Media Mentions

An op-ed by Noah Feldman. The U.S. Court of Appeals for the D.C. Circuit is often called the second highest court in the land, because its judges decide most of the important cases involving the vast reach of the modern administrative state. Every so often, however, the U.S. Supreme Court likes to remind the D.C. Circuit who’s the boss by reversing one of its administrative law principles. That happened Monday, in a 9-0 decision in which the court repudiated a perfectly serviceable doctrine the D.C. Circuit invented and has used sensibly since 1997. The decision won’t make headlines -- but it’s wrong anyway, and it gives far too much power to administrative agencies.

An op-ed by Cass Sunstein. Is law just a form of politics? Is the Supreme Court highly politicized? If you focus on the court’s anticipated divisions over Obamacare and same-sex marriage, you probably think so. But the court’s two dissent-free decisions Monday offer a different picture. They are a triumph for the ideal of a Supreme Court that focuses on law.

...The legal profession is due for a rethink. There’s a new idea on how to do that, and it starts with flipping the legal education on its head. Rather than teach students the law and how to apply it to the world, they want students to focus on problems — income inequality, climate change, racism — then see how they can use the law to solve them. It’s called systemic justice and it’s a new program at Harvard Law School. Guests: Jon Hanson, professor at Harvard Law School and faculty director of the Systemic Justice Project. Jacob Lipton, program director of the Systemic Justice Project.

An op-ed by Lani Guinier. I was raised from an early age to be skeptical of how admission to elite schools works. My father, a black man who had been accepted to Harvard College in 1929, was told on arrival that he was not eligible for scholarship aid because he had not submitted a photograph with his application. He was also not allowed to live in the dormitories. This, he later discovered, was a ruse to discourage his matriculation. Harvard’s official policy was one in which “men of white and colored races shall not be compelled to live and eat together nor shall any man be excluded by reason of his color.” But Harvard’s unofficial policy was to admit one black student per class — a policy it had inadvertently exceeded by accepting my father’s photograph-less application. Harvard University no longer excludes people because of their color; nor does it reject students who come from poor or working class families. But, like other elite universities, Harvard’s official policy still remains far removed from how it unofficially admits students.

In the third season of "House of Cards," President Frank Underwood attempts a clever scheme to fund his $500 billion America Works jobs program...Simultaneously, he tries to convince Congress to cut Social Security drastically. The fictional president aims to reallocate all that money to fund the biggest jobs program since Roosevelt's New Deal. Leaving aside whether this is a good idea, we wanted to know if it would be possible. The answer we got from a number of legal experts was surprising...Gutting Social Security and using the money for a jobs program would require Congressional support, and the show gets that much right. It would be difficult to get that support — but it would be possible. Laurence H. Tribe, a Constitutional law professor at Harvard and a devoted fan of the show, explains how hard this would be: If money for a program like Social Security has been appropriated by a Congressional enactment, there is only one Constitutional way for the Treasury Department, under the direction of the President, to spend it on some different program, like the hypothetical “America Works” of the imaginary Underwood administration in House of Cards.

“Sir, when did you first meet Tamerlan Tsarnaev?” asks prosecutor Mary Kelly. It’s the fall of 2013 and Mustafa Ozseferoglu, then 29 years old, is sitting before the U.S. Immigration court in Boston with his hands cuffed behind his back and a chain tied around his waist. He’s representing himself...Even though the appeals court argued that Ozseferoglu had an “obligation” to come forward, failing to inform on your old co-workers is not a crime. “It is a crime not to tell on your neighbors in Soviet countries but not here,” according to former federal judge and Harvard law professor Nancy Gertner.

Last week’s oral arguments in King v. Burwell suggest that the United States Supreme Court will uphold the Affordable Care Act, according to several Harvard Law School professors...“I would say for people who hoped that the Court would permit the subsidies to be paid, it was a very encouraging oral argument,” said Richard H. Fallon, a law school professor...In particular, professors said Kennedy’s line of questioning suggests that he could vote to uphold the ACA. Einer R. Elhauge, a professor at the Law School, said it seemed “very likely” that Kennedy would vote to uphold the law as it exists now, providing the required fifth vote...Noah R. Feldman ’92, another professor at the Law School, also identified Kennedy as a potential vote in favor of the Obama Administration. “The clear news was that Justice Kennedy is thinking seriously about a problem with the challengers’ interpretation,” he said...For his part, University Professor Laurence H. Tribe ’62 predicted a 6-3 decision in favor of upholding the ACA.

An op-ed by Cass Sunstein. The controversy over Hillary Clinton’s use of a private e-mail account while serving as secretary of state raises issues that go beyond partisan positioning and any single official. The issue involves the arcane area of records management and its complicated role in the era of electronic communications. As a starting point, the idea of transparency is helpful, but it is far too simple to capture all the values and interests at stake. The public and the government alike benefit from clear, simple rules designed to increase efficiency, reduce costs and protect the historical record.

Just months after the Obama administration cracked down on mergers that helped U.S. companies skirt domestic taxes, a wave of foreign takeovers is steering more tax revenue away from Uncle Sam. In deals known as “tax inversions,” which spiked in 2014, U.S. companies acquired foreign rivals and redomiciled in low-tax countries, reducing the taxes paid back home. ...Taxes “aren’t the afterthought” anymore in deal making, said Mihir Desai, a Harvard business and law professor, at a recent tax conference. “They are, in fact, a leading thought in the design of these [cross-border] transactions.”

The Justice Department’s scathing Ferguson report shows that the government is paying attention, Harvard law scholar Charles Ogletree told DW. He says Ferguson is not an isolated case and suggests what to do about it.

Dzhokhar Tsarnaev’s defense attorney, Judy Clarke, stunned a packed courtroom in Boston this week when she admitted that her client committed the Boston Marathon bombing and is responsible for a “series of senseless, horribly misguided acts.”...“Some juries come to a guilty verdict, but then exercise leniency in the second phase,” said Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School. “If you plead guilty, you lose that compromise possibility.” In federal death-penalty cases, juries must go through two related trials: the first to decide if the defendant is guilty and the second to decide if the defendant, once found guilty, should be sentenced to death.

Over the past decade, companies doing business in Colombia, like Chiquita Brands and Dole Food, have incurred the wrath of Terrence Collingsworth, a lawyer who has accused them of mistreating workers or conspiring to kill labor activists. But these days, Mr. Collingsworth is on the defensive...The problems engulfing Mr. Collingsworth underscore the mounting difficulties facing a small group of plaintiffs’ lawyers who have carved out a niche suing multinational corporations on charges that they violated human rights overseas...“The bar has been set higher,” for human rights litigation, said Susan H. Farbstein, a law professor at Harvard.

Turning the tables on a federal judge’s ruling, the Alabama Supreme Court has closed the doors to gay and lesbian couples in the state who want to be married...Until then, “the situation is pretty chaotic,” said Laurence Tribe, a Harvard constitutional law professor. “We may have a kind of patchwork quilt in Alabama,” with other federal judges issuing their own marriage orders, he said. And if the state court tells judges to ignore those orders, he said, “we could have the kind of confrontation we had in Little Rock in 1957,” when Arkansas Gov. Orval Faubus defied a federal court school desegregation order.

While multiple requests by the defense team of Dzhokhar A. Tsarnaev, the main suspect in the 2013 Boston Marathon bombings, to relocate his trial have been denied, some Harvard Law School professors say the defense had legitimate qualms with the trial unfolding in Boston...“If there ever were a case for a change of venue, this is it,” said Nancy Gertner, a faculty member at the Law School and former U.S. District Court Judge for the District of Massachusetts. Law school professor Ronald S. Sullivan Jr. attributes the defense’s repeated requests to relocate the trial to the far-reaching impact that the bombing and the subsequent manhunt had on the Boston community...According to Harvard Law School professor Alex Whiting, judges deciding whether or not to relocate a trial must weigh a set of “competing interests.”

This is a corrected version of a story that originally appeared in News@Law on 3/4/15. Congressman Paul Ryan and other influential Republicans sketched out plans Tuesday for how they'd deal with a Supreme Court ruling that cancels Obamacare's subsidies in many of the states, saying they could use such a decision to create a "bridge" to end the health law for good...Matthew Lawrence, an academic fellow at Harvard Law School who teaches a seminar on Obamacare, said the presence — or lack thereof — of a congressional fix could impact how the justices view the case. "The more probable a congressional fix, the more compelling the argument in favor of strict adherence to the words of the statute becomes," Mr. Lawrence said.

Almost two years after a pair of homemade bombs brought terror and carnage to the Boston Marathon, the trial of Dzhokhar Tsarnaev opened on Wednesday with the dramatic admission by his lead defense lawyer that her client had in fact set off the blasts that killed three people and injured scores of others. ... Nancy Gertner, a former judge who teaches at Harvard Law School, called it brilliant. By conceding that her client had committed the crimes, Ms. Gertner said, Ms. Clarke was trying to limit the painful, graphic details the government could bring up to undermine any sympathy for Mr. Tsarnaev. Because Ms. Clarke is not disputing the crimes, Ms. Gertner said, those details are no longer relevant. “The question now is, how far will the government go to prove what she has essentially conceded?” Ms. Gertner said.

When Islamic State militants overran northern Iraq late last year they captured enough weapons and equipment from fleeing Iraqi forces to supply three combat divisions. Could remotely operated kill switch technology on weapons stop the same thing happening in future? Antony Funnell investigates.... Watching such developments from his office in Boston, Harvard University law professor Jonathan Zittrain began thinking about the need for smarter weapons: weapons that could be disabled remotely if and when required. His inspiration was right in front of him.‘I was reflecting on the fact that companies like Apple have implemented kill switches for iPhones,’ says Zittrain, the director of the prestigious Berkman Center for Internet and Society. ‘If somebody boosts the phone from you, all is not lost. You can remotely disable it using your own Apple credentials to make it a much less enticing target to steal.

This is one of the conclusions of an analysis carried out, over a decade of records, on three global law firms and on other multinational professional firms by Heidi Gardner, a law lecturer at Harvard Law School. Ms Gardner says: ‘Moving beyond siloed services to complex, interdependent engagements allows a professional services firm to work for more senior executives in a client’s organization, who have a greater span of responsibility and greater authority and budget to hire external advisers.’

An op-ed by Noah Feldman: Beyond the technicalities of guns to the head and standing, a profound issue lies at the heart of the King v. Burwell case that the U.S. Supreme Court heard Wednesday -- and for a few shining moments, the justices debated it. That question can actually be put rather simply: What should happen when Congress writes a law with some internal incoherence? Should the courts assign a sensible meaning to the statute that makes everything come out right? Or should they follow the strict words of the law, and let the chips fall where they may? To be sure, the liberal justices don’t want that to be the issue. Neither does Solicitor General Don Verrilli, and neither do the liberal law professors who want Obamacare to survive. All of them are clinging to the fiction that the text of the statute produces the conclusion they want. That view was on display as Verrilli doggedly insisted that the words “established by the state” don’t literally mean what they say, but rather mean “established by the state -- or by the federal government on its behalf.”

In a white, perfectly circular rotunda at the Reagan International Trade Center, military officials and foreign policy experts gathered at the New America/ASU Future of War Conference. They sat at perfectly circular white tables, ate from perfectly circular white plates, and tried to create a perfectly precise definition of war. Yet the age of Clausewitz is over, a panel found. No longer is war only an act of physical violence, as Clausewitz theorized. In the future, what defines an act of war will become increasingly non-violent....“Where I think the line drawing could happen is the element of control over other people.” said Naz Modirzadeh, the Founding Director of the Program on International Law and Armed Conflict at Harvard Law School “The law on armed conflict is about when you control other people.”

The curtain abruptly fell Wednesday on Alabama’s brief experiment in same-sex marriage. Across the state, all 48 county probate offices that had been issuing marriage licenses to same-sex couples decided they could no longer do so, according to a survey by the Human Rights Campaign, a gay rights group. ...Several legal analysts said that while Alabama justices might have had the legal authority to essentially contradict a lower federal court’s ruling, it was nonetheless stunningly provocative, given that many observers expect the United States Supreme Court to rule in favor of same-sex marriage for all 50 states when it takes up the matter this year. “This is thumbing the nose of the Alabama Supreme Court at the U.S. Supreme Court, but it’s not directly defying it,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “It’s coming as close to contemptuous defiance as it could possibly come without actually leaping directly into the pit.”