Media Mentions

With the United States incarcerating people at a higher rate than any other nation on earth, a prison population that is larger than at any time in our history, and vast racial disparities in incarceration rates for African-Americans and whites, U.S. Attorney General Loretta Lynch ’81, J.D. ’84, called criminal-justice reform “a transformative issue of our generation” in a talk Wednesday at Harvard Law School (HLS). The system is not only about litigating cases, but “just as important, how do we prevent people from interacting with the criminal-justice system? How do we stop them from making the mistakes that lead them into our system? And then, when individuals have served their debt to society, how do we make sure that they have a way to go home to their families, to their communities, to become productive citizens?” Lynch said during a conversation with Carol Steiker, the Henry J. Friendly Professor of Law and Special Adviser for Public Service at HLS.

An op-ed by Noah Feldman. The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

An op-ed by Noah Feldman. Is the Commonwealth of Puerto Rico sovereign, like the 50 states? Or is it a mere territory of the U.S.? This problem in the metaphysics of colonialism has some relevance to the question of Puerto Rico’s ability to restructure its bonds using bankruptcy law, which will come before the U.S. Supreme Court later this year. But the justices will take up the matter directly Wednesday, in considering whether Puerto Rico and the federal government can separately prosecute someone for the same crime.

After the Supreme Court heard oral arguments over a major energy conservation rule in October, supporters of the regulation were anxious. Their fear: A divided court would act swiftly to reject a Federal Energy Regulatory Commission "demand-response" rule requiring power users to be paid for committing to scale back electricity use at times of peak demand. But the passage of weeks and then months with no decision could be a signal that the justices will do more than simply kill the regulation...Given that both cases concern the boundaries of state and federal authority, some lawyers say arguments in the Maryland cases might help shed some light on the demand-response cases. "Maybe they're waiting to hear the other side of that argument before trying to draw a line," said Ari Peskoe, an energy fellow at Harvard Law School's Environmental Policy Initiative. If the justices were aiming to create sound policy regarding the regulatory divisions, "maybe they want to hear both sides so they can try to craft that correctly."

An op-ed by Jack Goldsmith. For months the Obama administration has raised the stakes on its seven-year pledge to close the Guantanamo Bay detention center. In November three former senior Obama administration attorneys argued that the president had the constitutional power to ignore the legal restrictions Congress has placed on bringing dangerous detainees to the United States. Presidential aides suggested that the White House was taking the argument seriously. And then last week, in preview interviews for the President’s State of the Union address, Chief of Staff Denis McDonough put down a marker about Guantanamo.

Texas Sen. Ted Cruz has been busy combatting claims that his Canadian birth makes him ineligible for the presidency, but one Harvard professor is arguing that Cruz’s own logic could be his next opponent in the debate. Laurence Tribe, a constitutional law professor who once taught Cruz as his student, called the senator a “fair weather originalist” in a Boston Globe op-ed, noting that Cruz has trumpeted his views of a strict interpretation of the Constitution on the campaign trail—except when it comes to the question of his citizenship and potential to run for president...Tribe, who said in the op-ed that he disagreed with Cruz’s views while teaching him at Harvard but “enjoyed jousting with him,” told Boston.com that he hesitated before taking his opinion to the Globe, waiting longer than he would have to write about a stranger. “I usually do all I can ethically do to help my former students, including those whose views about how the Constitution should be interpreted and who should have the last word on constitutional questions I find it personally tough to swallow,” he said in an email, also noting that he’s supported past students who had views that conflicted with his own.

Greece's talks to secure a new bailout with its international creditors and avoid an ignominious exit from the euro zone shredded nerves and bust deadlines over the summer. And now the approach used by the Athens government in the talks has been named the worst negotiating tactic of 2015 by Harvard Law School...In its list of the "Top 10 Worst Negotiation Tactics of 2015" released this week, Harvard Law School criticised the Greek negotiating team, led by fiery former finance minister Yanis Varoufakis, for its "combative tone that did not go over well."

An op-ed by Noah Feldman. Federal courts are supposed to apply laws passed by Congress. But can Congress dictate the outcome in a particular case, the way it did when it essentially told the federal district court in New York to rule for victims of terrorism trying to collect $2 billion from the Iranian government? The U.S. Supreme Court will take up this question Wednesday in Bank Markazi v. Peterson -- and it’s legally tricky as well as politically sensitive.

An op-ed by Noah Feldman. The First Amendment protects your right to burn the flag in protest. What about getting naked to draw attention to your cause? An Oregon man is intent on finding out -- and so far, the courts have ruled against him. His case deserves attention because of the light it sheds on a core question of free speech.

Calling him a "fair weather originalist" and accusing him of "constitutional hypocrisy," Ted Cruz's former law school professor is arguing that the Texas senator's own legal philosophy disqualifies him from serving as president. Laurence Tribe, a constitutional law professor at Harvard whose students include President Barack Obama and Supreme Court justices John Roberts and Elena Kagan, hammered Cruz over questions about his presidential eligibility because of his birth in Canada, which have been raised by Donald Trump and caused headaches for the Calgary-born Texas senator in the Republican primary. Appearing on "Anderson Cooper 360" Monday night, Tribe slammed Cruz for his "constitutional hypocrisy."

As protests erupted on campuses across the country this fall and winter, students questioned the legacies of founding fathers, statesmen and philanthropists whose names are carved into stone. With increasingly diverse student populations — more non-white students, more students who were the first in their families to go to college, more students coming from poverty, more students who are openly gay or figuring out their gender identity — there was new pressure on the traditions and heritage of some of the country’s oldest institutions...At Harvard, students began to question the symbol of the law school, which honors Isaac Royall Jr. His estate helped found the school, was enriched in part by the slaves; his family had more slaves than any other in Massachusetts, according to the website of the museum at his former home and slave quarters. Jonathan Hiles, a third-year student at Harvard Law School, writes in “Respect the Past: Remove the Royall Seal,” in the Harvard Crimson: “The truth is we don’t need the names or insignias of racists to remind us of slavery or Jim Crow.

After brushing off Donald Trump’s questions about his U.S. citizenship for a week, the Ted Cruz campaign on Tuesday began taking the issue of his Canadian birth seriously. Mr. Cruz’s campaign circulated a document accusing Harvard professor Laurence Tribe, whom Mr. Trump cited as the source of uncertainty about the Texas senator’s eligibility to be president, of “flip-flopping on questions of natural born citizenship.” The Cruz campaign’s attack on Mr. Tribe, a Harvard Law School constitutional law professor who once taught Barack Obama and worked for his 2008 presidential campaign, comes one week after Mr. Trump began publicly questioning whether Mr. Cruz is, as the Constitution requires of presidents, a “natural born citizen.”...“The Cruz effort to challenge my consistency and my motives is a sign of desperation, not at all an embarrassment to me,” Mr. Tribe said. “The real significance of this is the way he uses constitutional law as a kind of weather vane,” Mr. Tribe said. Mr. Cruz’s position, Mr. Tribe said, “is a progressive, flexible view of that clause.”

An op-ed by Cass Sunstein. As just about everyone knows by now, Senator Ted Cruz was born in Canada, to a Cuban-born father and a mother who was a U.S. citizen. Cruz held Canadian citizenship for nearly all of his life, relinquishing it only in 2014, when he was planning to run for the presidency. Is he eligible to hold the office he seeks? This is a question of constitutional law, not of politics; it should be approached as such. Respected analysts have shown that the question is not simple to answer. The Constitution states that the president must be “natural born,” but doesn't define that term. The Supreme Court has never ruled on the issue; if it did, it would find a murky history.

...[David] Clark, and Harvard professor Yochai Benkler, one of the legal experts that shaped the Internet’s development, have issued a warning in joint papers published in the American Academy of Arts and Sciences’ magazine, Daedalus. More than three decades after the worldwide communications network was born, Clark and Benkler say they’re deeply concerned that the Internet is headed in a dangerous direction that its founders never intended...Benkler realized the Internet was like a new Louisiana Purchase – a huge amount of new property suddenly open for adventurous homesteaders to stake a claim. So he switched tracks. Using the Homestead Act as a guide, Benkler helped create a legal framework that protected the Internet from being gobbled up and claimed by corporations. And then, smart phones came along. And Steve Jobs created the iPhone. “I think there’s very little doubt that Steve Jobs in particular was someone who had a vision of a more controlled experience that viewed consumers as people who needed a well controlled, well structured environment to thrive in,” Benkler said. “That was part of his genius, and that was part of his threat.”

“Let’s start not with technology but with values.” That was the opening remark from Jonathan Zittrain, professor of law at Harvard Law School and the Harvard Kennedy School and cofounder of the Berkman Center for Internet and Society, who gave a lively talk January 10 at the 2016 Midwinter Meeting in Boston. Zittrain addressed those gathered for “Creativity, Innovation, and Change: Libraries Transform in the Digital Age,” asking them what libraries’ core purpose is. “Why do we have the books to begin with?” he asked. He noted four goals that he said were nothing new, radical, or subversive:

Trump is quoting from Lawrence's newsmaking interview on Ted Cruz's presidential eligibility with Harvard Law professor and constitutional expert Laurence Tribe. Tribe returns to respond to Trump quoting him and to talk more about his former law student.

An op-ed by Laurence Tribe. There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

An op-ed by Adrian Vermeule. In the spirit of John Lennon, let’s imagine, all starry-eyed, that there’s no U.S. Congress. In this thought experiment, the presidency and the Supreme Court would be the only federal institutions, along with whatever subordinate agencies the president chose to create. The court would hold judicial power, while the president would make and execute laws. The president would be bound by elections and individual constitutional rights, but there would be no separation of legislative from executive power. Would such a system be better or worse than our current system? How different would it be, anyway?

An op-ed by Noah Feldman. On Christmas, hopes for high-level peace talks between India and Pakistan were higher than they’d been in years. Indian Prime Minister Narendra Modi made a surprise visit to his Pakistani counterpart, Nawaz Sharif, and the two shared a very public and symbolic hug. Now, just two weeks later, the optimism is mostly gone. After terrorists from Pakistan attacked an Indian air base, killing seven Indian security personnel, Modi told Sharif that talks wouldn’t go forward unless Pakistan took action against the terrorists. It seems altogether likely the talks won’t happen at all.

Texas Gov. Greg Abbott on Friday revealed his plans for a "convention of the states," the first in more than 200 years, as part of a larger effort to reshape the U.S. Constitution and expand states' rights...In an email to CNN, Laurence Tribe, a professor of constitutional law at Harvard Law School, expressed doubts over the viability of Abbott's plan. The process and protocol for gathering a "convention of the states" remains a mystery, he said, even to most experts. "Nobody knows exactly how we'd determine when a new convention must be called," or "whether distinct amendment calls could be combined to reach the requisite number of states," Tribe wrote, citing his own research. The role of the courts and Congress is also unclear and, as Tribe explained, despite arguments to the contrary, "there is no agreed-upon process for coming up with definitive answers to any of these unknowns," creating a sort of legal "black hole."

Corruption in politics is as old as government itself. But so has been the challenge of interpreting in law what corruption actually means. On Friday, the U.S. Supreme Court was scheduled to discuss whether to take up a case that could further sharpen the line that a government official must cross to be convicted of bribery. The case that justices are considering — the conviction of former Virginia Gov. Bob McDonnell and his wife, Maureen — is one awash in shades of gray. And if the high court agrees to take it up, the McDonnell case has the potential to further limit the scope of federal bribery laws used to prosecute malfeasance...Former federal judge Nancy Gertner and Harvard law professor Charles J. Ogletree are also critical of the prosecution’s case. In a friend-of-the-court brief, they and other legal scholars argued that the conviction conflicts with the Supreme Court’s Citizens United ruling on campaign finance. “While Citizens United dealt expressly with political activity protected by the First Amendment, its dicta went further— suggesting that money in exchange for ‘ingratiation’ or ‘access’ is part and parcel of American politics,” their brief says.