Media Mentions

... William & Mary Law School will host the "12th Annual Brigham-Kanner Property Rights Conference" on Oct. 2. Topics to be addressed at the event include property as a form of governance; civil forfeiture of property; pipelines, drilling and the use of eminent domain; and property rights in the digital age, according to a news release. During the conference, the William & Mary Property Rights Project will recognize Joseph William Singer, of Harvard Law School, with the 2015 Brigham-Kanner Property Rights Prize. The prize, named in honor of the lifetime contributions to property rights of Toby Prince Brigham and Gideon Kanner, is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights, according to the release.

After six days of evidence heard from 16 witnesses in the St. Paul’s School rape trial, the jury has acquitted 19-year-old Owen Labrie of three felony charges of sexually assaulting a now 16-year-old fellow former student at the New Hampshire prep school. ... As of 1995, the state determined that a person is guilty of sexual assault if “the victim indicates by speech or conduct that there is not freely given consent.” “What’s most interesting about this case is that it would not have been brought ten years ago, and not because of any changes in law but because of changes in attitude,” Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, told The Daily Beast.

Whereas Kenya feels that it was duped to support amendment to Rule 68 of the International Criminal Court Rules of Procedure and Evidence on the basis that it would not apply 'retrospectively' an international law expert says there was no agreement that it cannot be used in ongoing cases. Harvard University law professor Alex Whiting says if the Assembly of State Parties (ASP) wanted it not to be applied on ongoing cases, it could have stated so. "When the ASP adopted the new Rule 68, it did not say that the new rule would not apply to ongoing cases (and it could have said this). Instead, all it said is that under the Statute, new rules cannot be applied "retroactively to the detriment of the person who is being ... prosecuted," he says basing his argument on Article 51(4) of the Rome Statute.

An op-ed by Noah Feldman:  The battle for Baiji, site of one of Iraq’s major oil refineries, is heating up again. Since May, Islamic State fighters have been chipping away at the Iraqi government’s control. Now it seems possible that the empty city and the shuttered refinery could fall. Iraqi Prime Minister Haidar al-Abadi visited the battlefield this week and emphasized the site’s strategic importance to retaking Mosul. What he didn’t say was that Islamic State’s offensive on Baiji is part of its grand strategy to develop domestic sources of revenue that would help make it a functioning state, instead of a would-be state attempting to achieve legitimacy by beheadings and religious fervor.

An op-ed by Noah Feldman: After the correction comes the nationalism. China's market meltdown portends a potentially dangerous rise in nationalist sentiment likely to be whipped up by leaders both in China and in the U.S. The motives on each side are slightly different: China's leaders need to shore up the legitimacy of Communist Party rule as growth slows, while Republican presidential candidates need to criticize the Democratic administration on foreign policy without mentioning the Middle East. But there’s an underlying symmetry that's highly worrisome. On both sides, nationalism is a proven strategy for generating popular support while changing the subject. On China’s side, the equation is pretty simple. The Chinese Communist Party’s legitimacy doesn’t come from communism. It comes from economic growth, which is slowing. Even if the stock market’s losses don’t directly affect most Chinese, the sharp market decline is likely to be felt in the real economy.  

For most foodies, sharing a snapshot on Instagram and writing a Yelp review is a must. But a Charleston, S.C., steakhouse warns patrons to think twice before turning to the Web. Post something nasty, and you could be sued. A “dining contract” sent to guests making a reservation for five or more people includes a clause stating they “may be held legally liable for generating any potential negative, verbal or written defamation against Grill 225,” The Post and Courier reported Tuesday. So, should serial Yelpers beware? Not so fast. This is “watered-down legalese that means nothing,” said Andy Sellars, a fellow at Harvard Law School’s Cyberlaw Clinic, calling it a free speech issue. Defamation — which comprises a false statement of fact, made knowingly, that can be proven to cause harm — is already a civil wrong, thus rendering the clause in Grill 225’s policy unnecessary and “profoundly stupid,” he said. "If I said the service was terrible — ‘terrible’ is an opinion, you can’t sue someone for that,” he said, noting that a quick scan of Grill 225’s Yelp reviews show them to be quite opinion-laden. “Very few reviews would actually be defamation.”  

(Registration required) The U.S. Supreme Court this term will decide whether its 2012 ban on mandatory life without parole sentences for juvenile murderers is retroactive. But some of those offenders and their lawyers hope for more from the justices. The high court has had several opportunities since its ruling in Miller v. Alabama to take up the question of its retroactive effect, but for unknown reasons, it passed until Montgomery v. Louisiana. The justices will hear arguments in Montgomery on Oct. 13. ... In an amicus brief supporting neither side, Harvard Law School’s Charles Ogletree, on behalf of the Charles Hamilton Houston Institute for Race & Justice and the Criminal Justice Institute, proposes: “A more straightforward way to resolve the case would be to answer the question this court has explicitly left open: whether ‘the Eighth Amendment requires a categorical bar on life without parole for juveniles.’”

Homeless youth are a sad but very real fixture in Harvard Square and two recent Harvard grads, motivated by that grim reality, have gone about creating a shelter for them. Set to open in November, the shelter is meant to provide beds to homeless youth between 18 and 24 years old, a population that advocates say lacks an adequate number of beds specifically set-aside for them. ... A unique twist on the youth shelter, which will be housed in the 4,725 square foot basement of the First Parish Church, is that it will be staffed by and run by about 30 student volunteers, most of them from Harvard. The volunteers will provide everything from case management to legal aid, courtesy of Harvard Law School.

An op-ed by Noah Feldman: Arkansas, which is poised to erect a new Ten Commandments monument on the grounds of its state capitol, has just rejected a request by a Hindu group to erect a statue of the god Hanuman there. Constitutionally, the rejection is permissible: The U.S. Supreme Court permits the government to pick and choose what symbols it wants to project in public space. But turning down a statue of the Hindu deity with the jaw of a monkey also calls into question the constitutionality of the Ten Commandments statue -- because the government can’t endorse one religion at the expense of others. Confused? I hope so. If you aren’t, you get an A in constitutional law -- but something’s gone wrong with your logic function. The Supreme Court’s twin doctrines on government speech and endorsement of religion are in tension with each other, as the Arkansas situation shows.  

An op-ed by Noah Feldman: Ohio is considering legislation that would ban abortion, even before viability, if the reason for the termination is that the fetus has Down syndrome. On the surface, the law seems blatantly unconstitutional: The U.S. Supreme Court has affirmed a woman’s basic right to be free of any “undue burden” on terminating her pregnancy before viability. And no one doubts that the proposed law is intended as part of a broader legal attack on Roe v. Wade. Yet on closer examination, the legal issue is more complicated. Seven states have laws banning abortion aimed at selecting the sex of a child. These laws are arguably constitutional, and haven’t been struck down by the courts. The argument in favor of those laws is that the state has a compelling interest in combating sex discrimination. It seems possible that countering discrimination against those with Down syndrome is a compelling interest on par with combating discrimination against women.

An op-ed by Cass Sunstein: Within the past year, a new catchphrase has come to dominate political discussion, certainly on the left: “The system is rigged.”  Senator…

Christine Desan, teaches about the international monetary system, the constitutional law of money, constitutional history, political economy, and legal theory at Harvard Law School. In this podcast we discuss her new book, Making Money: Coin, Currency, and the Coming of Capitalism (Oxford University Press, 2015). Per the books jacket, "Money travels the modern world in disguise. It looks like a convention of human exchange – a commodity like gold or a medium like language. But its history reveals that money is a very different matter. It is an institution engineered by political communities to mark and mobilize resources. As societies change the way they create money, they change the market itself – along with the rules that structure it, the politics and ideas that shape it, and the benefits that flow from it.

Federal and state Medicaid officials should widen access to prescription drugs that could cure tens of thousands of people with hepatitis C, including medications that can cost up to $1,000 a pill, health care experts have told the White House. The experts, from the Public Health Service and President Obama’s Advisory Council on H.I.V./AIDS, said that restrictions on the drugs imposed by many states were inconsistent with sound medical practice, as reflected in treatment guidelines issued by health care professionals and the Department of Veterans Affairs. ...But Robert L. Greenwald, an expert on health law and policy at Harvard Law School, said: “These criteria defy clinical guidelines and best practices. Rather than recommending the exclusion of people who inject drugs, we should encourage earlier treatment as a way to prevent transmission of the virus.”

(Registration required) Whether the State Bar of California’s plan to require new attorneys to complete at least 15-credits of practical skills courses in law school is unduly restrictive or a needed step to ensure they have some real-world competencies depends on whom you ask—even within the same organization. The Association of American Law Schools is split over the bar’s proposal, with a coalition of law school deans in opposition and a group of clinical professors in favor. …The AALS Deans Steering Committee declined to retract its statement in opposition, according to an Aug. 5 letter from chairwoman and Harvard Law School Dean Martha Minow (left), and chair-elect and Northwestern University School of Law Dean Daniel Rodriguez. While the final version of the proposal represented an improvement over the initial draft, the group’s central concerns remain, they wrote.

As Floyd Mayweather Jr. and Manny Pacquiao met in a Las Vegas ring in May, another fight was being contested around the world. Instead of paying Showtime and HBO $89.95 to $99.95 to watch Mayweather beat Pacquiao or hundreds or thousands of dollars to get a ticket to the fight, viewers found a cheaper way to watch the historic bout. As in free. ... Some of the leagues that have yet to have a full season with Periscope in the mainstream are taking action to stop it.While NFL spokesman Brian McCarthy said the league was not worried about Periscope, the NFL has filed four copyright take-down requests to the app, according to the website ChillingEffects.org, an archive founded by Wendy Seltzer of Harvard’s Berkman Center for Internet & Society.

A large share of the presidential primary season debates will not be aired on free over-the-air broadcast networks. Of the 15 primary season debates, all but five will air on cable TV. That pattern has led Susan Crawford, a Harvard University law professor, to question whether there is something terribly wrong here. Crawford published a piece last week in Medium about the cable subscription fees necessary for interested voters to watch the debates in real time. She said it amounts to nothing short of a poll tax.

(Subscription required) Silicon Valley icon Lawrence Lessig knows his moonshot bid for the White House hinges on the innovation and support of the tech industry. Mr. Lessig, a 54-year-old Harvard professor who helped build cyber law, is exploring a run as a Democratic presidential candidate on a narrow platform: overhauling campaign finance law. To do that, he is relying on the Internet. He is crowdsourcing donations and polling his site’s visitors to choose his running mate. He said he is the first candidate to make his campaign entirely open source, in the hopes of collecting more data about potential donors and voters. “We don’t have the advantage of a candidate who has been on the field for the last four years, we don’t have the advantage of a reality TV candidate who is worth $10 billion,” Mr. Lessig said in an interview with The Wall Street Journal. “So one place we might get an advantage is with innovation for software that runs and drives the campaign.”

Her cookbook was a bestseller last year. Episodes of her online food series, “My Drunk Kitchen,” regularly go viral. And with more than 2 million subscribers, her YouTube channel is more popular than those of Jamie Oliver, Martha Stewart and Mario Batali combined. ...Online video has the advantage of customizing its output for target audiences. “There’s nothing fundamentally new about the phenomenon,” says Dan Gillmor of Harvard’s Berkman Center for Internet and Society. “We’ve been using online forums for a long time for the same purpose: to take a deep dive into arcane or niche subjects.”

... [A] whole range of people have used the term "anchor baby" this week in public discussions about Trump's immigration-related policy ideas -- ideas that include an end to the nearly 150-year-old practice of granting citizenship to anyone born in the United States. It's the former, known as "birthright citizenship," which is delineated in the 14th Amendment to the Constitution. And as all sorts of public figures have discussed the future of the 14th Amendment this week, the more colloquial -- many say pejorative -- term "anchor baby" has come up over and over again. But the anchor baby, while potent politically, is a largely mythical idea. ... Alternatively, these parents can apply for something even more rare: an extreme hardship exception, according to Deborah Anker, a clinical professor of law and director of the Harvard University Law School’s immigration and refugee clinical program. Very rarely they can apply for a waiver that may allow them to reenter the United States sooner, Anker said. But if that request is denied, there is no form of appeal available. Decisions are final.

An op-ed by Noah Feldman: Who is blowing up Egypt? Thursday's car bombing in Cairo, which destroyed a national security force building and injured dozens, will be just a blip on the international headlines. But the bombing, along with a string of similar attacks, matters existentially in Egypt, where it's the latest episode in a mounting campaign since the army deposed elected president Mohamed Mursi in a coup d'etat two years ago. The answer, so far at least, isn't what you might expect -- or what Abdel-Fattah El-Sisi's government would have you believe. There's little evidence that the attacks are coming from the Muslim Brotherhood, the now-outlawed party of the former president. Instead they seem mostly to be coming from far more radical jihadi forces based in the Sinai desert, who have recently been identifying themselves with Islamic State. Indeed, Islamic State claimed responsibility for the latest attack.

An op-ed by Noah Feldman: When I was a student in a private religious school, I looked with envy on the First Amendment rights of public school children, who couldn’t, I imagined, be disciplined for what they said off campus. Now a divided U.S. Court of Appeals for the 5th Circuit has held that I was wrong. According to the appeals court, a student can be suspended for posting rap lyrics on Facebook and YouTube that threatened a teacher at the school, because the speech was predictably disruptive. Depending on how Thursday's decision is interpreted, it could be used to limit students’ off-campus political speech in cases where no threat existed at all.