leverage and because it gets involved in cases with the intention to make new law, not to resolve particular disputes. But we’re in new territory here. The Supreme Court is trying to figure out how to do its job with eight justices -- a situation that might persist not just through this Supreme Court term, but through the next one as well.

An op-ed by Noah Feldman. This was supposed to be the year when the Supreme Court would deal a major blow to labor unions, reversing a 1977 precedent that says nonunion members can be required to make payments in lieu of dues to the union. In 2014, the court came close to doing exactly that in a 5-to-4 opinion that telegraphed its intention to do so in the near future. But the death of Justice Antonin Scalia was a game-changer, taking away the fifth vote that would’ve been necessary to repudiate the precedent. Today the court issued a one-sentence opinion that proved both that there were briefly five votes to overturn the precedent, and that Scalia’s death has saved unions from constitutional disaster. The court said simply that it was divided 4-4, and that the lower court’s opinion based on the precedent would therefore be upheld.