Media Mentions

After the terror in Paris, most Democrats and Republicans agree that America should end the Islamic State. Even the socialist Democrat, Bernie Sanders, has called on America to lead a coalition to rid the world of this caliphate. ...So far, Congress has been too divided on exactly what it wants this war to be. When Obama presented his AUMF in February, Congress couldn't agree on key questions like the war's duration, scope and ground troops. But this was largely what Harvard Law professor Jack Goldsmith has called a "faux debate." Obama never proposed scrapping the 2001 AUMF, which already gave him and his successors broad authorities to wage a war on terror with no temporal or geographic limit. Nor did Obama's AUMF limit his Article II constitutional authority as commander in chief of the military. Goldsmith says the safest course would be to use the 2001 AUMF as a model, but include the Islamic State in addition to al-Qaida.

In a rare public appearance on the evening of November 20th, John Roberts, the chief justice of the United States, gave a talk at the New York University School of Law. The subject of the chief’s presentation was one of Mr Roberts’s predecessors: Charles Evans Hughes, the white-bearded, aquiline-nosed figure who steered the Supreme Court through the fraught New Deal era in the 1930s. ... Martha Minow, dean of the Harvard Law School, wrote recently that Mr Roberts has, “right from the start”, shown “mastery and deft management” in his leadership of the Court. A couple of somewhat intemperate dissents to one side—in the same-sex marriage case last summer, he wrote that “[f]ive lawyers have closed the debate and enacted their own vision of marriage, [s]tealing this issue from the people”—Ms Minow’s assessment is just about right.  

Taking a leaf out of the American Civil Rights Movement’s book, Roma rights activists undertook a legal battle in European courts to challenge the pervasive discrimination that has kept them living on the fringes of society...Roma right activists filed a complaint in 1999 before the European Court of Human Rights saying that Roma students were 27 times likelier than non-Roma children to be placed in substandard schools...“It shook the system,” said Adriana Zimova, J.D.’11, a human rights attorney from Slovakia and a Roma rights activist...Zimova spoke last week at Harvard Law School about the challenges of fighting human rights abuses against the Roma.

In an effort to help borrowers struggling to repay student debt, Attorney General Maura Healey on Tuesday announced a new student loan assistance unit and a crackdown on unlawful debt relief companies...Students and advocates who joined Healey in her office for the announcement also praised the new hotline as a means of providing borrowers with information they otherwise may have difficulty obtaining. “Because access to legal advice is so hard to come by, people essentially are unable to enforce their legal rights, so their legal rights disappear,” said attorney Toby Merrill, the director of Harvard Law School’s Project on Predatory Student Lending.

Since 2013, energy companies that report their hydraulic fracturing chemicals to the FracFocus website have become less forthcoming, increasingly citing the use of proprietary compounds to limit disclosure, according to a new study from the journal Energy Policy. The paper, written by two Harvard University researchers, is the most comprehensive analysis of FracFocus to date...Corresponding author Kate Konschnik, director of Harvard Law School's Environmental Policy Initiative, said she was surprised to find that operators are increasingly unwilling to disclose chemicals. Konschnik said she had expected to find a "growing comfort level" as more states moved toward adopting FracFocus as a regulatory portal.

Harvard Law School Professor Richard Lazarus joined via Skype to talk about Chief Justice John Robert’s approach to opinion writing assignments and other administrative tasks.

Tomiko Brown-Nagin analyzes Brown v. Board of Education in C-Span's Landmark Cases series.

A book excerpt by Lawrence Lessig. Tweedism corrupts representative democracy. Not in a criminal sense, but in a design sense. Tweedism defeats the design weakens the dependency a representative democracy is meant to create. That systemic defeat is “corruption.” This is a particular way to understand the idea of “corruption,” as a way to understand the corruption of Congress. When we ordinarily use the term, “corrupt” is something we say of a person. And when we say it of a person, we of a representative democracy, by introducing an influence that mean something quite nasty. A corrupt person is an evil person, for corruption is a crime. There’s no ambiguity or uncertainty in the term. Like the death penalty or pregnancy, “corrupt” in this sense is binary.

An op-ed by Noah Feldman. I come not to mock Ben Carson for forgetting that Thomas Jefferson was in France when the Constitution and Bill of Rights were drafted, but to thank him for (unwittingly) raising the topic. My thesis is this: We should be thankful Jefferson was away. Notwithstanding the genius of the Declaration of Independence, its principal draftsman had truly terrible views about what a constitution should be like. If we’d followed them, we wouldn't have the Constitution we revere. In fact, I don't think we’d have much of a constitution at all.

An op-ed by Noah Feldman. I’ll cheerfully admit that until last weekend I had no idea that Mississippi decides tied elections by drawing straws -- much less that other states flip a coin. The only comparable version of planned randomness I’d heard of was the ancient Greek practice of choosing annual leaders by lottery. My first instinct on hearing about the Mississippi State House election that was resolved Friday in favor of the Democratic candidate was that this arbitrary practice should obviously be changed. On reflection, I’m not so sure.

An op-ed by Cass Sunstein. The intensifying focus on terrorism, and on Islamic State in particular, poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. In both the U.S. and Europe, it’s worth asking whether that test may be ripe for reconsideration.

Americans, if your postprandial football game or James Bond movie marathon is interrupted — again and again — by presidential primary ads on Thursday, do not blame Citizens United, the 2010 Supreme Court ruling that opened a gusher of campaign cash. Blame instead a little-reported lower-court decision argued just days after Citizens United, which gave rise to the phenomenon of the super PAC, and which the Supreme Court, surprisingly, has never reviewed....Harvard Law professor Laurence Tribe last week called it “comical” that super PAC contributions would be treated differently than contributions to the candidates themselves, since the supposed independence of the committees is little more than a fig leaf...The situation may be comical, but it’s also deeply damaging; Tribe called it “the plutocratic takeover of our politics.” Along with two other constitutional scholars who spoke on a panel convened by the campaign reform organization Free Speech for People (and which I moderated), Tribe believes that the SpeechNow decision is vulnerable to being overturned should a challenge be brought to the Supreme Court.

An op-ed by Diane Rosenfeld. The documentary film “The Hunting Ground” exposes the systemic problem of campus sexual assault. Through harrowing narratives of student-survivors, we see the profoundly devastating effects that one act of sexual violence can have on a victim’s entire educational trajectory. It is all too prevalent on college campuses and represents a massive deprivation of women’s civil rights to educational equality. Those who argue that sexual assault cases involving college students should simply be handled by the criminal justice system are missing the critical point that schools have legal obligations to enforce the civil rights of students.

An op-ed by Noah Feldman. The Nuremberg trials opened 70 years ago, on Nov. 20, 1945 -- with every prospect of ending in disaster. Nuremberg was the first time in modern history that the victors of a war decided to treat a defeated European enemy as criminal. The prosecution faced one overwhelming problem: There was no clear legal authority to say that starting a war was a crime under international law. Today we often think of the Nuremberg trials as having been about the Holocaust. But in fact the prosecution team, led by U.S. Supreme Court Justice Robert Jackson and including British, French and Russian lawyers, focused on the theory that Germany’s crime was to have engaged in “aggressive war.”

Half the state governors in America are constitutionally ignorant or shamefully demagogic. Most likely it's the latter, but some may be both..."I've gotten past the point of being astounded by grandstanding," constitutional scholar Laurence H. Tribe told me. "I'm sure they know better. But by their calculations, they have nothing to lose by joining a bandwagon that can't move. "It's not something a governor who cares about the law would do in great conscience, but I wonder how many governors really give a damn." I asked Tribe, a Harvard constitutional law professor who has argued scores of cases before the U.S. Supreme Court, whether governors have any control over immigration. "None," he replied. "Absolutely none. Federal law is supreme."

An op-ed by Lecturer on Law Norm Champ. In recent testimony before the House Financial Services Committee, David Grim, the director of the Securities and Exchange Commission’s Division of Investment Management, said the agency is working on a proposal that if adopted would “establish a program of third-party compliance reviews for registered investment advisers.” The third-party reviews would not replace examinations conducted by the SEC, but would “supplement them in order to improve compliance by registered investment advisers.” The SEC only examines about 10% of investment-management firms in the U.S. each year, so the idea of forcing such firms to pay for third-party exams is appealing because it would increase the number of firms examined. Sounds sensible, but the unintended consequences need to be examined. Not that long ago the SEC turned its “gatekeeper” powers over to private parties—with disastrous results.

...Colleges and universities across the country are required by federal law to investigate and adjudicate whenever a student makes allegations of sexual misconduct. The procedures vary widely. Most schools hold disciplinary hearings, often made up of teachers and students, some with little training, acting as prosecutor, judge and jury..."The schools, upon receipt of the Dear Colleague letter and looking at its requirements, weren't completely sure of exactly how to comply, and so in many cases they did more than they necessarily needed to do," says Jeannie Suk, a Harvard Law professor and outspoken critic of the campus tribunals. "They kind of in a sense over-complied. Now, they bent over backwards, and then that's when they put in place -- kind of in a hurry -- these procedures that now don't respect fair process."

Issues of race and inclusion swept across Harvard late last week, with a College report on efforts to create a more diverse and inclusive campus, a demonstration and march in solidarity with the Black Lives Matter movement, an incident at Harvard Law School that spurred outrage and national attention, demands from students of Latin-American origin, and statements of support from University administrators. On Thursday morning, portraits of black professors on the walls of Wasserstein Hall at Harvard Law School had black tape across their faces. The incident prompted an ongoing police investigation and set off a wave of concern among students and University officials amid a growing movement for racial justice that is unfolding in colleges across the country. “It was an act of blatant racism,’ said Leland Shelton, JD’16, president of the Harvard Black Law Students Association. “I was taken aback that somebody had the audacity to do this.”

Carrying scales and wearing a blindfold, the image of justice has long symbolized judgment delivered without bias or prejudice. That was not the case for Victor Rosario. “The blindfold meant something different for me: that sometimes justice closes her eyes to the truth,” said Rosario, who served 32 years in prison for a crime he said he didn’t commit. Now 58 years old, Rosario was 24 when he was charged with homicide by arson in a Lowell fire that killed three adults and five children...The Law School hosted Rosario on Nov. 13 for a talk before students titled “Anatomy of a Wrongful Conviction: Why Did Victor Rosario Serve 32 Years in Prison for a Crime He Didn’t Commit?” His lawyers, Lisa Kavanaugh and Andrea Petersen, accompanied him to the event, which was sponsored by the Criminal Justice Program of Study, Research & Advocacy.

An op-ed by Antuan Johnson [`16], Alexander Clayborne [`16], and Sean Cuddihy [`16]. The Harvard Law School crest is a glorification of and a memorial to one of the largest and most brutal slave owners in Massachusetts. But Isaac Royall, Jr., was more than simply a slave owner; he was complicit in torture and in a gruesome conflagration wherein 77 black human beings were burned alive. This fact and others were absent from The Crimson’s recent editorial, “Recognizing History”—an erasure of history that shows precisely why the seal must be changed. Now that the Law School has been subject to an act of racism, we feel that it is more important than ever to bring this history to light. As the students of Royall Must Fall, we call on the Law School to confront and address this history, not to sanitize and ignore it.

When someone placed strips of black tape over the faces of black professors’ portraits at Harvard Law School on Thursday, many people were appalled. But Derecka Purnell, a black law student, said she wasn’t surprised. Purnell and other students of color said racism — intentional or otherwise — occurs frequently on campus. But unfortunately, they said, it often takes something as egregious as the tape incident for others to notice. “What’s happens is, it’s not public and ... it typically stays among the group that’s impacted,” Purcell, a second-year student from St. Louis...Law professor Ronald Sullivan Jr., whose portrait was among those defaced, said that in his 25 years as a student at the law school and now a professor and a housemaster, he could not recall any act that was as “boorish” as this. “To say that there is unfair treatment is not to say that these places were absolutely horrible and the experiences of black students were always intolerable,” Sullivan said in a telephone interview. “It is to say, however, that with all the progress we’ve seen, there are still areas that need to be addressed.”