Media Mentions

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.

An op-ed by Noah Feldman. House Democrats who’ve been interfering with President Barack Obama’s ability to negotiate the Trans-Pacific Partnership are missing something very important: The trade deal isn’t primarily significant because of the economy. It matters because it’s part of the broader American geostrategic goal of containing China -- which pointedly hasn’t been invited to join the TPP. In the new cool war, China’s rising economic influence is giving it greater geopolitical power in Asia. The TPP is, above all, an effort to push back on China’s powerful trade relationships to reduce its political clout. By weakening Obama’s ability to pursue it, congressional Democrats are unintentionally weakening the U.S. side in the cool war.

An op-ed by Noah Feldman. Deposed Egyptian President Mohamed Mursi has been sentenced to death on trumped up charges. Will he be executed? The most likely answer is that, under guidance from President Abdel-Fattah El-Sisi, an appeals court will commute the sentence to life in prison.

As a public defender, Andrew Manuel Crespo ’05, J.D. ’08, met his first client on Christmas Eve 2011. Handcuffed and shackled, the client had just celebrated, in juvenile lockup, his eighth birthday. Seated, his feet didn’t touch the floor. “I remember walking in and just being stunned,” recalls the newly appointed assistant law professor. “Like, this is my job now: I represent eight-year-olds who are in handcuffs.” A two-time Supreme Court clerk and the first Latino president of the Harvard Law Review, Crespo aims to interrogate the gap between the criminal-justice system’s ideals and its reality.

For decades, "transracial" has been used by academics, groups, parents and their adopted children to describe the adoption of a child that is racially different than the adoptive parents. But the term is now being used to describe Rachel Dolezal, a former NAACP chapter president who made international headlines in recent days when she was outed as a white woman posing as black...Elizabeth Bartholet, a law professor at Harvard Law School, has a birth child as well as two children she adopted from Peru. Bartholet said she identifies as the mother of all three of her children, no matter their cultural background. “But that doesn’t mean I’m going to say to people, ‘I was born Peruvian,’” she said in a telephone interview Wednesday. Bartholet, who specializes in child welfare and adoption, said parents should embrace the cultures of their transracial adopted children without having to lie about their own racial identity.

Most parents will do just about anything for their children, especially when it comes to education. Predictably, at a time when college costs are exploding and students are staggering under more than $1 trillion in debt, one opportunistic lender is making huge profits on loans to their doting moms and dads. Less predictably, that lender is the United States government...Toby Merrill, who runs a Harvard-affiliated legal services clinic that focuses on predatory lending, recalls one ready-to-retire borrower who contacted her after running up $150,000 in PLUS debt on three children. “The question was: What are my options?” Merrill said. “It was sad, because the answer was: You don’t really have options.”

An op-ed by Cass Sunstein. In recent years, the federal government has adopted a large number of soft interventions that are meant to change behavior without mandates and bans. Among them: disclosure of information, such as calorie labels at chain restaurants; graphic warnings against, for example, distracted driving; and automatic enrollment in programs designed to benefit employees, like pension plans. Informed by behavioral science, such reforms can have large effects while preserving freedom of choice. But skeptics deride these soft interventions as unjustified paternalism, an insult to dignity and a contemporary version of the nanny state. Some people fear that uses of behavioral science will turn out to be manipulative. They don’t want to be nudged. But what do Americans actually think about soft interventions?

In the fall of 1987, a package arrived on the desk of Laurence H. Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony M. Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause. The package was sent by one of the most influential men in the California capital then, Gordon Schaber, a law school dean who had enlisted a young Mr. Kennedy to teach night classes and nurtured his career. Now Mr. Schaber was angling for President Ronald Reagan to elevate his friend to the Supreme Court — and he wanted the Harvard professor’s support. “Gordon Schaber said that Tony Kennedy was entirely comfortable with gay friends,” said Professor Tribe, who later testified to urge the Senate to confirm Justice Kennedy. “He said he never regarded them as inferior in any way or as people who should be ostracized, and I did think that was a good signal of where he was on these matters.” Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage, Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay rights icon. At 78, he has advanced legal equality for gays more than any other American jurist, making his friend Mr. Schaber, who died in 1997 — and who was, many who knew him believe, a closeted gay man — look prescient.

A letter by Charles Fried. Since Buckley in 1976 through Citizens United in 2010, the Supreme Court has struck a balance between the protection of the free-speech rights of persons and even corporations, and assuring elections that aren’t corrupted by vast amounts of dark money from a few people. The court has struck that balance by drawing a sharp line: Contributions to parties and candidates may be limited and controlled, but individuals and corporations may speak freely so long as they do so openly and independently of the parties and their candidates.

...What is the role of the library in the information age — is it a repository for the great art, a building with free web access, or — as was the initial intention — a place for learning and research? Can it adapt to changing times while staying true to its original mission? Jonathan Zittrain is the director of the Harvard Law School Library, and the author of "Why Libraries (Still) Matter." "Libraries are often the places of last resort to find that thing that nobody bothered to hang onto, but that they later regret losing," Zittrain said Tuesday on Boston Public Radio. "That's kind of the Norway seed bank — that after the apocalypse we can reboot everything courtesy of a handful of the libraries of last-resort, of which the Boston Public Library is also thought of [as] one."

It was called the “blood oath”. The management team of Sandy Weill, an architect of the modern Citigroup and mentor to Jamie Dimon, had to commit not to sell any shares until they left. In their decades as partnerships, Goldman Sachs and Morgan Stanley bankers had no need to open their veins. Holding equity until retirement was a binding legal restraint. But that practice is not universal on Wall Street. A Financial Times analysis of insider selling at the six biggest US banks since the 2008 crisis shows that many of the current crop of executives have offloaded millions of dollars worth of stock each year...However, Lucian Bebchuk, director of the corporate governance programme at Harvard Law School and a former adviser to the US government’s “pay tsar”, argued there should be tighter restrictions on the amount of annual selling by executives. “When bank executives have substantial freedom to unload equity incentives given to them as part of their compensation, and when executives can be expected to make significant use of their freedom to unload such equity incentives, the executives’ pay arrangements produce distorted incentives to engage in excessive risk-taking,” he said.

An op-ed by Rachel Sachs, Academic Fellow. In March, the Supreme Court heard oral arguments in King v Burwell, a case that could broadly impact the functioning of the Affordable Care Act (ACA). The central question in King v Burwell is whether the federal government may provide subsidies for citizens to purchase health insurance on exchanges that were established by the federal government, rather than by their own state...Three years ago, it was clear from both the oral argument and opinions in NFIB that the justices did not fully appreciate the health policy consequences of their ruling. Yet in the oral argument in King, the justices displayed a much more sophisticated understanding of the law, and the opinions in King will likely display that understanding. A key fact driving this changed understanding is the way in which law professors contributed to the case, both in the public discourse and more formally before the court.

Journalists, librarians, and others pleaded with Massachusetts court officials Monday afternoon to expand Internet access to court records and data, following in the footsteps of the US government and many states. But other legal advocates and attorneys warned that putting too much information online could embarrass people or make it harder for them to find housing or jobs...Melinda Kent, president of the Law Librarians of New England, said providing greater access to online court records could also enable librarians to provide more aid to students, professors, and litigants representing themselves. “This can alleviate the burden on court clerks and other court staff,” she said...Esme Caramello, deputy director of the Harvard Legal Aid Bureau said some landlords have blacklisted tenants listed in eviction proceedings online.

The International Criminal Court was created in 2002 with an audacious promise: to go after the biggest perpetrators of crimes against humanity and those who commit genocide. But so far, it seems, the arm of international law has been able to reach only those who have few powerful friends to protect them...Given its inability to arrest suspects on its own, said Alex Whiting, a former attorney with the I.C.C. prosecutor’s office and now a law professor at Harvard, the International Criminal Court “will only be as relevant as the international community allows it to be.” South Africa was only the most recent country to let Mr. Bashir visit and leave without arrest. It was a reminder, Mr. Whiting argued, of how hard the court must work to overcome the perception that it is targeting only Africans — and a reminder of how justice cannot be meted out unless the world powers invest in it.

What is more unexpected: that Jewish author A.J. Jacobs, known for his ambitious lifestyle experiments, has some Asian and Scandinavian roots? Or that rapper Ludacris is 1/16th Jewish? These are the types of questions that were raised by the Global Family Reunion on June 6, a Comic Con-esque celebration of the advancement of genealogy technology. People from countries as far away as New Zealand and Brazil, along with a diverse cast of celebrity speakers and musicians, gathered on the grounds of the New York Hall of Science in Queens, New York to emphasize one basic but uplifting idea: that we’re all more related than we thought...Cass Sunstein, a prominent Harvard Law School professor – and Jacobs’ first cousin once removed – perhaps best summarized the sentiments behind the project after his talk. "We tend to think of members of our family as people we protect and sacrifice for and care for, and that tends to be limited to a very small group,” Sunstein told JTA. “But if you think of the extent to which your connections are much broader and more surprising than you know, then maybe those feelings of generosity and kindness can broaden.” Well said, professor.

It is relatively unsplashy, as these things go — not very long, not very elegantly written, just 3,500 or so words of Medieval Latin crammed illegibly onto a single page of parchment. But Magna Carta, presented by 40 indignant English barons to their treacherous king in the 13th century, has endured ever since as perhaps the world’s first and best declaration of the rule of law, a thrilling instance of a people’s limiting a ruler’s power by demanding rights for themselves...“It’s a mistake to think that a document’s importance can be measured solely by the immediate context in which it’s produced,” said Noah Feldman, a professor at Harvard Law School. Magna Carta’s resonance, he continued, “doesn’t rest on what King John and those particular barons were doing at that particular time, but on the length of the legacy in using and interpreting and holding up this document as a banner for the rule of law.” Scholars who say that the claims for Magna Carta are exaggerated, he added, are merely following academic fashion. “Among historians it’s the cool thing to say,” he said. “It’s precisely from the capacity it’s had over this 800-year period of functioning as a rallying cry, a symbol, an ideal of the rule of the law that it’s important,” Dr. Feldman said. “No other document in world history has been able to function in so many times and places as the epitome of that ideal.”

Steep downward revisions to oil and gas reserves at the end of this year are likely to increase scrutiny of how energy companies tally future barrels - a process that has become more opaque with the rise of shale drilling...Bala Dharan, a professor at Harvard Law School, said that while progress was made after the 2009 SEC changes, more could be done. "The next step would be to look at the feasibility of requiring more widespread adoption of external review," he said.

An op-ed by Noah Feldman. North Carolina just passed a law that allows magistrates to refuse to perform gay marriages -- or any others -- if the marriages violate their religious beliefs. It’s a terrible idea, of course, allowing public employees to skip out on their official obligations based on their private beliefs. But is it unconstitutional? And if so, why?