Media Mentions

An op-ed by Noah Feldman. Think affirmative action is controversial in the U.S.? The American debate is nothing compared with the fight over caste-based preferences in India, where police smashed heads in the aftermath of last week's 500,000 strong anti-preference rally in Gujarat.

An op-ed by Noah Feldman. What’s so special about religion? When it comes to exemptions from general laws, whether regulating gay marriage or contraception, no question is more important -- or more complicated. The federal district court in Washington answered that question Monday by saying religion is nothing special. The court held that the Department of Health and Human Services is obligated to give the same exemption to a nonreligious group that has a principled reason to deny its employees contraceptive health-care coverage that the department already gave to religious groups with analogous views. This conclusion was almost certainly correct as a matter of moral logic. But it’s far from clear that it was correct as a matter of law.

An op-ed by Noah Feldman. There’s no free speech in front of the U.S. Supreme Court -- or so says the U.S. Court of Appeals for the D.C. Circuit, which on Friday upheld a 1949 law that says you can’t assemble or display signs on the plaza in front of the courthouse. The decision contradicted a 2002 ruling by the same court that allowed free speech on the grounds of the U.S. Capitol, just across the street from the court. It rested on a combination of architectural analysis and insistence that judges and courts should be more insulated from the public than politicians and legislators. With all due respect to the D.C. Circuit, architecture is beside the point.

As Harvard moves into the new academic year, it faces mounting scrutiny into an aspect of its admission process that administrators have long held is central to fostering diversity in its student body—race-based affirmative action...“What Harvard stands to lose...is the most efficient and direct route to achieving racial diversity,” said Tomiko Brown-Nagin, a professor at Harvard Law School and expert in education law and policy. Other methods universities can use to foster campus diversity, such as ramping up recruiting efforts to high schools with many minority applicants, are much less time- and cost-effective, she said.

An op-ed by Ronald Sullivan Jr. The meme “All Lives Matter” is yet another effort to undermine legitimate calls to end antiblack police practices that characterize far too many interactions between police and citizens of color. Covered with a veneer of neutral and inclusive language, this mantra cleverly hides an intent to silence those who insist that police treat black citizens justly. Perhaps the cry “All Lives Matter’’ would register as genuine if police unions expressed the same opprobrium when a fellow officer kills a person of color as they do when an officer is killed. But this rarely happens. Instead, police unions tend either to support or remain deafeningly silent when their own misbehave.

...This year’s list of Legal Rebels continues our tradition of celebrating those men and women who are remaking their corners of the legal profession–finding new ways to practice law, represent their clients, adjudicate matters and train the next generation. This year’s Rebels–nominated by our readers and staff–are a diverse group tackling many different challenges, but all using smarts and commitment to accomplish goals for practitioners and clients...Sure, it’s annoying when you click on a link and get that “404” message or an automatic redirect to the homepage. But when it comes to legal research, dead links aren’t just annoying; they can undermine the entire premise of an opinion, article or treatise. Hoping to end this type of “link rot,” Harvard University Law School came up with Perma.cc—an archival tool that allows users to submit their links to Harvard’s library to be permanently preserved. The idea was the brainchild of Jonathan Zittrain, a professor of international law who became director of the Harvard Law School Library two years ago.

The “Deflategate” scandal comes to a head in federal court on Monday as lawyers for Patriots quarterback Tom Brady and the NFL commissioner square off one more time before the judge deciding whether to uphold the star’s four-game suspension for underinflated footballs. ... Legal experts, though, say that despite judge’s stern words, Mr. Brady faces long odds. That’s because courts generally are very reluctant to undo a final, binding arbitration decision, even one they view as seriously flawed. “It’s an extremely high bar,” said Peter Carfagna, a former outside counsel to the Cleveland Browns who directs Harvard Law School’s sports law clinic.

The night out on Martha’s Vineyard in July 2014 probably seemed innocuous at the time — a gathering over lobster rolls, a documentary screening at the local film society, followed by a panel discussion about the film. But a year later, concerns about US Senior District Judge Mark L. Wolf’s interactions that night have disrupted perhaps the most high-stakes case pending in federal court in Boston: Wolf is weighing whether his involvement as the film panel moderator, and his interactions with a panelist who may now be a witness in the death penalty trial of serial killer Gary Lee Sampson, have created an appearance of a conflict of interest so strong that he should recuse himself from the case. ... Nancy Gertner, a retired US District Court Judge who now teaches law at Harvard University, said that “the rules of recusal have to be reasonable.” “Judges don’t live in a vacuum, and there are a range of issues that come up, and where does this sit on that range?” she said. “If appearance is interpreted as anyone might see a problem, that’s a standard that is way too big. It has to be a standard of reasonableness.”  

With little fanfare, the Obama administration has been pursuing an aggressive campaign to restore protections for workers that have been eroded by business activism, conservative governance and the evolution of the economy in recent decades. In the last two months alone, the administration has introduced a series of regulatory changes. Among them: a rule that would make millions more Americans eligible for extra overtime pay, and a guidance suggesting that many employers are misclassifying workers as contractors and therefore depriving them of basic workplace protections. That is an issue central to the growth of so-called gig economy companies like Uber. ...“These moves constitute the most impressive and, in my view, laudable attempt to update labor and employment law in many decades,” said Benjamin I. Sachs, a professor at Harvard Law School and a former assistant general counsel for the Service Employees International Union. The goal, he said, is to “keep pace with changes in the structure of the labor market and the way work is organized. That’s a theme that runs through all of this.”

... William & Mary Law School will host the "12th Annual Brigham-Kanner Property Rights Conference" on Oct. 2. Topics to be addressed at the event include property as a form of governance; civil forfeiture of property; pipelines, drilling and the use of eminent domain; and property rights in the digital age, according to a news release. During the conference, the William & Mary Property Rights Project will recognize Joseph William Singer, of Harvard Law School, with the 2015 Brigham-Kanner Property Rights Prize. The prize, named in honor of the lifetime contributions to property rights of Toby Prince Brigham and Gideon Kanner, is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights, according to the release.

After six days of evidence heard from 16 witnesses in the St. Paul’s School rape trial, the jury has acquitted 19-year-old Owen Labrie of three felony charges of sexually assaulting a now 16-year-old fellow former student at the New Hampshire prep school. ... As of 1995, the state determined that a person is guilty of sexual assault if “the victim indicates by speech or conduct that there is not freely given consent.” “What’s most interesting about this case is that it would not have been brought ten years ago, and not because of any changes in law but because of changes in attitude,” Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, told The Daily Beast.

Whereas Kenya feels that it was duped to support amendment to Rule 68 of the International Criminal Court Rules of Procedure and Evidence on the basis that it would not apply 'retrospectively' an international law expert says there was no agreement that it cannot be used in ongoing cases. Harvard University law professor Alex Whiting says if the Assembly of State Parties (ASP) wanted it not to be applied on ongoing cases, it could have stated so. "When the ASP adopted the new Rule 68, it did not say that the new rule would not apply to ongoing cases (and it could have said this). Instead, all it said is that under the Statute, new rules cannot be applied "retroactively to the detriment of the person who is being ... prosecuted," he says basing his argument on Article 51(4) of the Rome Statute.

An op-ed by Noah Feldman:  The battle for Baiji, site of one of Iraq’s major oil refineries, is heating up again. Since May, Islamic State fighters have been chipping away at the Iraqi government’s control. Now it seems possible that the empty city and the shuttered refinery could fall. Iraqi Prime Minister Haidar al-Abadi visited the battlefield this week and emphasized the site’s strategic importance to retaking Mosul. What he didn’t say was that Islamic State’s offensive on Baiji is part of its grand strategy to develop domestic sources of revenue that would help make it a functioning state, instead of a would-be state attempting to achieve legitimacy by beheadings and religious fervor.

An op-ed by Noah Feldman: After the correction comes the nationalism. China's market meltdown portends a potentially dangerous rise in nationalist sentiment likely to be whipped up by leaders both in China and in the U.S. The motives on each side are slightly different: China's leaders need to shore up the legitimacy of Communist Party rule as growth slows, while Republican presidential candidates need to criticize the Democratic administration on foreign policy without mentioning the Middle East. But there’s an underlying symmetry that's highly worrisome. On both sides, nationalism is a proven strategy for generating popular support while changing the subject. On China’s side, the equation is pretty simple. The Chinese Communist Party’s legitimacy doesn’t come from communism. It comes from economic growth, which is slowing. Even if the stock market’s losses don’t directly affect most Chinese, the sharp market decline is likely to be felt in the real economy.  

For most foodies, sharing a snapshot on Instagram and writing a Yelp review is a must. But a Charleston, S.C., steakhouse warns patrons to think twice before turning to the Web. Post something nasty, and you could be sued. A “dining contract” sent to guests making a reservation for five or more people includes a clause stating they “may be held legally liable for generating any potential negative, verbal or written defamation against Grill 225,” The Post and Courier reported Tuesday. So, should serial Yelpers beware? Not so fast. This is “watered-down legalese that means nothing,” said Andy Sellars, a fellow at Harvard Law School’s Cyberlaw Clinic, calling it a free speech issue. Defamation — which comprises a false statement of fact, made knowingly, that can be proven to cause harm — is already a civil wrong, thus rendering the clause in Grill 225’s policy unnecessary and “profoundly stupid,” he said. "If I said the service was terrible — ‘terrible’ is an opinion, you can’t sue someone for that,” he said, noting that a quick scan of Grill 225’s Yelp reviews show them to be quite opinion-laden. “Very few reviews would actually be defamation.”  

(Registration required) The U.S. Supreme Court this term will decide whether its 2012 ban on mandatory life without parole sentences for juvenile murderers is retroactive. But some of those offenders and their lawyers hope for more from the justices. The high court has had several opportunities since its ruling in Miller v. Alabama to take up the question of its retroactive effect, but for unknown reasons, it passed until Montgomery v. Louisiana. The justices will hear arguments in Montgomery on Oct. 13. ... In an amicus brief supporting neither side, Harvard Law School’s Charles Ogletree, on behalf of the Charles Hamilton Houston Institute for Race & Justice and the Criminal Justice Institute, proposes: “A more straightforward way to resolve the case would be to answer the question this court has explicitly left open: whether ‘the Eighth Amendment requires a categorical bar on life without parole for juveniles.’”

Homeless youth are a sad but very real fixture in Harvard Square and two recent Harvard grads, motivated by that grim reality, have gone about creating a shelter for them. Set to open in November, the shelter is meant to provide beds to homeless youth between 18 and 24 years old, a population that advocates say lacks an adequate number of beds specifically set-aside for them. ... A unique twist on the youth shelter, which will be housed in the 4,725 square foot basement of the First Parish Church, is that it will be staffed by and run by about 30 student volunteers, most of them from Harvard. The volunteers will provide everything from case management to legal aid, courtesy of Harvard Law School.

An op-ed by Noah Feldman: Arkansas, which is poised to erect a new Ten Commandments monument on the grounds of its state capitol, has just rejected a request by a Hindu group to erect a statue of the god Hanuman there. Constitutionally, the rejection is permissible: The U.S. Supreme Court permits the government to pick and choose what symbols it wants to project in public space. But turning down a statue of the Hindu deity with the jaw of a monkey also calls into question the constitutionality of the Ten Commandments statue -- because the government can’t endorse one religion at the expense of others. Confused? I hope so. If you aren’t, you get an A in constitutional law -- but something’s gone wrong with your logic function. The Supreme Court’s twin doctrines on government speech and endorsement of religion are in tension with each other, as the Arkansas situation shows.  

An op-ed by Noah Feldman: Ohio is considering legislation that would ban abortion, even before viability, if the reason for the termination is that the fetus has Down syndrome. On the surface, the law seems blatantly unconstitutional: The U.S. Supreme Court has affirmed a woman’s basic right to be free of any “undue burden” on terminating her pregnancy before viability. And no one doubts that the proposed law is intended as part of a broader legal attack on Roe v. Wade. Yet on closer examination, the legal issue is more complicated. Seven states have laws banning abortion aimed at selecting the sex of a child. These laws are arguably constitutional, and haven’t been struck down by the courts. The argument in favor of those laws is that the state has a compelling interest in combating sex discrimination. It seems possible that countering discrimination against those with Down syndrome is a compelling interest on par with combating discrimination against women.

An op-ed by Cass Sunstein: Within the past year, a new catchphrase has come to dominate political discussion, certainly on the left: “The system is rigged.”  Senator…

Christine Desan, teaches about the international monetary system, the constitutional law of money, constitutional history, political economy, and legal theory at Harvard Law School. In this podcast we discuss her new book, Making Money: Coin, Currency, and the Coming of Capitalism (Oxford University Press, 2015). Per the books jacket, "Money travels the modern world in disguise. It looks like a convention of human exchange – a commodity like gold or a medium like language. But its history reveals that money is a very different matter. It is an institution engineered by political communities to mark and mobilize resources. As societies change the way they create money, they change the market itself – along with the rules that structure it, the politics and ideas that shape it, and the benefits that flow from it.