Media Mentions

An op-ed by Noah Feldman. Every so often when you’re watching a Supreme Court oral argument, you wish desperately that you could hit the pause button, take the lawyer aside and explain exactly what the lawyer should be saying in order to win the case -- and then hit play again. Reading the transcript of yesterday’s argument in Rodriguez v. U.S., a case about the permissibility of bringing a dog to sniff the car after a traffic stop, I had that feeling in spades. The lawyer for the petitioner, Dennys Rodriguez, was Shannon P. O’Connor, the first assistant federal public defender in Omaha, Nebraska. Sometimes the justices take it easy on a lawyer who isn’t part of the elite Supreme Court bar. This was not one of those times. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy whipsawed O’Connor. Justice Sonia Sotomayor tried to help him out, at times literally giving him the answer he needed.

The government has now filed its brief responding to the challengers in the King v. Burwell lawsuit, which claims the Affordable Care Act doesn’t make subsidies available to people in states on the federal exchange...Many observers expect Roberts to be the pivotal vote in this case. Harvard professor Laurence Tribe recently published Uncertain Justice, an excellent examination of the Roberts Court, in which he argues that Roberts saved the law the first time around — in NFIB v. Sebelius — by creatively resolving a dilemma he faced...I spoke to Tribe about the current dilemma Roberts faces as he prepares to hear King v. Burwell; an edited and condensed version of our conversation follows.

Three dozen Harvard Law School professors on Thursday rallied to the defense of their emeritus colleague, Alan M. Dershowitz, who last month was named by a woman as one of several men with whom she allegedly had sex as a minor. Coming one day after the woman filed a sworn statement repeating her allegations, the statement by the law professors sharply criticized the woman’s lawyers for making the allegations in a lawsuit to which Dershowitz is not a party. As a result, he is not able to make a direct response in court.

Executives from Target and Home Depot were not present at the World Economic Forum, where world leaders and corporate titans are rubbing shoulders and debating weighty issues. Yet the names of those two companies are being invoked several times a day here, held up as examples of early victims in the growing battle against cybercrime...Jonathan Zittrain, a Harvard University professor of law and computer science who will also be on the panel, said he hoped industry professionals could begin to make gradual fixes to the Internet that would make all companies more secure. Small improvements, like software that detected unusual patterns in Internet traffic or suspicious attempts to access data, could help stop hackers before they caused too much damage. Such small, incremental steps could make the web gradually safer for individuals and companies, and less friendly to hackers, Mr. Zittrain said. “This is a moon shot going one step at a time, rather than fling a missile and hoping it hits,” Mr. Zittrain said.

An op-ed by Tommy Tobin [`16]. What if 5 percent of all the jobs in your workplace were left unfilled? Projects would still need to get done. Each worker would need to take up the slack for the missing employees until the posts were filled. For the federal judiciary, this is not just a hypothetical situation — it’s a lived reality every day. With more than 40 vacant seats on the federal bench, our judicial branch is under substantial strain.

An op-ed by Noah Feldman. American commentators were quick to dismiss Paris Mayor Anne Hidalgo’s threat to sue Fox News over its false and mistaken claims that certain areas of the city were “no-go zones” for non-Muslims. It’s true that Fox News doesn’t broadcast in France, and also true that in the U.S. a municipality ordinarily can’t sue for defamation. But these objections are really beside the point of the threatened suit: How should the news media be policed to stop them from making stuff up? If you think the answer is always “more speech,” think again. The U.S. system has always recognized a role for the courts -- and common sense suggests that, sometimes, the threat of liability might actually be necessary to make the system work.

An op-ed by Noah Feldman. The U.S. Supreme Court struck a blow for whistle-blowers today -- but it had to resort to extreme formalism to do it. By a 7-2 vote, the court reinstated a disgruntled Transportation Security Administration employee who was fired for telling MSNBC about plans to get air marshals off overnight flights from Las Vegas. Instead of issuing a ringing defense of free speech, the court held in Department of Homeland Security v. MacLean that the disclosure wasn’t prohibited by law, only by an internal TSA regulation. Reaching that conclusion demanded the court to read the relevant laws literally. Justices Sonia Sotomayor and Anthony Kennedy both dissented -- a weird arrangement that raises interesting possibilities for the Obamacare case the court will decide later this year.

An op-ed by Noah Feldman. Judicial elections are idiotic -- but 38 states have them in some form. The U.S. Supreme Court grappled yesterday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

A row has broken out between leading US law school professors and SEC Commissioner Daniel Gallagher after he co-authored an article with Stanford professor Joseph Grundfest making allegations about Harvard’s Shareholder Rights Project. The Shareholder Rights Project is part of the Harvard law faculty and is run on a pro bono basis to help students get to grips with corporate governance practices.

The Legal Services Center of Harvard Law School has released a Know Your Rights video series consisting of 97 videos informing Massachusetts residents of their legal rights when faced with foreclosure or eviction. The videos are a product of the Mattapan Initiative — a free legal services anti-foreclosure and eviction defense program created in 2013 in response to the foreclosure crisis that ravaged the Mattapan section of Boston, as well as other low-income neighborhoods throughout Massachusetts...Attorney Roger Bertling, Director of the Mattapan Initiative and Director of the Consumer Protection/Predatory Lending Clinic at the Legal Services Center, says “we created these videos in hope that they’ll be used as a resource for distressed homeowners. The mission of the Legal Services Center is to protect the legal rights of the communities we serve, and as an extension of that mission, these videos are available to help people make informed decisions regarding their foreclosure or eviction.”

Tuesday's State of the Union address was the first since 2001 to not mention al-Qaeda. It opened with the promise of a post-post-9/11 era...Jack Goldsmith, a Harvard Law professor and former Bush administration official, believes Obama's call for Congress to authorize force against ISIS isn't sincere. Writing the morning after the State of the Union, he noted that the administration hasn't submitted draft language for a new AUMF to Congress, as the Bush administration did in 2001. But he also speculated that the U.S. government's expansive use of the 2001 AUMF since 9/11 may have had a chastening effect on Obama, who is wary of releasing another vaguely worded authorization into the wild:

Following a Supreme Court decision last Friday to hear arguments on the issue of same-sex marriage, several Harvard Law School professors predict that the Court will grant a historic constitutional right to same-sex marriage nationwide, but they say a more moderate outcome remains a possibility...“I would guess that the best reading of the tea leaves is that there will be five votes upholding a right to gay marriage,” Richard H. Fallon, a Law School professor, said. He along with Charles Fried and Michael J. Klarman, also Law School professors, identified Justice Anthony Kennedy as the potential “swing vote.”...Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 echoed the prediction in an email, writing that the he thinks the Court will “hold that the U.S. Constitution requires universal marriage equality.”...Mark V. Tushnet ’67, a Law School professor and former Supreme Court clerk, said that the addition of the second question allows the Court to “deal with the issue comprehensively, no matter the which way the first question came out.”

The proposals by David Cameron, the UK prime minister, to make illegal forms of encryption that would block intelligence services from reading messages from terrorist suspects were criticised yesterday in by a group of Harvard professors....Jonathan Zittrain, a professor of law and computer science, said that the proposals, which Mr Cameron has pledged to implement if he is re-elected as prime minister this year, would have a huge impact on the way that the digital economy worked. “This is not just about hardware but software. You would have to find a way for a phone not to be able to download any app that could defeat [the breaking of] encryption,” he said. “That would be a referendum on our entire ecosystem.”

Harry Belafonte, an icon of American stage and screen with a lifelong commitment to social activism, recalled his experiences during the civil rights movement at a Chancellor’s Lecture Series event Jan. 13 in Langford Auditorium. Vanderbilt Chancellor Nicholas S. Zeppos and award-winning historians Annette Gordon-Reed and Michael Beschloss joined Belafonte for a far-reaching conversation on the history, legality and politics surrounding the Voting Rights Act of 1965, which marks its 50th anniversary this year...Black legal scholars began assembling cases, including 1954’s Brown v. Board of Education, to chip away at segregationist laws and usher in the sweeping social legislation of the 1960s. “But law always has its limitations, so direct action comes in and helps,” Gordon-Reed said. “Law legitimizes things, but they both have to work together.”

Of the more than 1,300 people called as potential jurors for the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev, more than 100 have already been dismissed. The remainder are being individually questioned by lawyers on both sides, giving us a glimpse into how their pasts and possible prejudices could impact this case. WGBH News special correspondent Emily Rooney and Harvard Law School professor Ronald Sullivan Jr. gave insight into the process.

Todd Bowles had at least six interviews for N.F.L. head coaching jobs over the past five years. After each interview and rejection, he called an adviser to report who had been present, what questions had been asked, how long the interview had lasted and how he had performed....Charles Ogletree, a professor at Harvard University’s law school and the founder of the Charles Hamilton Houston Institute for Race and Justice, embraces the rule. But he said that it had not corrected the wide disparity between the numbers of black players and black coaches. “There is a big difference between interviewing and hiring,” Professor Ogletree said. “There has just been too little effort in that regard. There needs to be more hiring in a significant way, and not just because they are black, but because they are talented and do well when they get those jobs. There is no acceptable reason for this underrepresentation.”

The annual Word Economic Forum in Davos is a renowned event that engages political, business, academic and other leaders of society in shaping a collaborative global agenda. This year's program appears even more stimulating than usual, covering a variety of technology topics and featuring a whole section devoted at exploring tomorrow's online issues...Jonathan Zittrain, co-founder at Harvard's Berkman Center has spent many years researching the future of the Internet, and his 2009 book (under the same title) provides an important and still current overview of the Net evolution and its most urgent problems -- such as privacy, copyright, security and related regulations. In June 2013, Jonathan Zittrain co-authored also a pivotal report produced by the Council on Foreign Relations, directed by Adam Segal and involving also Professor Anne-Marie Slaughter (New America Foundation) -- "Defending an Open, Global, Secure, and Resilient Internet". The report proves still very relevant, especially for its detailed analysis about the many reasons preventing US and Europe in establishing a shared approach to address and draft common regulations about the Internet.

Two Harvard Law School professors -- one a former federal judge -- and a national defense lawyer organization want to help former governor Bob McDonnell win bond pending his appeal...Nancy Gertner, a former federal judge in Massachusetts now a senior lecturer at the Harvard Law School, and Charles J. Ogletree, who also teaches there and is the executive director of the Charles Hamilton Houston Institute for Race and Justice, filed papers Tuesday siding with McDonnell...In their brief filed Tuesday, Gertner and Ogletree wrote that they intend to file a brief urging McDonnell's convictions be reversed and argue that the "official act" question is a substantial one.

As the Harvard-led academic crowd continues to fire salvos at a Republican Securities and Exchange Commission chairperson, the debate over what will either benefit corporate management, keeping board of director positions more secure, or activist investors such as Bill Ackman, making board structures weaker, hangs in the balance. Boston University Law School Professor Tamar Frankel was the latest to fire a salvo directly at SEC Commissioner Dan Gallagher. In a post on titled “What Sitting Commissioners Should and Shouldn’t Do,” Frankel again used a Harvard Law School blog to launch his attack of Commissioner Gallagher. Frankel says that it was improper for Gallagher to publish accusations against specific individuals or organizations unless that took place as part of an SEC process. The spat started when Gallagher and Joseph Grundfest, a Stanford professor, published an academic report questioning if the Harvard Shareholder Rights Program violated federal securities law.

An op-ed by Cass Sunstein. As recently as 20 years ago, it would have been pretty preposterous to argue that the U.S. Constitution requires states to recognize same-sex marriages. But there is a good chance that this summer, the Supreme Court will rule that it does. To the many people who believe in judicial restraint, or in following the original understanding of the document, such a dramatic shift in the Constitution’s meaning is alarming, even illegitimate. Are they right? A vivid answer can be found in an important but widely neglected speech from one of the greatest figures in the history of America law: Justice Thurgood Marshall.

An op-ed by Noah Feldman. On the surface, there was not much noteworthy about the U.S. Supreme Court's decision today in Holt v. Hobbs except maybe that a Muslim won a religious liberty case in the infidel West. The Arkansas prison regulation that prohibited prisoners from growing beards was silly. The court applied the federal Religious Land Use and Institutionalized Persons Act to hold that Arkansas didn't have a compelling interest in the rule and failed to adopt the least restrictive means necessary to avoid a religious burden. Deep in the weeds of the decision, however, lurk signs of a much bigger project being pursued by Justice Samuel Alito and other members of the court. Step by step, the justices are expanding the logic of religious exemptions from otherwise neutral laws. Over time, this is leading to a de facto reversal of the Supreme Court's doctrine that ordinarily denies religious exemptions under the Constitution.