Media Mentions

The federal government’s broadening interpretations of Title IX, the 1972 anti-sexual discrimination statute that applies to educational institutions, has raised concerns that the freedom of Catholic colleges and universities to teach and govern themselves according to the Church’s teachings on sexuality is at risk. At least five Catholic educational institutions are among a wave of Christian colleges and universities that have applied for Title IX exemptions, in the wake of the Department of Education’s Office of Civil Rights’ expansion of Title IX’s interpretation to include “discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”...Janet Halley, the Royall Professor of Law at Harvard Law School, told the Register that the improper application of Title IX does pose a threat to academic freedom on campuses and that “these problems are emerging all over the country.” “There is plenty of evidence that Title IX is being expanded in application, way beyond its proper legal scope,” she said. Halley explained this has happened in several steps. First, the OCR issued “non-binding advice documents” that do not have the status of legal regulation, but “massively expand the Supreme Court’s definition of sexual harassment.” “This creates a lot of confusion about what sexual harassment actually is,” she said.

The Boston Police Department has launched a mediation program aimed at reducing a backlog of routine complaints against officers — an idea first suggested a decade ago. Even though the number of complaints dropped in 2014, the time it takes to resolve the cases has frustrated both citizens and the officers who live in the shadow of possible action pending against them. Police officials hope that the program, which will be managed by the Harvard Mediation Program at Harvard Law School, will help clear less serious complaints quickly...“The goal is to ensure that citizens feel comfortable,” said Rachel A. Viscomi, the Harvard program’s assistant director. “The idea is to level the playing field.”

Hailing from Buffalo, a once-prosperous city in upstate New York, Steven Salcedo [`16] knew how a lack of continued economic development can hinder families and mire people in poverty and hopelessness. But it was only after he took a course at Harvard Law School (HLS) that Salcedo realized that lawyers could help foster better times for communities. “Lawyers can’t make economic development happen by themselves,” said Salcedo. “But we can contribute to help solve poverty by enabling people to do what they want to do. We’re like a bridge; we take them from where they are to where they want to be.” The class Salcedo took, “Community Enterprise Project of the Transactional Law Clinics,” allows HLS students to help small business owners, entrepreneurs, and community groups create businesses, obtain permits and licenses, and negotiate contracts and other transactional (non-litigation) services...Amanda Kool, an HLS lecturer on law and clinical instructor, directs the Community Enterprise Project. Under her supervision, students work out of HLS’s Legal Services Center in Jamaica Plain, dividing their time between assisting clients and partnering with community organizations on projects that address broader legal barriers to economic development in the community.

Harvard University Police Department has not identified the perpetrator responsible for the November vandalism of black Law School professors’ portraits and shuttered its investigation into the incident, ending more than a month of interviews and forensic examinations...Leland S. Shelton, the president of the Harvard Black Law Students Association, said he hoped HUPD had thoroughly investigated the incident. “I hope that this is a chance to move forward from last semester’s events,” he said...Alexander J. Clayborne, a student activist involved in Royall Must Fall, said the investigation’s conclusion does not mark an end to discussions of race on campus. "Racism on campus is the actual perpetrator,” Clayborne wrote in an email on behalf of Royall Must Fall. “While it would have been nice to catch the guilty party, until the University addresses its systemic racism, incidents like this are just going to keep happening.”

An op-ed by Noah Feldman. Is there a fundamental difference between war fought for reasons of belief and war fought out of self-interest? Is one more primitive than the other, or morally superior? These deep questions are raised by the finding of a mass grave from 10,000 years ago by the shores of Kenya’s Lake Turkana, now the earliest such site known. They also resonate in the debate about how seriously to engage Islamic State, and whether to employ means of warfare that would actually eliminate the group instead of just contain it. In particular, the fight against Islamic State involves the question of whether it’s good or right to go to war because the enemy is morally so bad.

An op-ed by Noah Feldman. I can’t be the only one who thinks they should bring back the original “Law & Order.” If NBC did, the show’s first case should be one that went on trial this week in a local court in Mineola, New York. A man has been charged with homicide in the death of a police officer who was hit by an SUV. The twist is that, when the crash happened, the defendant was leaning against the guardrail. He had been driving home from a night of drinking, got involved in a minor accident and was pulled over. The policeman was hit by a different car while investigating the crash. Is the homicide charge justified?

An op-ed by Jacob Gersen. In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault...There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.

As we reach the sixth anniversary of Citizens United two things are clear: (1) there's a dark money problem and (2) the SEC isn't helping to fix it yet. But it's also important to know that the SEC can still work on the issue despite a troubling rider added to the federal "cromnibus" budget...But hasty drafting has left the SEC some wiggle room. Harvard Law Professor John Coates has examined the budget language and believes the SEC can still work on the rule this year as long as the agency does not finalize it. And given that rule making processes can be long affairs (think of all the long delayed Dodd-Frank and Jobs Act rules), it would behoove the SEC to start work on corporate disclosure rules now, especially since 94 members of Congress have urged them to move ahead.

The automotive rules of origin in the Trans-Pacific Partnership (TPP) are most likely to hurt auto parts suppliers that are furthest removed from the finished vehicle or producers of materials that are less complex, easily shipped and face low-cost competition from Asia, according to industry, congressional and academic experts...U.S. steel producers are already facing a flood of imports, fueled largely by Chinese overcapacity. In addition, China over the past decade has emerged as a major supplier of auto parts to both the U.S. and Japan, and its share of those markets continues to grow for most products, according to data compiled by Harvard Law School Professor Mark Wu. China is the biggest supplier of brakes and wheels to the U.S. and Japan, and is also the largest supplier of auto body parts, airbags and miscellaneous parts to the Japanese market, the data show.

An op-ed by Hal Scott. Contrary to the views of Michael Lewis and other critics, America’s equity markets are not “rigged.” U.S. investors are actually much better off in today’s high-speed automated marketplace than they were in the old, largely floor-based markets when the NYSE and NASDAQ operated as virtual monopolies. Let’s take a look at the facts. The most important characteristic of strong equity markets is that they provide a fair marketplace for investors to buy and sell stock at the lowest transaction cost possible.

Almost all the major figures featured in the Netflix documentary Making a Murderer have been interviewed by various media outlets since the series premiered last month except for the man at the center of it all: Steven Avery. One reason for his absence: the Wisconsin prison system has so far declined to connect journalists to Avery."We are not facilitating interviews out of respect for the victims," Joy Staab, director of public relations for the Wisconsin Department of Corrections told The Hollywood Reporter on Tuesday...Harvard Law School professor and retired federal judge Nancy Gertner also said the explanation from the department of corrections was a new one for her. "According to very old law, the prison has a right to exclude cameras from the facility, but not to deny you a visit with a prisoner" [for an interview], Gertner said in an email. "But they have to be making decisions based on institutional concerns, concerns relating to the prison, not 'out of respect for the victims.'”

This history of Harvard Law School in its first century (1817-1917) appears at a time when several American colleges and universities are revisiting, and in some instances seeking to revise, their pasts. The revisionist impulses originate in a perceived dissonance between values currently endorsed by members of the educational institutions and the actions or attitudes of some of their prominent alumni or benefactors..But a challenge for those seeking to do serious historical scholarship remains: the need to understand the conduct of past actors before judging them by contemporary standards. When the scholarship is directed at the most visible law school in America, that challenge is accentuated. Daniel Coquillette and Bruce Kimball begin by noting that previous attempts to write the history of Harvard Law School have fallen into two categories: celebratory efforts glossing the school's accomplishments and minimizing its failures, and "attack histories" maintaining that the school's late-20th-century prominence was accompanied by the faculty's and administration's callous attitude toward students. Both sets of prior institutional histories, they conclude, "lack context and tend to be partisan, one way or the other."

An op-ed by Noah Feldman. Is the freedom of speech a right to speak? Or is it a right not to be punished by the government for what it thinks you’re saying? The difference may sound academic, but it isn’t for police officer Jeffrey Heffernan of Paterson, New Jersey, whose case was argued Tuesday before the U.S. Supreme Court.

Glenn Cohen liked The Martian, which this morning earned itself seven nominations in the Academy Awards, including a slot in the coveted Best Picture category. The Martian, Cohen says, was one of his top 15 movies of the year, “maybe top 10.” But Cohen isn’t a film critic. He’s a Harvard Law School professor who specializes in bioethics. And the narrative thrust of The Martian—a Herculean effort to save a stranded Matt Damon—tickled Cohen’s inner ethicist. Not long after seeing the film in theaters, Cohen wrote a short blog post titled “Identified versus Statistical Lives at the Movies.” In the post, Cohen argues that we latch onto individuals in peril when they have a name and face and become a sort of cause célèbre in the media. We will go to great lengths to save the identified individuals, financially and logistically. But when populations are in peril, when we’re presented with statistics rather than individuals, we’re less likely to take meaningful action.

An op-ed by Cass Sunstein. In last week’s State of the Union address, President Barack Obama appeared to get his biggest bipartisan applause for this line: “I think there are outdated regulations that need to be changed. There is red tape that needs to be cut.” Republican presidential candidates have spoken in the same terms, though more emphatically. One of their most urgent priorities is to reduce the stock of existing regulations, and slow the flow of new ones as well. Sure, Democrats like regulation more than Republicans do, but with the current focus on economic growth and national competitiveness, there’s both a need and an opportunity for bipartisan agreement here -- if not this year, at least in 2017.

An op-ed by Noah Feldman. Any remaining suspicion that the Supreme Court is soft on the death penalty should be dispelled by Wednesday’s judgment in two cases challenging capital sentences in Kansas. In an 8-1 decision, the justices reinstated death sentences that had been overturned by the Kansas Supreme Court. The state court had said that jurors must be told expressly that mitigating circumstances introduced by the defense didn’t need to be proved beyond a reasonable doubt, as findings for the prosecution must be proved. But the U.S. Supreme Court said no such instruction was necessary.

An op-ed by Noah Feldman. Who put the quid in the quid pro quo? Was it the same person who put the ram in the rama lama ding dong? The U.S. Supreme Court said Friday that it would consider a version of this eternal question in the appeal of Bob McDonnell, the convicted former governor of Virginia. To be specific, the court will decide whether the federal crime of bribing an official requires that the official actually do something specific in return for the bribe, or whether it’s enough for the official to do his usual job while generally hoping to influence policy in favor of the person who gave the bribe. The issue has major significance for all public officials -- and for the private actors who hope to influence them, whether legally or illegally.

As the 2016 election season ramps up, Harvard Law professor Laurence H. Tribe ’62 finds himself at the center of a political firestorm. Over the past month, Republican presidential hopeful and Law School graduate Ted Cruz denounced his former constitutional law professor Tribe as “a left-wing judicial activist” while speaking in a mid-January Republican debate, while rival candidate Donald J. Trump has tweeted and debated in support of Tribe...Tribe said he is not particularly invested in the question of natural born citizenship. Rather, Tribe said, his main interest is in “the Constitution and my sense of how dangerous it is when people play fast and loose with it in order to further their political positions.”

An op-ed by Einer Elhauge. The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak. The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.

An op-ed by Noah Feldman. Is the separation of church and state unconstitutional? You read that right. The U.S. Supreme Court said Friday that it would consider whether Missouri’s constitution, which bars state aid to religious groups, violates the U.S. Constitution by discriminating against religion. This claim sounds crazy, and to those who wrote the Missouri constitutional provision in the 1870s, it would’ve been. But the claim, in fact, isn’t utterly absurd -- if you consider the historical circumstances in which the provision was drafted.

An op-ed by Noah Feldman. We now have our major Supreme Court story of the year: The justices will review the constitutionality of President Barack Obama’s plan to defer deportations, stalled by the U.S. Court of Appeals for the 5th Circuit. The court’s decision to take the case, United States v. Texas, ensures major drama around the oral argument in April, and fevered anticipation in the run-up to the announcement of the court’s decision sometime in late June.