Media Mentions

An op-ed by Noah Feldman. What determines whether the police have used excessive force on a detainee: the officers’ beliefs about their own actions or the assessment of a reasonable observer? It’s hard to imagine a more important question after the events of the past year in Ferguson, North Charleston and Staten Island -- and on Monday the U.S. Supreme Court held in favor of the objective observer, not the subjective mindset of the officers.

An op-ed by Noah Feldman. Chief Justice John Roberts just saved the Affordable Care Act -- again. If you’re feeling déjà vu, you’re not alone. As he did in 2012, Roberts defected from his conservative colleagues and joined the court’s liberals in refusing to send Obamacare into a death-spiral. In King v. Burwell, Roberts has now cemented his reputation as a true believer in judicial restraint -- perhaps as the only justice who still believes in it. And this time, he was given cover by Justice Anthony Kennedy, making the vote 6-3.

An op-ed by Cass Sunstein. In recent months, universities have turned their attention to an important problem that should be included in our national effort to examine and root out bigotry. They have identified, and attempted to reduce, "microaggressions" -- words or behavior that might stigmatize or humiliate women or members of minority groups, with particular emphasis on African-Americans, disabled people, and gays and lesbians. The effort has admirable goals, but there is a risk that schools will overshoot the mark.

An op-ed by Cass Sunstein. Thursday's Supreme Court decision to uphold a pivotal regulation under the Affordable Care Act is, of course, a tremendous victory for the Barack Obama administration. But it also establishes a principle that's likely to haunt future presidents...The underlying question is which branch of government has the power to interpret ambiguous legislation. Since the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, the executive branch has been allowed to adopt its own interpretations, as long as they're reasonable. And because so many laws are ambiguous, this "Chevron principle" has given great authority to executive agencies and the president.

Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, explains to WGBH Morning Edition host Bob Seay, the inner-workings of the U.S. Supreme Court on the day the court issued its decision on the Affordable Care Act.

Here’s a twist for the Obama administration as it awaits a U.S. Supreme Court decision on the biggest environmental rule of its first term: A loss shores up the legal basis of the biggest environmental rule of the second term. The high court is set to decide as soon as Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic pollutants emitted from coal-fired power plants...To be sure, a loss at the Supreme Court could still set a bad precedent for any future case over the EPA carbon rule, and might not result in a clear repeal of the mercury rule. “The rule in the past has been: Ambiguity favors the agency,” said Jody Freeman, a Harvard law professor who has contended that Tribe’s argument is wrong. “If the court changes its mind, it would signal that it is not in an especially deferential mood, which is not a good sign.”

Retired federal Judge Nancy Gertner joined WBUR to discuss Dzhokhar Tsarnaev’s apology to bombing victims and Wednesday’s sentencing hearing.

More than two years after he and his brother planted two bombs on the Boston marathon finish line, and following a months-long trial that sentenced him to death, Dzhokhar Tsarnaev broke his silence for the first time—to apologize....But will his last minute apology save his life? Former federal judge Nancy Gertner says maybe. “He couldn’t make it worse. He could only make it better,” says Gertner, a professor at Harvard Law School. “The defense really has to humanize Tsarnaev at every turn.”

Two legal heavyweights are poised for battle over just how far the city of Berkeley, Calif. can go in compelling speech by mobile phone retailers...In the other corner, representing Berkeley, is Harvard Law School Professor Lawrence Lessig...‘‘I know both Ted Olson and Larry Lessig well and think extremely well of them both. Both of them are extremely smart, imaginative lawyers who are bound to do excellent work in this lawsuit,’’ Laurence Tribe, another constitutional law professor who works with Lessig at Harvard, told Bloomberg BNA.

Palestine will turn over its first batch of documents to the International Criminal Court's prosecutor on Thursday, part of an effort to steer a preliminary inquiry that could eventually see both Israelis and Palestinians brought under investigation for war crimes..."I think the UN report was not particularly surprising," Alex Whiting, a professor at Harvard Law School who previously worked at the ICC, told VICE News. "It was expected that it would reach those kinds of conclusions, but it certainly adds to the momentum of moving this forward."

A federal judge Tuesday that Education Management Corp. ’s debt restructuring violated the rights of bondholders that didn’t support the deal, forcing the for-profit education company to continue making payments on bonds owned by a hedge fund...Mark J. Roe, a professor at Harvard Law School, said the said the ruling could have broader restructuring implications even though Education Management, as an educational institution, couldn’t use bankruptcy effectively. “Firms often would like to restructure outside of bankruptcy,” he said. “This opinion will make restructurings more difficult for bondholders due to the Trust Indenture Act.”

Google’s decision to remove “revenge porn” from its search results is the latest in a string of efforts made by Internet companies to help thwart harassment online, and a win for advocacy groups that have been working on the issue. But any decision by Google to limit its search results automatically sends ripples through First Amendment circles. To get a sense of what this means for Google and the rest of us, we asked Andy Sellars, a First Amendment Fellow at Harvard’s Berkman Center for Internet and Society, to walk us through the issue.

President Obama seemed to relish the chance to take yet another swipe at the Supreme Court justices who were deliberating a case that could determine the fate of his landmark health-care law...In reality, though, it is unlikely that any of Obama’s statements on the court or its decisions — the longest of which clocked in at just over three minutes — had much impact on the court’s decision in the most recent Obamacare case. “I don’t think it does anything,” said Charles Fried, a Harvard Law School professor who served as Ronald Reagan’s solicitor general. So why does Obama sound off? “Probably because he thinks it,” Fried said. “It’s hard not to think about these things. Whether it is a good idea to be so explicit is another question entirely.”

...The idea of money generating trust — rather than perhaps a decay of human morals — is a long-time mantra for Corey. But it’s now proven true in a series of economic experiments. When researchers at Chapman University created two economies in a lab — one in which the entire fabricated society would benefit by giving away valuables and another relying on a currency for such exchanges — it was the paying-people who were willing to trust new people...And while money is most certainly empowering and important, says Christine Desan, a Leo Gottlieb law professor at Harvard University, it’s still necessary for societies to manage relationships with money. One stark example is the unmonitored lending policies that, in part, led to the national real estate crash. And societies might do well restricting certain transactions — such as limiting political contributions, she says. “It’s not an ‘on-off’ switch, she says. “Once you have a public resource to make exchanges, there are many decisions on how to design and manage it.”

California's health insurance exchange wants to know why you got sick this summer. With 1.4 million people enrolled, the state-run marketplace is embarking on an ambitious effort to collect insurance company data on prescriptions, doctor visits and hospital stays for every Obamacare patient...Glenn Cohen, a professor at Harvard Law School and expert on the ethics of using healthcare data, said the lack of an opt-out was troubling because many exchange customers don't have the option to shop elsewhere. Nearly 90% of Covered California customers receive a federal premium subsidy, and they can access those tax dollars only through the exchange. "I worry about these people being a captive audience," Cohen said. "The more voice you give to patients in this process, the more ethically justified you are doing this with big data."

An op-ed by Cass Sunstein. Under the Constitution, the U.S. government cannot deprive people of “liberty” without “due process of law.” Clear enough? Clearly not. For more than a century, the Supreme Court has been sharply divided over what "liberty" means. Today’s immigration decision puts those divisions in sharp relief. With their sweeping opinions, Antonin Scalia and Stephen Breyer led the two poles -- but Anthony Kennedy’s appealingly minimalist view carried the day.

An op-ed by Noah Feldman. The Supreme Court reversed one death penalty sentence Thursday while upholding another. Both decisions were 5-4, and eight of the justices voted consistently in the two cases, either for capital punishment or against it. The swing voter, in the majority both times, was -- you guessed it -- Justice Anthony Kennedy. The result is a continuation of the court’s positively contradictory death jurisprudence -- which reflects, come to think of it, our collective national inconsistency on the topic.

An op-ed by Noah Feldman. One of the hardest distinctions for students of the First Amendment is the one between content-based speech regulation and viewpoint-based regulation. It’s not the students’ fault: The U.S. Supreme Court’s own doctrine has been maddeningly vague about when and why government regulation of speech triggers the “strict scrutiny” of the court that is usually fatal to such regulation. Is the problem that the government is choosing what to regulate based on its content? Or is the real problem that the government wants to favor one viewpoint over others?

An op-ed by Noah Feldman. When was the last time Justice Clarence Thomas provided the decisive fifth vote to the U.S. Supreme Court’s four liberals -- to decide against free speech? I can’t think of one, but that’s what happened Thursday in the court’s decision in Walker v. Sons of Confederate Veterans, better known as the Texas license plate case.

An op-ed by Noah Feldman. The U.S. Supreme Court just made it much easier to prosecute child abusers. In principle, that’s a good thing. But it came at the expense of weakening the constitutional right to confront your accuser in court -- and that’s unfortunate. In a fascinating twist, the court’s aggressive opinion, by Justice Samuel Alito, brought out the ire of Justice Antonin Scalia, revealing the growing split between the old-line conservative and his younger counterpart, the man who was once humorously nicknamed “Scalito.”

An op-ed by Noah Feldman. Is an Uber driver an employee, as the California Labor Commission has ruled, or an independent contractor, as Uber maintains? You don’t have to be a lawyer to have an opinion, and now that school’s out, I asked two associates who happened to be with me as I was reading the labor commissioner’s decision. The 8-year-old said that Uber isn’t supervising the driver, so Uber isn’t the employer. The 9-year-old said Uber can fire the driver if the driver’s rating gets too low, which sounded more like Uber was the boss.